Food Act 2001

1 Name of Act This Act is the Food Act 2001.

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 relation to the sale of food; (c) to provide for the application in the ACT of the food standards code.

4 Dictionary The dictionary at the end of this Act is part of this Act. Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act. For example, the signpost definition ‘food—see section 8.’ means that the expression ‘food’ is defined in that section. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

5 Notes A note included in this Act is explanatory and is not part of this Act. Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Preliminary Part 1

5A Offences against Act—application of Criminal Code etc Other legislation applies in relation to offences against this Act. Note 1 Criminal Code The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1). The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability). Note 2 Penalty units The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

6 Application of Act to primary food production (1) The following parts do not apply in relation to primary food production: (a) part 7 (Improvement notices and prohibition orders); (b) part 8 (Registration of food businesses). (2) The functions given to authorised officers under part 5 (Inspection and seizure powers) and part 6 (Taking and analysis of food samples) may only be exercised in relation to primary food production— (a) to allow the investigation and prosecution of offences against this Act; or (b) in relation to the making or enforcement of emergency orders under part 4 (Emergency powers).

offence includes an offence that there are reasonable grounds for believing has been, is being, or will be committed. Note 1 The definition of food business excludes primary food production (see s 10). Note 2 A reference to an Act includes a reference to the statutory instruments

7 Application of Act to water suppliers (1) The following provisions do not apply in relation to the supply of water for human consumption through a relevant reticulated water system: (a) section 16 (Knowingly handling food in unsafe way); (b) section 18 (Knowingly describing food falsely); (c) section 22 (1) (which is about handling food in a way that will, or is likely to, make it unsafe); (d) section 23 (1) (which is about handling food in a way that will, or is likely to, make it unsuitable); (e) section 24 (Misleading conduct relating to sale of food); (f) section 25 (Sale of food not complying with purchaser’s demand); (g) section 26 (Sale of unfit equipment or packaging or labelling material); (h) part 7 (Improvement notices and prohibition orders); (i) part 8 (Registration of food businesses).

Preliminary Part 1 (2) Section 27 (Compliance with food standards code), to the extent to which it requires compliance with the requirements of the food safety standards, does not apply in relation to the supply of water for human consumption through a relevant reticulated water system. relevant reticulated water system means— (a) a reticulated water system provided by a utility under the Utilities Act 2000 that is licensed under that Act for the distribution of water through a water network; or (b) a reticulated water system provided by an entity prescribed by regulation for this paragraph; or (c) a reticulated water system that provides water to a place prescribed by regulation for this paragraph.

7A Application of Act to certain food businesses (1) This Act does not apply to a food business conducted by a volunteer for a community organisation to raise funds for 1 or more of the following purposes: (a) a religious, educational, charitable or benevolent purpose; (b) promoting or encouraging literature, science or the arts; (c) looking after, or giving attention to, people who need care because of a physical or mental disability or condition; (d) sport, recreation or amusement; (e) conserving resources or protecting the natural environment from harm; (f) preserving historical or cultural heritage; (g) a political purpose;

(h) protecting or promoting the common interests of the community generally or a particular section of the community. (2) However, this Act does apply to a food business mentioned in subsection (1) that is— (a) prescribed by regulation; or (b) conducted at a regulated event. Note A regulated event is declared by the Minister under s 91. (3) The Executive may make a regulation for subsection (2) (a) if the Executive considers it necessary for the protection of public health or otherwise appropriate. (4) In this section: community organisation— (a) means a not-for-profit entity; but (b) does not include— (i) a club that holds a licence under the Gaming Machine Act 2004; or (ii) an entity declared by the Minister not to be a community organisation. volunteer means a person who conducts a food business for which the person is— (a) not paid; or (b) paid in the circumstances prescribed by regulation. (5) A declaration under subsection (4), definition of community organisation, paragraph (b) (ii) is a disallowable instrument.

8 Meaning of food (1) For this Act, food includes— (a) any substance or thing of a kind used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared); or (b) any substance or thing of a kind used, or represented as being for use, as an ingredient or additive in a substance or thing mentioned in paragraph (a); or (c) any substance used in preparing a substance or thing mentioned in paragraph (a) (other than a substance used in preparing a living thing) if it comes into direct contact with the substance or thing mentioned in that paragraph, including, for example, a processing aid; or (d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; or (e) any substance or thing declared to be a food under a declaration in force under the Commonwealth Act, section 6 and prescribed by regulation for this paragraph; whether or not the substance, thing or chewing gum is in a condition fit for human consumption. (2) However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989 (Cwlth). (3) To remove any doubt, food may include live animals and plants.

9 Meaning of sell etc (1) For this Act, sell includes— (a) barter, offer or attempt to sell; or (b) receive for sale; or (c) have in possession for sale; or (d) display for sale; or (e) cause or permit to be sold or offered for sale; or (f) send, forward or deliver for sale; or (g) dispose of by any method for valuable consideration; or (h) dispose of to an agent for sale on consignment; or (i) provide under a contract of service; or (j) supply food as a meal or part of a meal to an employee, in accordance with a term of an award governing the employee’s employment or a term of the employee’s contract of service, for consumption by the employee at the employee’s place of work; or (k) dispose of by way of raffle, lottery or other game of chance; or (l) offer as a prize or reward; or (m) give away for the purpose of advertisement or in furtherance of trade or business; or (n) supply food under a contract (whether or not the contract is made with the consumer of the food), together with accommodation, service or entertainment, in consideration of an inclusive charge for the food supplied and the accommodation, service or entertainment; or

(o) supply food (whether or not for consideration) in the course of providing services to people in— (i) a correctional centre or lockup, or a detention place or intensive therapy place under the Children and Young People Act 2008; or (ii) a hospice, hospital, nursing home or other health facility operated by or on behalf of the Territory; or (iii) any other institution (however described) prescribed by regulation for this paragraph; or (p) sell for the purpose of resale. (2) For this Act, food or equipment that is displayed for the purpose of being offered as a prize or reward, or given away for the purpose of advertisement or in the furtherance of trade or business, is taken to have been displayed for sale by the owner of the food or equipment.

10 Meaning of food business For this Act, food business is 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; whether or not the business, enterprise or activity is of a commercial, charitable or community nature or whether it involves the handling or sale of food on a single occasion only.

11 Meaning of primary food production (1) For this Act, primary food production is the growing, raising, cultivation, picking, harvesting, collection or catching of food, and includes the following: (a) the transport or delivery of food on, from or between the premises where it was grown, raised, cultivated, picked, harvested, collected or caught; (b) the packing, treating (for example, washing) or storing of food on the premises where 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 transport or delivery of food from, between or to such silos; (d) the sale of livestock at saleyards and the transport of livestock to and from saleyards; (e) any other food production activity that is regulated under an Act prescribed by regulation for this subsection. (2) However, primary food production does not include— (a) any process involving the substantial transformation of food (for example, manufacturing or canning), whether or not the process is carried out on the premises where the food was grown, cultivated, picked, harvested, collected or caught; or (b) the sale or service of food directly to the public; or (c) any other food production activity that is prescribed by regulation for this subsection. Example—activity that may be prescribed for par (c) a food production activity in relation to which significant and unmanaged food safety hazards have been identified

12 Meaning of unsafe food (1) For this Act, food is unsafe at a particular time if it would be likely to cause physical harm to a person who might later consume it, assuming— (a) it was, after that particular time and before being consumed by the person, properly subjected to all processes (if any) that are relevant to its reasonable intended use; and (b) nothing happened to it after that particular time and before being consumed by the person that would prevent its being used for its reasonable intended use; and (c) it was consumed by the person according to its reasonable intended use. (2) However, food is not unsafe for this Act only because its inherent nutritional or chemical properties cause, or its inherent nature causes, adverse reactions only in people with allergies or sensitivities that are not common to the majority of people. (3) In subsection (1): processes include processes involving storage and preparation.

13 Meaning of unsuitable food (1) For 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 under another territory law 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 this Act only 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 in an amount that does not contravene the food standards code; or (c) it contains a metal or nonmetal contaminant (within the meaning of the food standards code) in an amount that does not contravene the permitted level for the contaminant as provided by the food standards code; or (d) it contains any matter or substance that is permitted by the food slaughter, of an animal, includes killing the animal in the process of capturing, taking or harvesting it for the purposes of preparing it for use as food.

13A Meaning of food standards code (1) In this Act: food standards code means the Australia New Zealand Food Standards Code as defined in the Commonwealth Act, section 4 (1), as in force from time to time. (2) The Legislation Act, section 47 (6) does not apply to the food Note The food standards code does not need to be notified under the Legislation Act because s 47 (6) does not apply (see Legislation Act, s 47 (7)).

Preliminary Division 3.1

Division 3.1 Preliminary

14 Application of pt 3 to food sold etc outside ACT For this part, it does not matter that the food concerned was sold or intended for sale outside the ACT. Note For a defence in relation to food intended for export to another country, see s 29.

15 False descriptions of food (1) For this part, food that is falsely described includes food to which 1 or more of the following paragraphs applies: (a) the food is represented as being of a particular nature or substance for which there is a prescribed standard under the food standards code and the food does not comply with that prescribed standard; (b) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, any substance in a quantity or proportion that significantly diminishes its food value or nutritive properties as compared with food of the represented nature or substance; (c) the food is represented as being of a particular nature or substance and it contains, or is mixed or diluted with, 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 completely 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 about the nature or substance of the food, or the commercial value of the food, in the mind of a reasonable person; (f) the food is not of the nature or substance represented by the way in which it is packaged, labelled or offered for sale. (2) Without limiting the application of subsection (1) to section 18 (2) (Knowingly describing food falsely) or section 21 (2) (Negligently describing food falsely), food is falsely described for those subsections if it is supplied in response to a purchaser’s demand or other 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. Note 1 For defences to the offences in this division, see div 3.4. Note 2 For other provisions about the offences in this division, see div 3.5 and pt 10.

16 Knowingly handling food in unsafe way (a) the person handles food intended for sale in a way that will, or is likely to, make the food unsafe; and (b) the person knows that handling the food in that way will, or is likely to, make the food unsafe.

Serious offences relating to food Division 3.2

17 Knowingly selling unsafe food (b) the person knows the food is unsafe.

18 Knowingly describing food falsely (a) the person falsely describes food intended for sale; and (b) the person knows that a consumer of the food who relies on the description will, or is likely to, suffer physical harm. (b) the person knows that— (i) the food is falsely described; and (ii) a consumer of the food who relies on the description will, or is likely to, suffer physical harm.

Note 1 For defences to the offences in this division, see div 3.4. Note 2 For other provisions about the offences in this division, see div 3.5 and pt 10.

19 Negligently handling food in unsafe way (a) the person handles food intended for sale in a way that is likely to make the food unsafe; and (b) the person is negligent about whether handling the food in that way is likely to make the food unsafe.

20 Negligently selling unsafe food (a) the person sells food that is unsafe; and (b) the person is negligent about whether the food is unsafe.

21 Negligently describing food falsely (a) the person falsely describes food intended for sale; and (b) the person is negligent about whether a consumer of the food who relies on the description, will or is likely to, suffer physical harm.

Other offences relating to food Division 3.3 (b) the person is negligent about whether— (i) the food is falsely described; and (ii) a consumer of the food who relies on the description will, or is likely to, suffer physical harm.

22 Handling and sale of unsafe food (1) A person commits an offence if the person handles food intended for sale in a way that will, or is likely to, make the food unsafe. (2) A person commits an offence if the person sells food that is unsafe.

23 Handling and sale of unsuitable food (1) A person commits an offence if the person handles food intended for sale in a way that will, or is likely to, make the food unsuitable. (2) A person commits an offence if the person sells food that is unsuitable. (3) For this section, it is immaterial whether the food is safe. (4) An offence against this section is a strict liability offence.

24 Misleading conduct relating to sale of food (1) A person commits an offence if the person, when conducting a food business, engages in conduct that is misleading or deceptive or is likely to mislead or deceive in relation to— (a) the advertising, packaging or labelling of food intended for sale; or (b) the sale of food. (2) A person commits an offence if the person, to sell food or promote the sale of food when conducting a food business, advertises, packages or labels food in a way that falsely describes the food. (3) A person commits an offence if the person, when conducting a food business, sells food that is packaged or labelled in a way that falsely describes the food. (4) An offence against this section is a strict liability offence.

25 Sale of food not complying with purchaser’s demand (1) A person commits an offence if the person, when conducting a food business— (a) sells food to a purchaser; and (b) the food is not of the nature or substance demanded by the purchaser. (2) For this section, it is immaterial whether the food is safe.

Other offences relating to food Division 3.3

26 Sale of unfit equipment or packaging or labelling material (a) the person sells equipment (the equipment sold); and (b) the person knows the equipment sold is, or is likely, to be used for the handling of food; and (c) the equipment sold, if used for a purpose for which it was designed or intended to be used would, or would be likely to— (i) make food unsafe; or (ii) put other equipment in a condition that, if the other equipment were used for a purpose for which it was designed or intended to be used, would, or would be likely to, make food unsafe. (2) Strict liability applies to subsection (1) (a) and (c). (3) Subsection (1) does not apply if the equipment sold was not designed for use in relation to the handling of food. mentioned in s (3) (see Criminal Code, s 58). (4) A person commits an offence if— (a) the person sells packaging or labelling material; and (b) the person knows the material is, or is likely, to be used for the handling of food; and (c) the material, if used for a purpose for which it was designed or intended to be used, would, or would be likely to, make food unsafe.

(5) Strict liability applies to subsection (4) (a) and (c). (6) Subsection (4) does not apply if the packaging or labelling material was not designed for use in relation to the handling of food. mentioned in s (6) (see Criminal Code, s 58).

27 Compliance with food standards code (1) A person commits an offence if the person contravenes a requirement of the food standards code in relation to— (a) the conduct of a food business; or (b) food intended for sale; or (c) food for sale. (b) the food does not comply with a requirement of the food standards code for the food. (3) A person commits an offence if— (a) the person sells or advertises food; and (b) the food is packaged or labelled in a way that contravenes the food standards code. (4) A person commits an offence if the person sells food, or advertises food for sale, in a way that contravenes the food standards code.

Defences Division 3.4

28 Defence relating to publication of advertisements (1) This section applies to a prosecution for an offence, relating to the publication of an advertisement, against— (a) section 18 (Knowingly describing food falsely); or (b) section 21 (Negligently describing food falsely); or (c) section 24 (Misleading conduct relating to sale of food); or (d) section 27 (3) or (4) (Compliance with food standards code). (2) It is not an offence if the defendant— (a) conducted a business concerned mainly with the publication of advertisements; and (b) published or arranged for the publication of the advertisement in the ordinary course of the business. (3) However, subsection (2) does not apply if the defendant— (a) should reasonably have known that the publication of the advertisement was an offence; or (b) had previously been told in writing by an authorised officer that publication of such an advertisement would be 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 advertisement was published.

29 Defence relating to food for export (1) This section applies to a prosecution for an offence against this part if the offence involves contravention of a provision about food in the food standards code. (2) It is not an offence if— (a) the food is to be exported to another country; and (b) the food complies with the laws (the foreign laws) in force at the time of the offence in the place to which the food is to be exported; and (c) the foreign laws deal with the same subject matter as the provision of the food standards code. (3) However, subsection (2) does not apply to food originally intended for export but sold in the ACT.

30 Defence of appropriate diligence (1) In a proceeding for an offence against this part, it is a defence if the defendant proves that the defendant took all reasonable precautions and exercised all appropriate diligence to prevent the commission of the offence by the defendant or by another person under the defendant’s control. (2) Without limiting how the defendant may satisfy subsection (1), the defendant satisfies the subsection if the defendant proves— (a) that the commission of the offence was caused by— (i) an act or omission of another person; or (ii) reliance on information supplied by another person; and

Defences Division 3.4 (b) that— (i) the defendant carried out all checks of the food concerned as were reasonable in all the circumstances; or (ii) it was reasonable in all the circumstances to rely on checks carried out by the person who supplied the food concerned to the defendant; and (c) that the defendant did not import the food into the ACT from another country; and (d) for an offence involving the sale of food— (i) that the defendant sold the food in the same condition as the defendant purchased it; or (ii) that the defendant sold the food in a different condition to that in which the defendant purchased it, but that the difference did not result in a contravention of this Act; and (e) that the defendant did not know and had no reason to suspect at the time of commission of the offence that the defendant’s act or omission was an offence against this part. (3) In subsection (2) (a): another person does not include a person who was— (a) an employee or agent of the defendant; or (b) if the defendant is a corporation—an executive officer, employee or agent of the defendant.

(4) Without limiting how the defendant may satisfy subsection (1) or (2) (b) (i), the defendant satisfies the provision if the defendant proves— (a) for an offence relating to a food business for which a food safety program is required to be prepared under a regulation—that the defendant complied with a food safety program for the food business that complies with the requirements of the regulations; or (b) in any other case—that the defendant complied with a scheme (for example, a quality assurance program or an industry code of practice) that was— (i) designed to manage food safety hazards and based on Australian national or international standards, codes or guidelines designed for that purpose; and (ii) documented in some way.

31 Defence in relation to handling food (1) This section applies to a prosecution for an offence against— (a) section 16 (Knowingly handling food in unsafe way); or (b) section 19 (Negligently handling food in unsafe way); or (c) section 22 (1) (which is about handling food in a way that will, or is likely to, make it unsafe); or (d) section 23 (1) (which is about handling food in a way that will, or is likely to, make it unsuitable). (2) It is not an offence if the defendant caused the food to which the offence relates to be destroyed or disposed of immediately after the food was handled in the way that made it, or was likely to make it, unsafe or unsuitable.

Other matters Division 3.5

32 Defence in relation to sale of unfit equipment or packaging or labelling material In a proceeding for an offence against section 26 (1) or (2) (Sale of unfit equipment or packaging or labelling material), it is a defence if the defendant proves that the defendant reasonably believed that the equipment or material concerned was not intended for use in relation to the handling of food.

34 Onus on defendant to prove certain statements about food (1) This section applies to a proceeding for an offence against this part in which it is alleged that a statement on a package of food, or in an advertisement about food, that relates to the origin or composition of the food, or its therapeutic or nutritive properties, caused the food to be falsely described. (2) If the defendant was responsible for making the statement, the onus of proving the correctness of the statement is on the defendant.

35 Alternative verdicts for handling food in unsafe way (1) This section applies to a defendant charged with an offence against section 16 (Knowingly handling food in unsafe way). (2) If the trier of fact is not satisfied that the defendant committed the offence but is satisfied that the defendant committed a lesser food handling offence, the trier of fact may find the defendant not guilty of the offence charged but guilty of the lesser food handling offence.

lesser food handling offence means an offence against— (a) section 19 (Negligently handling food in unsafe way); or (b) section 22 (1) (which is about handling food in a way that renders it unsafe etc).

36 Alternative verdicts for selling unsafe food (1) This section applies to a defendant charged with an offence against section 17 (Knowingly selling unsafe food). (2) If the trier of fact is not satisfied that the defendant committed the offence but is satisfied that the defendant committed a lesser food selling offence, the trier of fact may find the defendant not guilty of the offence charged but guilty of the lesser food selling offence. lesser food selling offence means an offence against— (a) section 20 (Negligently selling unsafe food); or (b) section 22 (2) (which is about the sale of unsafe food etc).

37 Definitions for pt 4 dispose, of food, includes impound, isolate or destroy the food. recall order means an emergency order requiring the recall or disposal, or both, of any food.

38 Making of emergency orders The Minister may, in writing, make an order (an emergency order) if the Minister believes, on reasonable grounds, that the making of the order is necessary to— (a) prevent or reduce the possibility of a serious danger to public health; or (b) mitigate the adverse consequences of a serious danger to public health.

39 Nature of emergency orders An emergency order may do 1 or more of the following: (a) require the publication of warnings, in a form approved by the Minister, that a food is unsafe; (b) prohibit the growing, raising, cultivation, picking, harvesting, collection or catching, from an area, of a food or other primary produce intended to be used for human consumption; (c) prohibit a food from being advertised or sold; (d) direct that a food consigned or distributed for sale or sold be recalled and state how, and the period within which, the recall is to be conducted;

(e) direct that a food or other primary produce intended to be used for human consumption be disposed of and state how the disposal is to be done; (f) prohibit absolutely the carrying on of an activity in relation to a food, or permit the carrying on of the activity in accordance with conditions stated in the order; (g) without limiting paragraph (f), impose conditions relating to the taking and analysis of samples of the food or of water, soil or anything else that is part of the environment in which the activity is carried on in relation to the food; (h) state methods of analysis (not inconsistent with any methods prescribed by the food standards code) of any samples required to be taken in accordance with the order. Note An order may be made in relation to a particular type of food (see Legislation Act, s 48).

40 Special provisions relating to recall orders (1) A recall order may require a person bound by the order to disclose to the public (or a stated part of the public), in a stated way, 1 or more of the following: (a) the food to be recalled or disposed of; (b) the reasons why the food is considered to be unsafe; (c) the circumstances in which consumption of the food is unsafe; (d) procedures for disposing of the food. (2) A person who is required by a recall order to conduct a recall of food must give written notice to the chief health officer of the completion of the recall as soon as practicable after its completion. (3) A person bound by a recall order is liable for any cost incurred by or on behalf of the Territory in relation to the recall order and the cost is taken to be a debt owing to the Territory.

(4) In a proceeding for the recovery of the debt, a certificate signed by the chief health officer stating the amount of the costs, and how they were incurred, is evidence of the matters stated in the certificate.

41 How orders are made (1) An emergency order may be addressed to— (a) the person or people intended to be bound by it; or (b) several people, a class of people, or all people. (2) A copy of an emergency order mentioned in subsection (1) (a) must be served on the person or people intended to be bound by it. Note For how documents may be served, see the Legislation Act, pt 19.5. (3) As soon as practicable after an emergency order mentioned in subsection (1) (b) is made, the Minister must give public notice of the order in a way that, in the Minister’s opinion, will be most likely to bring the order to the attention of the people to be bound by it. Note Public notice means notice on an ACT government website or in a daily newspaper circulating in the ACT (see Legislation Act, dict, pt 1). (4) The public notice must set out— (a) the terms of the emergency order; and (b) the people to be bound by it. (5) An emergency order, when it takes effect, is binding on the person or people to whom it is addressed. (6) An emergency order that is served on a person takes effect when it is served on the person. (7) An emergency order that is notified under subsection (3) takes effect at the beginning of the 1st day when the order is notified under that subsection. (8) An order expires at the end of 90 days after the day when it takes effect unless it is sooner revoked.

(9) Subsection (8) does not prevent a further order being made in the same terms as an order that has expired.

42 Operation of emergency orders (1) A person bound by an emergency order may apply to the Supreme Court for an order staying or otherwise affecting the operation of the order. (2) The Supreme Court may make an order staying or otherwise affecting the operation of an emergency order only if satisfied that the making of the order will not— (a) create or increase the possibility of a serious danger to public health; or (b) aggravate the adverse consequences of a serious danger to public health. (3) In deciding whether to make an order under this section, the Supreme Court must have regard to section 44 (Compensation for emergency order).

43 Contravening emergency order (1) A person commits an offence if the person engages in conduct that contravenes a prohibition, direction, condition or requirement of an emergency order applying to the person. (2) In this section: emergency order includes an emergency order as affected by an order of the Supreme Court under section 42 (Operation of emergency orders).

44 Compensation for emergency order (a) a person was bound by an emergency order; and (b) the person suffers loss or damage because of the making of the order; and (c) the person considers that there were insufficient grounds for the (2) The person may apply in writing, with reasons for the application, to the Minister for compensation. (3) If there were insufficient grounds for the making of the order, the Territory must pay reasonable compensation to the person. (4) However, compensation is not payable to the person— (a) in relation to any loss or damage suffered by the person because of an act or omission of the person; or (b) if the person caused or contributed to the danger to public health because of which the emergency order was made. (5) The Minister must— (a) decide whether to pay any compensation to the person and, if so, the amount of the compensation; and (b) give the person written notice of the Minister’s decision. (6) If the Minister has not decided the application within 28 days after the day the Minister received the application, the Minister is taken to have refused to pay any compensation.

45 Definitions for pt 5 connected—a thing is connected with an offence if— (a) the offence has been committed in relation to it; or (b) it will provide evidence of the commission of the offence; or (c) it was used, is being used, or is intended to be used, to commit the offence. occupier, of premises, includes— (a) a person believed, on reasonable grounds, to be an occupier of the premises; and (b) a person apparently in charge of the premises. offence includes an offence that there are reasonable grounds for believing has been, is being, or will be committed. place of seizure—see section 52 (6) (a) (Power to seize things).

Division 5.2 Powers of authorised officers generally

46 Power to enter premises (1) For this Act, an authorised officer may— (a) at any reasonable time, enter premises that the authorised officer believes, on reasonable grounds, are— (i) premises used in relation to the handling of food intended for sale or the sale of food; or (ii) premises where there are documents relating to the handling of food intended for sale, the sale of food or equipment; or (b) at any reasonable time, enter premises that the public is entitled to use or that are open to the public (whether or not on payment of money); or (c) at any time, enter premises with the occupier’s consent; or (d) enter premises in accordance with a warrant under this part; or (e) at any time, enter premises if the authorised officer believes, on reasonable grounds, that the circumstances are of such seriousness and urgency as to require immediate entry to the premises without the authority of a warrant. (2) However, subsection (1) (a) does not authorise entry into any part of premises that is being used solely for residential purposes except if that part of the premises is being used for— (a) the preparation or service of meals provided with paid accommodation; or

(b) the preparation of food intended for sale or the sale of food. Example—par (b) a food catering service conducted from a house (3) For subsection (1), an authorised officer may stop and detain a vehicle that the officer believes, on reasonable grounds, is— (a) a food transport vehicle; or (b) a vehicle where there are documents relating to the handling of food intended for sale, the sale of food or equipment. (4) For subsection (3), the authorised officer— (a) may exercise the authorised officer’s powers in relation to the vehicle in a place to which the public has access to; and (b) must not detain the vehicle for longer than is reasonably necessary to exercise the authorised officer’s powers under this part. (5) An authorised officer may, without the occupier’s consent, enter the land around premises to ask for consent to enter the premises. (6) To remove any doubt, an authorised officer may enter premises under subsection (1) without payment of any entry fee or other charge. (7) For subsection (1) (e), the authorised officer may enter the premises with any necessary assistance and force. (8) In this section: at any reasonable time means at any time— (a) for subsection (1) (a) (i)—during normal business hours or any other time when the premises are being used in relation to the handling of food intended for sale or the sale of food; or (b) for subsection (1) (a) (ii)—during normal business hours; or

(c) for subsection (1) (b)—at any time that the public is entitled to use the premises, or that the premises are open to or used by the public, (whether or not on payment of money).

47 Production of identity card An authorised officer must not remain on premises entered under this part if the authorised officer does not produce his or her identity card for inspection when asked by the occupier.

48 Consent to entry (1) When seeking the consent of an occupier for entering premises under section 46 (1) (c) (Power to enter premises), an authorised officer must— (a) produce his or her identity card; and (b) tell the occupier— (i) the purpose of the entry; and (ii) that anything found and seized under this part may be used in evidence in court; and (iii) that consent may be refused. (2) If the occupier consents, the authorised officer must ask the occupier to sign a written acknowledgment (an acknowledgment of consent)— (a) that the occupier was told— (i) the purpose of the entry; and (ii) that anything found and seized under this part may be used in evidence in court; and (iii) that consent may be refused; and (b) that the occupier consented to the entry; and

(c) stating the time, and date, when consent was given. (3) If the occupier signs an acknowledgment of consent, the authorised officer must immediately give a copy to the occupier. (4) A court must find that an occupier of premises did not consent to an entry to the premises by an authorised officer under this part if— (a) the question whether the occupier consented to the entry arises in a proceeding in the court; and (b) an acknowledgment of consent for the entry is not produced in evidence for the entry; and (c) it is not proved that the occupier consented to the entry.

49 Warrants (1) An authorised officer may apply to a magistrate for a warrant to enter premises. (2) The application must be sworn and state the grounds on which the warrant is sought. (3) The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires. (4) The magistrate may issue a warrant only if satisfied there are reasonable grounds for suspecting— (a) there is a particular thing or activity connected with an offence against this Act; and (b) the thing or activity is at the premises, or may be at the premises within the next 14 days.

(5) The warrant must state— (a) that an authorised officer may, with any necessary assistance and force, enter the premises and exercise the authorised officer’s powers under this part; and (b) the offence for which the warrant is issued; and (c) the things that may be seized under the warrant; and (d) the hours when the premises may be entered; and (e) the date, within 14 days after the warrant’s issue, the warrant ends.

50 Warrants—application made other than in person (1) An authorised officer may apply for a warrant by phone, fax, radio or other form of communication if the authorised officer considers it necessary because of— (a) urgent circumstances; or (b) other special circumstances. (2) Before applying for the warrant, the authorised officer must prepare an application stating the grounds on which the warrant is sought. (3) The authorised officer may apply for the warrant before the application is sworn. (4) After issuing the warrant, the magistrate must immediately provide a written copy to the authorised officer if it is practicable to do so. (5) If it is not practicable to provide a written copy to the authorised officer— (a) the magistrate must— (i) tell the authorised officer what the terms of the warrant are; and

(ii) tell the authorised officer the date and time the warrant was issued; and (b) the authorised officer must complete a form of warrant (the warrant form) and write on it— (i) the magistrate’s name; and (ii) the date and time the magistrate issued the warrant; and (iii) the warrant’s terms. (6) The written copy of the warrant, or the warrant form properly completed by the authorised officer, authorises the entry and the exercise of the authorised officer’s powers under this part. (7) The authorised officer must, at the first reasonable opportunity, send to the magistrate— (a) the sworn application; and (b) if the authorised officer completed a warrant form—the completed warrant form. (8) On receiving the documents, the magistrate must attach them to the warrant. (9) A court must find that a power exercised by an authorised officer was not authorised by a warrant under this section if— (a) the question arises in a proceeding before the court whether the exercise of power was authorised by a warrant; and (b) the warrant is not produced in evidence; and (c) it is not proved that the exercise of power was authorised by a warrant under this section.

51 General powers of authorised officers (1) An authorised officer who enters premises (including a vehicle) under this part may, for this Act, do 1 or more of the following in relation to the premises or anything on the premises: (a) examine any food sold or intended for sale or any equipment; (b) examine and copy, or take extracts from, any documents relating to food intended for sale, the sale of food or equipment; (c) examine and copy, or take extracts from, any packaging, labelling or advertising material; (d) examine any system of work in or on the premises; (e) examine anything else in or on the premises; (f) open (or require to be opened) any container or package that the authorised officer believes, on reasonable grounds— (i) contains any food sold or intended for sale or any equipment; or (ii) is used in relation to the transport of food; (g) open or operate (or require to be opened or operated) any equipment; (h) subject to part 6 (Taking and analysis of food samples), take for analysis samples of any food sold or intended for sale; (i) take for analysis samples of water, soil or anything else that is part of the environment in which food is handled to find out whether that environment poses a risk to the safety of the food for human consumption; (j) take for analysis samples of or from anything else in or on the premises; (k) conduct any other examination to find out whether this Act (including the food standards code) is being complied with;

(l) take measurements, conduct tests and make sketches, drawings or any other kind of record (including photographs, films, or audio, video or other recordings); (m) under section 52 (Power to seize things), seize a thing in or on the premises; (n) require the occupier, or a person on the premises, to provide information, answer questions, or produce documents or anything else, reasonably needed for the authorised officer’s functions under this Act; (o) require the occupier, or a person on the premises, to give the authorised officer reasonable assistance to exercise a power under this part. Note 1 The dictionary defines examine as including inspect, weigh, count, test or measure. Note 2 A reference to an Act includes a reference to the statutory instruments (2) A person commits an offence if the person fails to take reasonable steps to comply with a requirement made of the person under subsection (1) (n) or (o). Note The Legislation Act, s 170 and s171 deal with the application of the privilege against self-incrimination and client legal privilege. (4) An authorised officer may exercise any of the powers mentioned in subsection (1) (a) to (o) in relation to food in a public place that the officer suspects, on reasonable grounds, is food sold or intended for sale (whether or not the food was sold or intended for sale in the public place).

(5) This Act applies in relation to the exercise of a power under subsection (4) as if— (a) the public place were premises entered by the authorised officer under this part; and (b) the proprietor of the food business concerned were the occupier of the premises; and (c) all other necessary changes were made. (6) Without limiting subsection (5), if a person is required to do something by an authorised officer under subsection (4), the person is not obliged to comply with the requirement if the authorised officer does not produce his or her identity card for inspection when asked by the person.

52 Power to seize things (1) An authorised officer who enters premises under this part with the occupier’s consent may seize a thing in or on the premises if— (a) the authorised officer is satisfied, on reasonable grounds, that the thing is connected with an offence against this Act; and (b) seizure of the thing is consistent with the purpose of the entry as told to the occupier when seeking the occupier’s consent. (2) An authorised officer who enters premises under a warrant issued under this part may seize anything in or on the premises that the authorised officer is authorised to seize under the warrant. (3) An authorised officer who enters premises under this part (whether with the occupier’s consent, under a warrant or otherwise) may seize anything in or on the premises if satisfied, on reasonable grounds, that— (a) the thing is connected with an offence against this Act; and

(b) the seizure is necessary to prevent the thing from being— (i) concealed, lost or destroyed; or (ii) used to commit, continue or repeat the offence. (4) Also, an authorised officer who enters premises under this part (whether with the occupier’s consent, under a warrant or otherwise) may seize any food in or on the premises if satisfied, on reasonable grounds, that the food— (a) is unsafe or unsuitable; or (b) consists partly or completely of decomposed, filthy, putrid or spoiled matter; or (c) otherwise poses an immediate risk to health or property. (5) The powers of an authorised officer under subsection (3) or (4) are additional to any powers of the authorised officer under subsection (1) or (2) or any other territory law. (6) Having seized a thing, an authorised officer may— (a) remove the thing from the premises where it was seized (the place of seizure) to another place; or (b) leave the thing at the place of seizure but restrict access to it; or (c) for food mentioned in subsection (4)—destroy or otherwise dispose of the food under section 53 (6) (Power to destroy decomposed food etc). Example—how access may be restricted The authorised officer may— (a) place the seized thing in a room or other enclosed area, compartment or cabinet at the place of seizure; and (b) fasten and seal the door or opening providing access to the room, area, compartment or cabinet; and (c) mark the door or opening in a way that indicates that access to it has been restricted under this Act.

(7) A person commits an offence if the person interferes with a seized thing, or anything containing a seized thing, to which access has been restricted under subsection (6). Note An authorised officer may seize a thing in a public place under this section and this part applies to the thing seized, see s 51 (4) to (6). (8) Subsection (7) does not apply if the person has an authorised officer’s approval to interfere with the thing.

53 Power to destroy decomposed food etc (1) This section applies to food inspected or seized under this part by an authorised officer if the authorised officer is satisfied, on reasonable grounds, that the food— (a) is unsafe or unsuitable; or (b) consists partly or completely of decomposed, filthy, putrid or spoiled matter; or (c) otherwise poses an immediate risk to health or property. (2) The authorised officer may direct the proprietor of the food business concerned to destroy or otherwise dispose of the food. (3) The direction may state 1 or more of the following: (a) how the food must be destroyed or otherwise disposed of; (b) how the food must be kept until it is destroyed or otherwise disposed of; (c) the period within which the food must be destroyed or otherwise disposed of. (4) The proprietor of a food business commits an offence if the proprietor contravenes a direction given to the proprietor under subsection (2).

(6) Alternatively, if the food has been seized under this part, the authorised officer may destroy or otherwise dispose of the food. (7) Costs incurred by or on behalf of the Territory in relation to the disposal of food under subsection (6) are a debt owing to the Territory by the proprietor of the food business.

54 Power to require name and address (1) An authorised officer may require a person to state the person’s name and home address if the authorised officer believes on reasonable grounds that the person is committing or has just committed an offence against this Act. made or in force under the Act, including any regulation (see Legislation Act, s 104). (2) The authorised officer must tell the person the reason for the requirement and, as soon as practicable, record the reason. (3) The person may ask the authorised officer to produce his or her identity card for inspection by the person. (4) A person commits an offence if— (a) the authorised officer— (i) tells the person the reason for the requirement made of the person under subsection (1); and (ii) complies with any request made by the person under subsection (3); and (b) the person fails to comply with the requirement. Maximum penalty: 10 penalty units.

55 Receipt for things seized (1) As soon as practicable after a thing is seized by an authorised officer under this part, the authorised officer must give a receipt for it to the person from whom it was seized. (2) If, for any reason, it is not practicable to comply with subsection (1), the authorised officer must leave the receipt, secured conspicuously, at the place of seizure. (3) A receipt under this section must include the following: (a) a description of the thing seized; (b) an explanation why the thing was seized; (c) an explanation of the person’s right to apply to a court under section 58 (Application for order disallowing seizure) for an order disallowing the seizure; (d) if the thing is removed from the premises where it is seized— where the thing is to be taken to; (e) the authorised officer’s name, business address and telephone number.

56 Access to things seized (1) This section applies to a document or anything else seized under this part (other than to food mentioned in section 52 (4) (which is about the seizure of contaminated or putrid food etc)). (2) If asked by a person who would be entitled to inspect the thing if it were not seized under this part, an authorised officer must allow the person, at any reasonable time— (a) for a document—to inspect it, take extracts from it or make copies of it; and

(b) for anything else—inspect it.

57 Return of things seized (1) A thing seized under this part must be returned to its owner, or reasonable compensation must be paid to the owner by the Territory for the loss of the thing, if— (a) an infringement notice for an offence relating to the thing is not served on its owner within 6 months after the day of the seizure and either— (i) a prosecution for an offence relating to the thing is not begun within the 6 month period; or (ii) a prosecution for an offence relating to the thing is begun within the 6 month period and the court does not find the offence proved; or (b) an infringement notice for an offence relating to the thing is served on its owner within 6 months after the day of the seizure, the infringement notice is withdrawn and either— (i) a prosecution for an offence relating to the thing is not begun within 6 months after the day of the seizure; or (ii) a prosecution for an offence relating to the thing is begun within 6 months after the day of the seizure and the court does not find the offence proved; or (c) an infringement notice for an offence relating to the thing is served on its owner within 6 months after the day of the seizure, liability for the offence is disputed in accordance with the Magistrates Court Act 1930, section 132 (Disputing liability for infringement notice offence) and either— (i) an information is not laid in the Magistrates Court against the person for the offence within 60 days after the day the person gives notice under section 132 that liability is disputed; or

(ii) the Magistrates Court does not find the offence proved; or (d) before the thing is forfeited to the Territory under section 61 (Forfeiture of seized things), the chief health officer— (i) becomes satisfied that there has been no offence against this Act with which the thing was connected; or (ii) decides not to prosecute the offence. (2) However, this section does not apply— (a) to food mentioned in section 52 (4) (which is about the seizure of contaminated or putrid food etc); or (b) if the chief health officer believes, on reasonable grounds, that the only practical use of the thing in relation to a food business would be an offence against this Act.

58 Application for order disallowing seizure (1) A person claiming to be entitled to anything seized under this part (other than to food mentioned in section 52 (4) (which is about the seizure of contaminated or putrid food etc)) may apply to the Magistrates Court within 10 days after the day of the seizure for an order disallowing the seizure. (2) An application under subsection (1) may be heard only if the applicant has served a copy of the application on the chief health (3) The chief health officer is entitled to appear as respondent at the hearing of an application.

59 Order for return of seized thing (1) This section applies if a person claiming to be entitled to anything seized under this part applies to the Magistrates Court under section 58 for an order disallowing the seizure.

(2) The Magistrates Court must make an order disallowing the seizure if— (a) it is proved that the applicant would, apart from the seizure, be entitled to the return of the seized thing; and (b) it is not proved there is an offence against this Act with which the thing is connected. (3) The Magistrates Court may also make an order disallowing the seizure if satisfied there are exceptional circumstances justifying the (4) If the Magistrates Court makes an order disallowing the seizure, the court may make 1 or more of the following ancillary orders: (a) an order directing the chief health officer to return the thing to the applicant or to someone else that appears to be entitled to it; (b) if the thing cannot be returned or has depreciated in value because of the seizure—an order directing the Territory to pay reasonable compensation; (c) an order about the payment of costs in relation to the application. (5) The awarding of costs is at the discretion of the Magistrates Court. (6) If the Magistrates Court makes an order for the payment of compensation or for costs, the order is enforceable as a judgment of the court.

60 Adjournment pending hearing of other proceedings (1) This section applies to the hearing of an application under section 58 (Application for order disallowing seizure). (2) If it appears to the Magistrates Court that the seized thing is required to be produced in evidence in a pending proceeding in relation to an offence against a territory law, the court may, on the application of the chief health officer or its own initiative, adjourn the hearing until the conclusion of that proceeding.

61 Forfeiture of seized things (a) anything seized under this part has not been destroyed or otherwise disposed of under section 53 (Power to destroy decomposed food etc) or returned under section 57 (Return of things seized); and (b) an application for disallowance of the seizure under section 58 (Application for order disallowing seizure)— (i) has not been made within 10 days after the day of the seizure; or (ii) has been made within that period, but the application has been refused or has been withdrawn before a decision in relation to the application had been made. (2) If this section applies to the seized thing— (a) it is forfeited to the Territory; and (b) it may be sold, destroyed or otherwise disposed of as the chief health officer directs.

62 Return of forfeited things (1) This section applies to a thing forfeited under section 61 that has not been disposed of in a way that would prevent its return. (2) If the chief health officer becomes satisfied that there has been no offence against this Act with which the thing was connected, the chief health officer must, as soon as practicable, return the thing to the person from whom it was seized or someone else who appears to the chief health officer to be entitled to it. (3) On its return, any proprietary and other interests in the thing that existed immediately before its forfeiture are restored.

63 Cost of disposal of things forfeited (a) a person is convicted, or found guilty, of an offence against this Act in relation to a thing forfeited to the Territory under this part; and (b) the thing was connected with an offence against this Act; and (c) the person was the owner of the thing immediately before its forfeiture. (2) If this section applies, costs incurred by or on behalf of the Territory in relation to the lawful disposal of the thing (including storage costs) are a debt owing to the Territory by the person.

70 Damage etc to be minimised (1) In the exercise, or purported exercise, of a function under this part, an authorised officer must take all reasonable steps to ensure that the authorised officer, and any person assisting the authorised officer, causes as little inconvenience, detriment and damage as is practicable. (2) If an authorised officer, or a person assisting an authorised officer, damages anything in the exercise or purported exercise of a function under this part, the authorised officer must give written notice of the particulars of the damage to the person whom the authorised officer believes, on reasonable grounds, is the owner of the thing. (3) If the damage happens on premises entered under this part in the absence of the occupier, the notice may be given by securing it in a conspicuous place on the premises.

Miscellaneous Division 5.4

71 Compensation to be paid in certain circumstances (1) A person may claim compensation from the Territory if the person suffers loss or expense because of the exercise, or purported exercise, of a function under this part by an authorised officer or a person assisting an authorised officer. (2) Compensation may be claimed and ordered in a proceeding for— (a) compensation brought in a court of competent jurisdiction; or (b) an order under section 58 (Application for order disallowing seizure); or (c) an offence against this Act brought against the person making the claim for compensation. (3) A court may order the payment of reasonable compensation for the loss or expense only if it is satisfied it is just to make the order in the circumstances of the particular case. (4) A regulation may prescribe matters that may, must or must not be taken into account by the court in considering whether it is just to make the order.

Part 6 Taking and analysis of food samples

72 Samples for routine monitoring of Act This part does not prevent an authorised officer from buying a sample of food for analysis for the routine monitoring of compliance with this Act without complying with the requirements of this part. Note For the admissibility of the analysis of a sample of food taken by an authorised officer, see s 135.

73 Other samples—proprietor to be told sample to be analysed (1) This section applies if an authorised officer proposes to take, or takes, a sample of food from a food business for analysis. (2) Before or as soon as practicable after taking the sample, the authorised officer must tell the proprietor of the food business or, if the proprietor is not present or readily available, the person from whom the sample was obtained or who was in charge of the food from which the sample was taken, of the authorised officer’s intention to have the sample analysed. (3) However, this section does not apply if the authorised officer obtains the sample from a vending machine and the authorised officer cannot identify anyone who appears to be in charge of the machine at the time the sample is obtained.

74 Payment for samples (1) This section applies if an authorised officer takes a sample of food from a food business for analysis.

Taking and analysis of food samples Part 6 (2) The authorised officer must pay to the person from whom the sample is taken, or tender payment to that person of— (a) the amount prescribed by regulation as the amount payable for the sample; or (b) if no amount is prescribed—the current market value of the sample. (3) However, this section does not apply if the authorised officer obtains the sample from a vending machine by paying for it.

75 Samples from packaged food (1) This section applies to food that is contained in a closed package intended for retail sale. (2) An authorised officer who takes a sample of the food for analysis must take the entire package unless the package contains 2 or more smaller packages of the same food.

76 Procedures for dividing food samples (1) This section applies to a sample of food taken by an authorised officer for analysis except to the extent that the food standards code otherwise provides. (2) An authorised officer who takes a sample of food for analysis must, unless subsection (3) or (4) apply in relation to the sample— (a) divide the sample into 3 separate parts, and mark and seal or fasten each part in a way that its nature allows; and (b) leave 1 part with the person told under section 73 (2) (Other samples—proprietor to be told sample to be analysed) of the authorised officer’s intention to have the sample analysed; and (c) keep 1 of the remaining parts for analysis; and (d) keep the remaining part for future comparison with the other parts of the sample.

(3) If a sample of food taken by an authorised officer is in the form of separate or severable objects, the authorised officer— (a) may take a number of the objects; and (b) if the authorised officer takes a number of the objects, must— (i) divide them into 3 parts each consisting of 1 or more of the objects, or of the severable parts of the objects, and mark and either seal or fasten each part; and (ii) deal with the sample under subsection (2) (b) to (d). (4) The authorised officer may comply with subsection (5) if the division of a sample of food into 3 separate parts would, in the authorised officer’s opinion— (a) so affect or impair the composition or quality of the sample as to make the separate parts unsuitable for accurate analysis; or (b) result in the separate parts being of an insufficient size for accurate analysis; or (c) otherwise make the sample unsuitable for analysis (including a method of analysis prescribed by regulation in relation to the food from which the sample was taken). (5) If subsection (4) applies in relation to a sample of food, the authorised officer may take as many samples as the authorised officer considers necessary to allow an accurate analysis to be made and may deal with the sample or samples in any way that is appropriate in the circumstances.

Taking and analysis of food samples Part 6

77 Analysis to comply with food standards code A person who carries out an analysis of a sample of food for this Act must comply with any requirements of the food standards code relating to the carrying out of analyses. Note 1 It is presumed that each part of a sample of food divided for the purpose of analysis for this Act is of uniform composition with every other part of the sample, see s 132 (d). Note 2 A court may order the analysis of a sample of food under s 137.

78 Certificates of analysis by authorised analysts (1) The analysis of a sample of food for the chief health officer must be carried out by an authorised analyst or under the supervision of an authorised analyst. (2) The authorised analyst must give to the chief health officer a certificate of analysis that— (a) is signed and dated by the analyst; and (b) contains a written report of the analysis that sets out the findings; and (c) states the requirements (if any) of the food standards code relating to the carrying out of the analysis and certifies that the analysis was carried out in accordance with those requirements. Note For evidentiary certificates by authorised analysts, see the Public Health Act 1997, s 135A.

Part 7 Improvement notices and prohibition orders

79 Service of improvement notices An authorised officer may serve an improvement notice on the proprietor of a food business if the authorised officer believes, on reasonable grounds, that— (a) premises or equipment used by the food business in relation to the handling of food intended for sale or the sale of food is in an unclean or insanitary condition or is otherwise unfit for the purpose for which it is designed or intended to be used; or (b) this Act (including the food standards code) has been, is being or will be contravened by the food business in relation to the handling of food intended for sale or the sale of food; or (c) a relevant food safety program prepared under a regulation is not being carried out adequately by the food business in relation to premises or equipment used in relation to the handling of food Examples—par (b) 1 The food business’s premises or equipment do not comply with the food safety standards.

2 The food standards code is being contravened on premises used by the food business in relation to the handling of food intended for sale or the sale of food. Note 1 The dictionary defines premises as including land and a vehicle. Note 2 For how documents may be served, see the Legislation Act, pt 19.5. Note 3 A reference to an Act includes a reference to the statutory instruments

80 Contents of improvement notices (1) An improvement notice may direct the proprietor of the food business on whom the notice is served to do 1 or more of the following within the period for compliance: (a) put particular premises or equipment into a clean and sanitary condition, or repair particular premises or equipment, to the satisfaction of an authorised officer; (b) replace particular equipment or a vehicle; (c) prepare a food safety program if a food safety program is required under a regulation; (d) amend a food safety program required under a regulation to comply with the regulations; (e) in relation to the handling of food intended for sale or the sale of food—take particular measures to carry out a relevant food safety program required to be prepared under a regulation; (f) in relation to the handling of food intended for sale or the sale of food—take particular measures to carry out the requirements of the food safety standards (including in relation to the handling of food in a particular way or for a particular purpose); (g) destroy or otherwise dispose of particular food; (h) take other action to ensure that the food business complies with this Act (including the food standards code). Example—par (h) Labelling on food intended for sale must be changed to comply with the food Note See also s 84 for the scope of an improvement notice, including the directions that may be given about the destruction of food. (2) Also, the improvement notice— (a) must state that it is an improvement notice under this Act; and

(b) must state the period for compliance; and (c) must state the provision of this Act (including any relevant provision of the food standards code) to which it relates; and (d) must state the authorised officer’s belief on which service of the notice was based and a brief explanation for it; and (e) may state particular action that may be taken to ensure compliance with any provision of this Act (including the food standards code) to which it relates. (3) Before the end of the period for compliance stated in the improvement notice, an authorised officer may, on his or her own initiative or if asked by the proprietor of the food business, extend the period (the extended period) within which the proprietor of the food business must comply with the notice. (4) In this section: period for compliance means the period beginning on the service of the notice to the end of— (a) 24 hours or, if a longer period is stated in the notice, that period; or (b) if the period applying under paragraph (a) is extended—the extended period.

81 Compliance with improvement notices (1) If an improvement notice is complied with, an authorised officer must note the date of compliance on a copy of the notice (the compliance copy) and, as soon as practicable, give a copy of the compliance copy to the proprietor of the food business in relation to which the improvement notice was served.

(2) An improvement notice ceases to apply to the food business in relation to which it was served if an authorised officer notes the date of compliance with the notice by the food business on a copy of the notice.

82 Service of prohibition orders An authorised officer may serve a prohibition order on the proprietor of a food business if the authorised officer believes, on reasonable grounds— (a) that any of the circumstances mentioned in section 79 (a), (b) or (c) (Service of improvement notices) apply in relation to the food business; and (b) that— (i) the proprietor of the food business has not complied with an improvement notice in relation to the circumstances within the period for compliance for the notice under section 80 (Contents of improvement notices); or (ii) service of the order is necessary to prevent or mitigate a serious danger to public health. Note For how documents may be served, see the Legislation Act, pt 19.5.

83 Contents of prohibition orders (1) A prohibition order may direct the proprietor of the food business on whom the order is served not to do 1 or more of the following until the proprietor is given a clearance certificate for the order: (a) use particular premises or equipment in relation to the handling or otherwise of food intended for sale or the sale of food; (b) handle food intended for sale in a particular way or for a particular purpose; (c) do anything else in relation to food intended for sale or the sale of food.

(2) The prohibition order may direct the proprietor of the food business concerned to destroy or otherwise dispose of particular food. Note See also s 84 for the scope of an prohibition order, including the directions that may be given about the destruction of food. (3) Also, the prohibition order— (a) must state that it is a prohibition order under this Act; and (b) must state the provision of this Act (including any relevant provision of the food standards code) to which it relates; and (c) must state the authorised officer’s belief on which service of the notice was based and a brief explanation for it; and (d) may state particular action that may be taken to ensure compliance with any provision of this Act (including the food standards code) to which it relates; and (e) must include a statement to the effect that the proprietor of the food business may ask for a reinspection of the things in relation to which the prohibition order was served if the proprietor considers that the food business complies with this Act.

84 Scope of improvement notices and prohibition orders (1) An improvement notice or prohibition order may be made in relation to 1 or more of the following: (a) any premises, or any part of any premises, used by the food business concerned in relation to the handling or otherwise of food intended for sale or the sale of food; (b) any equipment or vehicles used by the food business in relation to the handling or otherwise of food intended for sale or the sale of food; (c) the handling of food intended for sale by the food business in a particular way or for a particular purpose;

(d) any food intended for sale or sold. (2) A direction under section 80 (1) (g) (Contents of improvement notices) or section 83 (2) (Contents of prohibition orders) may state 1 or more of the following: (a) how the food must be destroyed or otherwise disposed of; (b) how the food must be kept until it is destroyed or otherwise disposed of; (c) the period within which the food must be destroyed or otherwise disposed of.

84A Display of closure notices (1) This section applies if a prohibition order— (a) is served on the proprietor of a food business; and (b) directs the proprietor not to use particular premises of the business for— (i) the sale of food; or (ii) the handling of, or doing of any other thing to, food intended for sale. (2) A notice (a closure notice)— (a) must be placed at each public entrance to the premises of the food business by an authorised officer as soon as practicable after the prohibition order is served on the proprietor of the (b) may only be removed by an authorised officer.

(3) An authorised officer may remove a closure notice— (a) if a clearance certificate is issued for the prohibition order to which the notice relates; or (b) to reposition, update or correct the notice.

84B Contents of closure notices A closure notice displayed at the premises of a food business must contain the following information: (a) the name and address of the business; (b) a statement that the business is subject to a prohibition order under this Act; (c) the date the order was made; (d) that it is an offence to interfere with the display or contents of the notice; (e) the words ‘ACT Government’ and ‘Health Directorate’ at the head of the notice; (f) any other information the chief health officer considers appropriate to include.

84C Proprietor to maintain closure notice (1) The proprietor of a food business commits an offence if— (a) an authorised officer places a closure notice at the premises of the food business; and (b) the proprietor fails to ensure that— (i) the closure notice is not moved from where it was placed; or (ii) no part of the closure notice is obscured or defaced.

(2) It is a defence to a prosecution for an offence against subsection (1) if the proprietor proves that the proprietor took reasonable steps to ensure that— (a) the closure notice was not moved from where it was placed by the authorised officer; and (b) no part of the closure notice was obscured or defaced. Note The defendant has a legal burden in relation to the matters mentioned in s (2) (see Criminal Code, s 59).

85 Request for reinspection (1) This section applies to the proprietor of a food business on whom a prohibition order has been served if the proprietor considers that the food business complies with this Act. (2) The proprietor may, in writing, ask the chief health officer to arrange for an authorised officer to reinspect the things in relation to which the prohibition order was served. (3) If the request relates to a vehicle or equipment, the vehicle or equipment must be made available for reinspection where it was originally inspected or at another place agreed to by an authorised (4) If, through no fault of the proprietor, an authorised officer does not make the reinspection within the relevant period, a clearance certificate for the prohibition order is taken to have been given to the proprietor. (5) Subsection (4) does not prevent an improvement notice or another prohibition order being served on the proprietor in relation to the same premises, equipment or anything else. (6) In this section: relevant period means 48 hours from the receipt by the chief health officer of the request for reinspection.

86 Clearance certificates (1) This section applies if an authorised officer reinspects the things in relation to which a prohibition order was served on the proprietor of a food business. (2) The authorised officer must issue a clearance certificate for the prohibition order if the authorised officer finds that— (a) the reinspected things are no longer a serious danger to public health; and (b) the proprietor has complied with the prohibition order and any improvement notices served on the proprietor in relation to the

87 Contravention of improvement notices and prohibition orders (1) The proprietor of a food business commits an offence if the proprietor engages in conduct that contravenes an improvement notice served on the proprietor. (2) The proprietor of a food business commits an offence if the proprietor engages in conduct that contravenes a prohibition order served on the proprietor.

88 Compensation for prohibition order (a) a person was bound by a prohibition order; and (b) the person suffers loss or expense because of the making of the order; and (c) the person considers that there were insufficient grounds for the (2) The person may apply in writing, with reasons for the application, to the Minister for compensation. (3) If there were insufficient grounds for the making of the order, the Territory must pay reasonable compensation to the person. (4) However, compensation is not payable to the person— (a) in relation to any loss or expense suffered by the person because of an act or omission of the person; or (b) if the person caused or contributed to the making of the prohibition order. (5) The Minister must— (a) decide whether to pay any compensation to the person and, if so, the amount of the compensation; and (b) give the person written notice of the Minister’s decision. (6) If the Minister has not decided the application within 28 days after the day the Minister received the application, the Minister is taken to have refused to pay any compensation.

89 Offence—food business not registered or exempt (a) the person conducts a food business; and (b) the food business is— (i) not registered under this part; and (ii) not exempt from registration under section 90.

90 Food businesses exempt from registration A regulation may prescribe that a food business, other than a food business conducted at a regulated event, is exempt from registration.

91 Regulated events (1) The Minister may declare that an event is a regulated event for this Act. (2) A declaration is a disallowable instrument.

92 Registration of food businesses (1) A person may apply to the chief health officer for the registration of a food business conducted by the person. (2) The chief health officer may require the person to give the chief health officer any information that the chief health officer reasonably requires to decide the application (including, for example, the design and fit-out specifications of the premises proposed to be used in relation to the handling of food intended for sale or the sale of food).

(3) The chief health officer may register or refuse to register the food business. (4) In deciding whether to register the food business, the chief health officer may have regard to— (a) whether the proposed premises are fit for their intended use; and (b) any contraventions of this Act by the person; and (c) any other matter relevant to the handling of food intended for sale or the sale of food. (5) For subsection (4) (a), premises are not fit for their intended use if a certificate of occupancy or certificate of regularisation under the Building Act 2004 has not been issued for the premises or the part of the premises proposed to be used in relation to the handling of food (6) The registration of a food business is for a period of up to 3 years stated in the registration, beginning on the day the chief health officer registers the food business.

93 Renewal of registration (1) This section does not apply if— (a) the registration of a food business is suspended under this part; or (b) the chief health officer has decided to cancel the registration of a food business under section 101 (3) (Procedure for taking action in relation to registration). (2) The chief health officer must renew the registration of a food business if, before the expiry of the registration, the proprietor of the food business gives the chief health officer a properly completed application form for the renewal of the registration.

(3) The renewal of the registration is for a period of up to 3 years stated in the registration, beginning immediately after the expiry of the registration being renewed.

94 Issue or amendment of registration subject to conditions (1) The registration of a food business may be given or renewed subject to a condition imposed by the chief health officer. (2) The registration of a food business may be amended by the chief health officer to impose a condition to which the registration is to be subject or to amend or revoke a condition to which the registration is already subject. (3) A condition mentioned in subsection (1) or (2) may be imposed, amended or revoked by the chief health officer— (a) on the chief health officer’s own initiative or on the application of the applicant for, or the holder of, the registration; and (b) for a stated period or indefinitely.

95 Registered food businesses—procedure for imposition etc of conditions on chief health officer’s initiative (1) This section applies if the chief health officer proposes, on the chief health officer’s own initiative, to take action under section 94 (2) to amend the registration of a food business to impose, amend or revoke a condition (the proposed action). (2) The chief health officer must give the proprietor of the food business a written notice stating— (a) the proposed action; and (b) if the proposed action is to impose a condition to which the registration is to be subject—the proposed condition; and (c) if the proposed action is to amend a condition to which the registration is subject—the proposed condition as amended; and

(d) if the proposed action is to impose or amend a condition—the grounds for the proposed action; and (e) if appropriate, any action that must be taken by the proprietor of the food business to avoid or reverse the proposed action; and (f) the date when the proposed imposition, amendment or revocation of the condition takes effect (the date of effect); and (g) that the proposed action takes effect on the date of effect unless the notice is revoked by the chief health officer before that date; and (h) whether and, if so, by when the proprietor is required to return the certificate of registration to the chief health officer if the proposed action takes effect. (3) The notice may, but need not, provide an opportunity for the proprietor of the food business to make representations about why the proposed action should not be taken. (4) The date of effect must not be earlier than 14 days after the notice is given to the proprietor. (5) This section does not affect the taking of action under section 101 (Procedure for taking action in relation to registration).

96 Certificate of registration (1) If the chief health officer registers, or renews the registration, of a food business, the chief health officer must give the proprietor of the food business a certificate of registration for the food business. (2) The certificate of registration must show— (a) the name of the proprietor of the food business; and (b) the trading name (if any) of the food business; and (c) the type of the food business (as decided by the chief health officer) to which the registration relates; and

(d) the address of the premises at or from which the food business is mainly conducted; and (e) the registration number allocated to the business; and (f) the conditions (if any) to which the registration is subject; and (g) when the registration expires; and (h) any other information that the chief health officer considers appropriate.

97 Change in details of registration or operation of food business (a) particulars set out in an application for registration or renewal of registration of a food business, or the particulars shown in a certificate of registration, become (or are about to become) inaccurate or inapplicable because of a change in circumstances; or (b) the operation of a food business is changed in a way that may have an adverse effect on the safety of food intended for sale or the sale of food. Examples—changes in circumstances 1 a change in the proprietor of the food business 2 for a food business that is not operated from a vehicle—a change in the location of the premises from which the food business is conducted 3 a change in the kind of food business conducted by the food business 4 a structural change in the premises or a change in the fixtures and fittings for the premises (2) The proprietor of the food business commits an offence if— (a) there is a change in the particulars, or the operation of the food business, mentioned in subsection (1); and

(b) the proprietor does not, as soon as practicable (but within 7 days after the day the change happens)— (i) give written notice of the change to the chief health officer; and (ii) if the change affects particulars shown on the certificate of registration—return the certificate to the chief health officer with the notice. (4) If the change relates to the registration of the food business, the chief health officer may amend or refuse to amend the registration of the (5) The chief health officer may require the proprietor to give the chief health officer any information that the chief health officer reasonably requires to decide whether to amend the registration of the food business. (6) In deciding whether to amend the registration of the food business, the chief health officer may have regard to— (a) whether, because of the change of circumstances, the premises are, or will be, fit for their intended use; and (b) whether the change of circumstances will have an adverse effect on the safety of food intended for sale or the sale of food; and (c) for a change in the proprietor of a food business—any contraventions of this Act by the new proprietor of the food (d) any other matter relevant to the handling of food intended for sale or the sale of food.

(7) For subsection (6) (a), premises are not fit for their intended use if a certificate of occupancy or certificate of regularisation under the Building Act 2004 has not been issued for the premises or the part of the premises proposed to be used in relation to the handling of food (8) If the chief health officer amends the registration of a food business in a way that changes the particulars shown in the certificate of registration and the certificate is returned to the chief health officer, the chief health officer must amend the certificate or issue another certificate for the remainder of the period of the certificate that it replaces.

98 Replacement of certificates of registration (1) The chief health officer may issue a replacement certificate of registration of a food business to the proprietor of the business if satisfied that the certificate has been lost, stolen or destroyed. (2) A certificate of registration issued under this section must be issued for the remainder of the period of the certificate that it replaces.

98A Registration certificate must be displayed (a) the person conducts a food business that is registered under this part; and (b) the person fails to display a current certificate of registration for the food business on the business’s premises.

display, of a certificate on business premises, means show in a way that is clearly visible to a member of the public who enters the premises in the ordinary course of business.

99 Food business to be conducted in accordance with registration conditions (1) The proprietor of a registered food business commits an offence if— (a) the registration of the business is subject to a condition; and (b) the proprietor engages in conduct that contravenes the condition.

100 Action that may be taken in relation to registration of food businesses The chief health officer may take the following action under section 101 in relation to the registration of a food business if there has been a breach of this Act in the conduct of the food business: (a) cancel the registration; (b) suspend the registration for a period of not longer than 1 year; (c) impose a condition on, or amend a condition of, the registration.

101 Procedure for taking action in relation to registration (1) If the chief health officer proposes to take action under this section in relation to the registration of a food business, the chief health officer must give the proprietor of the business a notice (a disciplinary notice) that— (a) states the proposed action, including any proposed suspension period or condition or a condition as proposed to be amended; and (b) states the grounds for the proposed action; and (c) tells the proprietor that the proprietor may, within 14 days beginning the day after receiving the notice, give a written response to the chief health officer about the matters in the notice. (2) In deciding whether to suspend or cancel the registration, the chief health officer must consider any response given to the chief health officer in accordance with subsection (1) (c). (3) If the chief health officer is satisfied that grounds for taking action under this section have been established, the chief health officer may— (a) if the proposed action was to cancel the registration—cancel the registration, suspend the registration for a period of not longer than 1 year or impose a condition on, or amend a condition of, the registration; or (b) if the proposed action included suspending the registration for a stated period—either suspend the registration for a period of not longer than that period or impose a condition on, or amend a condition of, the registration; or

(c) if the proposed action included imposing a condition on, or amending a condition of, the registration—impose a condition on, or amend a condition of, the registration that is no more onerous than the proposed condition or a condition as proposed to be varied. (4) The chief health officer must give the proprietor of the food business written notice of the chief health officer’s decision. (5) The suspension or cancellation of the registration of a food business takes effect on the day when notice of the suspension or cancellation is given to the proprietor of the food business or, if the notice states a later date of effect, that date. (6) The renewal or amendment of the registration of a food business under section 93 (Renewal of registration) or section 97 (Change in details of registration or operation of food business) does not prejudice or otherwise affect any action being taken, or proposed action, in relation to the registration of the food business under this section.

102 Immediate suspension of registration (1) This section applies if the chief health officer— (a) has decided to give, or has given, a disciplinary notice to the proprietor of a registered food business; and (b) believes, on reasonable grounds, that it is in the public interest that the person’s registration be suspended as soon as practicable before a decision is made to take action under section 101 (3) (Procedure for taking action in relation to registration). (2) In forming the belief, the chief health officer must consider— (a) the circumstances leading to the decision to issue the disciplinary notice; and (b) the grounds for proposing to take the action to be stated, or stated, in the disciplinary notice.

(3) If this section applies, the chief health officer may give the person a notice (an immediate suspension notice) suspending the person’s registration. (4) If an immediate suspension notice is given to the person, the person’s registration is suspended on the receipt of the notice by the person. (5) The immediate suspension notice expires when the person is told under section 101 (4) (Procedure for taking action in relation to registration) of the decision made on the disciplinary notice.

103 Return of certificate of registration (1) The proprietor of a food business commits an offence if— (a) the registration of the business is suspended or cancelled; and (b) the proprietor does not, as soon as practicable (but within 7 days after the day the suspension or cancellation takes effect), return the certificate of registration of the business to the chief health Maximum penalty: 5 penalty units. (3) If the registration of a food business is suspended and the registration has not ended when the suspension ends, the chief health officer must return the certificate of registration if the proprietor of the food business asks for its return.

104 Surrender of registration The proprietor of a registered food business may, at any time, surrender the registration by returning the certificate of registration to the chief health officer with a written statement that the registration is surrendered.

105 Food business register (1) The chief health officer must keep a register of food businesses that have been registered under section 92 (Registration of food businesses) or whose registration has been renewed under section 93 (Renewal of registration) (the food business register). (2) The food business register must include the information mentioned in section 96 (2) (Certificate of registration). (3) The food business register may contain any other information that the chief health officer considers appropriate. (4) The food business register may be kept in the form of, or as part of, 1 or more computer databases or in any other form that the chief health officer considers appropriate. (5) The chief health officer may correct any mistake, error or omission in the food business register subject to the requirements (if any) of the regulations.

106 Publication and inspection of food business register (1) The chief health officer must make arrangements for people to inspect the food business register and buy a copy of part or all of it. (2) The chief health officer may publish all or part of the food business register in any way that the chief health officer considers appropriate.

Part 9 Display of nutritional information for food

107 Definitions—pt 9 menu means a menu, in printed or electronic form, that lists or otherwise shows 1 or more items of food and that— (a) is on a board, poster, leaflet or similar thing at the premises where the item or items of food listed or shown on the menu are sold; or (b) is distributed or available outside the premises where the item or items of food listed or shown on the menu are sold by the internet or a printed leaflet. ready-to-eat food means food that is in a state in which it is ordinarily consumed, but does not include nuts in the shell or raw fruit or vegetables. sell means sell as defined in section 9 (1), but by retail only. standard food item—see section 108. standard food outlet—see section 109.

108 Meaning of standard food item—pt 9 (1) In this part: standard food item— (a) means an item of ready-to-eat food for sale that is sold in servings that are standardised for portion and content and that— (i) is listed or otherwise shown on a menu; or (ii) is displayed for sale with a price tag or label or an identifying tag or label; and

Display of nutritional information for food Part 9 (b) includes an item of ready-to-eat food for sale that is prescribed by regulation; but (c) does not include an item of ready-to-eat food that— (i) arrives at the premises where it is sold in a container or wrapper in or by which the food is wholly enclosed (whether or not the food is also in an outer container or wrapper that contains multiple units of the food); and (ii) is not removed from its container or wrapper (other than any outer container or wrapper) before its sale at the premises. (2) If a number of standard food items are shown or displayed for sale as mentioned in subsection (1) as a combination, the combination is to be treated for this part as a single standard food item. (3) If an item of food mentioned in subsection (1) is shown or displayed for sale in different standard sizes or portions (for example, small, medium or large), each standard size or portion is to be treated for this part as a separate standard food item.

109 Meaning of standard food outlet (1) Premises where standard food items are sold by a food business is a standard food outlet if— (a) the food business sells standard food items at other premises or while operating in a chain of food businesses that sell standard food items; and (b) at least 1 of the standard food items sold at the premises has been standardised for portion and content so as to be substantially the same as standard food items of that kind sold at the other premises or by the other food businesses in the chain.

(2) For this section, a food business is operating in a chain of food businesses that sell standard food items if— (a) it is operating as 1 of a group of food businesses that sell standard food items under franchise arrangements with a parent business or under common ownership or control; or (b) it sells standard food items under the same trading name as a group of other food businesses that sell standard food items.

110 Certain standard food outlets to display nutritional information (1) This section applies to a standard food outlet of a food business that— (a) sells standard food items at 7 or more places in the ACT or at 50 or more places in Australia; or (b) operates in a chain of food businesses that sell standard food items if together the businesses sell standard food items at 7 or more places in the ACT or at 50 or more places in Australia. (2) However, this section does not apply to a standard food outlet of a food business that primarily provides food catering services. (3) The proprietor of the standard food outlet must ensure that— (a) the nutritional information prescribed by regulation is displayed in relation to standard food items sold at the outlet; and (b) the nutritional information is worked out in accordance with any requirements prescribed by regulation for nutritional information of that kind; and (c) the nutritional information is displayed in the way and at the places prescribed by regulation for nutritional information of that kind. (4) A person must not intentionally contravene subsection (3).

Display of nutritional information for food Part 9 (5) A person must not contravene subsection (3). (6) An offence against subsection (5) is a strict liability offence. (7) If, on the trial of a person charged with an offence against subsection (4), the court is not satisfied that the person committed the offence but is satisfied that the person committed an offence against subsection (5), the court may find the person not guilty of the offence charged but guilty of an offence against subsection (5), but only if the person has been given procedural fairness in relation to that finding of guilt.

111 Voluntary display of nutritional information to meet certain requirements (1) This section applies to a standard food outlet other than a standard food outlet to which section 110 applies. (2) The proprietor of the standard food outlet must not display nutritional information prescribed by regulation in relation to standard food items sold at the outlet unless the nutritional information— (a) is worked out in accordance with any requirements prescribed by regulation for nutritional information of that kind; and (b) is displayed in the way and at the places prescribed by regulation for nutritional information of that kind.

112 Commencement of regulation made for s 110 or s 111 Subject to any disallowance or amendment under the Legislation Act, chapter 7, a regulation made for section 110 or section 111 commences— (a) if there is a motion to disallow the regulation and the motion is negatived by the Legislative Assembly—on the day after the day the disallowance motion is negatived; or (b) on the day after the 6th sitting day after the day the regulation is presented to the Legislative Assembly under that chapter; or (c) if the regulation provides for a later date or time of commencement—on that date or at that time.

113 Display or distribution of explanatory material etc about nutritional information A regulation may make provision in relation to the display or distribution by a standard food outlet of explanatory material or any other material about nutritional information for food.

114 Exemptions from pt 9 (1) The Minister may exempt, with or without conditions, any people, food businesses, premises, food or activities from the operation of 1 or more provisions of this part. (2) An exemption must state the reasons for the exemption. (3) An exemption has no effect during any period in which a condition of the exemption is not complied with. (4) An exemption is a disallowable instrument.

Food safety supervisors Part 9A

116 Definitions—pt 9A approved food safety training course means a food safety training course— (a) provided by a registered training organisation; and (b) approved by the chief health officer in accordance with the food safety training approval guidelines. food safety supervisor, for a registered food business, means a person who— (a) holds a statement of attainment for an approved food safety training course; and (b) satisfies any requirement under this Act about eligibility to become or remain a food safety supervisor; and Note A reference to this Act includes a reference to a statutory instrument made or in force under this Act (see Legislation Act, (c) as part of the person’s formal duties in the business is— (i) responsible for recognising, preventing and alleviating food safety hazards in the business; and (ii) authorised to supervise and give directions about food safety to any person who handles food in the course of the

(d) is not also the food safety supervisor for— (i) any other registered food business; or (ii) if the registered food business has more than 1 site where the handling or sale of food happens—more than 1 site for the business. food safety training approval guidelines means the guidelines made by the chief health officer under section 119. food safety training course means a training course about ways to recognise, prevent and alleviate food safety hazards in food handled or sold in a registered food business. registered training organisation—see the National Vocational Education and Training Regulator Act 2011 (Cwlth), section 3. site, for a registered food business, does not include a site used by the business for the handling or sale of food at a regulated event. statement of attainment, held by a person, means a document issued to the person by a registered training organisation certifying that the person has satisfactorily completed a course conducted by the organisation.

117 Registered food business to have food safety supervisor (1) A registered food business must have a food safety supervisor. (2) The proprietor of a registered food business, other than a food business conducted only at a regulated event, commits an offence if— (a) the proprietor fails to ensure that there is a food safety supervisor for the business within 30 days after the day the business is registered (the establishment period); or (b) the business does not have a food safety supervisor at any time after the end of the establishment period.

Food safety supervisors Part 9A (3) Subsection (2) (b) does not apply if it is less than 30 days since the last day the business had a food safety supervisor. mentioned in s (3) (see Criminal Code, s 58).

118 Proprietor of registered food business may be food safety supervisor A proprietor of a registered food business may be the food safety supervisor for the business.

119 Food safety training approval guidelines (1) The chief health officer must make guidelines for the approval of a food safety training course under this part. (2) A guideline may apply, adopt or incorporate a law of another jurisdiction or an instrument as in force from time to time. (3) The Legislation Act, section 47 (6) does not apply to a law of another jurisdiction or an instrument mentioned in subsection (2). Note A law of another jurisdiction, or an instrument, applied, adopted or incorporated by a guideline does not need to be notified under the Legislation Act because s 47 (6) does not apply (see Legislation Act, s 47 (7)). (4) A guideline is a notifiable instrument.

120 Exemptions—pt 9A (1) The Minister may exempt, with or without conditions, any people, food businesses, premises, food or activities from the operation of this part. (2) An exemption has no effect during a period when a condition of the exemption is not complied with. (3) An exemption is a disallowable instrument.

Part 10 Procedural and evidentiary provisions

126 Liability of employees and agents (1) It is not a defence in a proceeding for an offence against this Act that the defendant was, at the time of the commission of the offence, an employee or agent of someone else. (2) However, it is a defence if the defendant proves that the defendant was under the personal supervision of the proprietor of the food business, or the owner or person in charge of the premises, in relation to which the offence was committed, or of someone else representing the proprietor, owner or person in charge.

127 Acts and omissions of representatives person means an individual. Note See the Criminal Code, pt 2.5 for provisions about corporate criminal responsibility. representative, of a person, means an employee or agent of the person. state of mind, of a person, includes— (a) the person’s knowledge, intention, opinion, belief or purpose; and (b) the person’s reasons for the intention, opinion, belief or purpose. (2) This section applies to a prosecution for any offence against this Act.

(3) If it is relevant to prove a person’s state of mind about an act or omission, it is enough to show— (a) the act was done or omission made by a representative of the person within the scope of the representative’s actual or apparent authority; and (b) the representative had the state of mind. (4) An act done or omitted to be done on behalf of a person by a representative of the person within the scope of the representative’s actual or apparent authority is also taken to have been done or omitted to be done by the person. (5) However, subsection (4) does not apply if the person establishes that reasonable precautions were taken and appropriate diligence was exercised to avoid the act or omission. (6) A person who is convicted of an offence cannot be punished by imprisonment for the offence if the person would not have been convicted of the offence without subsection (3) or (4).

128 Offences by corporations (1) If a corporation contravenes, whether by an act or omission, a provision of this Act, each person who is an executive officer of the corporation is taken to have contravened the provision if the person knowingly authorised or allowed the contravention. (2) For subsection (1), an executive officer of the corporation may be prosecuted for, and convicted of, the offence whether or not the corporation has been prosecuted for, or convicted of, the offence. (3) This section does not affect any liability imposed on a corporation for an offence committed by the corporation against this Act.

129 Right of defendant to have third person before court (1) A defendant charged with an offence against this Act who alleges that the contravention constituting the offence was caused by the act or omission of someone else (the other person) may, in accordance with subsection (2), have the other person brought before the court hearing the charge. (2) The defendant must— (a) give the informant (the original informant) and the court written notice at least 7 days before the return date of the summons (the original summons) issued to the defendant of the defendant’s intention to have the other person brought before the court; and (b) include in the notice particulars of the defendant’s claim that the contravention was caused by the act or omission of the other person and that the defendant took all reasonable precautions and exercised all appropriate diligence to prevent the commission of the offence by the other person; and (c) lay an information against the other person for an offence against this Act. (3) The court must— (a) issue a summons directed to the other person requiring the other person to appear before the court on the date and at the time and place stated in the summons (the other summons); and (b) order that a copy of the information laid against the defendant be served on the other person. (4) If the date stated in the later summons is not the return date for the original summons, the court must— (a) adjourn the hearing of the charge against the defendant to the return date of the later summons; or

(b) adjourn the hearing of the charges against both the defendant and the other person to a later date and notify the parties accordingly. (5) On the hearing of the charges, the original informant and the other person— (a) if the defendant gives evidence—may cross-examine the defendant; and (b) may cross-examine any witness called by the defendant; and (c) may call evidence in rebuttal. (6) The court— (a) may convict only the other person if the contravention of the Act is proved and the defendant satisfies the court that the contravention was caused by the act or omission of the other person; and (b) must dismiss the charge against the defendant if, in addition to satisfying the court that the contravention was caused by the act or omission of the other person, the defendant satisfies the court that the defendant took all reasonable precautions and exercised all appropriate diligence to prevent the commission of the offence by the other person. (7) This section does not prevent the court from— (a) convicting either the defendant or the other person or both; or (b) ordering that the proceeding against the other person be heard separately if the court considers that it is necessary in the interests of justice to do so. (8) If the other person is not found guilty of an offence against this Act, the court must order the defendant to pay the costs of the other person or, if the court considers that it would be unjust to make such an order, the court may order the defendant to pay the part of the costs of the other person that the court considers appropriate.

130 Alternative defendants (1) This section applies if the chief health officer is of the opinion that an offence against this Act has been committed in relation to which a person (the defendant) may be charged and the chief health officer is satisfied, on reasonable grounds, that— (a) the offence was caused by the act or omission of someone else (the alternative defendant); and (b) the defendant could successfully defend a proceeding using section 129 (Right of defendant to have third person before court). (2) The chief health officer may arrange for a proceeding to be begun against the alternative defendant for the offence without a proceeding first being begun against the defendant. (3) In a proceeding in accordance with this section, the alternative defendant may be charged with the offence with which the defendant might have been charged and, on proof that the offence was caused by the act or omission of the alternative defendant, the alternative defendant may be convicted of the offence. (4) If the alternative defendant is acquitted, the defendant may be prosecuted for, and convicted of, the offence.

131 Renewal or amendment of registration not to affect prosecution The renewal or amendment of the registration of a food business under section 93 (Renewal of registration) or section 97 (Change in details of registration or operation of food business) does not prejudice or otherwise affect any action being taken, or proposed action, in relation to the registration of the food business under section 101 (Procedure for taking action in relation to registration).

132 Presumptions In a proceeding for an offence against this Act, it is presumed until the contrary is proved, on the balance of probabilities, that— (a) a substance or thing capable of being used as food that was transported, prepared for sale, intended for sale or sold was transported, prepared for sale, intended for sale or sold for human consumption; and (b) a substance or thing capable of being used as food that was stored on food premises was intended for sale or sold for human consumption; and (c) a substance or thing capable of being used as food is not for human consumption if it is prominently marked as not being for human consumption, or with words to that effect; and (d) food that is part of a batch, lot or consignment of food of the same kind or description is representative of all of the food in the batch, lot or consignment; and (e) each part of a sample of food divided for the purpose of analysis for this Act is of uniform composition with every other part of the sample; and (f) a person who sold food in the conduct of a food business and was not the proprietor of the food business sold the food as the employee of the proprietor; and (g) a person who appears from any statement on a package containing food for sale to have prepared, manufactured, packed or imported the food is the preparer, manufacturer, packager or importer of the food, as appropriate; and (h) food that has been sold to a consumer has been sold at some time by anyone who respectively prepared, manufactured, packed or imported the food.

133 Certificate evidence etc (1) This section applies in relation to a proceeding for an offence against this Act. (2) A document that appears to be a copy of a registration, approval, order, notice or authority under this Act is evidence of the registration, approval, order, notice or authority. (3) A certificate that appears to be signed by or on behalf of the chief health officer, and that states any of the following matters, is evidence: (a) that there was, or was not, in force a registration, approval, order, notice or authority in relation to a stated person or people; (b) that a registration, approval, order, notice or authority was or was not subject to stated conditions; (c) of the receipt or otherwise of a notice, application or payment; (d) that an amount of fees or another amount is payable under this Act by a stated person. Note For evidentiary certificates by authorised analysts, see the Public Health Act 1997, s 135A. (4) A certificate that appears to be signed by or on behalf of the chief health officer, and states any matter prescribed by regulation for this section, is evidence of the matter. (5) A certificate mentioned in subsection (3) or (4) may state a matter by reference to a date or period. (6) A court must accept a certificate or other document mentioned in this section as proof of the matters stated in it if there is no evidence to the contrary.

(7) In this section: authority includes an appointment as an authorised analyst or authorised officer or a clearance certificate. notice includes an improvement notice. order means an emergency order (including a recall order) or a prohibition order. registration means registration as a food business.

135 Admissibility of analysis of food sample taken by authorised officer The analysis of a sample of food taken by an authorised officer from a food business is admissible in evidence in a proceeding for an offence against this Act only if— (a) the sample was taken as required by section 73 (Other samples—proprietor to be told sample to be analysed), section 74 (Payment for samples) and section 75 (Samples from packaged food); and (b) the sample has been dealt with as required by section 76 (Procedures for dividing food samples).

136 No defence to claim deterioration of sample It is not a defence in a proceeding for an offence against this Act for a defendant to claim that any part of a sample kept for future comparison with a sample that has been analysed has, from natural causes, deteriorated, perished or undergone any material change in its constitution.

137 Power of court to order further analysis (1) This section applies if the court before which a person is being prosecuted for an offence against this Act is satisfied that there is a disagreement between the evidence of the analysts for the parties to the proceeding. (2) The court may order that the part or parts of a sample kept under section 76 (Procedures for dividing food samples) be sent by the chief health officer to an independent analyst. (3) For subsection (2), the order may require the sample to be sent to a particular analyst or to an analyst agreed to by the parties. (4) An analyst who is sent a part or parts of a sample for analysis under this section is to make an analysis for the information of the court. (5) Subject to section 139 (Court may order costs and expenses), the cost of an analysis under this section is payable by the Territory.

138 Disclosure by witnesses (1) In a proceeding for an offence against this Act, a witness for the prosecution is not compelled to disclose the fact that the witness received information, the nature of the information received or the name of the person from whom the information was received. (2) An authorised officer appearing as a witness in a proceeding is not compelled to produce any document containing any confidential matter made or received in the authorised officer’s capacity as an authorised officer. (3) Despite subsections (1) and (2), a court hearing a proceeding for an offence against this Act may order the disclosure of a matter or the production of a document mentioned in subsection (1) or (2) if the court considers that it is necessary in the interests of justice.

139 Court may order costs and expenses Without affecting any other power of a court to award costs, a court that hears a proceeding for an offence against this Act may make any order it considers appropriate in relation to costs and expenses in relation to the examination, seizure, detention, storage, analysis (including further analysis), destruction or other disposition of anything the subject of the proceeding.

140 Court may order forfeiture A court that convicts a person, or finds a person guilty, of an offence against this Act may order the forfeiture to the Territory of anything that was used in the commission of the offence.

141 Court may order corrective advertising A court that convicts a person, or finds a person guilty, of an offence against part 3 (Offences relating to food) may make an order requiring the person to disclose to a class of people, or all people, in a stated way, stated information, or information of a stated kind, that the person possesses or to which the person has access. Example—kind of order that court may make an advertisement in a stated form at the person’s expense

Part 11 Notification and review of decisions Part 11 Notification and review of decisions 141A Meaning of reviewable decision—pt 11 reviewable decision means a decision mentioned in schedule 1, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.

141B Reviewable decision notices If a person makes a reviewable decision, the person must give a reviewable decision notice to each entity mentioned in schedule 1, column 4 in relation to the decision. Note The person must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see ACT Civil and Administrative Tribunal Act 2008, s 67A).

141C Applications for review The following may apply to the ACAT for review of a reviewable decision: (a) an entity mentioned in schedule 1, column 4 in relation to the decision; (b) any other person whose interests are affected by the decision.

142 Joint liability for amounts payable to the Territory If an amount payable to the Territory under this Act is owed by 2 or more people, their liability for the debt is joint and several.

144 Protection from liability official means— (a) the Minister; or (b) the chief health officer; or (c) an authorised officer; or (d) anyone else exercising functions under this Act. (2) An official does not incur civil or criminal liability for an act or omission done honestly and without negligence for this Act. (3) A civil liability that would, apart from this section, attach to an official attaches instead to the Territory.

145 Secrecy court includes any tribunal or other entity having power to require the production of documents or the answering of questions. person to whom this section applies means— (a) a person who is or has been an authorised officer; or (b) anyone else who has exercised a function under this Act. produce includes permit access to. protected information means information obtained under this Act in relation to manufacturing secrets or commercial secrets or working processes. (2) A person to whom this section applies must not— (a) make a record of protected information; or

(b) directly or indirectly, divulge or communicate to a person protected information about someone else; unless the record is made, or the information divulged or communicated, in relation to the exercise of a function, as a person to whom this section applies, under this Act, another territory law or another law applying in the ACT. (3) Subsection (2) does not prevent a person to whom this section applies from divulging or communicating protected information— (a) with the consent of the person from whom the information was obtained; or (b) to a person administering or enforcing a law of another jurisdiction that corresponds to this Act or another law prescribed by regulation for this paragraph; or (c) to the food authority; or (d) to a law enforcement authority. (4) A person to whom this section applies need not divulge or communicate protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act, another territory law or another law applying in the ACT.

146 Publication of details of food businesses related to offences representative of the person means— (a) if the person is an individual—an employee or agent of the person; or

(b) if the person is a corporation—an employee, agent or executive officer of the person. (2) This section applies to a person if the person, or a representative of the person, is convicted, or found guilty, of an offence against this Act in relation to the handling of food intended for sale or the sale of food. (3) The chief health officer— (a) must publish a notice about the conviction, or finding of guilt, on a register kept by the chief health officer; and (b) if the chief health officer considers it in the public interest—may give public notice about the conviction, or finding of guilt. Note Public notice means notice on an ACT government website or in a daily newspaper circulating in the ACT (see Legislation Act, dict, pt 1). (4) A notice published on the register may be kept on the register for not more than 2 years. (5) The chief health officer may— (a) correct any mistake, error or omission in the register, subject to any requirements prescribed by regulation; and (b) change a detail included in the register to keep the register up-to- date. (6) The register— (a) may be kept in any form the chief health officer considers appropriate; and (b) must, as far as practicable, be available for public inspection, free of charge, during normal business hours on any business day. (7) A notice may contain— (a) the person’s name; and

(b) the business name under which the person conducts the food business in relation to which the offence was committed; and (c) the address of the food business concerned; and (d) a description of the offence, the decision of the court and the penalty imposed on the person or a representative of the person (including the forfeiture of anything under this Act); and (e) any other information in relation to the safety of the food concerned that the chief health officer considers is appropriate. (8) A notice must be published after— (a) the time for making an appeal against the conviction, or finding of guilt, ends without an application for an appeal being made; or (b) if an appeal is made against the conviction or finding of guilt— the defendant’s conviction, or the finding of guilt, is confirmed on appeal, and the time for making any further appeal in relation to the conviction or finding of guilt ends without an application for an appeal being made; or (c) if on appeal a court directs that the defendant be retried and the defendant is convicted, or found guilty, of an offence against this Act—paragraph (a) or (b) applies to that conviction or finding of guilt. Note A notice must be published as soon as possible after the time mentioned in s (8) (a), (b) or (c) (whichever applies) (see Legislation Act, s 151B). (9) No liability is incurred by a person or the Territory for publishing honestly— (a) a notice under this section; or (b) a fair report or summary of such a notice.

149 Codes of practice (1) The Minister may approve codes of practice setting out minimum standards or guidelines for this Act. (2) An approved code of practice may apply, adopt or incorporate a law or instrument, or a provision of a law or instrument, as in force from time to time. Note The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or as at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act, s 47 (5) or (6) is not disapplied (see s 47 (7)). (3) An approval of a code of practice is a disallowable instrument. (4) A person commits an offence if the person fails to comply with a code of practice for— (a) handling food intended for sale; or (b) the sale of food; or (c) equipment. (6) In this section: law includes a law of another jurisdiction.

150 Determination of fees (1) The Minister may determine fees for this Act. (2) A determination is a disallowable instrument.

152 Regulation-making power (1) The Executive may make regulations for this Act. (2) A regulation may make provision in relation to— (a) the preparation, carrying out, maintenance and monitoring of food safety programs for food businesses to ensure that the provisions of this Act (including the food standards code) are complied with; and (b) the requirements for eligibility to become, or remain, a food safety supervisor; and (c) the functions of food safety supervisors; and (d) any other matter relating to the management or conduct of food safety supervisors. (3) A regulation may apply, adopt or incorporate a law or instrument, or a provision of a law or instrument, as in force from time to time. (4) A regulation may prescribe offences for contraventions of a regulation and prescribe maximum penalties of not more than 20 penalty units for offences against a regulation. (5) In this section: law includes a law of another jurisdiction.

153 Temporary emergency regulations (1) A regulation may be made under this section that contain provisions that are in addition to, or in substitution for, 1 or more of the provisions of the food standards code as the provisions of the code apply in the ACT. (2) A regulation mentioned in subsection (1) may be made only if the Minister has certified that the regulation is necessary as it relates to an issue of public health and safety.

(3) A provision of a regulation mentioned in subsection (1) does not continue in force— (a) except as provided by paragraph (b)—for longer than 1 year; or (b) if the provision is the same in substance as a provision of a regulation that was previously in force under this Act—for a period that, when added to the period for which that previous provision was in force, is longer than 1 year.