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Primary Industries and Food
Legislation Amendment Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, which are to make amendments
to the Impounding of Livestock Act 1994 (the IL Act), the
Livestock Disease Control Act 1994 (the LDC Act), the
Prevention of Cruelty to Animals Act 1986 (the POCTA Act),
the Local Government Act 1989 (the LG Act) and the Food Act
1984 (the Food Act).
Clause 2 provides for Part 1, Part 5 and clause 72 of the Bill to come into
operation on the day after the Bill receives the Royal Assent and
for the remainder of the Bill to come into operation on a day or
days to be proclaimed with a forced commencement day of 1 July
2013.
PART 2--AMENDMENTS TO THE IMPOUNDING OF
LIVESTOCK ACT 1994
Clause 3 amends section 5A of the IL Act to provide that an authorised
officer of a council, with any assistance that is necessary, enter
any land or building (excluding any building occupied as a
residence) in the municipal district of that council at the request
of the owner if he or she reasonably suspects that there is
abandoned livestock in or on the land or building.
Clause 4 inserts new section 5B into the IL Act. New section 5B(1)
provides that an authorised officer of a council may, with any
assistance that is necessary, enter any land or building (other than
571209 1 BILL LA INTRODUCTION 14/8/2012
a residence) in the municipal district of that council if the officer
reasonably believes that there are livestock that are not
adequately confined on the land or in the building.
New section 5B(2) provides that an authorised officer of a
council must not exercise a power under new section 5B before
7 am or after 7 pm if the reasonable belief of the officer relates
only to the circumstances set-out in new section 5B(4) (b).
New section 5B(3) provides that an authorised officer of a
council who enters any land or building under new section 5B(1)
at which the owner or occupier is present must take all reasonable
steps to inform the owner or occupier of the purpose of entry.
New section 5B(4) provides that an authorised officer who enters
land or a building in accordance with new section 5B(1) may
impound livestock found to be not adequately confined if the
officer is satisfied that the welfare of the livestock or other
livestock would be at risk or there would be a risk to public
safety if the livestock were to wander from the land or building
or the livestock are subject to a notice under new section 16B
and the measures required by the notice have not been taken.
New section 5B(5) provides that an authorised officer of a
council who impounds livestock under new section 5B(1) must
deliver the livestock to a pound.
New section 5B(6) provides that an authorised officer of a
council who exercises a power of entry under section 5B must fix
a notice to the building or the entry gate of the land setting out
details, including the time of entry and departure, the purpose of
entry, a description of the things done on the premises and the
procedure for contacting the authorised officer for further details
of the entry and any impoundment of livestock.
Clause 5 amends section 6(1) of the IL Act to include a reference to new
section 5B so that the general duty imposed by section 6(1) on
persons who impound livestock will apply to an authorised
officer of a council who impounds livestock under new
section 5B.
Clause 6 amends section 7 of the IL Act to include a reference to new
section 5B so that the entitlement of a person who has impounded
livestock to reimbursement of charges relating to the impounding
of livestock under section 7 will apply to an authorised officer of
a council who impounds livestock under new section 5B.
2
Clause 7 amends section 8A(1)(f) of the IL Act so that a notice of seizure
required to be served on an owner of livestock must include the
number of days that a council must hold impounded livestock
before the council disposes of the livestock in accordance with
Part 3 of the IL Act.
Subclause (2) amends section 8A(2) of the IL Act to make it
clear that the owner to be served with a notice of seizure of
livestock is the owner of the impounded livestock.
Clause 8 amends section 8(2) of the IL Act to include a reference to new
section 5B so that the duties of an authorised officer of a council
to ascertain and then serve a notice of seizure on the owner of
impounded livestock under section 8(2) apply to an authorised
officer of a council who impounds livestock under new
section 5B.
Clause 9 subclause (1) amends section 16(1) of the IL Act to include a
reference to new section 5B so that the right of a person to apply
to a council for the release of impounded livestock will apply
where the livestock were impounded under new section 5B.
Subclause (2) inserts new paragraph (ab) into section 16(2) of the
IL Act to provide that, in addition to the other matters set out in
section 16(2), the council must also be satisfied that a notice
under section 16B in relation to the confinement of livestock has
been complied with before releasing impounded livestock.
Clause 10 substitutes the heading to Division 2 of Part 2 of the IL Act to
better reflect that Division.
Clause 11 subclause (1) substitutes subsection (1) of section 16A of the IL
Act.
Substituted subsection (1) enables an authorised officer of a
council who reasonably believes that livestock have trespassed
on any land or road to serve a notice objecting to the trespass of
the livestock on any one or more of the owner of the livestock,
the owner of the land on which the livestock are kept or the
occupier of the land if the owner is not the occupier.
Subclause (2) amends section 16A(2) of the IL Act to require
that a notice served on a person (rather than the owner) under
section 16A(1) is served personally or by registered post to the
person's last known address.
3
Clause 12 subclause (1) substitutes subsection (1) of section 16B of the
IL Act. Substituted subsection (1) enables an authorised officer
of a council who reasonably believes that livestock are not
adequately confined on land or in a building (rather than on a
property) to serve a notice on any one or more of the owner of
the livestock, the owner of the land on which the livestock are
kept or the occupier of the land, if the owner is not the occupier,
directing the person or persons to take the measures set out in the
notice to ensure the livestock are adequately confined.
Subclause (2) substitutes subsection (2) of section 16B of the
IL Act. Substituted subsection (2) provides that a notice under
section 16B(1) may be served whether or not any of the livestock
have been impounded in accordance with new section 5B(4)(a)
and that it must be served on the person personally or by
registered post to the last known address of the person.
Subclause (3) inserts new paragraph (ca) after section 16B(3)(c)
of the IL Act. New paragraph (ca) provides that a notice under
section 16B(1) must include a statement that the livestock may be
impounded by an authorised officer of the council under new
section 5B(4)(a) if the officer is satisfied that the welfare of the
livestock would be at risk or there was a risk to public safety if
the livestock were to wander from the land or building or under
new section 5B(4)(a) if the notice is not complied with within the
specified time.
Clause 13 subclause (1) substitutes the heading to section 17 of the IL Act
to reflect the fact that because of new section 5B the impounding
of livestock is not limited to where livestock are found
trespassing.
Subclause (2) substitutes subsection (1) of section 17 of the
IL Act. Substituted subsection (1) provides that, subject to new
section 17(3), a council must hold livestock impounded under
section 5 or new section 5B for at least 7 days before disposing of
the livestock.
Subclause (3) inserts new subsection (3) into section 17 of the
IL Act. New subsection (3) provides that if a confinement notice
under section 16B is served on a person in relation to livestock
impounded under section 5 or new section 5B(4)(a) before the
impoundment of the livestock or before the end of the 7 day
period in subsection (1), the council must, before disposing of the
4
livestock in accordance with Part 3, hold the livestock for the
7 day period referred to in subsection (1) or 3 days, whichever
period finishes last.
Clause 14 amends section 25A of the IL Act so that the offence in that
section applies to any person (rather than the owner of livestock)
who has been served with a notice under section 16A, as
amended by clause 11.
Clause 15 amends section 25B of the IL Act so that the offence in that
section applies to any person (rather than the owner of livestock)
who has been served with a notice under section 16B(1) as
amended by clause 12.
Clause 16 inserts new paragraph (ab) into section 34(1) of the IL Act to
provide a head of power for making regulations for the care and
management of impounded livestock in pounds.
PART 3--AMENDMENTS TO THE LIVESTOCK DISEASE
CONTROL ACT 1994
Clause 17 amends section 7A(1)(c) of the LDC Act to enable the Minister
to declare unusual circumstances of disease in livestock or
unusual circumstances of death in livestock including
circumstances relating to "clinical signs" rather than "symptoms"
of affected livestock.
Clause 18 amends section 7B of the LDC Act to provide that a person must
notify an inspector within 7 days, instead of 14 days, after
becoming aware of unusual circumstances relating to livestock to
which a declaration under section 7A applies.
Clause 19 subclause (1) inserts new subsection (2A) after section 43(2) of
the LDC Act. New subsection (2A) provides an offence with a
maximum penalty of 120 penalty units for an owner of cattle or
pigs who permits suffers or allows the cattle or pigs to be
provided with or given access to recycled water obtained from a
sewerage authority.
Subclause (2) inserts new subsection (3A) after section 43(3) of
the LDC Act. New subsection (3A) provides that the offence in
new subsection (2A) does not apply to a sewerage authority
which permits, suffers or allows any cattle on land owned or
occupied by the sewerage authority to be provided with, or given
access to, recycled water obtained from the sewerage authority.
5
Subclause (3) amends section 43(4) of the LDC Act.
Paragraph (a) of subclause (3) amends paragraph (b) of
section 43(4) to replace "land" with "land; or". This amendment
is required because of new paragraph (c).
Paragraph (b) of subclause (3) inserts new paragraph (c) after
section 43(4)(b). The effect of new paragraph (c) is that any
cattle or pigs which have been provided with or given access to
recycled water obtained from a sewerage authority may, for the
purposes of the LDC Act, be reasonably suspected of being
infected with a disease.
Paragraph (c) of subclause (3) amends section 43(4) of the
LDC Act and is consequential to the insertion of new
subsection (2A) by subclause (1).
Subclause (4) inserts new subsection (7) after section 43(6) of the
LDC Act. New subsection (7) provides that recycled water has
the same meaning in section 43 of the LDC Act as in section 3(1)
of the Water Act 1989.
Clause 20 inserts new subsection (4A) after section 48(4) of the LDC Act.
New subsection (4A) provides that the registration or renewal of
registration granted under section 48 remains in force for one
year from the date it was granted or renewed unless sooner
cancelled under section new 49A.
Clause 21 amends section 49 of the LDC Act to provide that the annual fee
(if any) is fixed by the Minister.
Clause 22 inserts new section 49A into the LDC Act.
New section 49A provides that the Secretary to the Department
of Primary Industries may cancel the registration of a beekeeper
if the fee required to be paid under section 49 is not paid in
accordance with that section.
Clause 23 inserts new subsection (3) after section 52(2) of the LDC Act.
New subsection (3) provides an offence with a maximum penalty
of 60 penalty units for a person who exposes any pollen collected
from bees, which is infected with disease, in any manner that will
allow bees to access the pollen.
6
Clause 24 subclauses (1) and (2) amend section 73 to remove the reference
to tuberculosis as a compensatable disease of cattle.
Compensation for tuberculosis in cattle is no longer paid under
the LDC Act.
Subclause (2) also amends section 73(2) of the LDC Act to
reflect the fact that compensation under section 75(e) is not
paid in respect of a compensatable disease declared under
section 73(1) but rather in relation to cattle destroyed under an
order because of a disease subsequently declared to be an exotic
disease or because of a disease suspected of being an exotic
disease but which is later found not to be an exotic disease.
Clause 25 subclause (1) amends section 77(1) of the LDC Act to omit the
reference to subsection (1). This is consequential to the repeal of
section 77(2) by subclause (2). Subclause (1) also removes the
reference to tuberculosis. This is consequential to the repeal of
section 77(2) by subclause (2).
Subclause (2) repeals section 77(2) of the LDC Act to reflect that
compensation for tuberculosis in cattle is no longer paid under
the LDC Act.
Clause 26 substitutes section 79C of the LDC Act.
Substituted section 79C and current section 79C are in
substantially the same terms except that substituted section 79C
makes no reference to Johne's disease to reflect the fact that
compensation for Johne's disease in sheep and goats is no longer
paid under the LDC Act.
Clause 27 inserts new paragraph (b) after section 107B(1)(a) of the
LDC Act.
New paragraph (b) requires the Secretary to keep and maintain
records of information given to the Secretary by a Council under
new section 121A inserted by clause 29.
Clause 28 substitutes new subsections (2) and (3) for section 115(2) of the
LDC Act.
Substituted subsection (2) provides an offence with a maximum
penalty of 120 penalty units for a person who contravenes any
provision of a treatment notice in respect of an exotic disease.
7
Substituted subsection (3) provides an offence with a maximum
penalty of 60 penalty units for a person who contravenes any
provision of a treatment notice in respect of a disease other than
an exotic disease.
Clause 29 inserts new section 121A after section 121 of the LDC Act.
New section 121A provides that the Secretary to the Department
of Primary Industries may, for or in connection with the
administration of, or in carrying out of his or her functions under
the Act or the regulations, make a written request to a Council for
specified information relating to land in the municipal district of
the Council.
Clause 30 amends section 126(1) of the LDC Act to permit an inspector to
serve an infringement notice for an offence against section 50(1),
52(1), 52(2), 52(3) or 115(3) of the LDC Act.
PART 4--AMENDMENTS TO THE PREVENTION OF
CRUELTY TO ANIMALS ACT 1986
Clause 31 makes a minor punctuation amendment to section 6(1)(b) of the
POCTA Act.
Clause 32 aligns the tabling and gazettal requirements for a Code of
Practice made under the POCTA Act with the tabling and
gazettal requirements in the Subordinate Legislation Act 1994.
Subclause (1) repeals section 7(3) and (4) of the POCTA Act,
which provide for the tabling, gazettal and disallowance of a
Code of Practice. The tabling and gazettal requirements are
inconsistent with provisions that apply to the Codes as legislative
instruments under Part 3A of the Subordinate Legislation Act
1994.
Subclause (2) inserts a new subsection (5A) to ensure that the
making, varying or revocation of a Code of Practice under
POCTA remains subject to disallowance by either House of the
Parliament.
Clause 33 subclause (1) inserts a new heading to section 11 of the POCTA
Act to reflect the additional defence being inserted by
subclause (2).
8
Subclause (2) inserts new section 11(2) into the POCTA Act.
New section 11(2) provides that it is a defence to a prosecution
for an offence under section 9 or 10 in relation to an activity if
the person charged was carrying out the activity in accordance
with a prescribed code of practice (other than a Code of
Practice made under section 7) prescribed for the purposes of
section 11(2) that regulates that activity.
Clause 34 subclause (1) amends section 12(1) of the POCTA Act to enable
a court to make an order disqualifying a person from being in
charge of an animal where the person has been found guilty but
not convicted or found not guilty by reason of mental impairment
of an offence of a serious nature under the POCTA Act in
addition to a person convicted of such an ofence.
Subclause (2) amends section 12(1A) of the POCTA Act to
permit the court to make an order authorising an inspector to
enter premises and search for and seize an animal where a person
who was found guilty but not convicted or found not guilty by
reason of mental impairment of an offence of a serious nature
under the POCTA Act is holding an animal in contravention of
an order of the court under section 12(1) of the POCTA Act.
This amendment is consequential to the amendment made by
subclause (1).
Subclause (3) amends section 12(2)(a) of the POCTA Act to
ensure that any restriction on making an order under
section 12(1) that would be imposed on the court by section 12(2)
in respect of a person who has committed an offence of a
serious nature will also apply in respect of a person found not
guilty of such an offence by reason of mental impairment.
This amendment is consequential to the amendment made by
subclause (1).
Subclause (4) amends section 12(2)(a)(ii) of the POCTA Act
to ensure that any restriction on making an order under
section 12(1) that would be imposed on the court by section 12(2)
in respect of a person who has committed an offence of a
serious nature will also apply in respect of a person found not
guilty of such an offence by reason of mental impairment.
This amendment is consequential to the amendment made by
subclause (1).
9
Subclause (5) amends section 12(2)(b) of the POCTA Act to
ensure that any restriction on making an order under
section 12(1) that would be imposed on the court by section 12(2)
in respect of a person who has committed an offence of a
serious nature will also apply in respect of a person found not
guilty of such an offence by reason of mental impairment.
This amendment is consequential to the amendment made by
subclause (1).
Clause 35 subclause (1) substitutes subparagraph (i) of section 18(1)(b)(i)
of the POCTA Act.
Substituted subparagraph (i) enables the Minister to appoint a
person employed under Part 3 of the Public Administration Act
2004 as a general inspector under the POCTA Act without first
having to appoint the person as an inspector of livestock under
the Livestock Disease Control Act 1994.
Subclause (2) makes a statute law revision amendment to
section 18(1)(c) of the POCTA Act to correct a case error.
Subclause (3) inserts paragraph (d) after section 18(1)(c) of the
POCTA Act.
New paragraph (d) includes a general inspector appointed by the
Department Head in accordance with new section 20A as a
general inspector under section 18(1). This amendment is
consequential to the amendment made by clause 37, which
inserts new section 20A into the POCTA Act.
Clause 36 amends section 18A(1) of the POCTA Act to make it clear that
specialist inspectors are appointed for the purposes of the
POCTA Act, not just Part 2 of that Act.
Clause 37 inserts new section 20A into the POCTA Act.
New section 20A enables the Department Head, by notice
published in the Government Gazette, to declare that the welfare
of a class or classes of animal, is at risk due to an existing
"emergency" (within the meaning of the Emergency
Management Act 1986) and to appoint an appropriately
qualified person to be a general inspector for the purposes of the
POCTA Act or specified provisions of the POCTA Act.
A declaration and the appointment of a general inspector under
new section 20A cease to have effect after 30 days unless earlier
revoked.
10
Clause 38 inserts new section 24KA into the POCTA Act.
New section 24KA enables a POCTA inspector, with the written
approval of the Department Head, to apply to a magistrate for
the issue of a search warrant in relation to premises if a person at
the premises has failed to comply with a notice under new
section 24ZTA (inserted by clause 41) to produce or make a
document available within the time specified in the notice and the
inspector believes on reasonable grounds that the document is in
or on the premises and it is relevant to determining whether
another person has committed an offence against the POCTA
Act or the regulations. A search warrant issued under new
section 24KA may authorise a POCTA inspector, with another
person or persons named in the warrant and with any necessary
equipment, to enter the premises and search for, secure against
interference, examine, inspect and take a copy or make an extract
of a document described in the warrant.
Clause 39 amends section 24Q(1) of the POCTA Act to provide that the
provisions of section 24Q(1) for the seizure of an animal or
thing not mentioned in a search warrant issued under Part 2A
will not apply to a search warrant under new section 24KA.
This amendment is consequential to the amendment made by
clause 38, which inserts new section 24KA into the POCTA Act.
Clause 40 amends section 24X(1)(c) of the POCTA Act to enable an
application to be made to the Magistrates' Court for order under
section 24X(2) where the owner or person in charge of an animal
seized under Part 2A has been found guilty of an offence under
the POCTA Act or regulations in relation to any animal, not just
the seized animal, within the preceding 10 years. Section 24X(2)
enables the Magistrates' Court to make orders in respect of costs
for the care and maintenance or disposition of a seized animal if
the animal is not being returned to the owner or person in charge
of the animal because there are proceedings against the owner or
person in charge of the animal for an offence against the POCTA
Act or regulations in relation to the animal.
Clause 41 inserts new section 24ZTA after section 24ZT of the POCTA
Act.
New section 24ZTA enables a POCTA inspector, with the
written approval of the Department Head, to serve a notice to
produce or make available for inspection a document in the
custody or possession of the person which the inspector believes
11
on reasonable grounds to be relevant to determining whether
another person has committed an offence against the POCTA Act
or the regulations. The notice must specify a time within which
the document must be produced or made available for inspection
that is not less than 14 days after service of the notice and inform
the person that it is an offence to fail to comply with the notice
unless compliance with the notice would tend to incriminate the
person. The notice must be served personally or by registered
post. The inspector may inspect, take a copy of or make an
extract of a document produced or made available in accordance
with the notice. Failure to comply with a notice is an offence for
which the maximum penalty is 20 penalty units. A person must
comply with a notice unless, in the case of a natural person,
compliance with the notice would tend to incriminate the person.
Section 24ZV(2) does not apply to the requirement to comply
with a notice under section 24ZTA(1). Section 24ZV(2)
abrogates the privilege against self-incrimination in relation to a
document which a person is required to produce by or under
Part 2A.
Clause 42 inserts new sections 24ZX and 24ZY into the POCTA Act.
New section 24ZX provides that if a charge-sheet charging an
offence is filed by a person authorised to do so under
section 24ZW(1)(b) of the POCTA Act, proceedings for the
offence may be conducted before a court by any other person
authorised to file a charge sheet under that section for such an
offence.
New section 24ZY provides that all courts must take judicial
notice of the fact that a person has valid authority to file a
charge-sheet charging an offence under section 24ZW(1) or to
conduct proceedings under new section 24ZX.
Clause 43 subclause (1) amends section 26(2) of the POCTA Act to provide
that a person nominated by a person, who occupies a premises at
which scientific procedures are carried out or proposed to be
carried out, as a person to be responsible for scientific procedures
carried out at those premises must be a natural person.
Subclause (2) amends section 26(3) of the POCTA Act to
substitute a penalty of 120 penalty units or imprisonment for
12 months. Section 26(3) provides an offence in relation to a
person nominated under section 26(2) and currently provides
separate penalties for a natural person and a body corporate.
12
The amendment to section 26(3) is consequential to the
amendment to section 26(2) made by subclause (1) and reflects
the fact that a body corporate can no longer be a nominated
person under section 26(2).
Clause 44 inserts new section 35A after section 35 of the POCTA Act.
New section 35A provides three offences in relation to authorized
officers, each carrying a maximum penalty of 60 penalty units.
The first offence, in new section 35A(1), is for a person who,
without reasonable excuse, obstructs or hinders or attempts to
obstruct or hinder an authorized officer in the discharge of his or
her powers, duties or functions under Part 3. New section 35A(2)
provides that, for the purposes of new section 35A(1), a
reasonable excuse includes the failure of the authorised officer to
inform the person of the existence of the offence before the
authorised officer attempted to exercise the power or carry out
the duty or function under Part 3.
The second offence, in new section 35A(3) is for a person who,
without reasonable excuse, refuses admission to an authorized
officer exercising a power of entry or a person assisting an
authorized officer exercising a power of entry under Part 3.
The third offence, in new section 35A(4), is for a person who,
without reasonable excuse, contravenes or fails to comply with a
direction or requirement of an authorized officer who is acting in
the discharge of his or her powers under Part 3.
Clause 45 amends the offence in section 36(1) of the POCTA Act.
Paragraph (a) changes the offence in section 36(1) into a strict
liability offence.
Paragraph (b) aligns the language of the offence in section 36(1)
with the language of the general cruelty offence in section 9(1)(c)
of the POCTA Act.
Clause 46 inserts new section 44 after section 43 of the POCTA Act.
New section 44 is a transitional provision. It provides that
section 12, as amended by clause 34, applies to a person in
respect of an offence allegedly committed by the person or, in the
case of a person found not guilty by reason of mental
impairment, that would have been committed by the person
before, on or after the commencement of clause 34.
13
PART 5--AMENDMENTS TO THE FOOD ACT 1984
Clause 47 Subclause (1) amends the definition of article in section 4(1) of
the Food Act 1984 (the Food Act) to include things which relate
to the handling of food which includes primary production.
Subclause (2) amends paragraph (c) of the definition of
authorized officer in section 4(1) of the Food Act to ensure that
the authorised officers appointed by Dairy Food Safety Victoria
(DFSV) can exercise powers under the Food Act in relation to
non-dairy food at premises that DFSV licenses under the Dairy
Act 2000. (These will be "mixed business" that manufacture
dairy food and also handle other food.)
Subclause (3) inserts a note following the definition of handling
in section 4(1) of the Food Act referring to the amendment being
made to section 4C of the Food Act by clause 48 of the Bill.
Subclause (4) amends the definition of Secretary in section 4(1)
of the Food Act to identify the particular references to
"Secretary" throughout that Act that will be referring to either
only the Secretary to the Department of Health or to both the
Secretary to the Department of Health (Secretary DH) and the
Secretary to the Department of Primary Industries (Secretary
DPI).
Currently the Act only refers to the Secretary DH. The purpose
of these changes is to ensure that the Secretary DPI has necessary
functions and duties, and enforcement related powers under the
Food Act that can be exercised in relation to primary food
production. This includes being able to--
appoint authorized officers for the purposes of enforcing
relevant primary production standards; and
prosecute offences involving the breach of a relevant
primary production related standard.
Subclause (5) inserts definitions of declared authority, DFSV,
livestock product, plant product, primary production and
processing standard, PrimeSafe, Secretary DH and Secretary
DPI consequential to the amendments being made to the Food
Act by this Bill.
Clause 48 amends section 4C of the Food Act to insert a new subsection (3)
that clarifies that "handling" as defined in the Food Act includes
primary food production. This is for the avoidance of doubt.
14
Clause 49 inserts a new section 4I into the Food Act.
New subsection (1) of section 4I provides for the Minister to
declare by order in the Government Gazette a person or body to
be a "declared authority" for the purposes of a specified primary
production and processing standard of the Food Standards Code
or a specified provision of that standard.
This will enable the Secretary DPI to be a declared authority for
specified standards.
New subsection (2) provides that the declaration may be made so
as to be limited to a class of person or premises.
New subsection (3) provides that the order will take effect on the
date published in the Government gazette or on any later date as
specified in the order.
New subsection (4) provides that a reference to "Authority",
"authority" or "relevant authority" in a primary production and
processing standard (a Chapter IV standard of the Food Standards
Code) is taken to be a declared authority declared under new
subsection (1) of new section 4I for the purposes of that standard.
Clause 50 inserts new subsections (5), (6), and (7) into section 5 of the Food
Act.
New subsection (5) empowers the Secretary DH or the Secretary
DPI to, by order in the Government Gazette, exempt a specified
class of person from complying with a requirement of the Food
Standards Code as specified in the order that would otherwise be
imposed on that person.
New subsection (6) provides that the Secretary DPI can only
make an order under this proposed provision in relation to a
primary production and processing standard (that is, a standard in
Chapter IV of the Food Standards Code).
New subsection (7) specifies that the order may be limited as to
time or circumstance, that it may be unconditional or subject to
such conditions as specified in the order and that it can be
amended, varied or revoked in the same way that the order is
made.
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Clause 51 Subclause (1) amends section 6A of the Food Act to enable
Part IV of that Act, which relates to powers of authorised
officers, to apply to primary food production. Part VI of the Act,
which requires registration or notification of food businesses, will
continue to be excluded to ensure that it does not apply to
primary food production.
Subclause (2) repeals subsection (2) of section 6A of the Food
Act. This provision limited the functions of authorized officers
under Parts III and IIIB of the Food Act in respect of primary
food production to certain circumstances and is no longer
appropriate as a consequence of the amendments being made by
this Bill.
Clause 52 inserts a new section 7BA into the Food Act that describes the
role of the Department of Primary Industries as provided for by
this Bill regarding primary food production and related activities.
Clause 53 inserts a new subsection (5) into section 16 of the Food Act.
A failure to comply with a requirement of the Food Standards
Code is an offence against this section.
This amendment ensures that a person does not commit any
offence under section 16 by reason only of failing to comply with
a requirement of the Code from which they are exempted under
new section 5(5).
However, if an exemption is subject to a condition, and that
condition has not been complied with by the person, the person is
no longer exempt from the requirement.
Clause 54 subclause (1) amends section 19(4)(b) of the Food Act to provide
for the requirement for a report to the Secretary DH of any order
restricting the use of a premises made under section 19(3)(a)
or (b) to also be provided by PrimeSafe or DFSV as well as
councils.
Subclause (2) inserts new paragraphs (ca) and (cb) into
section 19(9) of the Food Act.
New section 19(9)(ca) provides for DFSV to have the powers in
section 19 of the Food Act in relation to premises that are
licensed under the Dairy Act 2000.
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New section 19(9)(cb) provides for PrimeSafe to have the powers
in section 19 of the Food Act in relation to premises that are
licensed under the Meat Industry Act 1993 or the Seafood
Safety Act 2003.
These provisions will be relevant to a "mixed business" that
handle foods other than dairy, meat or seafood. It will allow the
DFSV or Primesafe (as applicable) to make an order requiring
breaches to be remedied.
Clause 55 inserts a new section 19AA into the Food Act to provide for
direction orders to be made by a "relevant authority" as defined
in this new section that will apply to premises to which a primary
production and processing standard applies.
New subsection (1) sets out the matters about which the relevant
authority must be satisfied from a report of an authorized officer
before the relevant authority makes an order under this new
section.
New subsection (2) provides that the relevant authority may by
written order direct the relevant person to do, within a specified
time, any of the things set out in paragraphs (a) to (c) of the
subsection. For example, to take steps to ensure that food is
handled appropriately so that it will be safe for human
consumption.
New subsection (3) provides that an order under new
section 19AA requiring steps to be taken to comply with a
requirement in a primary production and processing standard
cannot be made if the relevant person is exempted from that
requirement under an order made under new section 5(5) of the
Food Act (being inserted by clause 50 of the Bill).
New subsection (4) specifies, in paragraphs (a), (b) or (c) of that
subsection, the further directions that can be made by order of the
relevant authority to apply until any other directions given under
new subsection (2) have been complied with.
For example, if food is being handled in a way that is unsafe, and
a direction has been made under subsection (2) requiring changes
in practice to ensure that the food is safe, until those changes are
made an order can also be made under subsection (3), if
warranted, prohibiting that food from being removed from the
premises, to ensure that unsafe food is not sold for human
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consumption or supplied to another business who may handle it
for sale for human consumption.
Subsection (5) provides that an order under new section 19AA
must be served on the relevant person in respect of the premises
to which the order applies or if the name and address of that
person is not known that it be affixed to a conspicuous part of the
premises.
Subsection (6) provides for an order under new section 19AA to
take effect when it is served or affixed in accordance with the
new subsection (5).
Subsection (7) provides for the revocation of the order made
under new section 19AA when the order has been complied with.
Subsection (8) makes it an offence with a penalty of 120 penalty
units for a person to contravene an order made under new
section 19AA.
Subsection (9) makes it an offence with a penalty of 60 penalty
units for any person, other than the person to whom the order
applies, to remove an order affixed to the premises. This is to
ensure that the person to whom the order applies becomes aware
of the order.
Subsection (10) defines premises, relevant authority and
relevant person for the purposes of new section 19AA.
Clause 56 amends section 19BB(2)(a) of the Food Act to ensure that an
undertaking that can be accepted under section 19BB(1) can
apply to a premises relating to primary food production as well as
to a food business.
Clause 57 amends section 21(3) of the Food Act to ensure that the powers
in that section appropriately apply to primary food production,
consequential to the other amendments being made by the Bill.
Clause 58 substitutes the existing section 26(4) of the Food Act with new
section 26(4) and (5).
New section 26(4) provides that new subsection 26(5) will apply
when an application for release of a seized article has failed or an
application for release was not made and it has been more than
7 days from the seizure.
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New section 26(5) provides for such articles to become the
property of the Secretary DH, Secretary DPI, the council,
PrimeSafe or DFSV, dependant on who seized the property.
A similar provision exists in the Food Act currently, but it only
refers to the Secretary DH or a council.
This amendment is consequential to the amendments being made
to the Food Act by this Bill.
The amendment also closes a gap in the current provision by
dealing with an article which is seized by a council appointed
authorized officer. Currently, the provision only makes the
article become the property of the council when it is seized by an
environmental health officer of a council. This does not include
all of a council's authorized officers, as some of these officers
may not be environmental health officers. As a result, a seizure
by any of these other council authorized officers would result in
the property becoming the property of the Secretary DH.
This anomaly is rectified in this clause by providing that any such
article would become the property of the relevant council.
Clause 59 Subclause (1) inserts into section 30(3) and (7) of the Food Act a
reference to "primary food production" so that analysts cannot be
authorised under section 30(1) if involved in primary food
production as well as in the manufacture or sale of food.
Subsection (7) is similarly amended in respect of the exception to
being prohibited from being authorised under section 30 where a
person is employed by a government department that is engaged
in a trade connected with primary food production. Currently the
provision only refers to engagement by the government
department in a trade connected with the manufacture or sale of
food. These amendments are consequential to the amendments to
the Food Act being made by this Bill.
Subclause (2) inserts into section 30(4) of the Food Act a
reference to "primary food production" so that an authorised
analyst must notify the Secretary DH of becoming involved in
trade connected with primary food production as well as
becoming involved in the manufacture or sale of food.
Subclause (3) inserts a new subsection (8A) in section 30 of the
Food Act that provides for respective categories of persons
approved under the LDC Act and the Agricultural and Veterinary
Chemicals ((Administration) Act 1992 of the Commonwealth to
be taken to be authorised to carry out analysis of articles under
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the Food Act. This amendment will ensure appropriate analysis
of articles related to primary production.
Subclause (4) amends section 30(9) of the Food Act to insert a
reference to the new section 30(8) so that the analysts taken to be
authorised under that section need not be included in a list of
persons required to be maintained by the Secretary under
section 30(6) of the Food Act. This is because these analysts are
approved under the Acts referred to in new subsection (8A).
Both of these Acts require the determination or appointments to
be published in the relevant Government Gazette.
Clause 60 substitutes subsection (4) of section 48 of the Food Act.
The new section 48(4) provides for the direction as to the
destruction or disposal of forfeited articles to be by the Secretary
DPI where the prosecutor was the Secretary DPI or an authorized
officer authorised by Secretary DPI and by PrimeSafe or DFSV
respectively where they prosecuted. In all other cases it remains
at the direction of the Secretary DH.
The current subsection (4) provides for forfeited articles to be
destroyed or disposed of in accordance with directions of the
Secretary DH. This amendment is consequential upon the
changes to the Food Act by this Bill to address enforcement
actions taken in relation to primary food production.
Clause 61 amends section 50(1) of the Food Act to inserts references to
"primary food production" to ensure that the evidentiary
provisions provided for in that section appropriately apply in
relation to primary food production. These amendments are
consequential to the other amendments being made by this Bill.
Clause 62 amends section 50AA of the Food Act and the heading to that
section to ensure that the provision, which provides for
evidentiary certificates signed by the Secretary, only applies in
respect of the Secretary DH. This amendment is consequential to
the amendments being made to the Food Act by this Bill
including clause 63 which provides a new section 50AAB to
provide for evidentiary certificates to be signed by the Secretary
DPI and the chief executive officers respectively of PrimeSafe
and DFSV.
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Clause 63 inserts a new section 50AAB into the Food Act to provide for
evidentiary certificates to be signed by the Secretary DPI and the
chief executive officers respectively of PrimeSafe and DFSV.
It is equivalent to the existing certificate processes in
section 50AA for the Secretary DH and section 50AB for
councils.
Clause 64 substitutes section 50AC of the Food Act, which provides for
evidence of signatures, with a new section that expands the
signatures that are admitted into evidence. It includes the
signatures of the Secretary DPI, the chief executive officers of
PrimeSafe and DFSV and respective authorized officers and
analysts.
Clause 65 amends section 54(1) of the Food Act, which provides for
secrecy of information and documents, to remove references to
"food" in subsection (1)(ba)(ii). This ensures the provision
applies in respect of any premises under the ambit of the Food
Act, whether they are operated by a food business or for a
primary food production activity. This amendment is
consequential to the amendments made to the Food Act by this
Bill.
Clause 66 amends section 56(3) of the Food Act, which provides protection
against liability for authorized officers and employees of a
council in specified circumstances, and attaches liability instead
to the Secretary DH and councils.
The new section 56(3), provides, in addition to what is provided
for in the current provision, for instances when liability will not
attach to the Secretary DH, but will attach instead to the
Secretary DPI (in relation to DPI authorized officers) and to
PrimeSafe and DFSV (in relation to their respective authorised
officers). The purpose is to ensure that any liability attaches to
the body that appoints the authorized officer in question.
Clause 67 amends section 58A of the Food Act to exclude as a power or
discretion that can be delegated by a council, the power under
new section 19AA(4)(a) and (b) to direct that a premises or part
of a premises or vehicles and machinery etc on the premises
cannot be used for specified purposes. This is equivalent to the
current restriction on delegation that applies in the case of orders
under the existing section 19 prohibiting the use of a place as a
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food premises. In either case, these decisions can be made by
council or by the chief executive officer of the council.
Clause 68 inserts a new section 58AB into the Food Act to provide for
power for the Secretary DPI, PrimeSafe and DFSV to delegate
their powers, functions and duties under the Food Act.
Clause 69 Subclause (1) amends subsection (1)(z)(ii) of section 63 of the
Food Act to provide for the prescribing of fees and charges for
the purposes of the Food Standards Code.
Subclause (2) broadens the regulation making powers in relation
to fees and charges to provide for fees and charges to be specific,
differential or in the case of the Secretary DPI to be fixed and
collected by him or her for services under the Food Act, the
regulations or under the Food Standards Code.
Clause 70 inserts a new Part XV into the Food Act (new section 80), being
a transitional provision that ensures that amendments to the
protection against liability provisions in section 56 of the Food
Act being made by clause 66 of the Bill, only apply to acts or
omissions of persons that are the subject of proceedings
commenced after the commencement of clause 66. Any acts or
omissions commenced before that date will therefore continue to
be the subject of section 56 as in force before it was amended by
clause 66.
PART 6--OTHER AMENDMENTS
Clause 71 inserts new section 237A of the Local Government Act 1989.
New section 237A provides that a Council must make available
to the Secretary to the Department of Primary Industries any
information, relating to land in the municipal district of the
Council, that has been requested in writing by the Secretary in
accordance with new section 121A of the LDC Act.
Clause 72 subclause (1) makes a statute law revision amendment to
section 5A(2) of the IL Act to move the position of the word "a".
Subclause (2) makes a statute law revision amendment to
section 75(e) of the LDC Act to substitute the correct mode of
numbering.
Subclause (3) makes a statute law revision amendment to
section 19K(2) of the Food Act to correct an incorrect cross-
reference.
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Subclause (4) makes a statute law revision amendment to
section 32(7) of the Food Act to correct an incorrect reference to
Part VIII. It should always have been Part VII.
Subclause (5) makes a statute law revision amendment to the
heading to section 50AB of the Food Act to correct a case error.
Subclause (6) makes a statute law revision amendment to
section 50AB of the Food Act to correct a case error.
Subclause (7) makes a statute law revision amendment to
section 25 of the POCTA Act to substitute the definition of
authorized officer to correct incorrect spelling of that definition.
Subclause (8) makes a statute law revision amendment to
section 37A(2)(a) of the POCTA Act to correct a spelling error.
PART 6--REPEAL OF AMENDING ACT
Clause 73 provides for the automatic repeal of this amending Act on 1 July
2014. The repeal of this amending Act does not affect in any
way the continuing operation of the amendments made by this
amending Act (see section 15(1) of the Interpretation of
Legislation Act 1984.)
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