Victorian Numbered Acts

FOOD AMENDMENT (REGULATION REFORM) ACT 2009 (NO. 42 OF 2009) - SCHEDULE 1

" SCHEDULE 1

Section 56A

INFRINGEMENTS

Column 1 Item	Column 2 Offence	Column 3 Penalty	Column 4 Summary of offence
1	An offence against section 16(1) constituted by a failure to comply with the requirements of any of the following	5 penalty units for a natural person; 10 penalty units for a body corporate	Failure to comply with requirement of Food Standards Code relating to food safety practices or general requirements
Column 1 Item	Column 2 Offence	Column 3 Penalty	Column 4 Summary of offence

	clauses of Standard 3.2.2 of the Food Standards Code— 5(2)(a), 5(2)(b), 6(1)(a), 6(2), 7(1)(b), 7(2), 8(1), 8(2)(b), 8(2)(c), 8(4), 8(5)(a), 8(5)(b), 10(b), 10(c), 11(3), 11(4), 12, 16(3), 17, 19, 20(1), 21(2), 22(a), 23(b)(ii), 24(1)(a), 24(1)(b)
2	An offence against section 16(1) constituted by a failure to comply with the requirements of any of the following clauses of Standard 3.2.3 of the Food Standards Code— 4(2), 5(a), 6(a), 6(b), 10(2)(a), 10(2)(b),	5 penalty units for a natural person; 10 penalty units for a body corporate	Failure to comply with requirement of Food Standards Code relating to food premises or equipment
Column 1 Item	Column 2 Offence	Column 3 Penalty	Column 4 Summary of offence

	10(2)(c), 11(4)(a), 12(2)(b), 12(2)(c), 12(3), 12(4), 13, 14, 15(2)
3	An offence against section 17	2 penalty units for a natural person; 3 penalty units for a body corporate	Failure by proprietor to display name on food premises
4	An offence against section 19CB(6)	2 penalty units for a natural person; 3 penalty units for a body corporate	Failure to keep minimum records at premises
5	An offence against section 19F	2 penalty units for a natural person; 3 penalty units for a body corporate	Failure to keep food safety program at premises
6	An offence against section 19GB	2 penalty units for a natural person; 3 penalty units for a body corporate	Failure to give name and qualifications of food safety supervisor when requested

Column 1 Item	Column 2 Offence	Column 3 Penalty	Column 4 Summary of offence
7	An offence against section 35A(1)	5 penalty units for a natural person; 10 penalty units for a body corporate	Operate from a food premises which is not registered
8	An offence against section 35A(2)	5 penalty units for a natural person; 10 penalty units for a body corporate	Operate from a food premises exempt from requirement to be registered for which notification has not been given

".

__________________

PART 4—AMENDMENTS RELATING TO SINGLE NOTIFICATION OR REGISTRATION SCHEME

        43     Definitions
s. 43

In section 4(1) of the Food Act 1984 —

        (a)     in the definition of food transport vehicle after "sale" insert "other than a water transport vehicle";

        (b)     insert the following definitions—

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

        (a)     a fixed food premises;

        (b)     a temporary food premises;

        (c)     a mobile food premises;

        (d)     a food vending machine;

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

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

        44     New section 4G substituted
s. 44

    For section 4G of the Food Act 1984 substitute —

        " 4G     Food vending machines deemed to be food premises

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

        45     Role of councils

After section 7A(d) of the Food Act 1984 insert —

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

        46     Annual report on food regulation

After section 7C(2)(a) of the Food Act 1984 insert —

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

        47     Audit by council staff

    In section 19U(1)(b) of the Food Act 1984 for "or mobile food premises" substitute ", mobile food premises or food vending machine".

        48     Registration authority

At the end of section 35 of the Food Act 1984 insert —

    "(2)     However, for the purposes of Division 4, the registration authority for a temporary food premises, mobile food premises or food vending machine is—

        (a)     the council of the municipal district where—

              (i)     the principal premises of the food business operating the premises or machine is located; or

              (ii)     if the principal premises of the food business is located interstate, the food business first operates in Victoria; or

        (b)     if paragraph (a) does not apply to any council, the Secretary.

Note

The principal premises of a food business is determined under section 43D.".

        49     Section 35A substituted
s. 49

For section 35A of the Food Act 1984 substitute —

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

    (1)     The proprietor of a food business must not allow the business to operate from any food premises—

        (a)     that is not registered with the registration authority—

              (i)     in the case of a temporary food premises, mobile food premises or food vending machine and subject to subsection (3), in accordance with Division 4; or

              (ii)     in the case of a fixed premises that is the principal premises in relation to a temporary food premises, mobile food premises or food vending machine, in accordance with Division 3 or 4; or

              (iii)     in any other case, in accordance with Division 3; or

        (b)     while the registration of the premises is suspended.

Penalty:     120 penalty units.

    (2)     The proprietor of a food premises that is exempt under section 38(1) or (2) from the requirement to be registered must not allow the business to operate from the premises unless the proprietor has given notification to the registration authority of its operation—

        (a)     in the case of a temporary food premises, mobile food premises or food vending machine and subject to subsection (3), in accordance with Division 4; or

        (b)     in the case of a fixed premises that is the principal premises in relation to a temporary food premises, mobile food premises or food vending machine, in accordance with Division 2 or 4; or

        (c)     in any other case, in accordance with Division 2.

Penalty:     120 penalty units.

    (3)     The Secretary may, in writing, permit the proprietor of a temporary food premises, mobile food premises or food vending machine to register the premises or machine under Division 3 or, if the premises or machine is exempt under section 38(1) or (2) from the requirement to be registered, to give notification of its operation under Division 2.

    (4)     The Secretary may, by notice published in the Government Gazette, permit each proprietor of a temporary food premises, mobile food premises or food vending machine belonging to a specified class to register the premises or machine under Division 3 or, if the class of premises or machine is exempt under section 38(1) or (2) from the requirement to be registered, to give notification of its operation under Division 2.".

        50     Repeal of section 35B
s. 50

    Section 35B of the Food Act 1984 is repealed .

        51     Registration etc. may be made despite minor defects

In section 39A of the Food Act 1984 , for "and 38D" substitute ", 38D and 43F".

        52     Registration fees

After section 41A(2)(ac) of the Food Act 1984 insert —

    "(ad)     in the case of a registration under Division 4, may vary according to the number and nature of temporary food premises, mobile food premises or food vending machines; and".

        53     New Division 4 of Part VI inserted

    After section 43A of the Food Act 1984 insert —

" Division 4—Single notification or registration scheme

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

In respect of an area of land which is not located within a municipal district, the provisions of this Division apply—

        (a)     as if a reference to a council were a reference to the Secretary; and

        (b)     as if a reference to a municipal district were a reference to that area of land.

        43C     Single notification or registration scheme

    (1)     The purpose of this Division is to provide for the notification or registration of temporary food premises, mobile food premises or food vending machines.

    (2)     The receipt of notification or the registration of the components of a food business specified in the notification or application for registration by one council under this Division allows each of those components to operate anywhere in Victoria, subject to any conditions imposed by that council, without the requirement for the operation of the component to be notified to, or the component to be registered with, another council.

    (3)     Subject to this Division and any exemptions and modifications provided in a declaration issued under section 43E—

        (a)         Division 2 applies to a component of a food business notified under this Division as if it were notified individually under Division 2; and

        (b)     Division 3 applies to a component of a food business registered under this Division as if it were registered individually under Division 3.

    (4)     For the purposes of this Division and section 35(2), a reference to a food business includes a reference to an autonomous division of a food business for which a separate application for registration has been made, or a separate notification given, in accordance with section 43F(3)(b).

        43D     Principal premises of food business

    (1)     For the purposes of sections 35 and 35A, the principal premises of a food business that operates from a temporary or mobile food premises or a food vending machine is the premises—

        (a)     where, prior to its sale, the food is—

              (i)         routinely prepared; or

              (ii)     if not prepared, is routinely stored or otherwise handled; or

        (b)     if subsection (a) does not apply—

              (i)     in the case of a food business operating from temporary food premises, where the equipment used at the temporary premises is usually stored; or

              (ii)     in the case of a food business operating from mobile premises, where the mobile premises are garaged.

    (2)     If subsection (1) applies to more than one premises, the principal premises is that nominated by the proprietor of the food business as the main place where—

        (a)     the food is prepared or handled; or

        (b)     the equipment is stored; or

        (c)     the mobile premises are garaged—

as the case may be.

    (3)     If subsection (1) does not apply to any premises, the principal premises is the nominated business address of the food business.

        43E     Declaration of requirements for notification or registration

    (1)     The Secretary may, by notice published in the Government Gazette, declare the requirements applying to the notification or registration of the components of a food business under this Division.

    (2)     The declaration     may include requirements applying to the inspection, assessment or audit of the components of a food business registered under this Division.

    (3)     The declaration may provide for the exemption from, or modification to—

        (a)     any requirements that apply under section 38B or 38D to an application for registration, transfer of registration or the renewal of registration of a food premises;

        (b)     any requirements that apply under sections 19C and 39 to the inspection, assessment and audit of a food premises.

    (4)     A declaration under this section may apply different requirements depending on the activities undertaken by the food businesses at the temporary or mobile food premises or food vending machines.

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

    (1)     Subject to subsection (2), the proprietor of a food business that operates one or more temporary food premises, mobile food premises or food vending machines, other than a proprietor to whom section 35A(3) or 35A(4) applies, must register the components of the business under this Division.

    (2)     If all the components of a food business referred to in subsection (1) would, if registered individually, be exempt from the requirement to be registered, the proprietor of the food business other than a proprietor to whom section 35A(3) or 35A(4) applies must give notification of the operation of the components of the business under this Division.

    (3)     If the food business is divided into autonomous divisions, the proprietor of the food business may register or give notification of the operation of —

        (a)     the components of the food business under the one application or notification; or

        (b)     the components of each division of the food business under a separate application or notification for each autonomous division.

Example

A charitable organisation may be subdivided into district branches with each branch preparing and selling food separately. Each branch may register its operation separately under this Division.

    (4)     For the purposes of subsection (3), a division of a food business is autonomous if the food sold by the business is not ordinarily prepared, stored or handled by any other division of the food business.

    (5)     In addition to any information or documents required under section 36, the notification or application for the registration or transfer or renewal of registration must include the following information—

        (a)     the number of temporary food premises, mobile food premises or vending machines being operated or intended to be operated by the food business; and

        (b)     the location of the principal premises.

    (6)     Before registering, or transferring or renewing the registration of a component of the food business, the registration authority must be satisfied that the requirements under Division 3 applying to registration of the component, as subject to any exemptions and modifications declared by the Secretary under section 43E, have been met.

    (7)     The registration authority may register the components of the food business that meet those requirements and refuse to register the components that do not meet them.

        43G     Certificate of registration

A certificate of registration issued to the proprietor of a food business for the purposes of this Division must be endorsed with—

        (a)     the address of the principal premises of the business; and

        (b)     the following details for each component of the business to which the registration applies—

              (i)     the class of food premises declared under section 19C to which the component belongs;

              (ii)     any identifying number assigned by the registering council to the component;

              (iii)     if the component is a mobile food premises, its motor vehicle registration number.

        43H     Declaration of requirements for statement of trade

    (1)     The Secretary may, by notice published in the Government Gazette, declare the requirements applying to the lodgement of a statement of trade under section 43I.

    (2)     The declaration may—

        (a)         specify the requirements applying to the timeframe in which a statement of trade must be lodged and the information that must be included in the statement; and

        (b)     exempt the proprietors of specified categories of food businesses from—

              (i)     the requirement to lodge a statement of trade; or

              (ii)     any other requirement under section 43I.

    (3)     The declaration may apply different requirements depending on the activities undertaken by the food business operating from the temporary or mobile food premises or food vending machines.

        43I     Statement of trade

    (1)     The proprietor of a food business must not allow the business to operate from a temporary food premises, mobile food premises or food vending machine unless a statement of trade has been lodged in accordance with this section with the council of the municipal district in which the premises or machine is being operated.

Penalty:     60 penalty units.

    (2)     Subsection (1) does not apply to a proprietor who—

        (a)     is exempt by a declaration under section 43H from the requirement to lodge a statement of trade in respect of the temporary food premises, mobile food premises or food vending machine; or

        (b)             has been permitted under section 35A(3) or 35A(4) to register the temporary food premises, mobile food premises or food vending machine under Division 3 or notify its operation under Division 2.

    (3)     A statement of trade must be lodged with the principal council and the council of each municipal district in which the proprietor intends to operate—

        (a)     within the time specified in the declaration the Secretary under section 43H; or

        (b)     if a time has not been specified in the declaration, no later than 5 days before the intended commencement of operation in that municipal district.

    (4)     The statement of trade must contain the following information—

        (a)     the name of the principal council;

        (b)     the registration number assigned by the principal council;

        (c)     the name of the proprietor;

        (d)     the municipal districts in which the proprietor of the food business intends to operate;

        (e)     subject to     the declaration by the Secretary under section 43H, the following details for each municipal district—

              (i)     the number of temporary food premises, mobile food premises or vending machines that are to operate in the municipal district;

              (ii)     the places within the municipal district that the premises or machines are to operate;

              (iii)     when the premises or machines are to operate;

              (iv)     any indentifying numbers or other means of identification assigned by the principal council to the premises or machines;

              (v)     in the case of a mobile food premises, the vehicle registration number of the premises;

        (f)     any other information specified in the declaration by the Secretary under section 43H.

    (5)     For the purposes of subsection (1), the proprietor of a food business who operates in a mobile food premises that is a water transport vehicle in a municipal district, is taken to have lodged a statement of trade with the council of that municipal district in respect of that vehicle if the proprietor has notified the council in the previous 12 months that the vehicle would be operating in the municipal district.

    (6)     In this section, "principal council", in relation to a food premises, means the council which has received notification of the operation of the premises or registered the premises.".

        54     Delegation by council officers

    After section 58A(1) of the Food Act 1984 insert —

    "(1A)     A council may delegate to one or more of its officers or members of staff any of its powers or discretions under Part III in relation to temporary food premises or mobile food premises.".

        55     Matters occurring outside registration area

    In sections 58B(1) and 58B(2) of the Food Act 1984 for "or mobile food premises" substitute
", mobile food premises or food vending machine".

        56     New section Part XIV inserted

After section 76 of the Food Act 1984 insert —

" PART XIV—TRANSITIONAL AND SAVINGS PROVISIONS FOR PART 4 OF FOOD AMENDMENT (REGULATION REFORM) ACT 2009

        77     Definitions

In this Part—

"commencement date" means the date Part 4 of the Food Amendment (Regulation Reform) Act 2009 comes into operation;

"unamended Act" means this Act as in force immediately before the commencement date.

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

    (1)     This section applies if immediately before the commencement date, a temporary food premises, mobile food premises or food vending machine is registered under Part VI of the unamended Act.

    (2)     Until that registration expires, the temporary food premises, mobile food premises or food vending machine is taken to be registered under Division 4 of Part VI.

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

    (1)     This section applies if immediately before the commencement date, the operation of a temporary food premises, mobile food premises or food vending machine has been notified under Part VI of the unamended Act.

    (2)     Notification of the operation of the temporary food premises, mobile food premises or food vending machine is taken to have been given under Division 4 of Part VI.

__________________".

        57     Schedule 1

After item 8 of Schedule 1 to the Food Act 1984 insert —

"9

An offence against section 43I(1)

2 penalty units for a natural person; 4 penalty units for a body corporate

Failure to lodge a statement of trade".

__________________

PART 5—REPEAL OF AMENDING ACT

        58     Repeal of amending Act
s. 58

This Act is repealed on 1 July 2012.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984 ).

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