Food Hygiene Amendment Regulation (No. 1) 1998 (Qld)

Queensland Subordinate Legislation 1998 No. 73 Food Act 1981 FOOD HYGIENE AMENDMENT REGULATION (No. 1) 1998 TABLE OF PROVISIONS Section Page 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 2 Regulation amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3 Amendment of s 4 (Interpretation) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4 Insertion of new ss 4AA and 4AB . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4AA Meaning of “bed and breakfast business” . . . . . . . . . . . . . . . . . . . . . 3 4AB Meaning of “host farm business” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 5 Amendment of s 25 (Offences) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 6 Insertion of new pt 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 PART 2A—FOOD STORE EXEMPTIONS Division 1—Applications 25A Application for exemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 25B Decision on application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Division 2—Suspension or cancellation of exemptions 25C Grounds for suspension or cancellation . . . . . . . . . . . . . . . . . . . . . . . 6 25D Procedure for suspension or cancellation . . . . . . . . . . . . . . . . . . . . . . 6 25E Procedure for immediate suspension . . . . . . . . . . . . . . . . . . . . . . . . . 8 Division 3—Amendment of exemptions 25F Procedure for amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Division 4—Appeals 25G Decisions open to appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

2 Food Hygiene Amendment (No. 1) No. 73, 1998 25H Starting an appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 25I Time for starting an appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 25J Stay of operation of decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 25K Hearing procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 25L Powers of court on appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 25M Appeal to District Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

s1 3 s4 Food Hygiene Amendment (No. 1) No. 73, 1998 ˙ Short title 1. This regulation may be cited as the Food Hygiene Amendment Regulation (No. 1) 1998 . ˙ Regulation amended 2. This regulation amends the Food Hygiene Regulation 1989 . ˙ Amendment of s 4 (Interpretation) 3. Section 4(1)— insert— ‘ “bed and breakfast business” see section 4AA. “food store exemption” see section 25A. “food store requirements” means the requirements for food stores stated in sections 9, 10, 11, 13 and 14. “host farm business” see section 4AB.’. ˙ Insertion of new ss 4AA and 4AB4. After section 4— insert — ˙ ‘ Meaning of “bed and breakfast business” ‘ 4AA. A “bed and breakfast business” is a business— (a) carried out by a person on premises (other than a caravan, caretaker’s or manager’s residence, flat, home unit, hostel, hotel, lodging house, motel or relocatable home) at which the person lives; and (b) providing accommodation at the premises— (i) for a maximum of 12 guests at the same time; and (ii) for a maximum continuous period of 14 days for a guest; and (c) providing breakfast to guests.

s5 4 s6 Food Hygiene Amendment (No. 1) No. 73, 1998 ˙ ‘ Meaning of “host farm business” ‘ 4AB. A “host farm business” is a business— (a) carried out on a farm involved in primary production by a person who manages, and lives on, the farm; and (b) providing accommodation at premises on the farm— (i) for a maximum of 12 guests at the same time; and (ii) for a maximum continuous period of 30 days for a guest; and (c) providing meals, or food for preparing meals at the premises, to guests.’. ˙ Amendment of s 25 (Offences) 5. Section 25— insert — ‘ (2) However, the holder of a food store exemption for premises at which a bed and breakfast business or host farm business is carried out is not required to comply with food store requirements for the premises.’. ˙ Insertion of new pt 2A 6. After section 25— insert — ‘ PART 2A—FOOD STORE EXEMPTIONS ‘ Division 1—Applications ˙ ‘ Application for exemption ‘ 25A.(1) A person carrying out, or proposing to carry out, a bed and breakfast business or host farm business may apply for an exemption (a “food store exemption” ) from compliance with food store requirements for the premises at which the business is carried out or proposed to be

s6 5 s6 Food Hygiene Amendment (No. 1) No. 73, 1998 carried out. ‘ (2) The application must— (a) be made, in the approved form, to the local government in whose area the premises are situated; and (b) be accompanied by the application fee. ‘ (3) The application fee is the lesser of the following amounts— (a) the fee fixed by a resolution or local law made by the local government; (b) $100.00. ˙ ‘ Decision on application ‘ 25B.(1) The local government must promptly consider the application and either grant or refuse to grant the application. ‘ (2) In deciding the application, the local government must consider the following criteria— (a) the condition of the walls, floors and ceilings of the premises; (b) the condition and operation of the lighting and ventilation and exhaust equipment of the premises; (c) the likelihood of contamination of food from the use of the premises for the sale, or preparing, packing, storing, handling, serving or supplying for sale, of food; (d) any other relevant issue. ‘ (3) If the local government decides to grant the application, it must promptly issue a food store exemption for the premises. ‘ (4) A food store exemption is subject to the condition that the premises for which it is issued are kept in a way that minimises the likelihood of contamination of food from the use of the premises for the sale, or preparing, packing, storing, handling, serving or supplying for sale, of food. ‘ (5) In addition, a food store exemption may be issued on reasonable conditions imposed by the local government. ‘ (6) If the local government refuses to grant the application or issues a

s6 6 s6 Food Hygiene Amendment (No. 1) No. 73, 1998 food store exemption on conditions imposed under subsection (5), it must give the applicant written notice of its decision within 10 days after making it. ‘ (7) The notice must state— (a) the decision; and (b) the reasons for the decision; and (c) that the applicant may appeal against the decision to a Magistrates Court within 28 days after the applicant receives the notice. ‘ (8) If the local government fails to decide the application within 60 days after it is made, the failure is taken to be a decision by the local government to refuse to grant the application. ‘ Division 2—Suspension or cancellation of exemptions ˙ ‘ Grounds for suspension or cancellation ‘ 25C. Each of the following is a ground for the suspension or cancellation of a food store exemption— (a) the exemption was obtained because of incorrect or misleading information; (b) the holder of the exemption has contravened a condition of the exemption; (c) the holder of the exemption has been found guilty of an offence against the Act. ˙ ‘ Procedure for suspension or cancellation ‘ 25D.(1) If a local government believes a ground exists to suspend or cancel a food store exemption (the “proposed action” ), it must give the holder of the exemption written notice— (a) stating the proposed action; and (b) stating the grounds for the proposed action; and (c) outlining the facts and circumstances forming the basis for its

s6 7 s6 Food Hygiene Amendment (No. 1) No. 73, 1998 belief; and (d) if the proposed action is suspension of the exemption— (i) stating the proposed suspension period; and (ii) explaining the effect of suspension under this division; and (e) inviting the holder to show in writing, within a stated reasonable time of at least 28 days, why the proposed action should not be taken. ‘ (2) If, after considering all written representations made within the stated time, the local government still considers a ground for the proposed action exists, it may— (a) if the proposed action was to suspend the exemption for a stated period—suspend the exemption for no longer than the proposed suspension period; or (b) if the proposed action was to cancel the exemption—either cancel the exemption or suspend it for a period. ‘ (3) The local government must inform the holder of its decision by written notice. ‘ (4) The notice must be given within 10 days after the local government makes its decision. ‘ (5) If the local government decides to suspend or cancel the exemption, the notice must state— (a) the decision; and (b) the reasons for the decision; and (c) that the holder may appeal against the decision to a Magistrates Court within 28 days after the holder receives the notice. ‘ (6) The decision takes effect on the later of the following days— (a) the day when the notice is given to the holder; (b) the day of effect stated in the notice. ‘ (7) However, if the ground for the suspension or cancellation of the exemption is that the holder has been found guilty of an offence against the Act, the suspension or cancellation has no effect if the finding is quashed on appeal.

s6 8 s6 Food Hygiene Amendment (No. 1) No. 73, 1998 ‘ (8) Also, subsections (1) to (7) do not apply if the holder agrees to the local government cancelling the exemption. ‘ (9) The local government may cancel a food store exemption under subsection (8) by written notice given to the holder. ˙ ‘ Procedure for immediate suspension ‘ 25E.(1) This section applies if— (a) a local government believes a ground exists to cancel or suspend a food store exemption; and (b) the local government considers the health of members of the public may be adversely affected if urgent action to suspend the exemption is not taken. ‘ (2) The local government may immediately suspend the exemption by written notice given to the holder of the exemption. ‘ (3) The suspension takes effect immediately the notice is given to the holder. ‘ (4) The notice must state— (a) that the exemption is suspended; and (b) the reasons for the suspension; and (c) that the holder may appeal against the suspension to a Magistrates Court within 28 days after the holder receives the notice. ‘ (5) The local government must at the same time give the holder a notice under section 25D(1). ‘ (6) The suspension of the exemption continues until the first to happen of the following— (a) the local government cancels the suspension; (b) the local government gives the holder notice of its decision under section 25D(3); (c) the end of 60 days after the notice under subsection (2) was given to the holder.

s6 9 s6 Food Hygiene Amendment (No. 1) No. 73, 1998 ‘ Division 3—Amendment of exemptions ˙ ‘ Procedure for amendment ‘ 25F.(1) A local government may amend a food store exemption if— (a) the holder of the exemption agrees to the amendment; or (b) the local government is reasonably satisfied the exemption should be amended. ‘ (2) Without limiting subsection (1)(b), the local government may be reasonably satisfied the exemption should be amended, having regard to the criteria the local government is required to consider in deciding an application for a food store exemption. ‘ (3) If the local government is reasonably satisfied the exemption should be amended under subsection (1)(b), the local government must give the holder a written notice that— (a) states the proposed amendment and the reasons for the amendment; and (b) outlines the facts and circumstances forming the basis for the reasons; and (c) invites the holder to make written representations to the local government, within a stated reasonable time of at least 28 days, to show why the amendment should not be made. ‘ (4) If, after considering the representations properly made by the holder, the local government is still reasonably satisfied the exemption should be amended in the way mentioned in the notice, or in another way having regard to the representations, it must— (a) issue a new food store exemption for the premises; and (b) give the holder a written notice that states— (i) the old exemption has been cancelled; and (ii) the way in which the new exemption is different from the old exemption; and (iii) the reasons for the amendment; and (iv) the holder may appeal to a Magistrates Court against the

s 6 10 s 6 Food Hygiene Amendment (No. 1) No. 73, 1998 decision within 28 days after the holder receives the notice. ‘ (5) The new exemption takes effect on the later of the following days— (a) the day when the notice is given to the holder; (b) the day of effect stated in the notice. ‘ (6) In this section— “amend” , a food store exemption, means— (a) impose conditions on the exemption; or (b) vary any conditions of the exemption imposed under section 25B(5). 1 ‘ Division 4—Appeals ˙ ‘ Decisions open to appeal ‘ 25G.(1) An applicant for a food store exemption may appeal against a decision of a local government to— (a) refuse to grant the application; or (b) impose a condition on the exemption under section 25B(5). ‘ (2) The holder of a food store exemption may appeal against a decision of a local government to— (a) suspend or cancel the exemption; or (b) amend the exemption under section 25F(1)(b). ˙ ‘ Starting an appeal ‘ 25H.(1) An appeal is started by— (a) filing a written notice of appeal with a Magistrates Court; and (b) serving a copy of the notice on the local government. ‘ (2) The appeal may be made to a Magistrates Court nearest the place— 1 Section 25B (Decision on application)

s 6 11 s 6 Food Hygiene Amendment (No. 1) No. 73, 1998 (a) where the person lives; or (b) where the premises the subject of the application or exemption are situated. ‘ (3) However, subsection (2) does not limit the jurisdiction of another Magistrates Court to hear the appeal. ‘ (4) The notice of appeal must state fully the grounds of the appeal and the facts relied on. ˙ ‘ Time for starting an appeal ‘ 25I.(1) An appeal may be started at any time. ‘ (2) However, if written notice is given of the decision, and reasons for the decision are included in the notice, an appeal against the decision by a person to whom the notice was given must be started within 28 days after the person receives the notice. ‘ (3) The Magistrates Court may at any time extend the period for filing the notice of appeal. ˙ ‘ Stay of operation of decisions ‘ 25J.(1) The Magistrates Court may grant a stay of the operation of the decision to secure the effectiveness of the appeal. ‘ (2) A stay— (a) may be granted on the conditions the court considers appropriate; and (b) applies for the period the court states, but must not extend past the time when the court decides the appeal; and (c) may be cancelled or amended by the court. ˙ ‘ Hearing procedures ‘ 25K.(1) In deciding the appeal, the Magistrates Court— (a) has the powers of the local government in relation to food store exemptions; and

s 6 12 s 6 Food Hygiene Amendment (No. 1) No. 73, 1998 (b) is not bound by the rules of evidence; and (c) must comply with natural justice; and (d) may hear the appeal in court or in chambers. ‘ (2) The appeal is by way of rehearing. ˙ ‘ Powers of court on appeal ‘ 25L.(1) In deciding the appeal, the Magistrates Court may— (a) confirm the decision; or (b) set aside the decision and substitute another decision; or (c) set aside the decision and return the issue to the local government with the directions the court considers appropriate. ‘ (2) If the Magistrates Court substitutes another decision, the substituted decision is, for this regulation (other than this division), taken to be that of the local government. ˙ ‘ Appeal to District Court ‘ 25M. An appeal to a District Court may be made from a decision of a Magistrates Court under this division, but only on a question of law.’. ENDNOTES 1. Made by the Governor in Council on 9 April 1998. 2. Notified in the gazette on 9 April 1998. 3. Laid before the Legislative Assembly on . . . 4. The administering agency is the Department of Health. © State of Queensland 1998