Untitled document
Primary Industries and Food Legislation Amendment Act 2012
No. 60 of 2012
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1Purposes
2Commencement
PART 2—AMENDMENTS TO THE IMPOUNDING OF LIVESTOCK ACT 1994
3Power to enter land or building and impound abandoned livestock
4New section 5B inserted
5BPower to enter land or building and impound inadequately confined livestock
5General duty of persons who impound livestock
6Entitlement to reimbursement of charges
7Notice of seizure
8Duties of authorised officer of council
9Release of livestock from pound
10Substitution of heading to Division 2 of Part 2
11Power to serve notice objecting to the trespassing of livestock
12Power to serve notice on owner regarding confinement of livestock
13Holding period for impounded livestock
14Offence if livestock trespass after service of notice under section 16A
15Offence if non-compliance with notice served under
section 16B16Regulations
PART 3—AMENDMENTS TO THE LIVESTOCK DISEASE CONTROL ACT 1994
17Minister may declare unusual circumstances of disease or
death in livestock18Notification of unusual circumstances of disease or death in livestock
19No cattle or pigs on sewage land
20Registration of beekeepers
21Annual fees
22New section 49A inserted
49ASecretary may cancel registration if fee not paid
23Exposure of bees to infected articles etc.
24Compensatable diseases
25Compensation payable out of Fund
26Section 79C substituted
79CCompensation payable for declared diseases
27Records of notifications etc.
28Treatment notice
29New section 121A inserted
121ASecretary may request information relating to land
from Councils
30Power to serve a notice
PART 4—AMENDMENTS TO THE PREVENTION OF
CRUELTY TO ANIMALS ACT 1986
31Application of Act
32Codes of Practice
33Defences to cruelty or aggravated cruelty
34Serious offences
35General inspectors
36Specialist inspectors
37New section 20A inserted
20ADepartment Head may declare animals at risk due
to an emergency
38New section 24KA inserted
24KASearch warrant for premises if non-compliance with section 24ZTA
39Seizure of things not mentioned in the warrant and taking of samples
40Court orders as to costs and disposal of animals
41New section 24ZTA inserted
24ZTARequirement to make documents available for
inspection
42New sections 24ZX and 24ZY inserted
24ZXConduct of proceedings
24ZYCourt to take judicial notice
43Offences relating to scientific procedures carried out at
scientific premises44New section 35A inserted
35AOffences as to authorized officers
45Offences
46New section 44 inserted
44Primary Industries and Food Legislation Amendment Act 2012
PART 5—AMENDMENTS TO THE FOOD ACT 1984
47Definitions
48Meaning of primary food production
49New section 4I inserted
4IDeclared authority for the purposes of references in Chapter 4 of the Food Standards Code
50Orders
51Application of Act to primary food production
52New section 7BA inserted
7BARole of Department of Primary Industries
53Compliance with Food Standards Code
54Orders relating to food premises
55New section 19AA inserted
19AAOrders relating to premises on which primary food production and related activities are carried out
56Secretary may accept undertaking
57Powers of authorized officers
58Remedy in respect of articles seized
59Analysts
60Power of court to order forfeiture
61Evidentiary provisions
62Evidentiary certificate signed by the Secretary
63New section 50AAB inserted
50AABEvidentiary certificate signed by the Secretary DPI
or the chief executive officer of DFSV or PrimeSafe
64Section 50AC substituted
50ACEvidence of signatures
65Secrecy
66Protection against liability
67Delegation by council
68New section 58AB inserted
58ABDelegations by Secretary DPI, the DFSV or PrimeSafe
69Regulations
70New Part XV inserted
PART XV—TRANSITIONAL AND SAVINGS PROVISIONS
80Transitional provision—Primary Industries and Food Legislation Amendment Act 2012
PART 6—OTHER AMENDMENTS
71New section 237A inserted into Local Government Act 1989
237ACouncil to provide information relating to land to inspectors of livestock
72Statute law revision amendments
PART 7—REPEAL OF AMENDING ACT
73Repeal of amending Act
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ENDNOTES
Primary Industries and Food Legislation Amendment Act 2012
No. 60 of 2012
[Assented to 23 October 2012]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purposes
The purposes of this Act are—
(a)to amend the Impounding of Livestock Act 1994—
(i)to provide for an additional entry and impoundment power for authorised officers of councils relating to inadequately confined livestock; and
(ii)to provide that notices regarding trespassing or inadequately confined livestock may be served on owners or occupiers of land as well as livestock owners; and
(iii)to make other miscellaneous amendments to that Act; and
(b)to amend the Livestock Disease Control Act 1994—
(i)to provide for additional offences relating to cattle, pigs and bees; and
(ii)to give power to the Secretary to the Department of Primary Industries to cancel beekeeper registrations if certain fees are not paid; and
(iii)to give power to the Secretary to the Department of Primary Industries to request information about land from Councils; and
(iv)to insert additional infringement offences; and
(v)to make other miscellaneous amendments to that Act; and
(c)to amend the Prevention of Cruelty to Animals Act 1986—
(i)to insert a defence to cruelty and aggravated cruelty offences in that Act if acting in accordance with a prescribed code of practice; and
(ii)to provide that orders disqualifying persons from being in charge of animals be able to be made against persons found guilty without a conviction or not guilty because of mental impairment of serious offences as well as persons convicted of such offences; and
(iii)to give inspectors the power to, by notice, require production of documents relating to possible offences against that Act and include an offence for non‑compliance with the notice; and
(iv)to provide for an additional search and entry power under a warrant for documents relating to possible offences against that Act; and
(v)to insert additional offences relating to the discharge of authorized officers' powers under Part 3 of that Act; and
(vi)to make other miscellaneous amendments to that Act; and
(d)to amend the Food Act 1984—
(i)to confer certain functions on the Secretary to the Department of Primary Industries in relation to primary food production and related activities; and
(ii)to provide for persons or bodies to be declared as a declared authority for the purposes of Chapter 4 of the Food Standards Code; and
(iii)to provide for persons to be exempted from certain requirements of the Food Standards Code; and
(iv)to provide for orders to be made directing persons conducting primary food production and related activities; and
(v)to extend the enforcement powers under Part IV of that Act to apply in respect of food handled during primary food production; and
(vi)to make other consequential and miscellaneous amendments to that Act; and
(e)to amend the Local Government Act 1989 to require Councils to make certain information relating to land available to the Secretary to the Department of Primary Industries.
2Commencement
(1)This Part, Part 5 and section 72 come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation before 1 July 2013, it comes into operation on that day.
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PART 2—AMENDMENTS TO THE IMPOUNDING OF LIVESTOCK ACT 1994
3Power to enter land or building and impound abandoned livestock
In section 5A(1) of the Impounding of Livestock Act 1994, after "a council" insert ", with any assistance that is necessary,".
4New section 5B inserted
After section 5A of the Impounding of Livestock Act 1994 insert—
"5B Power to enter land or building and impound inadequately confined livestock
(1)An authorised officer of a council, with any assistance that is necessary, may enter any land or building (excluding any building occupied as 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 and that either of the circumstances set out in subsection (4) applies.
(2)An authorised officer of a council must not exercise a power under this section except between the hours of 7 a.m. and 7 p.m. if the reasonable belief of the officer referred to in subsection (1) relates only to the circumstances set out in subsection (4)(b).
(3)An authorised officer of a council who enters any land or building under subsection (1) at which the owner or occupier of the land or building is present must take all reasonable steps to inform the owner or occupier of the purpose of the entry.
(4)If an authorised officer of a council enters land or a building under subsection (1) and finds livestock that are not adequately confined on the land or in the building, the officer may impound the livestock if the officer is satisfied that—
(a)if the livestock were to wander from the land or building—
(i)the welfare of the livestock or other livestock would be at risk; or
(ii)there would be a risk to public safety; or
(b)the livestock are the subject of a notice served on a person under section 16B requiring the person to take measures to adequately confine livestock on the land or in the building and the person has not taken those measures within the time specified in the notice.
(5)If an authorised officer of a council impounds any livestock under subsection (4), the officer must deliver the livestock to a pound.
(6)If an authorised officer of a council exercises a power of entry under this section without the owner or occupier of the land or building being present, the officer must fix a notice to the building or to the entry gate of the land setting out—
(a)the time of entry; and
(b)the purpose of entry; and
(c)the number and description of any livestock impounded; and
(d)the time of departure; and
(e)the procedure for contacting the authorised officer of the council for further details of the entry and the impoundment of any livestock.".
5General duty of persons who impound livestock
In section 6(1) of the Impounding of Livestock Act 1994, for "5 or 5A" substitute "5, 5A or 5B".
6Entitlement to reimbursement of charges
In section 7 of the Impounding of Livestock Act 1994, for "section 5 or 5A" substitute "section 5, 5A or 5B".
7Notice of seizure
(1)In section 8A(1)(f) of the Impounding of Livestock Act 1994, after "livestock" insert "including the number of days that a council must hold impounded livestock before the council disposes of the livestock in accordance with Part 3".
(2)In section 8A(2) of the Impounding of Livestock Act 1994, after "owner" (where first occurring) insert "of the impounded livestock".
8Duties of authorised officer of council
In section 8(2) of the Impounding of Livestock Act 1994, for "5 or 5A" substitute "5, 5A or 5B".
9Release of livestock from pound
(1)In section 16(1) of the Impounding of Livestock Act 1994, for "5 or 5A" substitute "5, 5A or 5B".
(2)After section 16(2)(a) of the Impounding of Livestock Act 1994 insert—
"(ab)the council is satisfied on reasonable grounds that any notice under section 16B served on a person in relation to the livestock has been complied with; and".
10Substitution of heading to Division 2 of Part 2
For the heading to Division 2 of Part 2 of the Impounding of Livestock Act 1994 substitute—
"Division 2—Powers relating to trespassing or inadequately confined livestock".
11Power to serve notice objecting to the trespassing of livestock
(1)For section 16A(1) of the Impounding of Livestock Act 1994 substitute—
"(1)If an authorised officer of a council reasonably believes that livestock have trespassed on any land or road, he or she may serve a notice objecting to the trespass of the livestock on any one or more of the following persons—
(a)the owner of the livestock;
(b)the owner of the land on which the livestock are kept or the occupier of that land if the owner is not the occupier.".
(2)In section 16A(2) of the Impounding of Livestock Act 1994, for "owner" (where twice occurring) substitute "person".
12Power to serve notice on owner regarding confinement of livestock
(1)For section 16B(1) of the Impounding of Livestock Act 1994 substitute—
"(1)If an authorised officer of a council reasonably believes that livestock are not adequately confined on land or in a building, he or she may serve a notice on any one or more of the following persons directing that the person or persons take the measures set out in the notice to ensure the livestock are adequately confined—
(a)the owner of the livestock;
(b)the owner of the land or building or the occupier of the land or building if the owner is not the occupier.".
(2)For section 16B(2) of the Impounding of Livestock Act 1994 substitute—
"(2)A notice under subsection (1)—
(a)may be served whether or not any of the livestock have been impounded in accordance with section 5B(4)(a); and
(b)must be served on the person personally or by registered post to the last known address of the person.".
(3)After section 16B(3)(c) of the Impounding of Livestock Act 1994 insert—
"(ca)a statement that the livestock may be impounded by an authorised officer of the council—
(i)under section 5B(4)(a), if the officer is satisfied that the welfare of the livestock would be at risk or there would be risk to public safety if the livestock were to wander from the land or building; or
(ii)under section 5B(4)(b), if the notice is not complied with within the specified time;".
13Holding period for impounded livestock
(1)For the heading to section 17 of the Impounding of Livestock Act 1994 substitute—
"Holding period for impounded livestock".
(2)For section 17(1) of the Impounding of Livestock Act 1994 substitute—
"(1)Subject to subsection (3), a council must hold livestock impounded under section 5 or 5B for at least 7 days before the council may dispose of the livestock in accordance with this Part.".
(3)After section 17(2) of the Impounding of Livestock Act 1994 insert—
"(3)If a notice under section 16B is served on a person in relation to livestock impounded under section 5 or 5B(4)(a) before the impoundment of the livestock or before the end of the 7 day period referred to in subsection (1), the council must hold the livestock before disposing of the livestock in accordance with this Part for at least—
(a)the 7 day period referred to in subsection (1); or
(b)a period of 3 days after the time within which measures must be taken under the notice—
whichever period finishes last.".
14Offence if livestock trespass after service of notice under section 16A
In section 25A of the Impounding of Livestock Act 1994—
(a)for "the owner of that livestock" substitute "a person";
(b)for "owner is guilty" substitute "person is guilty".
15Offence if non-compliance with notice served under section 16B
In section 25B of the Impounding of Livestock Act 1994, for "An owner of livestock" substitute "A person".
16Regulations
After section 34(1)(a) of the Impounding of Livestock Act 1994 insert—
"(ab)the care and management of impounded livestock in pounds; and".
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PART 3—AMENDMENTS TO THE LIVESTOCK DISEASE CONTROL ACT 1994
17Minister may declare unusual circumstances of disease or death in livestock
In section 7A(1)(c) of the Livestock Disease Control Act 1994, for "symptoms" substitute "clinical signs".
18Notification of unusual circumstances of disease or death in livestock
In section 7B of the Livestock Disease Control Act 1994, for "14 days" substitute "5 days".
19No cattle or pigs on sewage land
(1)After section 43(2) of the Livestock Disease Control Act 1994 insert—
"(2A)The owner of cattle or pigs must not permit, suffer or allow the cattle or pigs to be provided with, or given access to, recycled water obtained from a sewerage authority.
Penalty:120 penalty units.".
(2)After section 43(3) of the Livestock Disease Control Act 1994 insert—
"(3A)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.".
(3)In section 43(4) of the Livestock Disease Control Act 1994—
(a)in paragraph (b), for "land—" substitute "land; or";
(b)after paragraph (b) insert—
"(c)has been provided with, or given access to, recycled water obtained from a sewerage authority—";
(c)for "(1) or (2)" substitute "(1), (2) or (2A)".
(4)After section 43(6) of the Livestock Disease Control Act 1994 insert—
"(7)In this section, recycled water has the same meaning as in section 3(1) of the Water Act 1989.".
20Registration of beekeepers
After section 48(4) of the Livestock Disease Control Act 1994 insert—
"(4A)A registration or renewal of registration granted under this section remains in force for a period of one year from the date that it was granted or renewed unless sooner cancelled under section 49A.".
21Annual fees
In section 49 of the Livestock Disease Control Act 1994, after "annual fee" insert "fixed by the Minister (if any)".
22New section 49A inserted
After section 49 of the Livestock Disease Control Act 1994 insert—
"49A Secretary may cancel registration if fee not paid
The Secretary may cancel the registration of a beekeeper if a fee required to be paid under section 49 is not paid in accordance with that section.".
23Exposure of bees to infected articles etc.
After section 52(2) of the Livestock Disease Control Act 1994 insert—
"(3)A person must not expose any pollen collected from bees, which is infected with disease, in any manner that will allow bees to access the pollen.
Penalty:60 penalty units.".
24Compensatable diseases
(1)In section 73(1) of the Livestock Disease Control Act 1994—
(a)for "Compensation" substitute "Except under section 75(e), compensation";
(b)omit "tuberculosis or".
(2)In section 73(2) of the Livestock Disease Control Act 1994—
(a)for "A reference" substitute "Except in section 75(e), a reference";
(b)omit "tuberculosis or".
25Compensation payable out of Fund
(1)In section 77(1) of the Livestock Disease Control Act 1994—
(a)omit "(1)";
(b)omit "except for compensation for tuberculosis".
(2)Section 77(2) of the Livestock Disease Control Act 1994 is repealed.
26Section 79C substituted
For section 79C of the Livestock Disease Control Act 1994 substitute—
"79C Compensation payable for declared diseases
Compensation is only payable under this Division in respect of any disease that is declared by Order in Council published in the Government Gazette to be a compensatable disease in respect of sheep or goats.".
27Records of notifications etc.
After section 107B(1)(a) of the Livestock Disease Control Act 1994 insert—
"(b)information given to the Secretary by a Council under section 121A;".
28Treatment notice
For section 115(2) of the Livestock Disease Control Act 1994 substitute—
"(2)A person must not contravene any provision of a treatment notice in respect of an exotic disease under this section.
Penalty:120 penalty units.
(3)A person must not contravene any provision of a treatment notice in respect of a disease other than an exotic disease under this section.
Penalty:60 penalty units.".
29New section 121A inserted
After section 121 of the Livestock Disease Control Act 1994 insert—
"121A Secretary may request information relating to land from Councils
(1)The Secretary, for or in connection with the administration of, or in carrying out his or her functions under, the Act or the regulations, may make a written request to a Council for the following information relating to land in the municipal district of that Council—
(a)the address of the land;
(b)the name, address and contact details of the owner of the land;
(c)if the owner does not occupy the land, the name, address and contact details of the occupier (if available);
(d)the zone under the planning scheme applying to the land;
(e)the purpose for which the land is used;
(f)any numbers or codes held by the Council which can be used to identify the land.
(2)In this section—
Council has the same meaning as in section 3(1) of the Local Government Act 1989;
planning scheme means a planning scheme made under the Planning and Environment Act 1987 as that planning scheme is in force from time to time.".
30Power to serve a notice
In section 126(1) of the Livestock Disease Control Act 1994, for "48(1), 51(1), 51(2), 94A, 94B, 95(1), 95A(1), 95B(1), 96B or 115A(4)" substitute "48(1), 50(1), 51(1), 51(2), 52(1), 52(2), 52(3), 94A, 94B, 95(1), 95A(1), 95B(1), 96B, 115(3) or 115A(4)".
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PART 4—AMENDMENTS TO THE PREVENTION OF CRUELTY TO ANIMALS ACT 1986
31Application of Act
In section 6(1)(b) of the Prevention of Cruelty to Animals Act 1986, for "this Act" substitute
"this Act,".
32Codes of Practice
(1)Section 7(3) and (4) of the Prevention of Cruelty to Animals Act 1986 are repealed.
(2)After section 7(5) of the Prevention of Cruelty to Animals Act 1986 insert—
"(5A)The power to make, vary or revoke a Code of Practice under subsection (1) is subject to the Code of Practice or the variation or revocation of a Code of Practice being disallowed by either House of the Parliament.".
33Defences to cruelty or aggravated cruelty
(1)Insert the following heading to section 11 of the Prevention of Cruelty to Animals Act 1986—
"Defences to cruelty or aggravated cruelty".
(2)At the end of section 11 of the Prevention of Cruelty to Animals Act 1986 insert—
"(2)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 code of practice prescribed for the purposes of this subsection (other than a Code of Practice made under section 7) that regulates that activity.".
34Serious offences
(1)In section 12(1) of the Prevention of Cruelty to Animals Act 1986—
(a)for "convicted" substitute "convicted, found guilty or found not guilty because of mental impairment";
(b)after "or offences" insert "committed, or that would have been committed in the case of a person found not guilty because of mental impairment,".
(2)In section 12(1A) of the Prevention of Cruelty to Animals Act 1986, for "convicted" substitute "convicted, found guilty or found not guilty because of mental impairment".
(3)In section 12(2)(a) of the Prevention of Cruelty to Animals Act 1986, after "committed" (where first occurring) insert ", or would have been committed in the case of a person found not guilty because of mental impairment,".
(4)In section 12(2)(a)(ii) of the Prevention of Cruelty to Animals Act 1986—
(a)after "committed" (where first occurring) insert ", or would have been committed,";
(b)after "offence" (where secondly occurring) insert ", or would have committed the offence,".
(5)In section 12(2)(b) of the Prevention of Cruelty to Animals Act 1986, after "offence" (where first occurring) insert "committed or that would have been committed".
35General inspectors
(1)For section 18(1)(b)(i) of the Prevention of Cruelty to Animals Act 1986 substitute—
"(i)employed under Part 3 of the Public Administration Act 2004; or".
(2)In section 18(1)(c) of the Prevention of Cruelty to Animals Act 1986—
(a)for "Any person" substitute "any person";
(b)for "authorised officer." substitute "authorised officer; and".
(3)After section 18(1)(c) of the Prevention of Cruelty to Animals Act 1986 insert—
"(d)any person appointed as a general inspector under a declaration made under section 20A.".
36Specialist inspectors
In section 18A(1) of the Prevention of Cruelty to Animals Act 1986, for "this Part" substitute
"this Act".
37New section 20A inserted
After section 20 of the Prevention of Cruelty to Animals Act 1986 insert—
"20A Department Head may declare animals at risk due to an emergency
(1)The Department Head may, by notice published in the Government Gazette, declare that the welfare of any class or classes of animal is at risk due to an existing emergency.
(2)The declaration must state when it ceases to have effect and the nature of the emergency.
(3)The Department Head must revoke the declaration by a notice published in the Government Gazette as soon as possible after being satisfied that the emergency no longer exists.
(4)The declaration ceases to have effect 30 days after the notice is published under subsection (1), unless earlier revoked under subsection (3).
(5)If a declaration is made under this section, the Department Head may, by instrument in writing, appoint any person whom the Department Head considers to have the appropriate qualifications to be a general inspector for the purposes of any provision or provisions of this Act.
(6)The Department Head may appoint a general inspector for the period specified in the instrument, which must not exceed the duration of the declaration.
(7)The appointment of a general inspector remains in force until the earlier of the following—
(a)the declaration ceases to have effect or is revoked under subsection (3);
(b)the appointment is revoked by the Department Head.
(8)In this section emergency has the same meaning as in section 4(1) of the Emergency Management Act 1986.".
38New section 24KA inserted
After section 24K of the Prevention of Cruelty to Animals Act 1986 insert—
"24KA Search warrant for premises if non-compliance with section 24ZTA
(1)A POCTA inspector, with the written approval of the Department Head, may apply to a magistrate for the issue of a search warrant in relation to premises (including residential premises), if—
(a)a person at the premises has not complied with a notice under section 24ZTA to produce or make a document available within the time specified in the notice; and
(b)the inspector believes on reasonable grounds that the document is in or on the premises and that it is relevant to determining whether another person has committed an offence against the Act or the regulations.
(2)If a magistrate is satisfied, by the evidence, on oath or by affidavit, of the inspector that there are reasonable grounds to believe that there is a document in or on the premises that is relevant to determining whether a person has committed an offence against the Act or the regulations, the magistrate may issue a search warrant, in accordance with the Magistrates' Court Act 1989, authorising a POCTA inspector named in the warrant, together with any other person or persons named or otherwise identified in the warrant and with any necessary equipment—
(a)to enter the premises specified in the warrant; and
(b)to do all or any of the following—
(i)search for;
(ii)secure against interference;
(iii)examine, inspect and take a copy or make an extract of—
the document named or described in the warrant and which the inspector believes, on reasonable grounds, to be relevant to determining whether a person has committed an offence against the Act or the regulations.".
39Seizure of things not mentioned in the warrant and taking of samples
In section 24Q(1) of the Prevention of Cruelty to Animals Act 1986, after "this Part" (where first occurring) insert "other than under section 24KA".
40Court orders as to costs and disposal of animals
In section 24X(1)(c) of the Prevention of Cruelty to Animals Act 1986, for "the animal" (where secondly occurring) substitute "any animal".
41New section 24ZTA inserted
After section 24ZT of the Prevention of Cruelty to Animals Act 1986 insert—
"24ZTA Requirement to make documents available for inspection
(1)A POCTA inspector, with the written approval of the Department Head, may serve a notice on a person requiring the person to produce or make available for inspection a document in the custody or possession of the person which the inspector believes on reasonable grounds to be relevant to determining whether another person has committed an offence against this Act or the regulations.
(2)A notice under subsection (1) must—
(a)specify a time within which the person must produce or make the document available for inspection that is not less than 14 days after service of the notice; and
(b)inform the person that it is an offence to fail to comply with the notice unless subsection (4) applies; and
(c)must be served on a person either personally or by registered post at the last known address of that person.
(3)The inspector may inspect, take a copy of, or make an extract of, any document produced or made available under subsection (1).
(4)A person served with a notice under subsection (1) must comply with the notice within the time for compliance specified in the notice unless, in the case of a natural person, compliance with the notice would tend to incriminate the person.
Penalty:20 penalty units.
(5)Section 24ZV(2) does not apply to the requirement to comply with a notice under subsection (1).".
42New sections 24ZX and 24ZY inserted
After section 24ZW of the Prevention of Cruelty to Animals Act 1986 insert—
"24ZX Conduct of proceedings
If a charge-sheet charging an offence is filed by a person authorised to do so under section 24ZW(1)(b), the proceedings for the offence may be conducted before a court by any other person authorised under that section to file a charge-sheet for such an offence.
24ZYCourt to take judicial notice
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 for an offence under section 24ZX.".
43Offences relating to scientific procedures carried out at scientific premises
(1)In section 26(2) of the Prevention of Cruelty to Animals Act 1986, for "nominate a person" substitute "nominate a natural person".
(2)For the penalty at the foot of section 26(3) of the Prevention of Cruelty to Animals Act 1986 substitute—
"Penalty:120 penalty units or imprisonment for 12 months.".
44New section 35A inserted
After section 35 of the Prevention of Cruelty to Animals Act 1986 insert—
"35A Offences as to authorized officers
(1)A person must not, without reasonable excuse, obstruct or hinder or attempt to obstruct or hinder an authorized officer in the discharge of his or her powers, duties or functions under this Part.
Penalty:60 penalty units.
(2)For the purposes of subsection (1), a reasonable excuse includes the failure of the authorized officer to inform the person of the existence of the offence before the authorized officer attempted to exercise the power or carry out the duty or function under this Part.
(3)A person must not, without reasonable excuse, refuse admission to an authorized officer exercising a power of entry or a person assisting an authorized officer in exercising a power of entry under this Part.
Penalty:60 penalty units.
(4)A person must not, without reasonable excuse, contravene or fail to comply with any direction or requirement of an authorized officer who is acting in the discharge of his or her powers under this Part.
Penalty:60 penalty units.".
45Offences
In section 36(1) of the Prevention of Cruelty to Animals Act 1986—
(a)omit "knowingly or negligently";
(b)for "unnecessary, unreasonable or unjustifiable" substitute "unreasonable".
46New section 44 inserted
After section 43 of the Prevention of Cruelty to Animals Act 1986 insert—
"44 Primary Industries and Food Legislation Amendment Act 2012
Section 12 as amended by section 34 of the Primary Industries and Food Legislation Amendment Act 2012 applies to a person in respect of an offence under this Act committed by the person or, in the case of a person found not guilty because of mental impairment, that would have been committed by the person, before, on or after the commencement of section 34 of the Primary Industries and Food Legislation Amendment Act 2012.".
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PART 5—AMENDMENTS TO THE FOOD ACT 1984
47Definitions
(1)In section 4(1) of the Food Act 1984, in the definition of article, after paragraph (a) insert—
"(ab)any plant, plant product, animal, livestock product, chemical, fertiliser, stock food, soil, surface or other thing used in, or in connection with, the handling of food; or".
(2)In section 4(1) of the Food Act 1984, in paragraph (c) of the definition of authorized officer omit "for the purposes of enforcing the provisions of this Act in relation to any dairy premises, milk or dairy food within the meaning of the Dairy Act 2000,".
(3)In section 4(1) of the Food Act 1984, at the foot of the definition of handling insert—
"Note
Section 4C(3) clarifies that handling of food includes primary food production.".
(4)In section 4(1) of the Food Act 1984, for the definition of Secretary substitute—
"Secretary—
(a)in paragraph (a) of the definition of authorized officer in section 4(1) of Part 1 and in Part II, Part III, Part IIIA (except section 19BB(5), (6) and (7)), Part IV (except section 20(5)), Part VIII and Part IX (except sections 56(1) and 59C(3)) means the Secretary DH or the Secretary DPI; and
(b)in any other provision in this Act means the Secretary DH;".
(5)In section 4(1) of the Food Act 1984 insert the following definitions—
"declared authority means a person or body declared under section 4I(1);
DFSV means Dairy Food Safety Victoria established under Part 2 of the Dairy Act 2000;
livestock product has the same meaning as in section 3(1) of the Livestock Disease Control Act 1994;
plant product has the same meaning as in the Plant Biosecurity Act 2010;
primary production and processing standard means a standard contained in Chapter 4 of the Food Standards Code;
PrimeSafe means the Authority established under Part 6 of the Meat Industry Act 1993;
Secretary DH means the Department Head (within the meaning of the Public Administration Act 2004) of the Department;
Secretary DPI means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Primary Industries;".
48Meaning of primary food production
After section 4C(2) of the Food Act 1984 insert—
"(3)To avoid doubt, references in this Act to the handling of food includes primary food production.".
49New section 4I inserted
After section 4H of the Food Act 1984 insert—
'4I Declared authority for the purposes of references in Chapter 4 of the Food Standards Code
(1)The Minister, by order published in the Government Gazette, may declare a person or body or a person or body belonging to a specified class of person or body to be a declared authority for the purposes of carrying out any function or duty or exercising any power of an Authority, authority or relevant authority referred to in a specified primary production and processing standard or any specified provision of that standard .
(2)An order made under subsection (1) may be made so as to be limited in respect of time or circumstances including in respect of—
(a)a person or a person belonging to a specified class of person; or
(b)a premises or a premises belonging to a specified class of premises.
(3)An order under this section takes effect on the date that the order is published in the Government Gazette or on any later date specified in the order.
(4)For the purposes of any provision of this Act that applies the Food Standards Code, a reference in a primary production and processing standard or any provision of that standard to an "Authority", "authority" or "relevant authority" is taken to be a reference to a "declared authority" declared in an order under subsection (1) for the purposes of that primary production and processing standard or that provision of that standard (as the case requires).'.
50Orders
After section 5(4) of the Food Act 1984 insert—
"(5)The Secretary DH or the Secretary DPI, by order published in the Government Gazette, may exempt a person or a person belonging to a specified class of person from complying with a specified requirement of the Food Standards Code.
(6)An order under subsection (5) may be made by the Secretary DPI only in respect of a requirement in a primary production and processing standard.
(7)An order under subsection (5)—
(a)may be made so as to be limited in respect of time or circumstances; and
(b)may be unconditional or subject to any condition specified in the order; and
(c)takes effect on the date that the order is published in the Government Gazette or on any later date specified in the order; and
(d)may by like order be amended, varied or revoked.".
51Application of Act to primary food production
(1)In section 6A(1) of the Food Act 1984, for "Parts IV and VI do" substitute "Part VI does".
(2)Section 6A(2) of the Food Act 1984 is repealed.
52New section 7BA inserted
After section 7B of the Food Act 1984 insert—
"7BA Role of Department of Primary Industries
The role of the Department of Primary Industries under this Act is to—
(a)facilitate the exercise of the powers and functions of the Secretary DPI in relation to primary food production and related activities that, under arrangements with the Secretary DH, are to be carried out or exercised by the Secretary DPI;
(b)promote the objects of this Act in relation to primary food production and related activities.".
53Compliance with Food Standards Code
After section 16(4) of the Food Act 1984 insert—
"(5)A person does not contravene any provision of this section by reason only of failing to comply with an applicable requirement of the Food Standards Code if the person is exempted from compliance with that requirement by an order made under section 5(5).".
54Orders relating to food premises
(1)In section 19(4)(b) of the Food Act 1984, for "a council or a chief executive officer" substitute "anyone other than the Secretary".
(2)After section 19(9)(c) of the Food Act 1984 insert—
"(ca)DFSV in relation to any food premises in respect of which it has issued a dairy industry licence under Part 3 of the Dairy Act 2000;
(cb)PrimeSafe in relation to any food premises in respect of which it has issued a licence under Part 4 of the Meat Industry Act 1993 or a seafood safety licence under Part 3 of the Seafood Safety Act 2003;".
55New section 19AA inserted
After section 19 of the Food Act 1984 insert—
"19AA Orders relating to premises on which primary food production and related activities are carried out
(1)This section applies if the relevant authority is satisfied from the report of an authorized officer that—
(a)food being prepared, sold or otherwise handled at any premises is unsafe or unsuitable; or
(b)food is being prepared, sold or otherwise handled at any premises in a manner that makes it likely that the food is unsafe or unsuitable; or
(c)any premises, or any vehicle, plant, machinery or equipment used on the premises, or any activity conducted on the premises, in connection with any food prepared, sold or otherwise handled at the premises, or any such food, does not comply with an applicable requirement of a primary production and processing standard.
(2)Subject to subsection (3), the relevant authority, by written order, may direct that, within a specified time, the relevant person in respect of a premises referred to in subsection (1) must do any one or more of the following—
(a)take specified steps to ensure that food prepared, sold or otherwise handled at the premises is safe and suitable;
(b)take specified steps to ensure that the premises, or any vehicle, plant, machinery or equipment used on the premises in connection with any food prepared, sold or otherwise handled at the premises is cleaned and disinfected or put into an altered condition to the satisfaction of the authorized officer;
(c)ensure that any requirement of an applicable primary production and processing standard referred to in subsection (1)(c) is complied with.
(3)An order may not be made under subsection (2)(c) in relation to a requirement of an applicable primary production and processing standard, if the relevant person is a person who is exempted from compliance with that requirement by an order made under section 5(5).
Note
If a person exempted under section 5(5) from complying with an applicable requirement of a primary production and processing standard does not comply or is not complying with any condition of the exemption, the exemption will no longer be in force and the person will not be exempt from that requirement. The person may then be subject to a direction under this section if there has been non-compliance with that requirement.
(4)The relevant authority, in an order under subsection (2) or a subsequent written order, may direct that, until the directions in subsection (2) are complied with, the relevant person in respect of the premises referred to in subsection (2) must ensure that—
(a)the premises or a specified area of the premises is not used for the preparation, sale or other handling of food or an activity connected with food specified in the order; or
(b)any vehicle, plant, machinery or equipment on the premises is not used in connection with the preparation, sale or other handling of food or an activity connected with food specified in the order; or
(c)any food or class of food specified in the order is not removed from the premises, for any purpose (including any purpose specified in the order) or in any circumstances specified in the order, for the period of time that is specified in the order.
(5)An order under this section—
(a)must be served on the relevant person in respect of the premises to which the order applies; or
(b)if the name and address of the relevant person is unknown, must be affixed to a conspicuous part of the premises to which the order applies.
(6)An order under this section takes effect when it is served or affixed (as the case may be) in accordance with subsection (5).
(7)If satisfied that an order made under this section has been complied with, the relevant authority must—
(a)revoke the order; and
(b)give written notice of the revocation of the order in the same manner in which the order was served.
(8)A person must not contravene an order made under this section.
Penalty:120 penalty units.
(9)A person (other than the relevant person to whom the order applies) must not remove an order affixed to a premises under subsection (5)(b) while that order remains in force.
Penalty:60 penalty units.
(10)In this section—
premises means any premises on which an activity, to which a primary production and processing standard applies, is conducted;
relevant authority means any one of the following—
(a)in the case of a premises used solely for the purposes of a primary food production business—
(i)the Secretary DPI;
(ii)a declared authority;
(b)in the case of a food premises—
(i)the Secretary DPI;
(ii)the Secretary DH;
(iii)a declared authority;
(iv)the council that is the registration authority for the premises;
(v)the chief executive officer of a council referred to in subparagraph (iv);
relevant person means the person who, on a premises, is conducting an activity to which a primary production and processing standard applies.".
56Secretary may accept undertaking
In section 19BB(2)(a) of the Food Act 1984, for "food premises" substitute "premises".
57Powers of authorized officers
In section 21(3) of the Food Act 1984, after "sale of food" insert "or primary food production".
58Remedy in respect of articles seized
For section 26(4) of the Food Act 1984 substitute—
"(4)Subsection (5) applies if—
(a)an application is made under subsection (1) and the application is refused; or
(b)an application is not made under subsection (1) and the period of 7 days after the seizure has expired.
(5)After the application is refused or the period of 7 days after the seizure has expired (as the case may be) the article seized becomes the property of the—
(a)Secretary DH, if the authorized officer who seized the article is authorised by the Secretary DH under section 20(1); or
(b)Secretary DPI, if the authorized officer who seized the article is authorised by the Secretary DPI under section 20(1); or
(c)a council, if the authorized officer who seized the article is an environmental health officer of that council or appointed by the council under section 20(1B); or
(d)DFSV, if the authorized officer who seized the article is an authorized officer within the meaning of paragraph (c) of the definition of authorized officer; or
(e)PrimeSafe, if the authorized officer who seized the article is an authorized officer within the meaning of paragraph (d) of the definition of authorized officer—
and the article must be destroyed or otherwise disposed of as the Secretary DH, the Secretary DPI, the council, DFSV or PrimeSafe (as the case requires) directs.".
59Analysts
(1)In section 30(3) and (7) of the Food Act 1984, before "the manufacture" insert "primary food production or".
(2)In section 30(4) of the Food Act 1984—
(a)after "who" insert "is or";
(b)before "the manufacture" insert "primary food production or".
(3)After section 30(8) of the Food Act 1984 insert—
"(8A)The following persons are taken to be authorised under this section to carry out an analysis of any article for the purposes of this Act subject to any conditions of that approval—
(a)a person or a person who is of a class of person approved under section 16A(1) of the Livestock Disease Control Act 1994;
(b)a person who is appointed as an approved analyst under section 69G of the Agricultural and Veterinary Chemicals (Administration) Act 1992 of the Commonwealth for the purposes of the Agvet Codes within the meaning of that Act.".
(4)In section 30(9) of the Food Act 1984, for "subsection (8)" substitute "subsection (8) or (8A)".
60Power of court to order forfeiture
For section 48(4) of the Food Act 1984 substitute—
"(4)Every article forfeited to her Majesty under this section must be destroyed or otherwise disposed of in accordance with—
(a)a direction of the Secretary DPI, if the prosecutor of the offence referred to in subsection (1) is the Secretary DPI or an authorized officer authorised by the Secretary DPI under section 20(1); or
(b)a direction of DFSV, if the prosecutor of the offence referred to in subsection (1) is an authorized officer within the meaning of paragraph (c) of the definition of authorized officer; or
(c)a direction of PrimeSafe, if the prosecutor of the offence referred to in subsection (1) is an authorized officer within the meaning of paragraph (d) of the definition of authorized officer; or
(d)a direction of the Secretary DH in any other case.".
61Evidentiary provisions
In section 50(1) of the Food Act 1984—
(a)in paragraph (a), after "intended for sale" insert "or produced by way of primary food production";
(b)in paragraph (c)—
(i)after "sale of food" (where first occurring) insert "or for primary food production";
(ii)after "sale of food" (where secondly occurring) insert "or in primary food production".
62Evidentiary certificate signed by the Secretary
(1)In the heading to section 50AA of the Food Act 1984, after "Secretary" insert "DH".
(2)In section 50AA of the Food Act 1984, after "Secretary" insert "DH".
63New section 50AAB inserted
After section 50AA of the Food Act 1984 insert—
"50AAB Evidentiary certificate signed by the Secretary DPI or the chief executive officer of DFSV or PrimeSafe
In any proceeding for an offence against this Act, a certificate signed by the Secretary DPI, the chief executive officer of DFSV or the chief executive officer of PrimeSafe stating any of the following matters is evidence of the matter—
(a)a stated document is one of the following things made, given or issued under this Act—
(i)an appointment, authorisation, exemption, declaration or other decision;
(ii)an order or a notice, direction or requirement;
(iii)a record or an extract from a record;
(b)a stated document is a copy of a thing referred to in paragraph (a);
(c)on a stated day, or during a stated period, an authorisation as an authorized officer was, or was not, in force for a stated person;
(d)on a stated day, a stated person was given a stated order, notice or direction under this Act;
(e)a stated amount is payable under this Act by a stated person and has not been paid.".
64Section 50AC substituted
For section 50AC of the Food Act 1984 substitute—
"50AC Evidence of signatures
A signature purporting to be the signature of the Minister, the Secretary DH, the Secretary DPI, the chief executive officer of a council, the chief executive officer of DFSV, the chief executive officer of PrimeSafe, the chief executive officer of a declared authority, an authorized officer or an analyst is evidence of the signature it purports to be.".
65Secrecy
In section 54(1)(ba)(ii) of the Food Act 1984 omit "food" (where twice occurring).
66Protection against liability
For section 56(3) of the Food Act 1984 substitute—
"(3)Any liability resulting from an act or omission that would but for subsection (2) attach to a person to whom this section applies attaches instead—
(a)in the case of an authorized officer who is authorised by the Secretary DH under section 20(1), to the Secretary DH;
(b)in the case of an authorized officer who is authorised by the Secretary DPI under section 20(1), to the Secretary DPI;
(c)in the case of an authorized officer within the meaning of paragraph (c) of the definition of authorized officer, to DFSV;
(d)in the case of an authorized officer within the meaning of paragraph (d) of the definition of authorized officer, to PrimeSafe;
(e)in the case of an authorized officer who is an environmental health officer of a council or appointed by a council under section 20(1B) or an employee of a council, to that council.".
67Delegation by council
In section 58A(1) of the Food Act 1984, after "19(3)" insert ", 19AA(4)(a) or 19AA(4)(b)".
68New section 58AB inserted
After section 58A of the Food Act 1984 insert—
"58AB Delegations by Secretary DPI, the DFSV or PrimeSafe
(1)The Secretary DPI by instrument may delegate any power, duty or function of the Secretary DPI under this Act (other than this power of delegation) to any employee or class of employees employed under Part 3 of the Public Administration Act 2004.
(2)DFSV by instrument may delegate any power, duty or function of DFSV under this Act (other than this power of delegation) to any officer or employee of DFSV.
(3)Primesafe by instrument may delegate any power, duty or function of PrimeSafe under this Act (other than this power of delegation) to any officer or employee of PrimeSafe.".
69Regulations
(1)In section 63(1)(z)(ii) of the Food Act 1984, after "this Act" insert "or the Food Standards Code".
(2)After section 63(1) of the Food Act 1984 insert—
"(1A)In the case of fees and charges, the regulations may provide for any or all of the following—
(a)specific fees or charges;
(b)maximum fees or charges;
(c)differential fees or charges;
(d)fees or charges to be fixed and collected by the Secretary DPI, including acting in his or her capacity as a declared authority, for services provided for or in connection with the administration of, or for carrying out his or her functions under, this Act, the regulations or the Food Standards Code.
(1B)The Secretary DPI, including acting in his or her capacity as a declared authority, must cause details of fees or charges fixed under subsection (1A)(d) to be published in the Government Gazette.".
70New Part XV inserted
After the first rule following Part XIV of the Food Act 1984 insert—
"PART XV—TRANSITIONAL AND SAVINGS PROVISIONS
80Transitional provision—Primary Industries and Food Legislation Amendment Act 2012
Section 56, as amended by section 66 of the Primary Industries and Food Legislation Amendment Act 2012, applies only to acts or omissions of persons to whom section 56 applies that are the subject of proceedings commenced on or after the commencement of section 66.".
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PART 6—OTHER AMENDMENTS
71New section 237A inserted into Local Government Act 1989
After section 237 of the Local Government Act 1989 insert—
"237A Council to provide information relating to land to inspectors of livestock
A Council must make available to the Secretary to the Department of Primary Industries any information relating to land in the municipal district of that Council that has been requested in writing by the Secretary in accordance with section 121A of the Livestock Disease Control Act 1994.".
72Statute law revision amendments
(1)In section 5A(2) of the Impounding of Livestock Act 1994, for "enters a land or building" substitute "enters land or a building".
(2)In section 75(e) of the Livestock Disease Control Act 1994—
(a)for "(a)" substitute "(i)";
(b)for "(b)" substitute "(ii)".
(3)In section 19K(2) of the Food Act 1984, for "subsection (2)" substitute "subsection (1)".
(4)In section 32(7) of the Food Act 1984, for "Part VIII" substitute "Part VII".
(5)In the heading to section 50AB of the Food Act 1984, for "Chief Executive Officer" substitute "chief executive officer".
(6)In section 50AB of the Food Act 1984, for "Chief Executive Officer" substitute "chief executive officer".
(7)In section 25 of the Prevention of Cruelty to Animals Act 1986, for the definition of authorised officer substitute—
"authorized officer means a person appointed to be an authorized officer under section 35;".
(8)In section 37A(2)(a) of the Prevention of Cruelty to Animals Act 1986, for "authorised officer" substitute "authorized officer".
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PART 7—REPEAL OF AMENDING ACT
73Repeal of amending Act
This Act is repealed on 1 July 2014.
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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ENDNOTES
Minister's second reading speech—
Legislative Assembly: 13 August 2012
Legislative Council: 13 September 2012
The long title for the Bill for this Act was "A Bill for an Act to amend the Impounding of Livestock Act 1994, the Livestock Disease Control Act 1994, the Prevention of Cruelty to Animals Act 1986, the Food Act 1984 and the Local Government Act 1989 and for other purposes."
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