Reprint as at 1 March 2016

Coat of Arms of New Zealand

Food Act 2014

Public Act
 
2014 No 32
Date of assent
 
6 June 2014
Commencement
 
see section 2
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry for Primary Industries.

Contents

1Title
2Commencement
3Overview
4Purpose
5Application of Act
6Relationship between this Act and Animal Products Act 1999 and Wine Act 2003
7Act binds the Crown
8Interpretation
9Meaning of food
10Meaning of food business
11Meaning of processing and handling
12Meaning of safety and suitability
13Meaning of sale
14Primary duty of persons who trade in food
15Principles governing relationships between Minister, chief executive, and territorial authorities
16Principles to be applied in performing functions or duties, or exercising powers, under this Act
17Role of Minister
18Role of chief executive
19Role of territorial authorities
20Overview of this Part
21Classification of food sectors for purpose of assigning applicable risk-based measures
22Power to amend Schedules 1 to 3 by Order in Council
23Determining applicable risk-based measure for food businesses that come within food sectors not classified in Schedules 1 to 3
24Food business not subject to risk-based measure only because it imports food
25Determining applicable risk-based measure for food businesses that overlap 2 or more food sectors
26Operator of food business may choose to operate under food control plan even if food business is in food sector classified under lower level of risk
27Winemaker may apply for winemaking operations to be included under registered food control plan or national programme
28Requirement to operate under applicable risk-based measure
29Exception to section 28
30Where food control plan and national programme do not apply
31Exemption from food control plan and national programme if trading in food for certain fund-raising
32Exemption does not apply in prescribed circumstances
33Chief executive may grant exemption from requirement to operate under registered food control plan or national programme
34Chief executive may delegate functions, duties, or powers under section 33 to territorial authorities
35Purpose of this subpart
36Food control plan: general description
37Food control plan: coverage
38Food control plan: based on official template or model
39Food control plan: chief executive’s power to issue official template or model
40Food control plan: chief executive’s power to approve official template or model developed by third party
41Food control plan: form
42Food control plan: contents
43Regulations about food control plans
44Chief executive’s power to amend, replace, or revoke template or model issued under section 39
45Operator may amend food control plan based on template or model issued under section 39 or approved under section 40
46Operator may amend food control plan not based on official template or model
47Sections 53 to 57, 59, and 60 apply to applications for registration of amended food control plans
48Food control plans must be registered
49Requirements of Act to prevail in cases of inconsistency with registered food control plan
50Duties of operators of registered food control plans
51Operator of registered food control plan must notify registration authority of significant change in circumstances
52Application for registration: who is appropriate registration authority
53Application for registration: form and content
54Registration authority may refuse to process application for registration
55Registration authority may require further information
56Criteria for registration of food control plan
57Refusal to register food control plan
58Applicants for registration must notify registration authority of significant change in circumstances
59Registration of food control plan
60Registration authority may impose conditions on registration of food control plan
61Duration of registration
62Mandatory suspension
63Registration authority may extend mandatory suspension
64Voluntary suspension
65Effect of suspension
66Removal from public register
67Cancellation of registration
68Effective date of cancellation
69Effect of cancellation of registration
70Removal of food business from coverage of food control plan
71Surrender of registration
72Effective date of surrender
73Purpose of this subpart
74National programme: general description
75How national programme may be imposed
76Regulations about national programmes
77National programme not invalid on certain grounds
78Requirements of national programme to prevail in cases of inconsistency with other regulations or specifications made under this Act
79Food businesses subject to national programme must be registered
80Duties of operators of food businesses subject to national programme
81Operators of food businesses subject to national programme must notify registration authority of significant change in circumstances
82Application for registration: who is appropriate registration authority
83Application for registration: form and content
84Registration authority may refuse to process application for registration
85Registration authority may require further information
86Criteria for registration of food business subject to national programme
87Refusal to register food business subject to national programme
88Registration of food business subject to national programme
89Registration authority may impose conditions on registration of food business
90Mandatory suspension
91Registration authority may extend mandatory suspension
92Voluntary suspension
93Effect of suspension
94Removal from public register
95Cancellation of registration
96Effective date of cancellation
97Effect of cancellation of registration
98Surrender of registration
99Effective date of surrender
100Purpose of this subpart
101Monitoring programme: general description
102Monitoring programme: scope
103Regulations about monitoring programmes
104Chief executive may specify certain matters by notice
105Monitoring programme not invalid on certain grounds
106Purpose of this Part
107Interpretation
108Restriction on importation of food for purpose of sale
109Food clearance
110Duties of importer
111Duty of registered importer
112Who must be registered
113Application for registration
114Chief executive may refuse to process application for registration
115Chief executive may require further information
116Criteria for approval of application for registration
117Refusal to register
118Registration
119Duration of registration
120Registration may not be transferred
121Registered importers must notify chief executive of significant change in circumstances
122Mandatory suspension
123Chief executive may extend mandatory suspension
124Voluntary suspension
125Effect of suspension
126Removal from public register
127Cancellation of registration
128Effective date of cancellation
129Effect of cancellation of registration
130Surrender of registration
131Effective date of surrender
132Border information supplied using JBMS must be supplied in approved form and manner
133Duty to use JBMS to supply border information
134Outline of this subpart
135Recognition of agencies
136Recognition of certain agencies without application
137Recognition of territorial authorities for certain verification functions and activities
138Review of operation of section 137
139Recognition of persons
140Recognition of certain persons without application
141Recognition of classes of persons
142Interrelationship between sections 135, 136, and 139 to 141
143Application for recognition
144Chief executive may require further information
145Proposal to refuse application to recognise agency, person, or class of persons
146Proposal to exclude members, or categories of members, from recognition of class
147Chief executive may impose or vary conditions of recognition
148Grant of recognition
149Scope, effect, and transfer of recognition
150Duration of recognition
151Renewal of recognition before expiry
152Application for renewal of recognition
153Substituted notice of recognition
154Ongoing recognition fees, charges, or levies
155Duties of recognised agencies
156Duties of recognised persons
157Recognised agency or person may act in other capacities
158Suspension of recognition of recognised agency, etc
159Chief executive may extend suspension
160Method of suspension of recognition
161Suspension does not limit other actions
162Withdrawal of recognition of recognised agency or recognised person
163Withdrawal of recognition of recognised class
164Method of withdrawal of recognition
165Surrender of recognition
166Effective date of surrender
167Removal from public register
168Notification to category or class of persons
169Means of consultation
170Chief executive may require notification of termination of contracts
171Chief executive must consider exemption, waiver, or refund of fees
172Liability for loss
173Functions of territorial authority
174Duties of territorial authority
175Minister may issue national outcomes for territorial authorities
176Transfer of functions, duties, and powers to territorial authority or regional council
177Effect of transfer to territorial authority or regional council
178Records of transfer
179Transfer of functions, duties, and powers to chief executive
180Transfer agreement
181Effect of transfer to chief executive
182Change, revocation, or relinquishment of transfer
183Records of transfer, change, etc
184Powers of chief executive for monitoring performance of functions and duties and exercise of powers
185Reviews initiated by Minister
186Terms of reference
187Minister to consult on terms of reference
188Appointment of person to conduct review
189Powers of reviewer
190Conduct of review
191Report of review
192Part 10 of Local Government Act 2002 not affected
193Powers of Minister in relation to non-performance by territorial authority
194Requirements for appointment
195Effect of appointment
196Duration of appointment
197Costs, charges, and expenses incurred
198Principles of cost recovery
199Methods of cost recovery
200Territorial authority responsible for collection
201Cost recovery to relate generally to financial year
202Three-yearly review of cost recovery
203Regulations about fees, charges, and levies
204Regulations may impose fees and charges
205Territorial authority to set fees
206Regulations may prescribe methodology or framework for fee fixing
207Regulations may impose levies
208Regulations may provide for exemptions, waivers, and refunds
209Trust accounts required to be kept by persons collecting levies
210Other charges not requiring to be prescribed
211Fees, charges, and levies to constitute debt
212Penalties for failure to pay fee, charge, or levy
213Dispute does not suspend obligation to pay fee, charge, levy, or penalty
214Levy regulations are confirmable instruments
215Penalty for failure to pay statutory fees, etc
216Waiver of penalty
217Services may be withdrawn until debt paid
218Proceedings for infringement notices
219Issue and cancellation of infringement notices
220Form of infringement notice
221Payment of infringement fees
222Offence involving knowingly or recklessly endangering or harming
223Offence involving knowingly or recklessly creating or increasing risk
224Offence involving negligently endangering, harming, creating risk, or increasing risk
225Offences involving intentionally defeating purpose of Act or deceiving in relation to documents or information
226Offences involving documents or information
227Offences involving intentionally defeating purpose of Act or deceiving in relation to identifying or representing food
228Offences involving identifying or representing food
229Offences involving intentionally defeating purpose of Act or deceiving in relation to sampling, testing, or evidence
230Offences involving intentionally defeating purpose of Act or deceiving in relation to statements
231Offences involving statements
232Offence involving knowingly or recklessly selling non-complying food
233Offences involving knowingly or recklessly importing non-complying food
234Offences involving imported food
235Offence involving intentionally hindering or obstructing official
236Offence involving threatening or assaulting official
237Offence involving intentionally deceiving by pretending to be official
238Offences involving publishing non-complying advertisement
239Offences involving automated electronic system
240Offence involving breaching or failing to carry out duty
241Offence involving breaching or failing to comply with suspension, direction, or improvement notice
242Offence involving breaching or failing to comply with order
243Offence involving breaching or failing to comply with food standard, etc
244Offence involving breaching or failing to comply with requirement
245Liability of body corporate
246Liability of body corporate, principal, or individual
247Liability of director or manager of body corporate
248Parties to offences
249Defences for liability arising under section 246 or 248
250Charging documents
251Defence in prosecution for strict liability offence, except advertising offence
252Defences in prosecution for advertising offence
253Defences in prosecution for selling non-complying food
254Defence in prosecution of body corporate, principal, or individual for action of director, agent, or employee
255Defence in prosecution of importer, producer, processor and handler, manufacturing rights owner, or packer
256Employees and agents have same defences
257Prosecutor to be notified of defences
258Standard of proof for establishing defence
259Evidence of requirement of this Act
260Evidence of person’s documents
261Evidence of testing
262Evidence of office
263Application of sections 264 to 267
264Presumption as to contents and label
265Presumption as to possession for sale
266Presumption as to sample
267Presumption as to electronic identification
268Application of sections 269 to 273
269Order to pay amount because of commercial gain
270Order to pay expenses
271Order to forfeit and dispose of food or food-related accessory
272Order to withdraw material
273Order to restrict or prohibit trading in food
274Sentencing criteria
275Fines or amounts to be paid to prosecuting territorial authority
276Appoint food safety officers
277Suspend or cancel appointments of food safety officers
278Give general directions on functions, duties, or powers
279Give directions on seized imported food or food-related accessory
280Persons to whom directions may be given under sections 281 to 286
281Give general directions to operators and other persons required to comply with Act
282Give directions to complete and supply declarations
283Give directions to impose movement or related controls
284Give directions to recall food or food-related accessory
285Give directions to manage food or food-related accessory
286Give directions to publish statement
287Supplementary provisions about directions under sections 281 to 286
288Service of directions under sections 281 to 286
289Publish privileged statements
290Give statement about compliance with New Zealand requirements
291Approvals by chief executive
292Require production of information for purpose of determining safety and suitability of food
293Require production of information if reasonable belief that requirement of this Act has been breached
294Verifiers’ rights of access and certain verifier powers
295Recognised persons’ rights of access
296Powers in sections 292 and 293 exercisable by food safety officers
297Power to ask for assistance
298Purposes of powers in sections 296, 299 to 308, and 310 to 312
299Powers to facilitate entry, search, and seizure
300Information powers and evidence gathering
301Powers of examination, identification, and rectification, and associated detention powers
302Power to issue improvement notice
303Review of improvement notice
304Powers to take, purchase, and sample
305Power to interrupt operations and give certain directions
306Powers to seize, condemn, and require disposal
307Power to restrict use of or close place
308Other powers
309Means of exercising powers in sections 299 to 308
310Powers to enter
311Power to enter without search warrant
312Power to test samples of food or examples of food-related accessories
313Duties relating to imported consignments
314Detaining food or food-related accessory seized
315Exporting or returning imported food or food-related accessory that has been detained
316Releasing food or food-related accessory that has been detained
317Application to District Court for return of seized food or food-related accessory
318District Court may order return of seized food or food-related accessory
319Food or food-related accessory unable to be released
320Reasonable belief by food safety officer
321Matters may be completed by different food safety officer
322Application for search warrant
323Issue of search warrant
324Who can execute search warrant
325Use of copy of search warrant
326Powers under search warrant
327Carrying out search powers
328Disposal of property seized under search warrant
329Retention of documents
330Meaning of compliance order
331Application for compliance order
332Notification of application
333Right to be heard on application
334Decision on application
335Interim compliance orders
336Form and content of interim compliance order or compliance order
337Change or cancellation of interim compliance order or compliance order
338Compliance with interim compliance order or compliance order
339Appeals to High Court
340Appeals to Court of Appeal or Supreme Court
341Effect of appeal
342Rules of court
343Exemption by Order in Council from application of this Act generally
344When Minister may recommend exemption under section 343
345Exemption by Order in Council for certain exports
346When Minister may recommend exemption under section 345
347Exemption by chief executive
348Relationship between sections 345 and 347 and Animal Products Act 1999
349Exemption for certain persons covered by Animal Products Act 1999
350Exemption for certain persons covered by Wine Act 2003
351Protection from civil and criminal liability
352Immunity of food donors
353Chief executive may delegate
354Application of sections 355 to 360
355Application for review
356Requirements for application for review
357Procedure for review of decision by chief executive or chief executive’s delegate
358Procedure for review of decision by relevant territorial authority
359Effect of review
360Reviewer may require payment of costs in review of decision by relevant territorial authority
361Chief executive must enter outcome of review decisions in public register
362Appeal to District Court against review decision
363Procedure for appeal
364Appeal to High Court on question of law
365Further appeals to Court of Appeal or Supreme Court
366Review decision to continue in force pending appeal
367Collecting and keeping information
368Disclosing information inside New Zealand: application of section 369
369Disclosing information inside New Zealand: rules
370Disclosing information outside New Zealand: rules
371Disclosing information outside New Zealand: under agreement
372Variation and review of agreement
373Disclosing information outside New Zealand: urgent action required
374Arrangement for system
375Effect of use of system
376Notification to Minister, chief executive, territorial authority, or food safety officer
377Notification to other persons who assist in administration of Act
378Notification to other persons
379Consultation: Minister’s powers
380Consultation: chief executive’s powers
381Regulations: what they can apply to and what they can do
382Regulations: how they apply to stock in trade
383Regulations about standards in relation to food
384Regulations about risk-based measures and related matters
385Regulations about grading schemes
386Regulations about approved documents, materials, or facilities, or persons or classes of persons
387Regulations about imported food
388Regulations about verification functions in relation to importers
389Regulations about recognised agencies, persons, and classes of persons
390Regulations about information
391Regulations about offences
392Regulations about administrative matters
393Regulations about definitions
394Regulations for purposes of section 368
395Regulations about other matters
396Purpose of sections 397 to 402
397Minister may adopt joint food standards
398Issue, notification, and availability of adopted joint food standards
399Application of Legislation Act 2012 to adopted joint food standard
400Amendment and revocation of adopted joint food standards
401Minister must not delegate power to adopt joint food standards
402Proof of adopted joint food standards
403Purpose of section 404
404Minister may issue domestic food standards
405Notices relating to general matters
406Notices relating to specifications or requirements for specific matters
407Notices: consultation
408Notices: publication
409Application of Legislation Act 2012 to certain notices
410Power to issue emergency notice
411Notification and duration of emergency notice
412Emergency notice prevails
413Overview of transitional provisions
414Interpretation
415Meaning of Act’s introductory period
416Meaning of authorised transition period
417Regulations extending end date of Act’s introductory period
418Regulations specifying or extending end date of authorised transition period
419Early commencement food safety officers
420Pre-commencement legislative requirements: Food Act 1981 and regulations
421Pre-commencement standards
422Pre-commencement food
423Pre-commencement consultation
424Pre-commencement food safety officers
425Pre-commencement offences
426New legislative requirements
427Notices during authorised transition period
428Statements about food produced or processed and handled under Food Act 1981
429New food safety officers
430Pre-commencement registered food safety programme
431Pre-commencement application for exemption under Food Act 1981
432Deemed food control plans under sections 430 and 431
433Duration of deemed food control plans under sections 430 and 431
434Food business now covered
435Approved auditors under Food Act 1981
436Agencies managing approved auditors under Food Act 1981
437Notices about approved auditors and agencies
438Importers listed for purposes of Food Act 1981
439Regulations about transitional matters
440Regulations about cost recovery
441Consultation about proposed regulations
442Requirements for notices issued by chief executive
443Further provisions for public registers are in Schedule 5
444Material incorporated by reference
445References to standard works
446Relationship with local authority bylaws
447Consequential amendments and repeals and revocations
Reprint notes

The Parliament of New Zealand enacts as follows:

 
1 Title

This Act is the Food Act 2014.

2 Commencement

(1)

This Act comes into force on a date appointed by the Governor-General by Order in Council; and 1 or more Orders in Council may be made appointing different dates for different provisions and different purposes (including the appointment of 1 or more dates for the purpose of commencing the repeals effected by section 420(2)).

(2)

Subsection (1) is subject to subsections (3) to (6).

(3)

The following provisions come into force on the day after the date on which this Act receives the Royal assent:

(a)

sections 279 (but only as it relates to disposal upon recall under section 284), 282, 283 (except subsections (1)(a) and (8)), 284, 285(1)(o) and (p) and (2), 286, 287, 288, 289, and 292:

(4)

Any other provision of this Act must be treated as if it were in force to the extent necessary for the operation of a provision to which subsection (3)(a) applies, including, without limitation,—

(b)

section 244 (but only as it relates to a requirement under section 292); and

(c)

any other provision that imposes an offence relating to a provision to which subsection (3)(a) applies; and

(d)

sections 251, 351, and 353; and

(e)

any other provision relating to the enforcement of obligations imposed under a power in a provision to which subsection (3)(a) applies, such as provisions for the gathering of evidence and the taking of proceedings for an offence.

(5)

Section 133 comes into force on 1 July 2016 or an earlier date appointed by the Governor-General by Order in Council.

(6)

Any provision of this Act (other than section 133) that is not already in force on 1 March 2016 comes into force on that date.

Part 1 Preliminary provisions

Subpart 1—Introduction

3 Overview

(1)

This Act replaces the Food Act 1981.

(2)

This Part contains preliminary provisions that—

(a)

state the purpose of this Act; and

(b)

set out the application of this Act; and

(c)

define certain terms used in this Act; and

(d)

state the primary duty of persons who trade in food; and

(e)

specify the principles for persons with regulatory roles under this Act and summarise what those roles are.

(3)

Part 2 relates to risk-based measures, which are the main mechanisms under this Act for achieving the safety and suitability of food. In particular, it includes provisions that—

(a)

provide for the classification of food sectors into 3 classes based on, among other things, the level of risk that they pose to public health; and

(b)

specify which (if any) risk-based measure generally applies to food businesses in each of those 3 classes; and

(c)

require certain persons who trade in food to operate under the risk-based measure that generally applies to the food sector that the person’s food business is in, unless certain specified circumstances apply; and

(d)

set out the nature, content, and effect of risk-based measures.

(4)

Part 3 contains provisions that—

(a)

require the safety and suitability of food imported for the purpose of sale; and

(b)

provide for the registration of importers of that food.

(5)

Part 4 contains provisions relating to recognition, the functions of territorial authorities, administration, and enforcement. In particular, it includes provisions that—

(a)

provide for the recognition of agencies, persons, and classes of persons for the purposes of this Act; and

(b)

state the functions and duties of territorial authorities under this Act; and

(c)

set out the principles for the recovery of the direct and indirect costs of administering this Act; and

(d)

deal with enforcement matters, such as offences, penalties, evidentiary presumptions, the court’s powers to make additional orders for effective enforcement, and the chief executive’s powers to give directions.

(6)

Part 5 contains miscellaneous provisions, including provisions about exemptions from the application of this Act, delegation, review of decisions made by the chief executive or a person acting under the delegated authority of the chief executive, consultation, incorporation by reference, and transitional matters. It contains regulation-making powers that provide for, among other things, regulations about standards in relation to food, risk-based measures, improving the safety and suitability of food, imported food, recognised agencies, persons, and classes of persons, information, offences, and administrative matters. It also contains provisions on the issuing of notices, including emergency notices.

(7)

Schedule 1 describes the food sectors that are generally subject to a food control plan.

(8)

Schedule 2 describes the food sectors that are generally subject to a national programme. A national programme is categorised into 3 levels (level 3 to 1) in descending order of risk.

(9)

Schedule 3 describes the food sectors that are not required to operate under a food control plan or a national programme.

(10)

Schedule 4 sets out miscellaneous provisions relating to registrations under this Act.

(11)

Schedule 5 sets out provisions relating to the public registers that are required to be kept under this Act.

(12)

Schedule 6 sets out provisions relating to material incorporated by reference.

(13)

Schedule 7 sets out consequential amendments, repeals, and revocations.

(14)

This section is intended as a guide only.

4 Purpose

The purpose of this Act is to—

(a)

restate and reform the law relating to how persons trade in food; and

(b)

achieve the safety and suitability of food for sale; and

(c)

maintain confidence in New Zealand’s food safety regime; and

(d)

provide for risk-based measures that—

(i)

minimise and manage risks to public health; and

(ii)

protect and promote public health; and

(e)

provide certainty for food businesses in relation to how the requirements of this Act will affect their activities; and

(f)

require persons who trade in food to take responsibility for the safety and suitability of that food.

5 Application of Act

This Act applies to food for sale and food-related accessories.

6 Relationship between this Act and Animal Products Act 1999 and Wine Act 2003

(1)

The purpose of this section is to recognise the general equivalence of food safety regimes under this Act and the Animal Products Act 1999 and the Wine Act 2003 in terms of their ability to ensure the safety and suitability of any food to which they apply.

(2)

This section achieves its purpose by—

(a)

clarifying the relationship between this Act and the Animal Products Act 1999 and the Wine Act 2003 by acknowledging that, in addition to this Act, the Animal Products Act 1999 and the Wine Act 2003 contain measures that manage the safety and suitability of any animal product or wine that is food within the meaning of this Act; and

(b)

minimising any overlap between the food safety regime under this Act and the food safety regimes under the Animal Products Act 1999 and the Wine Act 2003.

(3)

This Act applies to—

(a)

an animal product that is processed under the Animal Products Act 1999 (whether the animal product is for sale on the domestic market or is to be exported), if that animal product is also a food; and

(b)

wine that is made under the Wine Act 2003 (whether the wine is for sale on the domestic market or is to be exported), because wine is a food as defined in this Act.

(4)

Subsection (3) is subject to exemptions that may be granted under this Act and, in particular, under—

(a)

sections 343 and 344 (which allow any food or classes or descriptions of food, persons who trade in food, or operations or places in relation to any trade in food to be exempted from the application of all or any requirements of this Act):

(b)

sections 345 to 347 (which allow for exemptions for certain exports):

(c)

sections 349 and 350 (which allow certain persons covered by the Animal Products Act 1999 or the Wine Act 2003 to be exempted from the requirement to operate under an applicable risk-based measure).

(5)

The following provisions apply to manage any overlap between the food safety regime under this Act and the food safety regimes under the Animal Products Act 1999 and the Wine Act 2003:

(a)

section 27 (which allows winemakers to apply for their winemaking operations to be included in a registered food control plan or a national programme); and

(b)

sections 32 to 34 of the Animal Products Act 1999 (which provide for the relationship between the food safety regime under this Act and risk management programmes under the Animal Products Act 1999 by recognising the general equivalence of food control plans and risk management programmes); and

(c)

sections 15A to 15C of the Wine Act 2003 (which provide for the relationship between the food safety regime under this Act and wine standards management plans).

(6)

If there is any conflict, duplication, or inconsistency between the requirements of this Act and the requirements of the Animal Products Act 1999 or the Wine Act 2003 in relation to an animal product or wine, the requirements of those other Acts prevail.

(7)

If there is any conflict, duplication, or inconsistency between a power or other form of authority conferred by or under the Animal Products Act 1999 or the Wine Act 2003 and a power or other form of authority conferred by or under this Act, the power or other form of authority conferred by or under those other Acts applies instead of the power or other form of authority conferred by or under this Act.

7 Act binds the Crown

This Act binds the Crown.

Subpart 2—Interpretation

General

8 Interpretation

(1)

In this Act, unless the context otherwise requires,—

adopted joint food standard has the meaning given to it by section 397

advertise means to use any form of communication (including selling or giving away any goods or services for the purposes of any trade or business, but excluding selling or giving away any goods or services for any other purpose and excluding communications of personal opinion made by a natural person for no commercial gain) to the public or a section of the public in relation to any—

(a)

goods or services; or

(b)

brand of goods or services; or

(c)

person who provides goods or services

appropriate registration authority,—

(a)

in subpart 2 of Part 2, has the meaning given to it by section 52:

(b)

in subpart 3 of Part 2, has the meaning given to it by section 82:

approved class of persons means a class of persons approved by the chief executive under section 291

approved document, material, or facility means a document, material, or facility approved by the chief executive under section 291

approved person

(a)

means a person approved by the chief executive under section 291; and

(b)

includes an approved class of persons

Australia New Zealand Food Standards Code means the current joint food standards code established under the Australia–New Zealand Joint Food Standards Agreement

Australia–New Zealand Joint Food Standards Agreement

(a)

means the Agreement Between the Government of Australia and the Government of New Zealand Concerning a Joint Food Standards System, signed at Wellington on the 5th day of December 1995, as may be revised or amended from time to time; and

(b)

includes an agreement that replaces the agreement referred to in paragraph (a)

authorised place

(a)

means a place where a food safety officer has authorised any imported food to be held for the purpose of inspection, verification, storage, treatment, processing and handling, or destruction; and

(b)

includes—

(i)

a transitional facility or biosecurity control area within the meaning of the Biosecurity Act 1993; and

(ii)

a Customs place or Customs controlled area within the meaning of the Customs and Excise Act 1996

automated electronic system means a system that is the subject of an arrangement under section 374

bulk cargo container

(a)

includes an article of transport equipment that is a lift van, movable tank, or other similar structure and that—

(i)

is of a permanent character and accordingly strong enough to be suitable for repeated use; and

(ii)

is specially designed to facilitate the carriage of goods by 1 or more modes of transport, without immediate repacking; and

(iii)

is fitted with devices permitting its ready handling and its transfer from 1 mode of transport to another; and

(iv)

has an internal volume of 1 cubic metre or more; and

(b)

includes the normal accessories and equipment of the container, when imported with the container and used exclusively with it; but

(c)

does not include any craft, vehicle, or ordinary packing case, crate, box, or other similar article used for packing

chief executive means the chief executive of the Ministry

combined district means the area comprising the districts of territorial authorities that have combined, in accordance with section 173(2), for the purpose of performing their function as a registration authority

corrective action includes an action (for example, the recall of food) to—

(a)

restore control; or

(b)

identify any affected ingredient or food, and ensure its safety and suitability or manage its disposal; or

(c)

prevent recurrence of the loss of control

Crown entity has the meaning given to it by section 7(1) of the Crown Entities Act 2004

Customs has the meaning given to the term the Customs by section 2(1) of the Customs and Excise Act 1996

district means a district of a territorial authority

domestic food standard has the meaning given to it by section 404

entertainment includes any social gathering, amusement, exhibition, performance, game, sport, or trial of skill

export, in relation to a thing,—

(a)

means—

(i)

to send the thing, or cause the thing to be sent, from within New Zealand territory to outside that territory:

(ii)

to post, within the meaning of section 2(2) of the Postal Services Act 1998, to an address overseas (regardless of whether or not delivery is completed or the addressee obtains possession); and

(b)

includes—

(i)

to send the thing or cause the thing to be sent to, and for it to arrive at, the place of departure for loading on board a ship, an aircraft, or any other means of conveyance, with the intention of sending it from within New Zealand territory:

(ii)

to send the thing or cause the thing to be sent to, and for it to reach, an agent for the purpose of being held before sending it from within New Zealand territory

financial year means a period of 12 months beginning on 1 July in each year and ending on 30 June in the following year

food has the meaning given to it by section 9

food business has the meaning given to it by section 10

food control plan means a plan of a kind described in section 36

food-related accessory

(a)

means any thing that is used, or represented for use, in or for the production, processing and handling, sale, or consumption of food; and

(b)

includes a package or anything that is enclosed with, attached to, in contact with, or contained in food

food safety officer means an officer appointed under section 276(1)

food safety regime

(a)

means the system of regulatory controls relating to trading in food; and

(b)

includes—

(i)

provisions contained in this Act or any other enactment; and

(ii)

risk-based measures; and

(c)

also includes measures for monitoring—

(i)

the effectiveness of those provisions:

(ii)

the effectiveness of risk-based measures:

(iii)

the performance of all persons who trade in food

food sector means a group of 2 or more food businesses

good operating practice means procedures relating to practices that—

(a)

are required to achieve the safety and suitability of the food to which they relate; and

(b)

are appropriate to the food business to which they relate

hazard means a biological, chemical, or physical agent that—

(a)

is in food or has the potential to be in food, or is a condition of food, or has the potential to affect the condition of food; and

(b)

causes or could cause an adverse or injurious effect on human life or public health

import, in relation to a thing, means to bring the thing, or cause the thing to be brought, into New Zealand territory from outside that territory

importer

(a)

means a person who imports any food; and

(b)

includes a person for whom food is imported; and

(c)

includes a New Zealand-based agent who—

(i)

has an overseas-based person as a principal; and

(ii)

arranges the importation of food for the principal; and

(d)

includes a New Zealand-based representative who—

(i)

represents an overseas-based person; and

(ii)

arranges the importation of food for the person; and

(e)

includes the New Zealand-based consignee of imported food; and

(f)

includes a person who is or becomes the owner of, or entitled to the possession of, or beneficially interested in, imported food on or at any time after its importation and before it has ceased to be subject to the control of Customs

infringement fee, in relation to an infringement offence, means the amount prescribed by regulations made under section 391 to be payable for the offence

infringement offence means an offence that is stated, by regulations made under section 391, to be an infringement offence for the purposes of this Act

intended use, in relation to food, means the use for the food that is specifically stated, or could reasonably be presumed to be intended, taking into account the food’s nature, labelling, packaging, and identification

issuing officer, except in section 303, has the meaning given to it by section 3(1) of the Search and Surveillance Act 2012

joint food standard means a food standard or part of a food standard that—

(a)

has been developed under the Australia–New Zealand Joint Food Standards Agreement for inclusion in the Australia New Zealand Food Standards Code; and

(b)

is included in the Australia New Zealand Food Standards Code; and

(c)

has been or is intended to be given the force of law—

(i)

in Australia and New Zealand; or

(ii)

in New Zealand only

label includes any written, pictorial, or other descriptive matter that—

(a)

relates to any food or any package containing food; and

(b)

appears on, is attached to, or is associated with that food or package

local authority means a regional council or territorial authority

marae includes the area of land on which all buildings such as wharenui (meeting house), wharekai (dining room), ablution blocks, and any other associated buildings are situated

Minister means the Minister of the Crown who, under the authority of a warrant or with the authority of the Prime Minister, is responsible for the administration of this Act

Ministry means the department of State that, with the authority of the Prime Minister, is responsible for the administration of this Act

monitoring programme means a programme of a kind described in section 101

movement includes import, export, and transport

national outcomes means the national outcomes issued by the Minister under section 175

national programme means a programme of a kind described in section 74

notice of recognition means, as applicable,—

(a)

a notice of recognition given to a recognised agency or a recognised person in accordance with section 148(1)(b); or

(b)

a notification given to a recognised class in accordance with section 148(1)(c)(i)

official template or model, in relation to a food control plan, means a template or model—

(a)

issued by the chief executive under section 39:

(b)

approved by the chief executive under section 40

operate under a food control plan or operate under a registered food control plan means to operate under the plan, whether as the operator of the plan or as a food business to which the plan applies

operate under a national programme means to operate under the national programme as a food business to which the programme applies

operator of a food business means the owner or other person in control of the business

operator of a food control plan or operator of a registered food control plan means,—

(a)

if the plan applies to only 1 food business, the operator of the food business; or

(b)

if the plan applies to more than 1 food business, the person responsible for the plan

operator verification means a process to ensure that internal practices, procedures, and activities comply with the applicable requirements of this Act

package

(a)

includes anything in or by which food for carriage or for sale may be wholly or partly encased, covered, enclosed, contained, or packed; and, for food sold or carried or intended for sale or carriage in more than 1 package, includes every such package; but

(b)

does not include any of the following:

(i)

bulk cargo containers:

(ii)

pallet overwraps:

(iii)

crates and packaging that do not obscure labels on the food:

(iv)

craft and vehicles

permissible functions and activities means verification functions and activities and other specialist functions and activities that may be carried out by a recognised agency, recognised person, or recognised class of persons for the purposes of this Act, and includes—

(a)

verification functions and activities in relation to risk-based measures:

(b)

other verification functions and activities:

(c)

the provision of independent evaluations of the validity of food control plans for the purposes of section 53(3)(b)

place

(a)

includes—

(i)

any premises:

(ii)

a building:

(iii)

a temporary or permanent structure:

(iv)

a stall:

(v)

a conveyance:

(vi)

a craft:

(vii)

a vehicle:

(viii)

a bulk cargo container; and

(b)

also includes any land, water, or other area where food is produced or may be present

processing and handling has the meaning given to it by section 11

processor means, in relation to food for sale, a person who processes and handles the food

producer means a person who produces food for sale

production, in relation to anything used as food or from which food is derived, includes farming, raising, growing, harvesting, extracting, and gathering

public health means the health of—

(a)

all the people of New Zealand; or

(b)

a community or section of the people of New Zealand

recognised agency means—

(a)

a person who is recognised by the chief executive under section 135 or 136; and

(b)

a group of persons who are recognised by the chief executive under section 136

recognised class means a class of natural persons that is recognised by the chief executive under section 141

recognised person means a natural person who—

(a)

is recognised by the chief executive under section 139 or 140; or

(b)

is a member of a recognised class, but only—

(i)

to the extent that the person carries out the specified functions and activities for which the class is recognised; and

(ii)

while the person continues to hold the qualifications or meet the other membership criteria according to which the class is defined in the relevant public register in accordance with section 148(1)(a)

regional council means a regional council within the meaning of the Local Government Act 2002

registered importer means an importer registered under section 118

registration authority means the chief executive or, as the case may be, the relevant territorial authority

relevant appointed date for any provision of this Act means the date appointed for the purpose of that provision under subsection (3)

relevant public register means, as the case may be,—

(a)

any 1 of the public registers of food control plans kept under clause 2 of Schedule 5:

(b)

the public register of food businesses subject to a national programme kept under clause 5 of that schedule:

(c)

the public register of recognised agencies, recognised persons, and recognised classes kept under clause 8 of that schedule:

(d)

the public register of importers kept under clause 11 of that schedule:

(e)

the public register of review decisions kept under clause 14 of that schedule

relevant territorial authority has the meaning given to it by section 52(3)

requirements of this Act includes—

(a)

a requirement of or under this Act:

(b)

a requirement of a regulation under this Act:

(c)

a requirement of an adopted joint food standard or of a domestic food standard:

(d)

a requirement of a notice under this Act:

(e)

a requirement of directions under this Act:

(f)

a condition imposed by or under this Act or a regulation made under this Act

risk-based measure means any of the following:

(a)

a food control plan:

(b)

a national programme:

(c)

a monitoring programme

safety and suitability have the meanings given to them by section 12

sale has the meaning given to it by section 13

specified conviction

(a)

means—

(i)

a conviction for an offence against this Act or the Food Act 1981; or

(ii)

a conviction (whether in New Zealand or in another country) for any offence relating to fraud or dishonesty; or

(iii)

a conviction (whether in New Zealand or in another country) for any offence relating to management control or business activities in respect of businesses of a kind (whether in New Zealand or in another country) that—

(A)

are regulated under this Act or any other Act administered by the Ministry; or

(B)

are subject to an overseas food safety regime; and

(b)

for the purposes only of section 116(2)(a), includes a conviction (whether in New Zealand or in another country) for any offence relating to trading in food

specified functions and activities means the permissible functions and activities that are specified by the chief executive in a notice of recognition in accordance with section 148(2)(a) as functions and activities that—

(a)

a recognised agency is responsible for managing and carrying out; or

(b)

a recognised person may carry out; or

(c)

persons who are members of a recognised class may carry out

territorial authority means a territorial authority within the meaning of the Local Government Act 2002

trade, in relation to food or a food-related accessory, means any 1 or more of the following, as the case may be:

(a)

to import food or a food-related accessory for the purpose of sale:

(b)

to produce food or a food-related accessory for the purpose of sale:

(c)

to process and handle food or a food-related accessory for the purpose of sale:

(d)

to sell food or a food-related accessory

verification includes the application of methods, procedures, tests, and other checks to confirm ongoing—

(a)

compliance with the applicable requirements of this Act:

(b)

compliance of a food business with a risk-based measure:

(c)

applicability of a risk-based measure to the operations of a food business:

(d)

effectiveness of a risk-based measure

verification agency means a recognised agency whose specified functions and activities include managing and carrying out verification functions and activities

verifier means a recognised person whose specified functions and activities include carrying out verification functions and activities

written or in writing means printed, typewritten, or otherwise visibly represented, copied, or reproduced, including by fax, email, or other electronic means.

(2)

To avoid doubt, terms and expressions used, but not defined, in the Australia New Zealand Food Standards Code have the same meaning as in this Act.

(3)

The Governor-General may, by Order in Council, specify the relevant appointed date for the purposes of any provision of this Act for which an appointed date is required.

Meaning of food

9 Meaning of food

(1)

In this Act, unless the context otherwise requires, food

(a)

means anything that is used, capable of being used, or represented as being for use, for human consumption (whether raw, prepared, or partly prepared); and

(b)

includes—

(i)

seeds, plants, or plant material intended for human consumption, including seeds that are intended to be sprouted and consumed as sprouts, but not other seeds, plants, or plant material intended for planting; and

(ii)

live animals intended for human consumption at the place of purchase; and

(iii)

live animals intended for human consumption that are sold in retail premises; and

(iv)

any ingredient or other constituent of any food or drink, whether that ingredient or other constituent is consumed or represented for consumption on its own by humans, or is used in the preparation of, or mixed with or added to, any food or drink; and

(v)

anything that is or is intended to be mixed with or added to any food or drink; and

(vi)

chewing gum, and any ingredient of chewing gum, and anything that is or is intended to be mixed with or added to chewing gum; and

(vii)

anything that is declared by the Governor-General, by Order in Council made under section 393, to be food for the purposes of this Act; but

(c)

does not include—

(i)

any tobacco; or

(ii)

any cosmetics; or

(iii)

any substances used only as medicines (within the meaning of the Medicines Act 1981), any controlled drugs (within the meaning of the Misuse of Drugs Act 1975), or any psychoactive substance (within the meaning of the Psychoactive Substances Act 2013); or

(iv)

any inedible food-related accessory; or

(v)

anything that is declared by the Governor-General, by Order in Council made under section 393, not to be food for the purposes of this Act.

(2)

To avoid doubt, neither subsection (1)(b)(iv) nor (v) requires any ingredient or other constituent of any food or drink or anything that is or is intended to be mixed with or added to any food or drink to comply, on its own, with the applicable requirements of this Act that specifically relate to food in its final consumable form.

(3)

However, the food in its final consumable form must still comply with the applicable requirements of this Act.

(4)

In this section, animal has the meaning given to it by section 4(1) of the Animal Products Act 1999.

Meaning of food business

10 Meaning of food business

In this Act, unless the context otherwise requires, food business

(a)

means a business, activity, or undertaking that trades in food (whether in whole or in part); and

(b)

includes a business, activity, or undertaking that—

(i)

sells food on the Internet; or

(ii)

is declared by the Governor-General, by Order in Council made under section 393, to be a food business for the purposes of this Act; but

(c)

does not include a business, activity, or undertaking—

(i)

merely because it carries on a business other than trading in food and, in the course of doing so, acts as an intermediary between persons who trade in food by providing, for reward, a place (including mobile premises) or services (for example, an Internet service provider or an auction site on the Internet); or

(ii)

that is declared by the Governor-General, by Order in Council made under section 393, not to be a food business for the purposes of this Act.

Meaning of processing and handling

11 Meaning of processing and handling

In this Act, unless the context otherwise requires, processing and handling, in relation to food for sale, includes any 1 or more of the following:

(a)

preparing the food:

(b)

manufacturing the food:

(c)

packing the food:

(d)

labelling the food:

(e)

transporting the food:

(f)

storing the food:

(g)

displaying the food:

(h)

serving the food.

Meaning of safety and suitability

12 Meaning of safety and suitability

(1)

In this Act, unless the context otherwise requires, safety and suitability, in relation to food, have the meanings set out in subsections (2) and (3) respectively.

(2)

Safety means a condition in which food, in terms of its intended use, is unlikely to cause or lead to illness or injury to human life or public health.

(3)

Suitability means a condition in which the matters specified in—

(a)

subsection (4) are appropriate to food in terms of its intended use; and

(b)

subsection (5) do not apply.

(4)

The matters referred to in subsection (3)(a)—

(a)

include the composition, labelling, identification, and condition of the food; but

(b)

do not include—

(i)

matters that are directly related to the food’s safety; or

(ii)

matters of quality or presentation of the food that relate to a purely commercial decision by the person trading in the food.

(5)

Food is unsuitable if it—

(a)

is in a condition that is offensive:

(b)

is damaged, deteriorated, or perished to the extent of affecting its reasonable intended use:

(c)

contains, or has attached to it or enclosed with it, any damaged, deteriorated, perished, or contaminated substance or thing to the extent of affecting its reasonable intended use:

(d)

contains a biological or chemical agent, or other substance or thing, that is foreign to the nature of the food and the presence of which would be unexpected and unreasonable in food prepared or packed for sale in accordance with good trade practice:

(e)

has packaging that is damaged, deteriorated, perished, or contaminated to the extent of affecting the food’s reasonable intended use.

(6)

Food is not unsafe or unsuitable merely because—

(a)

any part of the community objects to it on moral, ethical, cultural, spiritual, or religious grounds; or

(b)

any person objects to it because of personal preference; or

(c)

its consumption in inappropriate quantities may damage a person’s health; or

(d)

its presence or consumption is unhealthy for any person who has an allergy or other personal health condition.

Meaning of sale

13 Meaning of sale

(1)

In this Act, unless the context otherwise requires, sale, in relation to food,—

(a)

means selling food for processing and handling or for human consumption; and

(b)

includes reselling food for processing and handling or for human consumption; and

(c)

includes the following activities relating to food for human consumption:

(i)

offering food for sale or attempting to sell food, or receiving or having food in possession for sale, or exposing food for sale, or sending or delivering food for sale, or causing or permitting food to be sold, offered for sale, or exposed for sale:

(ii)

bartering food:

(iii)

selling, or offering to sell, any thing of which any food forms a part:

(iv)

supplying food, together with any accommodation, service, or entertainment, as part of an inclusive charge:

(v)

supplying food in exchange for payment or in relation to which payment is to be made in a shop, hotel, or restaurant, at a stall, in or on a craft or vehicle, or in any other place:

(vi)

supplying food to an employee or other person in accordance with an employment agreement or an agreement for services:

(vii)

for the purpose of advertisement or to promote any trade or business, giving away food or, whether or not on payment of money, offering food as a prize or reward to the public:

(viii)

exporting food:

(ix)

every other method of disposition of food for valuable consideration; but

(d)

does not include—

(i)

exchanging food for food or other goods or services as part of a personal relationship between individuals that is not commercial in nature; or

(ii)

supplying food together with accommodation to a person residing at a private dwelling or farm in exchange for services or labour by the person; or

(iii)

supplying food together with accommodation to a person residing for more than 2 weeks at a private dwelling or farm in exchange for payment; or

(iv)

supplying drinking water by network reticulation to the point of supply of any dwellinghouse or commercial premises.

(2)

The sale, offer for sale, or exposure for sale of any food is to be treated, unless the contrary is proved, as a sale, an offer for sale, or an exposure for sale of the food for human consumption.

(3)

The sale of any food for the purpose of being mixed with any other food is to be treated, unless the contrary is proved, as a sale if the bulk or product produced by the mixing, or any part of the bulk or product, is intended to be sold.

(4)

The supply of food by or on behalf of the Crown or a Crown entity to a person who is in the custody or care of the Crown or the Crown entity is to be treated as a sale of the food, unless an enactment provides otherwise.

Compare: 1981 No 45 s 4(1)–(5), (9)

Subpart 3—Primary duty of persons who trade in food

14 Primary duty of persons who trade in food

A person who trades in food must ensure that it is safe and suitable.

Subpart 4—Regulatory roles

Principles for persons with regulatory roles under this Act

15 Principles governing relationships between Minister, chief executive, and territorial authorities

In achieving the purpose of this Act, the Minister, the chief executive, and all territorial authorities must take into account the following principles:

(a)

the need to develop and maintain productive working relationships and enhanced co-operation among themselves; and

(b)

the need for a co-ordinated and aligned approach among themselves in fulfilling their respective roles and responsibilities under this Act.

16 Principles to be applied in performing functions or duties, or exercising powers, under this Act

(1)

In performing functions or duties, or exercising powers, under this Act (either individually or collectively), the Minister, the chief executive, and all territorial authorities must have regard to the following principles to the extent that they are relevant to those functions, duties, or powers:

(a)

the need to achieve the safety and suitability of food:

(b)

the need to require persons who operate food businesses or otherwise trade in food to take responsibility for the safety and suitability of food:

(c)

the need to promote standards and control mechanisms that are, as far as practicable, risk-based and science-based:

(d)

the need to minimise compliance costs for food businesses and, in particular, for food businesses that operate under a private or industry programme that achieves the purpose of this Act:

(e)

the importance of ensuring that regulatory requirements are applied consistently and fairly across sectors and groups in relation to factors such as risk, including, without limitation,—

(i)

the risks that are inherent in the type of food produced:

(ii)

the risks that may arise from the processing and handling of food:

(iii)

the intended use of the food, and whether it is intended to be consumed by vulnerable populations:

(iv)

the scale of the operations of food businesses within the sector or group, and the extent of distribution of the food in which they trade:

(f)

the importance of providing services in a co-ordinated and coherent manner as far as practicable.

(2)

If there is a conflict in any case between the need to achieve the safety of food and any other principle in subsection (1), greater weight must be given to the need to achieve the safety of food.

Outline of regulatory roles under this Act

17 Role of Minister

(1)

The Minister has the functions, duties, and powers given to him or her under this Act.

(2)

The Minister has a role in the food safety regime that includes, without limitation,—

(a)

for the purposes of this Act, issuing national outcomes in relation to the performance by territorial authorities of their functions and duties, or the exercise of their powers, under this Act; and

(b)

recommending the making of regulations, including regulations that—

(i)
(ii)

state the scope and purpose of national programmes and prescribe other matters relating to national programmes:

(iii)

impose national programmes:

(iv)

prescribe fees and charges for the purposes of the cost recovery provisions in subpart 3 of Part 4:

(v)

impose levies for the purposes of those cost recovery provisions:

(vi)

provide for exemptions, waivers, and refunds in relation to those levies:

(vii)

exempt persons from the application of this Act generally:

(viii)

exempt food to be exported from certain requirements of this Act:

(ix)

declare anything to be or not to be food for the purposes of this Act:

(x)

declare anything to be or not to be a food business for the purposes of this Act:

(xi)

declare any Act to be an Act for the purposes of section 368(3):

(xii)

declare any person to be a person for the purposes of section 368(4); and

(c)

adopting joint food standards; and

(d)

issuing domestic food standards; and

(e)

appointing persons to conduct reviews of certain decisions made by the chief executive.

18 Role of chief executive

(1)

The chief executive has the functions, duties, and powers given to him or her under this Act.

(2)

The chief executive has a role in the food safety regime that includes, without limitation,—

(a)

providing advice to territorial authorities on the performance of their functions and duties, or the exercise of their powers, under this Act to ensure that the purpose of this Act is achieved; and

(b)

providing information to the food industry and the public on matters relating to the safety and suitability of food; and

(c)

implementing, managing, monitoring, and auditing the risk-based measures for the safety and suitability of food; and

(d)

performing the function of a registration authority; and

(e)

for the safety and suitability of food, developing standards and implementing those standards, any adopted joint food standards, and any domestic food standards; and

(f)

establishing and monitoring national outcomes, performance criteria, standards, and other requirements that must be met by territorial authorities, agencies, and persons who perform functions or duties, and exercise powers, under this Act; and

(g)

implementing, managing, and monitoring the food safety regime for imported food; and

(h)

dealing with applications for registration by importers; and

(i)

establishing and maintaining the public registers; and

(j)

monitoring compliance with the applicable requirements of this Act; and

(k)

monitoring and implementing the enforcement system under this Act and working collaboratively with territorial authorities and other regulatory bodies; and

(l)

co-ordinating the response to emergencies that may undermine the purpose of this Act; and

(m)

conducting, on application, reviews of certain decisions made by relevant territorial authorities or designating the persons to conduct those reviews; and

(n)

conducting, on application, reviews of certain decisions made by persons acting under his or her delegated authority; and

(o)

carrying out any functions that are incidental and related to, or consequential upon, the roles set out in paragraphs (a) to (n).

19 Role of territorial authorities

(1)

A territorial authority has the functions, duties, and powers given to it under this Act.

(2)

A territorial authority has a role in the food safety regime that includes, without limitation,—

(a)

delivering services that are needed to achieve the purpose of this Act, including the provision of advice and the dissemination of information on matters relating to the safety and suitability of food; and

(b)

facilitating the administration and performance of functions and activities that support the role of the chief executive under this Act; and

(c)

contributing to the implementation and delivery of risk-based measures for the safety and suitability of food; and

(d)

performing the function of a registration authority; and

(e)

carrying out enforcement and other regulatory responsibilities under this Act in respect of its district; and

(f)

carrying out the role of a recognised agency; and

(g)

carrying out any functions that are incidental and related to, or consequential upon, the roles set out in paragraphs (a) to (f).

Part 2 Risk-based measures

Subpart 1—General

Preliminary

20 Overview of this Part

(1)

This Part contains provisions relating to risk-based measures, which are the main means under this Act for ensuring food businesses achieve safe and suitable food.

(2)

This Part—

(a)

classifies food sectors into 3 risk classes based on, among other things, the level of risk that their activities pose to public health and assigns a risk-based measure to food businesses in a class where appropriate; and

(b)

provides, in Schedule 1, a description of food sectors that are generally subject to a food control plan; and

(c)

categorises national programmes into 3 levels based on, among other things, the risks involved and provides, in Schedule 2, a description of food sectors that are generally subject, in descending order of risk, to a level 3, level 2, or level 1 national programme; and

(d)

provides, in Schedule 3, a description of food sectors that are not required to operate under a food control plan or a national programme; and

(e)

specifies which risk-based measure generally applies if a food sector is not specified in any of Schedules 1 to 3 or if a food sector is described in more than 1 of those schedules; and

(f)

requires a person who trades in food and whose food business is in a food sector to which a risk-based measure applies to operate the food business under that risk-based measure, unless the person is exempted from that requirement under the provisions of this Part; and

(g)

sets out requirements about the nature, content, and effect of a food control plan and a national programme; and

(h)

sets out the circumstances in which a monitoring programme may be imposed.

(3)

This Part also contains provisions that exempt or enable the exemption of persons, groups of persons, or food businesses from operating under food control plans or national programmes (for example, sections 31 to 33).

Classification of food sectors

21 Classification of food sectors for purpose of assigning applicable risk-based measures

(1)

The classification of food sectors under this Part—

(a)

is based on, among other things, the level of risk that their activities pose to public health in terms of the safety and suitability of food; and

(b)

is for the purpose of assigning a risk-based measure that generally applies to food businesses in those food sectors or for identifying those food sectors to which no risk-based measure generally applies.

(2)

Accordingly, Schedules 1 to 3 classify food sectors into 3 risk-based classes in accordance with the principles set out in subsection (3).

(3)

The principles referred to in subsection (2) are as follows:

(a)

food sectors that generally pose a high level of risk to public health are classified in Schedule 1 and food businesses in those food sectors must operate under a food control plan:

(b)

food sectors that generally pose a medium or medium-to-low level of risk to public health are classified in Schedule 2 and—

(i)

food businesses in food sectors classified in Part 3 of that schedule must operate under a level 3 national programme:

(ii)

food businesses in food sectors classified in Part 4 of that schedule must operate under a level 2 national programme:

(iii)

food businesses in food sectors classified in Part 5 of that schedule must operate under a level 1 national programme:

(c)

food sectors that generally pose a low level of risk to public health are classified in Schedule 3 and food businesses in those food sectors are not required to operate under a food control plan or a national programme.

(4)

The levels of national programme specified in subsection (3)(b) are listed in descending order of risk.

(5)

This section is subject to sections 25, 26, and 29.

22 Power to amend Schedules 1 to 3 by Order in Council

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations to amend Schedule 1, 2, or 3 by doing any 1 or more of the following to any 1 or more of those schedules:

(a)

amending the overview part of a schedule; or

(b)

adding the name or description of any food sector to a schedule; or

(c)

removing the name or description of any food sector from a schedule; or

(d)

amending the name or description of any food sector in a schedule; or

(e)

moving the name or description of any food sector from 1 schedule, or Part of a schedule, and inserting that name or description in another schedule, or Part of a schedule; or

(f)

revoking a schedule or a Part of a schedule and substituting a new schedule or a new Part of a schedule.

(2)

Before recommending the making of regulations under subsection (1), the Minister must—

(a)

take both of the following matters into account:

(i)

the need to achieve the safety and suitability of food for sale; and

(ii)

the likely effect of the regulations on the efficiency of the food sector concerned and the economic impact of the regulations on that sector; and

(b)

be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

(3)

A food sector to which regulations under subsection (1) relate may be described, without limitation, by—

(a)

the type of food that the food sector trades in; or

(b)

the intended purpose or destination of food; or

(c)

the type of operations or processes carried out in relation to food; or

(d)

the type of place in which the operations or processes are carried out in relation to food; or

(e)

any combination of the matters described in paragraphs (a) to (d).

Application of risk-based measures

23 Determining applicable risk-based measure for food businesses that come within food sectors not classified in Schedules 1 to 3

(1)

This section applies to a food business in a food sector that is not classified in any of Schedules 1 to 3.

(2)

The risk-based measure that applies to a food business to which this section applies is a level 3 national programme.

(3)

This section is subject to section 24.

24 Food business not subject to risk-based measure only because it imports food

(1)

Despite section 23, a food business is not subject to a risk-based measure under that section by reason only that it imports food.

(2)

Subsection (1) does not limit or affect the other requirements of this Act in relation to food imported for the purpose of sale.

25 Determining applicable risk-based measure for food businesses that overlap 2 or more food sectors

(1)

This section applies to a food business carrying out activities that fall into—

(a)

more than 1 of Schedules 1 to 3:

(b)

more than 1 of Parts 3 to 5 of Schedule 2.

(2)

The operator of the food business may, at the operator’s sole discretion, choose to—

(a)

operate all of the food business’s activities under the risk-based measure that applies to the part of the business with the highest level of risk; or

(b)

operate each part of the food business under the risk-based measure that applies, or under no risk-based measure if no risk-based measure applies, to that part of the food business in accordance with section 21(3).

26 Operator of food business may choose to operate under food control plan even if food business is in food sector classified under lower level of risk

Sections 21, 23, 25, and 28 do not prevent an operator of a food business from choosing to operate the food business under a food control plan even if, under section 21(3) or, as the case may be, section 25,—

(a)

the risk-based measure that would generally apply to the food business is not a food control plan; or

(b)

no risk-based measure would generally apply to the food business.

27 Winemaker may apply for winemaking operations to be included under registered food control plan or national programme

(1)

This section applies to a person—

(a)

who is a winemaker within the meaning of section 4(1) of the Wine Act 2003; and

(b)

who does not require an official assurance issued under section 42 of that Act; and

(c)

whose wine is not subject to export eligibility requirements under section 38 of that Act; and

(d)

who operates, or is required to operate, under a food control plan or a national programme for activities other than winemaking.

(2)

A person to whom this section applies may apply to the chief executive to have that person’s winemaking operations included under a registered food control plan or have all of the person’s operations registered under a national programme.

(3)

The following (as the case may be) apply to an application under subsection (2), subject to subsections (4) and (5) and with any necessary modifications:

(a)

sections 53 to 57 in respect of an application relating to a food control plan:

(b)

regulations made under section 76 in respect of an application relating to a national programme.

(4)

In determining the application, the chief executive must take into account the following matters:

(a)

the frequency, type, and nature of the winemaking operations:

(b)

the feasibility, effectiveness, and efficiency of operating under a food control plan or a national programme (as the case may be):

(c)

any other matters that the chief executive considers relevant.

(5)

If the chief executive decides to approve the application,—

(a)

the chief executive must, as soon as practicable, give the person written notice of that fact; and

(b)

the person is no longer subject to the Wine Act 2003 for the winemaking operations covered by the registered food control plan or the national programme, unless the chief executive imposes reasonable conditions on the person that include the requirement that specified wine standards are covered by the food control plan or the national programme.

(6)

If the chief executive decides to refuse the application, the chief executive must, as soon as practicable, give the person written notice of—

(a)

the decision and the reason for it; and

(b)

the person’s right to seek a review of the decision under section 355.

Requirement to operate under applicable risk-based measure

28 Requirement to operate under applicable risk-based measure

(1)

This section applies to a person who trades in food and whose food business is in a food sector to which a risk-based measure applies,—

(a)

as specified in Schedule 1 or 2; or

(b)

if section 23 or 25 applies, as determined in accordance with that section.

(2)

The person must operate the food business under that risk-based measure or in accordance with section 25(2).

29 Exception to section 28

Section 28 does not apply—

(a)

if the operator of the food business chooses, under section 26, to operate the food business under a food control plan; or

(b)

to the extent that the operator of the food business is a person or a member of a group that is exempt under section 31 from the requirement to operate under a registered food control plan or a national programme; or

(c)

to the extent that the operator of the food business is granted an exemption under section 33; or

(d)

to the extent that the operator of the food business is a person who has an exemption under section 349 (certain persons covered by Animal Products Act 1999) or 350 (certain persons covered by Wine Act 2003).

30 Where food control plan and national programme do not apply

A person or food business that is not subject to, or required to operate under, a food control plan or a national programme—

(a)

must comply with section 14 and any other applicable requirements of this Act; and

(b)

must comply with any applicable requirements of the Animal Products Act 1999 or the Wine Act 2003, including any applicable regulations, standards, notices, or directions made under those Acts; and

(c)

is liable to prosecution if the failure to comply with any of the requirements referred to in paragraphs (a) and (b) is an offence against this Act, the Animal Products Act 1999, or the Wine Act 2003.

31 Exemption from food control plan and national programme if trading in food for certain fund-raising

(1)

This section applies if—

(a)

a person or group of persons trades in food for the sole purpose of raising money for a charitable, benevolent, philanthropic, or cultural purpose; and

(b)

the fund-raising activity is not carried out on more than 20 occasions in any calendar year (unless it is incidental to another charitable, benevolent, or philanthropic activity, such as a permanent stall selling donated goods at a hospice).

(2)

To the extent that the person or group is engaged in any trading described in subsection (1), the person or group is exempt from the requirement to operate under a registered food control plan or a national programme.

(3)

This section is subject to section 32.

32 Exemption does not apply in prescribed circumstances

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations providing that the exemption in section 31 does not apply to the following:

(a)

any food or any 1 or more classes or descriptions of food:

(b)

any 1 or more classes or descriptions of persons who trade in food:

(c)

any 1 or more classes or descriptions of operations or places in relation to any trade in food:

(d)

any combination of the things referred to in paragraphs (a) to (c).

(2)

Before recommending the making of regulations under subsection (1), the Minister must—

(a)

take into account the need to achieve the safety and suitability of food for sale; and

(b)

be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

33 Chief executive may grant exemption from requirement to operate under registered food control plan or national programme

(1)

The chief executive may exempt any person, group of persons, or type or description of food business within a food sector from the requirement to operate under a registered food control plan or a national programme—

(a)

on his or her own initiative; or

(b)

on application by any person.

(2)

The chief executive may grant an exemption on application only if he or she is satisfied that the person, group of persons, or food businesses concerned—

(a)

have demonstrated a valid and appropriate reason not to be required to operate under a registered food control plan or a national programme that outweighs the public interest in maintaining consistency of treatment of persons and food businesses in the same food sector; and

(b)

have demonstrated understanding and awareness of the importance of hazards and other factors that are relevant in achieving safe and suitable food.

(3)

In determining whether to grant an exemption (whether on application or on his or her own initiative), the chief executive must take into account the following matters:

(a)

the hazards and other factors that are relevant in achieving safe and suitable food:

(b)

the potential impact on consumers:

(c)

the frequency and scale of operation:

(d)

the feasibility, effectiveness, and efficiency of operating under a food control plan or a national programme:

(e)

the appropriateness of regulatory control in comparison with controls specified for similar food sectors or types or descriptions of food business:

(f)

any other matters that the chief executive considers relevant.

(4)

An exemption—

(a)

must be granted by notice under section 405; and

(b)

may be amended or revoked at any time by the chief executive by further notice under section 405; and

(c)

applies during the period (if any) specified in the notice; and

(d)

is subject to conditions (if any) that may be specified in the notice.

(5)

Without limiting anything in this section, a person who may be granted an exemption under this section includes someone who—

(a)

produces in his or her own home any food for sale; and

(b)

sells the food to a consumer only; and

(c)

does not otherwise sell or distribute the food.

(6)

This section is not limited by sections 343 and 344.

Compare: 1999 No 93 s 14

34 Chief executive may delegate functions, duties, or powers under section 33 to territorial authorities

(1)

The chief executive may delegate any of the chief executive’s functions, duties, or powers under section 33 to 1 or more territorial authorities.

(2)

A territorial authority to which any functions, duties, or powers are delegated under this section may perform those functions and duties, or exercise those powers,—

(a)

in the same manner, subject to the same restrictions, and with the same effect as if they had been imposed or conferred on that territorial authority directly by this Act and not by delegation; but

(b)

subject to any terms and conditions imposed under subsection (3) or conditions imposed by subsection (7).

(3)

However, a delegation under this section may be made on any terms and conditions that the chief executive thinks fit, and may be revoked at any time by notice to the territorial authority.

(4)

A territorial authority acting under delegation is presumed to be acting in accordance with its terms in the absence of proof to the contrary.

(5)

A delegation under this section does not affect the performance of any function or duty, or the exercise of any power, by the chief executive.

(6)

Neither the chief executive nor the Crown is responsible for any act or default of a territorial authority in the performance of any function or duty, or in the exercise of any power, delegated under this section.

(7)

A delegation of the chief executive’s power to grant an exemption under section 33 must be subject to the following conditions:

(a)

the exemption may be granted only to a food business that is operating entirely within the district of the territorial authority to which the power is delegated; and

(b)

the food business must belong to a food sector that is required to be registered with the territorial authority; and

(c)

the food business must not have been registered by the chief executive; and

(d)

the territorial authority to which the power is delegated must, when issuing a notice under section 33(4)(a) or (b), comply with the requirements of that section and sections 407 and 408 as if the territorial authority were the chief executive.

Subpart 2—Food control plans

Preliminary

35 Purpose of this subpart

The purpose of this subpart is to—

(a)

set out provisions about the nature, content, and effect of a food control plan; and

(b)

require the registration of food control plans.

Food control plans

36 Food control plan: general description

A food control plan is a plan designed for a particular food business to identify, control, manage, and eliminate or minimise hazards or other relevant factors for the purpose of achieving safe and suitable food, taking into account—

(a)

each type of food that the food business trades in; and

(b)

each type of process or operation that is applied to the food; and

(c)

each place in which the food business trades in food.

Compare: 1999 No 93 s 12

37 Food control plan: coverage

(1)

A food control plan may apply to 1 food business or, if the requirements of section 50(2) are met, to more than 1 food business.

(2)

Conversely, a food business may also be covered by 1 or more food control plans.

38 Food control plan: based on official template or model

(1)

A food control plan may be based on an official template or model.

(2)

For the purposes of this Act, a food control plan that is based on an official template or model—

(a)

may exclude any part of the template or model that is not applicable to any food business to which the plan applies; and

(b)

must not include any provision that is not part of an official template or model.

39 Food control plan: chief executive’s power to issue official template or model

(1)

The chief executive may, by notice under section 405, issue a template or model for different types of food sectors or food businesses.

(2)

If the chief executive issues a template or model, the chief executive must—

(a)

make a copy of the template or model available, free of charge, on an Internet site or for public inspection at reasonable hours at the head office of the Ministry; or

(b)

on request, supply a copy of the template or model, free of charge, to any person who cannot access it on the Internet site.

(3)

This section does not limit or affect section 40.

40 Food control plan: chief executive’s power to approve official template or model developed by third party

(1)

The chief executive may, by notice under section 405, approve a template or model developed by a person other than the chief executive or by a food industry body.

(2)

The chief executive may give an approval under this section subject to conditions.

(3)

An approval must end within—

(a)

3 years from the date of approval; or

(b)

a shorter period specified by the chief executive.

(4)

The notice under section 405 must state—

(a)

any conditions subject to which the approval is given; and

(b)

the date on which the approval ends.

(5)

Before an approval ends, the chief executive may issue a new notice under section 405 approving the template or model for a period of up to 3 years.

(6)

The chief executive may suspend or withdraw an approval by issuing a notice under section 405.

(7)

This section does not limit or affect section 45.

41 Food control plan: form

A food control plan must be in writing in a form acceptable to the appropriate registration authority for the plan.

Compare: 1999 No 93 s 17(1)(a)

42 Food control plan: contents

A food control plan must set out—

(a)

the name, trading name, and business address (including the electronic address, if available) of—

(i)

the food business or businesses covered by the plan; and

(ii)

if the plan applies to only 1 food business, the operator of the food business; and

(iii)

if the plan applies to more than 1 food business, the operator of the plan and the operator of each food business covered by the plan; and

(b)

the operators’ physical and electronic addresses for the purposes of section 378(3)(a); and

(c)

the physical address or, if appropriate, the location of the food business or its nominated home base; and

(d)

the name, or the position or designation, and the area of responsibility (if appropriate) of the person who is responsible for the day-to-day management of the plan, as nominated by the person in control of the food business or businesses; and

(e)

the scope of the plan, including (without limitation)—

(i)

the type of food to which it applies; and

(ii)

the nature of the food business or businesses covered by the plan; and

(iii)

the trading operations under the plan; and

(f)

how the applicable requirements of this Act (as defined in section 8(1)) will be met under the plan; and

(g)

a description of the hazards and other factors that are reasonably likely to occur or arise; and

(h)

procedures to achieve the safety and suitability of food, including (without limitation)—

(i)

good operating practice; and

(ii)

control of all relevant hazards and other factors that are reasonably likely to occur or arise; and

(iii)

monitoring of appropriate parameters and limits; and

(iv)

preventative actions; and

(v)

corrective actions; and

(vi)

operator verification activities; and

(vii)

document control and record keeping; and

(i)

any validation information as appropriate; and

(j)

any other matters that may be specified in regulations or in notices under section 405.

Compare: 1999 No 93 s 17(1)(b), (c), (2)

43 Regulations about food control plans

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

(a)

stating matters relating to the content and purpose of a food control plan for the food sectors referred to in section 21(3)(a):

(b)

prescribing controls, restrictions, requirements, and prohibitions in relation to a food sector, including provisions about how a food sector must manage or deal with risks that arise from trading in food:

(c)

prescribing verification requirements, including provisions that deal with the frequency, intensity, and cost of verification:

(d)

prescribing requirements for the registration of food control plans and providing for the manner and form in which a person must register a food control plan:

(e)

prescribing conditions, or restrictions on conditions, that the registration authority may impose on the registration of a food control plan:

(f)

prescribing requirements for the validation and evaluation of food control plans:

(g)

providing for any other matters that may be necessary or desirable to give effect to or to administer the registration of food control plans:

(h)

requiring persons who operate under food control plans to demonstrate competency, in relation to the safety and suitability of food, food production, and food processing and handling, to undergo appropriate training, and to provide training for staff as appropriate:

(i)

requiring reports to be made in respect of breaches of a food control plan:

(j)

requiring samples and tests to be carried out in relation to matters covered by a food control plan and for the results of those tests to be reported to the chief executive:

(k)

prescribing any other matters that may be necessary to ensure that a food control plan effectively minimises and manages risks to public health and protects and promotes public health:

(l)

prescribing requirements relating to the safety and suitability of food and to good operating practice:

(m)

prescribing any other matters that may be necessary for the purpose of giving effect to the implementation of food control plans.

(2)

Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

Amendments to food control plans

44 Chief executive’s power to amend, replace, or revoke template or model issued under section 39

(1)

The chief executive may, by notice under section 405, amend, replace, or revoke a template or model issued under section 39.

(2)

If a registered food control plan is based on a template or model that is amended or replaced in accordance with subsection (1), the operator of the plan—

(a)

must comply with any requirements specified by the chief executive in the notice under section 405 within the time specified in that notice; but

(b)

is not obliged to re-register the food control plan.

(3)

If a registered food control plan is based on a template or model that is revoked, and not replaced, in accordance with subsection (1),—

(a)

the operator of the plan and the operator of a food business to which the plan applies may continue to operate under the food control plan until the expiry of the period specified in the notice under section 405; but

(b)

the operator of the plan must, before the expiry of that period, apply to the appropriate registration authority for an alternative food control plan to be registered.

(4)

If the chief executive amends or replaces a template or model in accordance with subsection (1), the chief executive must—

(a)

make a copy of the amended or replacement template or model available, free of charge, on an Internet site or for public inspection at reasonable hours at the head office of the Ministry; or

(b)

on request, supply a copy of the amended or replacement template or model, free of charge, to any person who cannot access it on the Internet site.

45 Operator may amend food control plan based on template or model issued under section 39 or approved under section 40

(1)

An operator of a registered food control plan based on a template or model issued by the chief executive under section 39 or approved by the chief executive under section 40 may amend the food control plan.

(2)

If the amendment to the food control plan is not a significant amendment, the operator must give written notice of the amendment to the registration authority for that plan.

(3)

If the amendment to the food control plan is a significant amendment, the operator must apply to that registration authority for the amended plan to be registered.

(4)

If the registration authority for the plan determines that it is no longer the appropriate registration authority for that plan, that registration authority must forward the application to the appropriate registration authority.

(5)

For the purposes of this section, the chief executive may, by notice under section 405, specify what amendments to a food control plan must be treated as significant amendments.

46 Operator may amend food control plan not based on official template or model

(1)

An operator of a registered food control plan that is not based on an official template or model may amend the food control plan.

(2)

If the amendment to the food control plan is not a significant amendment, the operator must give written notice of the amendment to the appropriate registration authority for the plan.

(3)

If the amendment to the food control plan is a significant amendment, the operator must apply to the appropriate registration authority for the amended plan to be registered.

(4)

On receipt of an application under subsection (3), the appropriate registration authority may require the amended food control plan to be evaluated before registering the plan.

(5)

If the appropriate registration authority considers that the amendment to the food control plan is so extensive that it constitutes a new food control plan, the appropriate registration authority may treat the application for registration of the amended food control plan as an application for registration of a new food control plan.

(6)

For the purposes of this section, the chief executive may, by notice under section 405, specify what amendments to a food control plan must be treated as significant amendments.

47 Sections 53 to 57, 59, and 60 apply to applications for registration of amended food control plans

Sections 53 to 57, 59, and 60 apply with any necessary modifications to an application under section 45(3) or 46(3) for an amended food control plan to be registered.

Requirement to register food control plans

48 Food control plans must be registered

An operator of a food business that is required to operate under a food control plan must—

(a)

register with the appropriate registration authority the food control plan that is proposed to apply to the food business; or

(b)

ensure that there is registered with the appropriate registration authority a food control plan that applies to the food business.

Other provisions relating to registered food control plans

49 Requirements of Act to prevail in cases of inconsistency with registered food control plan

If there is any inconsistency between the requirements of a registered food control plan and the applicable requirements of this Act (whether by reason of a failure to amend or update the plan to reflect any new requirements or otherwise), the applicable requirements of this Act prevail.

Duties of operators of registered food control plans

50 Duties of operators of registered food control plans

(1)

The operator of a registered food control plan must—

(a)

ensure that the operations of the food business or food businesses to which the food control plan applies comply with the relevant requirements set out in the plan:

(b)

ensure that the operations of that food business or those food businesses comply with the applicable requirements of this Act:

(c)

ensure that the plan is consistent with the applicable requirements of this Act:

(d)

adequately implement and resource all operations under the plan, including instructing, training, and supervising staff to achieve the safety and suitability of food and ensuring that staff have the necessary competency to achieve that purpose:

(e)

ensure that all operations under the plan are commensurate with the capability and the capacity of the place, facilities, equipment, and staff to achieve the safety and suitability of food:

(f)

ensure that, after commencement of the operations to which the registered food control plan relates, the plan is verified by an appropriate recognised agency or recognised person:

(g)

give relevant recognised agencies and recognised persons the freedom and access that will allow them to carry out their functions and activities under this Act (including verification functions and activities):

(h)

keep a copy of the plan for as long as its registration is effective:

(i)

if the plan is amended, revoked, or replaced, keep a copy of the plan (as it was before it was amended, revoked, or replaced) for a period of not less than 4 years and keep a copy of the amended or replacement plan for as long as its registration is effective:

(j)

comply with section 51.

(2)

For a registered food control plan that applies to all or part of more than 1 food business, the operator of the plan must ensure that—

(a)

the operator will have sufficient control, authority, and accountability for all matters covered by the plan in relation to the other food business or businesses, or part- business or businesses, subject to the plan’s coverage; and

(b)

the operator of each food business agrees to carry out the duties under subsection (1) for the operator’s business.

(3)

The duties set out in subsection (1) also apply (so far as they are applicable to their businesses) to the operator of each food business referred to in subsection (2)(b).

Compare: 1999 No 93 s 16

51 Operator of registered food control plan must notify registration authority of significant change in circumstances

(1)

The operator of a registered food control plan must give written notice to the registration authority of any significant change in circumstances.

(2)

The notice under subsection (1) must be given—

(a)

before the significant change in circumstances occurs; or

(b)

if compliance with paragraph (a) is not practicable, as soon as practicable after the significant change in circumstances occurs but, in any event, not later than 10 working days after the change occurs.

(3)

In this section, significant change in circumstances

(a)

means—

(i)

any change in any of the following information that the operator has provided under section 53 in respect of an application for registration of the food control plan:

(A)

the information required under section 42(a) to (e) and (h)(ii):

(B)

the verifier or verification agency that will carry out verification functions in respect of the plan:

(ii)

any change in the information that the operator has provided under section 55 in respect of an application for registration of the food control plan:

(iii)

any matter that results in the food control plan not meeting the criteria under section 56; and

(b)

includes the death, bankruptcy, receivership, voluntary administration, or liquidation of the operator of the plan or the operator of a food business to which the plan applies.

(4)

If subsection (3)(b) applies to the operator of the plan, the person who assumes control of the operator’s business must give the written notice required by subsection (1).

Registration of food control plans

52 Application for registration: who is appropriate registration authority

(1)

The appropriate registration authority for a food control plan that is based on a template or model issued by the chief executive under section 39 is the relevant territorial authority, unless the plan applies to more than 1 place of business and the definition in subsection (3) would result in more than 1 relevant territorial authority.

(2)

The appropriate registration authority for all other food control plans is—

(a)

the relevant territorial authority, if regulations made under this Act authorise the territorial authority (either generally or specifically) to perform this function; or

(b)

the chief executive, in any other case.

(3)

In this Act, relevant territorial authority means,—

(a)

if the application for registration relates to 1 or more fixed places of business, the territorial authority that, under this Act, is responsible for performing the function of a registration authority for the district or combined district where the 1 or more places are situated; or

(b)

if the application for registration relates to a mobile food business, the territorial authority that, under this Act, is responsible for performing the function of a registration authority for the district or combined district where the business address of the mobile food business is situated.

53 Application for registration: form and content

(1)

An application for registration must—

(a)

be made in writing in a form or manner approved by the appropriate registration authority; and

(b)

include the information described in subsection (2) or, as the case may be, subsection (3); and

(c)

be accompanied by the fee (if any) that is prescribed or set under section 204 or 205.

(2)

For a food control plan that is based on an official template or model, the information referred to in subsection (1)(b) is—

(a)

the information required under section 42(a) to (e) that provides a comprehensive and accurate representation of all the requirements of those paragraphs; and

(b)

the reference number of the official template or model used; and

(c)

confirmation of the verifier or verification agency that will carry out verification functions in respect of the plan.

(3)

For a food control plan that is not based on an official template or model, the information referred to in subsection (1)(b) is—

(a)

either of the following:

(i)

the information required under section 42(a) to (e) and (h)(ii) that provides a comprehensive and accurate representation of all the requirements of those paragraphs and a list of the contents of the food control plan:

(ii)

a copy of the entire food control plan; and

(b)

unless waived by the chief executive on a case-by-case basis or by notice under section 405, a report of an independent evaluation, carried out not more than 6 months before the date of the application for registration, of the validity of the food control plan in terms of sections 41 and 42; and

(c)

confirmation of the verifier or verification agency that will carry out verification functions in respect of the plan.

Compare: 1999 No 93 s 20(2), (3)

54 Registration authority may refuse to process application for registration

The registration authority may refuse to process an application for registration if the applicant does not provide an application that complies with section 53.

55 Registration authority may require further information

(1)

The registration authority may require an applicant to supply relevant further information or material (including the whole or part of a food control plan) before determining whether or not to register a food control plan.

(2)

An application for registration lapses if the information or material is not supplied—

(a)

within 3 months after the date of the requirement; or

(b)

within any further time that the registration authority allows.

Compare: 1999 No 93 s 21

56 Criteria for registration of food control plan

The registration authority must register a food control plan if satisfied that—

(a)

the food control plan complies with the applicable requirements of this Act; and

(b)

if implemented appropriately, the food control plan will enable safe and suitable food to be traded; and

(c)

either,—

(i)

if the plan applies to 1 food business, the operator of the food business is a New Zealand resident (within the meaning of section YD 1 or YD 2 of the Income Tax Act 2007); or

(ii)

if the plan applies to more than 1 food business, every operator of the food businesses and the operator of the plan are New Zealand residents within the meaning of either of those sections of that Act; and

(d)

either,—

(i)

if the plan applies to 1 food business, the operator of the food business is able to comply with the requirements of this Act; or

(ii)

if the plan applies to more than 1 food business, every operator of the food businesses and the operator of the plan are able to comply with the requirements of this Act.

Compare: 1999 No 93 s 22

57 Refusal to register food control plan

(1)

If the registration authority proposes to refuse to register a food control plan, the registration authority must give the applicant—

(a)

a written notice that clearly informs the applicant of the grounds proposed for refusal; and

(b)

a reasonable opportunity to make written submissions.

(2)

If the registration authority finally determines to refuse to register the plan, the registration authority must, as soon as practicable, give the applicant written notice of—

(a)

the decision and the reason for it; and

(b)

the applicant’s right to seek a review of the decision under section 355.

Compare: 1999 No 93 s 23

58 Applicants for registration must notify registration authority of significant change in circumstances

(1)

An applicant for registration of a food control plan must give written notice to the registration authority of any significant change in circumstances.

(2)

The notice under subsection (1) must be given—

(a)

before the significant change in circumstances occurs; or

(b)

if compliance with paragraph (a) is not practicable, as soon as practicable after the significant change in circumstances occurs but, in any event, not later than 10 working days after the change occurs.

(3)

In this section, significant change in circumstances means

(a)

any change in the information that the applicant has provided in respect of the application for registration of the food control plan under section 53 in respect of the information required under section 42(a) to (e) and under section 55:

(b)

any change in the procedures set out in the food control plan that relate to the matters referred to in section 42(h)(ii):

(c)

any matter that results in the food control plan not meeting the criteria under section 56.

59 Registration of food control plan

(1)

If the registration authority is the chief executive and decides to register a food control plan, the registration authority must, as soon as practicable,—

(a)

enter the information required by clause 4 of Schedule 5 on the relevant public register; and

(b)

give the applicant written notice specifying the date on which the registration takes effect, the duration of the registration, and any conditions imposed under section 60.

(2)

If the registration authority is not the chief executive and decides to register a food control plan, the registration authority must, as soon as practicable,—

(a)

provide the information required by clause 4 of Schedule 5 to the chief executive for entry on the relevant public register; and

(b)

give the applicant written notice specifying the date on which the registration takes effect, the duration of the registration, and any conditions imposed under section 60.

(3)

After being provided with information under subsection (2)(a), the chief executive must, as soon as practicable, enter the information on the relevant public register.

Compare: 1999 No 93 s 22(3)

60 Registration authority may impose conditions on registration of food control plan

(1)

The registration authority may register a food control plan subject to any reasonable conditions that it may specify.

(2)

The registration authority may, at any time, vary any conditions imposed in respect of the plan.

(3)

However, if regulations have been made under section 43(1)(e), the conditions must comply with those regulations.

(4)

If the registration authority imposes or varies conditions under this section, the registration authority must, as soon as practicable, give the operator of the food control plan in question written notice of—

(a)

the conditions and the reason for imposing or varying them; and

(b)

the operator’s right to seek a review of the conditions under section 355.

(5)

In this section, vary means—

(a)

to impose additional conditions; or

(b)

to revoke or amend any conditions.

61 Duration of registration

(1)

The registration of a food control plan is effective from the date of registration until—

(a)

the date that is 12 months after the date of registration; or

(b)

a later date specified by the registration authority by written notice to the operator of the food control plan.

(2)

Subsection (1) applies unless the registration—

(a)

expires in accordance with a condition imposed under section 60; or

(b)

is cancelled under section 67; or

(c)

is surrendered under section 71.

(3)

The registration may be renewed for further periods in accordance with Part 2 of Schedule 4.

Suspension of operations under registered food control plan

62 Mandatory suspension

(1)

The registration authority may, at any time, suspend all or any operations under a registered food control plan in accordance with clauses 4 and 6 of Schedule 4 if it has reasonable grounds to believe that—

(a)

the food control plan may not be, or is no longer, effective (for example, because of a failure to have the plan verified in accordance with the applicable requirements of this Act); or

(b)

the food traded under the food control plan does not meet, or no longer meets, the applicable requirements of this Act; or

(c)

the food traded under the food control plan may pose a risk to human life or public health; or

(d)

there is or has been a serious failure of operations or there are or have been other matters (including non-compliance with the conditions of registration) under the plan that cast doubt on the safety and suitability of food traded under it.

(2)

The maximum period of suspension under this section is 3 months.

Compare: 1999 No 93 s 27

63 Registration authority may extend mandatory suspension

(1)

The registration authority may extend the period of a suspension under section 62 in accordance with clause 5 of Schedule 4 if the registration authority considers it necessary in the circumstances.

(2)

The period of extension—

(a)

may be for any further period that the registration authority notifies in writing to the operator of the food control plan before the expiry of the original suspension; but

(b)

must not exceed 3 months.

64 Voluntary suspension

(1)

If the operator of a registered food control plan wishes to suspend all operations under the plan or the operations of 1 or more food businesses covered by the plan, the operator must suspend those operations in accordance with clause 7 of Schedule 4.

(2)

The suspension must be for a period of at least 3 months, but the operator may extend the period of suspension.

(3)

The maximum period of suspension under this section is 12 months.

65 Effect of suspension

(1)

If all or any operations under a registered food control plan are suspended under section 62 or 64 or the period of suspension of any operation is extended under section 63, the registration authority may—

(a)

direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

(b)

direct the operator of the food business or person in control of any affected food, food-related accessory, or operations of the food business, to take appropriate action to deal with the affected food, food-related accessory, or operations; and

(c)

exercise any of the relevant powers under section 285.

(2)

Section 285 applies to a registration authority that is the relevant territorial authority as if references to the chief executive in that section were references to the relevant territorial authority.

(3)

The registration authority must ensure that, during the period of suspension, the suspension is recorded on the relevant public register.

(4)

A suspension under section 62 or 64 does not affect any other actions that the registration authority may take under this Act.

Compare: 1999 No 93 s 27(8)

Removal of registration of food control plans

66 Removal from public register

(1)

This section applies to a food control plan if the chief executive—

(a)

cancels the plan’s registration under section 67 or is notified of its cancellation by a registration authority under section 67(2)(a)(ii); or

(b)

is notified of the surrender of the plan’s registration under section 71, either by notice by the operator of the plan under section 71(1) or by notice by the registration authority under section 71(2).

(2)

As soon as practicable after this section applies to a food control plan, the chief executive must—

(a)

record the cancellation or surrender on the relevant public register; and

(b)

remove the food control plan from the relevant public register.

67 Cancellation of registration

(1)

The registration authority may cancel the registration of a food control plan in accordance with Part 4 of Schedule 4 if satisfied that—

(a)

suspending operations under the plan under section 62 would be justified, but it would be more appropriate to cancel the registration of the plan because of—

(i)

the failure of the operator of the plan to properly attend to matters that would lead to the suspension; or

(ii)

repeated suspensions in the past under that section or section 64; or

(b)

the period of a suspension of the plan under section 62 has expired, but the operator of the plan has failed to properly attend to matters that led to the suspension of operations under the plan and there are no reasonable grounds for believing that the operator would properly attend to those matters; or

(c)

whether by reason of the passage of time, changing circumstances, or for any other reason, the plan is no longer capable of achieving the safety and suitability of food traded under it; or

(d)

the plan has ceased to be relevant to the operations it purports to cover because there has been a change in—

(i)

the operator of the food business concerned; or

(ii)

the place where the relevant operations are carried out; or

(iii)

the food being traded; or

(iv)

the type of trading being carried out; or

(e)

the operator of the plan has ceased to operate as a producer, processor, or seller of food and has either—

(i)

surrendered the registration of the plan; or

(ii)

failed to surrender the registration of the plan despite reasonable efforts by the registration authority to contact the operator; or

(f)

the operator of the plan has transferred the food business covered by the plan to a new operator, but the registration authority is not satisfied of the matters in section 56(c) or (d) in relation to the new operator; or

(g)

the operator of the plan has failed to pay any fees or charges imposed or prescribed by or under this Act or any regulations made under this Act (excluding any infringement fee).

(2)

If the registration authority decides to cancel the registration of a food control plan, the registration authority—

(a)

must, as soon as practicable, give written notice of the cancellation to—

(i)

the appropriate verifier or verification agency (if any); and

(ii)

the chief executive, if the registration authority is not the chief executive; and

(b)

may notify the cancellation in the Gazette.

Compare: 1999 No 93 s 28(1)

68 Effective date of cancellation

The cancellation of the registration of a food control plan takes effect on the date specified by the registration authority in the notice given to the operator of the plan under clause 10(1)(d) of Schedule 4, which must be a date after the date of that notice.

69 Effect of cancellation of registration

(1)

If the registration of a food control plan is cancelled, the registration authority may—

(a)

direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

(b)

direct the operator of the food business or person in control of any affected food, food-related accessories, or operations of the food business to take appropriate action to deal with the affected food, food-related accessories, or operations; and

(c)

exercise any of the other powers under section 285.

(2)

Section 285 applies to a registration authority that is the relevant territorial authority as if references to the chief executive in that section were references to the relevant territorial authority.

(3)

A cancellation of registration does not affect any other actions that the registration authority may take under this Act.

Compare: 1999 No 93 s 28(4), (5)

70 Removal of food business from coverage of food control plan

(1)

The registration authority may remove a food business from the coverage of a registered food control plan that applies to 2 or more businesses if satisfied that cancellation of the plan’s registration would be appropriate under section 67 if the food business were the only one operating under the plan.

(2)

In determining whether to exercise the power conferred by subsection (1), the registration authority must take into account the effect of removing the food business from the coverage of the food control plan on any food business or food businesses that will continue to be covered by the plan and whether the plan will continue to achieve safe and suitable food.

(3)

Sections 66 to 69 and Part 4 of Schedule 4 apply, subject to any necessary modifications, in relation to the removal of the business from the coverage of the food control plan as if references in those sections or that schedule to cancellation of the plan’s registration were references to removal of a food business from the coverage of the plan.

Compare: 1999 No 93 s 28A

71 Surrender of registration

(1)

The operator of a registered food control plan may, at any time, surrender the plan’s registration by written notice to the registration authority.

(2)

If the registration authority is not the chief executive and is notified of a surrender under subsection (1), the registration authority must, as soon as practicable after being notified, notify the chief executive of the surrender.

(3)

A surrender does not affect any other actions that the registration authority may take under this Act.

Compare: 1999 No 93 s 29(1)

72 Effective date of surrender

A surrender takes effect—

(a)

on the date specified in the notice given to the registration authority under section 71(1), which must be a date later than the date of the notice; or

(b)

if no date is specified, on the date on which the registration authority receives that notice.

Subpart 3—National programmes

Preliminary

73 Purpose of this subpart

The purpose of this subpart is to set out provisions about the nature, content, and effect of a national programme.

National programmes

74 National programme: general description

(1)

A national programme is a programme designed to identify, control, manage, and eliminate or minimise hazards or other relevant factors for the purpose of achieving safe and suitable food by—

(a)

imposing controls on a food business in relation to matters such as (without limitation) good operating practice, documentation requirements, verification requirements, and registration requirements; and

(b)

managing the relevant risks in a manner that ensures the level of control placed on food businesses in a food sector is, among other things, proportional to the level of risk that the food sector generally poses to public health.

(2)

A national programme must require every person or food business that is subject to it to comply with the applicable requirements of this Act.

(3)

A national programme may be 1 of the 3 levels specified in section 21(3)(b) and each of those levels may differ in the level of control or the set of requirements that it imposes, depending on how high or low the level is.

(4)

Accordingly, a level 3 national programme generally imposes a higher level of control on a food business than a level 2 or level 1 national programme, and a level 2 national programme generally imposes a higher level of control than a level 1 national programme.

75 How national programme may be imposed

(1)

A national programme may be imposed by regulations made under section 76 and, if required, supplemented by specifications set by the chief executive by notice under section 405.

(2)

Any regulations or specifications referred to in subsection (1) may—

(a)

apply to particular food businesses or food sectors or to classes of food businesses or food sectors:

(b)

specify different requirements for different food businesses or food sectors or different classes of food businesses or food sectors:

(c)

make different provision for different food businesses or food sectors or classes of food businesses or food sectors.

(3)

To avoid doubt, section 405(3) applies if the chief executive issues a notice setting specifications for the purposes of subsection (1).

Compare: 1999 No 93 ss 38(2), 39(3), (4)

76 Regulations about national programmes

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for all or any of the following purposes:

(a)

prescribing controls, restrictions, requirements, and prohibitions in relation to a food sector, including provisions about how a food sector must manage or deal with risks that arise from trading in food:

(b)

prescribing verification requirements, including provisions that deal with the frequency, intensity, and cost of verification:

(c)

prescribing procedures and requirements for the registration of food businesses, including who the appropriate registration authority should be, the form and content of registration, and the fees and charges payable for registration (if any):

(d)

prescribing conditions, or restrictions on conditions, that may be imposed by the registration authority on the registration of a food business that is subject to a national programme:

(e)

prescribing the duration of the registration of a food business that is subject to a national programme:

(f)

providing for any other matters that may be necessary or desirable to give effect to or to administer the registration of a food business that is subject to a national programme:

(g)

prescribing requirements relating to the safety and suitability of food and to good operating practice:

(h)

requiring persons who operate under a national programme to demonstrate competency, in relation to the safety and suitability of food, food production, and food processing and handling, to undergo appropriate training, and to provide training for staff as appropriate:

(i)

requiring reports to be made in respect of breaches of a national programme:

(j)

requiring samples and tests to be carried out in relation to matters under a national programme and for the results of those tests to be reported to the chief executive:

(k)

prescribing any other matters that may be necessary to ensure that a national programme effectively minimises and manages risks to public health and protects and promotes public health:

(l)

prescribing any other matters that may be necessary for the purpose of giving effect to a national programme.

(2)

Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

Compare: 1999 No 93 s 39(1)

77 National programme not invalid on certain grounds

A national programme may not be held invalid merely because it—

(a)

confers any discretion on, or allows any matter to be determined or approved by, the Minister, the chief executive, the registration authority, or any food safety officer; or

(b)

allows the Minister or the chief executive to impose specifications or other requirements as to the performance of any activities.

Compare: 1999 No 93 s 39(2)

78 Requirements of national programme to prevail in cases of inconsistency with other regulations or specifications made under this Act

If there is any inconsistency between the requirements of a national programme and the provisions of any other regulations or specifications made under this Act, the requirements of the national programme prevail.

Requirement for food businesses subject to national programme to register

79 Food businesses subject to national programme must be registered

An operator of a food business that is subject to a national programme must ensure that the food business is registered with the appropriate registration authority under section 88.

Duties of operators of food businesses subject to national programme

80 Duties of operators of food businesses subject to national programme

The operator of a food business subject to a national programme must—

(a)

comply with this section and section 81:

(b)

ensure that the operations of the food business comply with the relevant requirements set out in the national programme:

(c)

ensure that the operations of the food business comply with the applicable requirements of this Act:

(d)

adequately implement and resource all operations under the national programme, including instructing, training, and supervising staff to achieve the safety and suitability of food and ensuring that staff have the necessary competency to achieve that purpose:

(e)

ensure that, after commencement of the operations to which the national programme registration relates, compliance of the food business with the national programme is verified by an appropriate recognised agency or recognised person and with the frequency required in the national programme:

(f)

comply with sections 294 and 295:

(g)

keep a copy of all documents required to be kept under the national programme.

81 Operators of food businesses subject to national programme must notify registration authority of significant change in circumstances

(1)

The operator of a food business subject to a national programme must give written notice to the registration authority of any significant change in circumstances.

(2)

The notice under subsection (1) must be given—

(a)

before the significant change in circumstances occurs; or

(b)

if compliance with paragraph (a) is not practicable, as soon as practicable after the significant change in circumstances occurs but, in any event, not later than 10 working days after the change occurs.

(3)

In this section, significant change in circumstances

(a)

means—

(i)

any change in any of the information that the operator has provided under section 83(b) to (h) in respect of the application for registration of the food business:

(ii)

any change in the nature of the food business that would affect the level of national programme applicable to that food business or would require it to operate under a food control plan; and

(b)

includes the death, bankruptcy, receivership, voluntary administration, or liquidation of the operator of the food business.

(4)

If subsection (3)(b) applies, the person who assumes control of the food business must give the written notice required by subsection (1).

Registration of food businesses subject to national programme

82 Application for registration: who is appropriate registration authority

The appropriate registration authority is either the chief executive or the relevant territorial authority, as provided for by regulations made under section 76.

83 Application for registration: form and content

An application for registration must—

(a)

be made in writing in a form or manner approved by the appropriate registration authority; and

(b)

include the full name and business address (including the electronic address, if available) of the operator of the food business; and

(c)

include the operator’s physical and electronic address for the purposes of section 378(3)(a); and

(d)

include the trading name of the food business; and

(e)

include the physical address or, if appropriate, the location of the food business or its nominated home base; and

(f)

include the position or designation of the person who is responsible for the day-to-day management of the food business, as nominated by the person in control of the food business; and

(g)

include the scope of the operations of the food business; and

(h)

include confirmation of the verifier or verification agency that will carry out the verification functions in respect of the food business; and

(i)

include any further information or other material (including declarations, if appropriate) that may be required by notice under section 405 or by regulations made under this Act; and

(j)

be accompanied by the fee (if any) that is prescribed or set under section 204 or 205.

84 Registration authority may refuse to process application for registration

The registration authority may refuse to process an application for registration if the applicant does not provide an application that complies with section 83.

85 Registration authority may require further information

(1)

The registration authority may require an applicant to supply further information or material before determining whether or not to register the food business to which the applicant’s application for registration relates.

(2)

An application for registration lapses if the information or material is not supplied—

(a)

within 3 months after the date of the requirement; or

(b)

within any further time that the registration authority allows.

86 Criteria for registration of food business subject to national programme

The registration authority must register a food business that is subject to a national programme if satisfied that—

(a)

the relevant application for registration complies with section 83; and

(b)

the operator of the food business is a New Zealand resident (within the meaning of section YD 1 or YD 2 of the Income Tax Act 2007).

87 Refusal to register food business subject to national programme

(1)

If the registration authority proposes to refuse to register a food business that is subject to a national programme, the registration authority must give the applicant concerned—

(a)

a written notice that clearly informs the applicant of the grounds proposed for refusal; and

(b)

a reasonable opportunity to make written submissions.

(2)

If the registration authority finally determines to refuse to register the food business, the registration authority must, as soon as practicable, give the applicant written notice of—

(a)

the decision and the reason for it; and

(b)

the applicant’s right to seek a review of the decision under section 355.

88 Registration of food business subject to national programme

(1)

If the registration authority is the chief executive and decides to register a food business that is subject to a national programme, the registration authority must, as soon as practicable,—

(a)

enter the information required by clause 7 of Schedule 5 on the relevant public register; and

(b)

give the operator written notice specifying the date on which the registration takes effect, the duration of registration (if prescribed by regulations made under section 76(1)(e)), and any conditions imposed under section 89.

(2)

If the registration authority is not the chief executive and decides to register a food business that is subject to a national programme, the registration authority must, as soon as practicable,—

(a)

provide to the chief executive for entry on the relevant public register the details of the food business, as required for the purposes of clause 7 of Schedule 5, and the date of registration of the food business and (if prescribed by regulations made under section 76(1)(e)) the duration of registration; and

(b)

give the operator written notice specifying the date on which the registration takes effect and the conditions of registration (if any) imposed by the registration authority.

(3)

The chief executive must, as soon as practicable after being notified, enter on the relevant public register the details as required by clause 7 of Schedule 5.

(4)

The registration of a food business may be renewed in accordance with Part 2 of Schedule 4.

89 Registration authority may impose conditions on registration of food business

(1)

The registration authority may register a food business subject to any reasonable conditions that it may specify.

(2)

The registration authority may, at any time, vary any conditions imposed in respect of the food business.

(3)

However, if regulations have been made under section 76(1)(d), the conditions must comply with those regulations.

(4)

If the registration authority imposes or varies conditions under this section, the registration authority must, as soon as practicable, give the operator of the food business in question written notice of—

(a)

the conditions and the reason for imposing or varying them; and

(b)

the operator’s right to seek a review of the conditions under section 355.

(5)

In this section, vary means—

(a)

to impose additional conditions; or

(b)

to revoke or amend any conditions.

Suspension of operations of registered food business under national programme

90 Mandatory suspension

(1)

The registration authority may, at any time, suspend all or any operations of a registered food business that is subject to a national programme in accordance with clause 4 of Schedule 4 if it has reasonable grounds to believe that—

(a)

the food traded by the food business does not meet, or no longer meets, the applicable requirements of this Act; or

(b)

the food traded by the food business may pose a risk to human life or public health; or

(c)

there is or has been a serious failure of operations or there are or have been other matters (including non-compliance with the conditions of registration) under the national programme that cast doubt on the safety and suitability of food traded by the food business.

(2)

The maximum period of suspension under this section is 3 months.

91 Registration authority may extend mandatory suspension

(1)

The registration authority may extend the period of a suspension under section 90 in accordance with clause 5 of Schedule 4 if the registration authority considers it necessary in the circumstances.

(2)

The period of extension—

(a)

may be for any further period that the registration authority notifies in writing to the operator of the food business before the expiry of the original suspension; but

(b)

must not exceed 3 months.

92 Voluntary suspension

(1)

If the operator of a registered food business that is subject to a national programme wishes to suspend all operations of the food business under the national programme, the operator must suspend those operations in accordance with clause 7 of Schedule 4.

(2)

The suspension must be for a period of at least 3 months, but the operator may extend the period of suspension.

(3)

The maximum period of suspension under this section is 12 months.

93 Effect of suspension

(1)

If all or any operations of a registered food business that is subject to a national programme are suspended under section 90 or 92 or the suspension is extended under section 91, the registration authority may—

(a)

direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

(b)

direct the operator of the food business, or the person in control of any affected food, food-related accessory, or operations of the food business, to take appropriate action to deal with the affected food, food-related accessory, or operations; and

(c)

exercise any of the relevant powers under section 285.

(2)

Section 285 applies to a registration authority that is the relevant territorial authority as if references to the chief executive in that section were references to the relevant territorial authority.

(3)

The registration authority must ensure that, during the period of suspension, the suspension is recorded on the relevant public register.

(4)

A suspension under section 90 or 92 does not affect any other actions that the registration authority may take under this Act.

Removal of registration of food business

94 Removal from public register

(1)

This section applies to a food business that is subject to a national programme if the chief executive—

(a)

cancels the registration of the food business under section 95 or is notified of its cancellation by a registration authority under section 95(2)(b); or

(b)

is notified of the surrender of the registration of the food business under section 98, either by notice by the operator of the business under section 98(1) or notice by the registration authority under section 98(2).

(2)

As soon as practicable after this section applies to a food business, the chief executive must—

(a)

record the cancellation or surrender on the relevant public register; and

(b)

remove the food business from the relevant public register.

95 Cancellation of registration

(1)

The registration authority may cancel the registration of a food business that is subject to a national programme in accordance with Part 4 of Schedule 4 if satisfied that—

(a)

suspending operations of the food business under section 90 would be justified, but it would be more appropriate to cancel the registration of the food business because of—

(i)

the failure of the operator of the food business to properly attend to matters that would lead to the suspension; or

(ii)

repeated suspensions in the past under that section; or

(b)

the period of a suspension of the food business under section 90 has expired, but the operator of the food business has failed to properly attend to matters that led to the suspension of operations and there are no reasonable grounds for believing that the operator would properly attend to those matters; or

(c)

the operator of the food business has ceased to operate as a producer, processor, or seller of food and has either—

(i)

surrendered the registration of the food business; or

(ii)

failed to surrender the registration of the food business despite reasonable efforts by the registration authority to contact the operator; or

(d)

the operator of the food business has failed to pay any fees or charges imposed or prescribed by or under this Act or any regulations made under this Act (excluding any infringement fee).

(2)

If the registration authority decides to cancel the registration of a food business that is subject to a national programme, the registration authority must, as soon as practicable, give written notice of the cancellation to—

(a)

the appropriate verifier or verification agency (if any); and

(b)

the chief executive, if the registration authority is not the chief executive.

96 Effective date of cancellation

The cancellation of the registration of a food business that is subject to a national programme takes effect on the date specified by the registration authority in the notice given to the operator of the food business under clause 10(1)(d) of Schedule 4, which must be a date after the date of that notice.

97 Effect of cancellation of registration

(1)

If the registration of a food business that is subject to a national programme is cancelled, the registration authority may—

(a)

direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

(b)

direct the operator of the food business or person in control of any affected food, food-related accessories, or operations of the food business to take appropriate action to deal with the affected food, food-related accessories, or operations; and

(c)

exercise any of the other powers under section 285.

(2)

Section 285 applies to a registration authority that is the relevant territorial authority as if references to the chief executive in that section were references to the relevant territorial authority.

(3)

A cancellation of registration does not affect any other actions that the registration authority may take under this Act.

98 Surrender of registration

(1)

The operator of a food business that is subject to a national programme may, at any time, surrender the registration of the food business by written notice to the registration authority.

(2)

If the registration authority is not the chief executive and is notified of a surrender under subsection (1), the registration authority must, as soon as practicable after being notified, notify the chief executive of the surrender.

(3)

A surrender does not affect any other actions that the registration authority may take under this Act.

99 Effective date of surrender

A surrender takes effect—

(a)

on the date specified in the notice given to the registration authority under section 98(1), which must be a date later than the date of the notice; or

(b)

if no date is specified, on the date on which the registration authority receives that notice.

Subpart 4—Monitoring programmes

100 Purpose of this subpart

The purpose of this subpart is to set out provisions about the nature, content, and effect of a monitoring programme.

101 Monitoring programme: general description

(1)

A monitoring programme is used to impose, in the circumstances described in subsection (2), monitoring measures and related activities that are necessary—

(a)

for determining the safety or suitability of food; or

(b)

for ensuring the effectiveness of the food safety regime; or

(c)

for enhancing, or determining the need for, adopted joint food standards, domestic food standards, or national outcomes; or

(d)

for determining regulatory performance against the objectives of minimising and managing the food risks in respect of public health.

(2)

The circumstances are as follows:

(a)

the monitoring measures and related activities need to be provided for on a sector or industry basis because food businesses in the sector or industry are not generally subject to the requirement to operate under a food control plan or a national programme; or

(b)

it is not feasible or practicable to provide for the monitoring measures and related activities by means of other risk-based measures.

(3)

A monitoring programme may be imposed on any food sector despite the fact that the sector is already subject to a risk-based measure.

102 Monitoring programme: scope

A monitoring programme must specify its purpose, and may—

(a)

apply to all or any class or classes of importer, food, persons or business, process or operation, place, or area:

(b)

set out how monitoring will take place:

(c)

provide for matters such as surveying, monitoring, surveillance, data collection, sampling, and testing of or in relation to food and any thing in the environment:

(d)

provide for reporting requirements relating to certain results (including specified contaminants or pathogens in food):

(e)

provide for technical matters and specifications and matters of detail:

(f)

authorise or provide for operational matters to give effect to the monitoring programme (for example, periodic sampling plans).

103 Regulations about monitoring programmes

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or both of the following purposes:

(a)

prescribing 1 or more monitoring programmes:

(b)

authorising the chief executive to exempt, after taking into account the matters specified in subsection (2), any person or group of persons from compliance with, or from the application of, any provisions of a monitoring programme.

(2)

The matters referred to in subsection (1)(b) are—

(a)

the circumstances specified in section 101(2); and

(b)

the particular circumstances of the person or group of persons that would make it unreasonable or impracticable for them to comply with the monitoring programme.

(3)

Before recommending the making of regulations under this section, the Minister must—

(a)

be satisfied that 1 or both of the circumstances specified in section 101(2) apply; and

(b)

be satisfied that the monitoring programme is a cost-effective way of providing for the monitoring measures and related activities; and

(c)

take into account the following matters:

(i)

the need to meet the purpose of this Act:

(ii)

the relative cost of having the monitoring programme or not having it, and who bears the cost:

(iii)

any other matters that the Minister considers relevant; and

(d)

be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

Compare: 1999 No 93 s 39(3), (4)

104 Chief executive may specify certain matters by notice

(1)

For the purpose of giving effect to a monitoring programme, the chief executive may, by notice under section 405, specify the following matters that are necessary to give effect to the matters provided for in section 102:

(a)

sampling plans:

(b)

sampling regimes:

(c)

test methodologies:

(d)

competencies:

(e)

procedures to be followed:

(f)

reporting:

(g)

provision of information:

(h)

surveillance and the consequences of surveillance.

(2)

The chief executive may, by notice under section 405, supplement any regulations referred to in section 103 by providing for any other matters necessary to give effect to the monitoring programme that have not been provided for by the regulations.

(3)

A notice referred to in subsection (1) or (2) must not be inconsistent with the regulations.

105 Monitoring programme not invalid on certain grounds

A monitoring programme may not be held invalid merely because it—

(a)

confers any discretion on, or allows any matter to be determined or approved by, the Minister, the chief executive, or any food safety officer; or

(b)

allows the Minister or the chief executive to impose specifications or other requirements as to the performance of any activities.

Compare: 1999 No 93 s 39(2)

Part 3 Food imported for purpose of sale

Preliminary

106 Purpose of this Part

The purpose of this Part is—

(a)

to require the safety and suitability of food imported for the purpose of sale; and

(b)

to provide for the registration of certain importers of that food.

107 Interpretation

In this Part, a reference to food imported for the purpose of sale includes a reference to food that—

(a)

is imported for processing and handling; and

(b)

is then subsequently exported.

108 Restriction on importation of food for purpose of sale

(1)

A person must not import any food for the purpose of sale unless—

(a)

the person is a registered importer; or

(b)

if the person is not a registered importer, the person is importing the food through an agent who is a registered importer.

(2)

The importation of food in a quantity that is more than that which a reasonable person would consider to be reasonably required for the purpose of personal consumption must, unless the contrary is proved, be treated as an importation of the food for the purpose of sale.

109 Food clearance

(1)

A food safety officer may give any imported food a clearance for entry into New Zealand if subsection (2) or (3) applies.

(2)

This subsection applies if all of the following apply:

(a)

the importer of the food—

(i)

is a registered importer; or

(ii)

is acting through an agent who is a registered importer; and

(b)

any regulations made under section 387 are complied with; and

(c)

any applicable notices issued under section 405 are complied with; and

(d)

there are no discrepancies that suggest that it may be unwise for the food safety officer to rely on the documentation accompanying the food, either—

(i)

in the documentation itself; or

(ii)

between the documentation and the food.

(3)

This subsection applies if a food safety officer is satisfied (including, but not exclusively, by declaration by the importer) that the food is not imported for the purpose of sale.

(4)

A food safety officer may give a clearance for entry under this section—

(a)

unconditionally; or

(b)

subject to any conditions that the food safety officer thinks necessary or desirable to achieve the safety and suitability of food.

(5)

A clearance for entry given under this section does not affect the application of the provisions of any other Act.

Duties of importers and registered importers

110 Duties of importer

(1)

An importer of food for the purpose of sale must—

(a)

ensure that the importer’s operations comply with any applicable requirements of this Act; and

(b)

import only food that meets all applicable requirements of this Act; and

(c)

maintain procedures and processes to demonstrate that the record-keeping requirements of this Act in relation to the source or traceability and processing and handling of the food imported by the importer are being complied with; and

(d)

comply with section 294 and comply with section 295, which, if the importer’s food business is not operating under a risk-based measure, applies as if the reference to a recognised person (other than a verifier) were a reference to any recognised person (including a verifier).

(2)

To avoid doubt, subsection (1) applies whether or not the importer is registered under this Act.

Compare: 1999 No 93 s 51

111 Duty of registered importer

Without limiting section 110, a registered importer must comply with any applicable requirements of this Act.

Registration of importers

112 Who must be registered

For every consignment of food imported for sale into New Zealand, there must be a person who is a New Zealand resident (within the meaning of section YD 1 or YD 2 of the Income Tax Act 2007) and who is registered as an importer under this Act.

113 Application for registration

An application for registration must—

(a)

be made in writing to the chief executive in a form or manner specified by the chief executive by notice under section 405; and

(b)

include the applicant’s name, trading name, and business address (including the electronic address, if available); and

(c)

include the applicant’s physical and electronic address for the purposes of section 378(3)(a); and

(d)

be accompanied by the prescribed fee (if any).

114 Chief executive may refuse to process application for registration

The chief executive may refuse to process an application for registration if the applicant does not provide an application that complies with section 113.

115 Chief executive may require further information

(1)

The chief executive may require an applicant to supply further information or material before determining whether or not to register the applicant.

(2)

An application for registration lapses if the information or material is not supplied—

(a)

within 3 months after the date of the requirement; or

(b)

within any further time that the chief executive may allow by written notice to the applicant.

Compare: 1999 No 93 s 54(4), (5)

116 Criteria for approval of application for registration

(1)

The chief executive must approve an application for registration that complies with section 113 if satisfied that the applicant is a fit and proper person to be registered as an importer.

(2)

In determining whether an applicant is a fit and proper person for the purposes of subsection (1), the chief executive may take into account the following matters:

(a)

any specified conviction entered against the applicant or against any director, manager, or significant shareholder of the applicant:

(b)

whether there has in the past been a serious or repeated failure by the applicant, or by any director, manager, or significant shareholder of the applicant, to comply with the duties of an importer in section 110 or the duty of a registered importer in section 111:

(c)

whether there are other grounds for considering that the applicant is likely in the future to fail to comply with those duties:

(d)

any other matters that the chief executive considers relevant.

(3)

In this section, significant shareholder means a shareholder whose shareholding in the applicant enables the shareholder to exercise control over the affairs of the applicant.

117 Refusal to register

(1)

If the chief executive proposes to refuse to register an applicant, the chief executive must give the applicant—

(a)

a written notice that clearly informs the applicant of the grounds proposed for refusal; and

(b)

a reasonable opportunity to make written submissions.

(2)

If the chief executive finally determines to refuse to register the applicant, the chief executive must, as soon as practicable, give the applicant written notice of—

(a)

the decision and the reason for it; and

(b)

the applicant’s right to seek a review of the decision under section 355.

Compare: 1999 No 93 s 56

118 Registration

If the chief executive approves an application for registration, the chief executive must, as soon as practicable,—

(a)

enter the information required by clause 13 of Schedule 5 on the relevant public register; and

(b)

give the applicant written notice specifying the date on which the registration takes effect and the duration of the registration.

119 Duration of registration

(1)

An importer’s registration is effective from the date of registration until—

(a)

the date that is 12 months after the date of registration; or

(b)

a later date specified by the chief executive by written notice to the importer.

(2)

Subsection (1) applies unless the registration—

(a)

is cancelled under section 127; or

(b)

is surrendered under section 130.

(3)

The registration may be renewed for further periods in accordance with Part 2 of Schedule 4.

120 Registration may not be transferred

An importer’s registration—

(a)

may not be transferred to any other person; and

(b)

may not vest by operation of law in any person other than the importer registered under this Act.

121 Registered importers must notify chief executive of significant change in circumstances

(1)

A registered importer must give written notice to the chief executive of any significant change in circumstances within 10 working days after the change.

(2)

In this section, significant change in circumstances

(a)

means—

(i)

any change in the information that the registered importer has provided under sections 113 and 115 for an application for registration:

(ii)

any matter that may result in that person not meeting the criteria under section 116; and

(b)

includes the death, bankruptcy, receivership, voluntary administration, or liquidation of the registered importer.

(3)

In a case to which subsection (2)(b) applies, the person who assumes control of the importer’s business must give the notice under subsection (1).

Suspension of registered importer’s operations

122 Mandatory suspension

(1)

The chief executive may, at any time, suspend all or any specified part of a registered importer’s operations in accordance with clause 4 of Schedule 4 if the chief executive considers that—

(a)

the food imported by the importer may pose a risk to human life or public health; or

(b)

there is or has been a serious failure of operations or there are or have been other matters that cast doubt on the safety and suitability of the food imported by the importer.

(2)

The maximum period of suspension under this section is 3 months.

123 Chief executive may extend mandatory suspension

(1)

The chief executive may, in accordance with clause 5 of Schedule 4, extend the period of a suspension under section 122 if the chief executive considers it necessary in the circumstances.

(2)

The period of extension—

(a)

may be for any further period that the chief executive notifies to the registered importer in writing before the expiry of the original suspension; but

(b)

must not exceed a further 3 months.

124 Voluntary suspension

(1)

A registered importer may, at any time, suspend all of the importer’s operations in accordance with clause 7 of Schedule 4.

(2)

The suspension must be for a period of at least 3 months, unless the chief executive approves a period of suspension shorter than 3 months.

(3)

The registered importer may extend the period of suspension up to a maximum period of 12 months.

125 Effect of suspension

(1)

If all or any of a registered importer’s operations are suspended under section 122 or 124 or the period of a suspension of any operations is extended under section 123, the chief executive may—

(a)

direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

(b)

direct the registered importer to take appropriate action to deal with the affected food; and

(c)

exercise any of the relevant powers under section 285.

(2)

The chief executive must ensure that, during the period of suspension, the suspension is recorded on the relevant public register.

(3)

A suspension under section 122 or 124 or an extension of a period of a suspension of any operations under section 123 does not affect any other actions that the chief executive may take under this Act.

Removal of importer’s registration

126 Removal from public register

(1)

This section applies to an importer if the chief executive—

(a)

cancels the importer’s registration under section 127; or

(b)

is notified of the surrender of the importer’s registration under section 130.

(2)

As soon as practicable after this section applies to an importer, the chief executive must—

(a)

record the cancellation or surrender on the relevant public register; and

(b)

remove the importer from the relevant public register.

127 Cancellation of registration

(1)

The chief executive may cancel the registration of an importer in accordance with Part 4 of Schedule 4 if satisfied that the importer—

(a)

is no longer a fit and proper person to be registered, taking into account the matters referred to in section 116(2)(b) that—

(i)

arose after the registration of the importer; or

(ii)

first came to the attention of the chief executive after the registration of the importer; or

(b)

has failed to pay any fees or charges imposed or prescribed by or under this Act or any regulations made under this Act (excluding any infringement fee).

(2)

If the chief executive decides to cancel the registration of an importer, the chief executive must, as soon as practicable, give written notice of the cancellation to the appropriate verifier or verification agency (if any).

Compare: 1999 No 93 s 58(1)

128 Effective date of cancellation

The cancellation of an importer’s registration takes effect on the date specified by the chief executive in the notice given to the importer under clause 10(1)(d) of Schedule 4, which must be a date after the date of that notice.

129 Effect of cancellation of registration

(1)

If an importer’s registration is cancelled, the chief executive may—

(a)

direct that any food imported, produced, or processed and handled under any affected operations must not be sold; and

(b)

direct the importer to take appropriate action to deal with any affected food, food-related accessories, or operations; and

(c)

exercise any of the other powers under section 285.

(2)

A cancellation of registration does not affect any other actions that the chief executive may take under this Act.

Compare: 1999 No 93 s 28(4), (5)

130 Surrender of registration

(1)

An importer may, at any time, surrender that importer’s registration by written notice to the chief executive.

(2)

A surrender does not affect any other actions that the chief executive may take under this Act.

131 Effective date of surrender

A surrender takes effect—

(a)

on the date specified in the notice given to the chief executive under section 130(1), which must be a date later than the date of the notice; or

(b)

if no date is specified, on the date on which the chief executive receives that notice.

Provisions relating to border information supplied using JBMS

132 Border information supplied using JBMS must be supplied in approved form and manner

(1)

This section applies to a requirement by or under this Act to supply to the Ministry any border information.

(2)

Any person who uses the JBMS (Joint Border Management System) to comply with the requirement (including, without limitation, by supplying the information to the Customs, or to an appointed agency, in accordance with section 41D or 41H of the Biosecurity Act 1993) must supply the information in a form and manner—

(a)

for complying with the requirement by using the JBMS; and

(b)

for the time being generally approved in writing by the chief executive.

(3)

The approved form and manner referred to in subsection (2)—

(a)

must be notified via an Internet site that is, so far as practicable, publicly available free of charge; and

(b)

may be set out, for the information of registered JBMS users, in Customs rules under section 288(1)(j) of the Customs and Excise Act 1996.

(4)

In this section and section 133,—

border information and JBMS have the meanings given or referred to in section 41A(1) of the Biosecurity Act 1993

Ministry has the meaning given in section 41A(1) of the Biosecurity Act 1993 and also has the meaning given in section 8(1) of this Act.

133 Duty to use JBMS to supply border information

(1)

This section applies to a requirement by or under this Act to supply to the Ministry any border information.

(2)

After the commencement of this section, the only ways in which a person can comply with the requirement are—

(a)

by using the JBMS; or

(b)

by using another means for the time being generally or specifically approved in writing by the chief executive.

Part 4 Provisions relating to recognition, territorial authorities, administration, and enforcement

Subpart 1—Recognised agencies, persons, and classes of persons

134 Outline of this subpart

This subpart—

(a)

establishes a procedure for the recognition of agencies (including verification agencies) that are responsible for managing and carrying out specified functions and activities for the purposes of this Act; and

(b)

establishes a procedure for the recognition of persons (including verifiers) or classes of persons who are to carry out specified functions and activities for the purposes of this Act; and

(c)

sets out the duties of recognised agencies, recognised persons, and recognised classes, and when their recognition can be suspended or withdrawn; and

(d)

provides for the establishment and maintenance of a public register of recognised agencies, recognised persons, and recognised classes, and for the public to access the register.

Recognition of agencies, persons, and classes of persons

135 Recognition of agencies

(1)

The chief executive may, on the application of a person, recognise that person as an agency that is responsible for the management and carrying out of specified functions and activities.

(2)

Before recognising an applicant, the chief executive must—

(a)

consider whether to impose a condition under section 147(1) requiring the applicant to manage or supply recognised persons to carry out some or all of the permissible functions and activities for which recognition is sought; and

(b)

be satisfied that the applicant is a fit and proper person to manage and carry out the permissible functions and activities for which recognition is sought.

(3)

In determining whether an applicant is a fit and proper person, the chief executive—

(a)

must take into account the following matters:

(i)

the competencies and resources of the applicant to manage and carry out the permissible functions and activities for which recognition is sought; and

(ii)

any specified conviction entered against the applicant or any director or manager of the applicant; and

(iii)

the applicant’s character and reputation, including, if appropriate, the character and reputation of the directors of the applicant or of those responsible for its management or control; and

(iv)

the applicant’s ability to maintain an appropriate degree of impartiality and independence in managing and carrying out the permissible functions and activities for which recognition is sought; and

(v)

any applicable requirements of this Act; and

(b)

may take into account any other matters that the chief executive considers relevant.

(4)

This section is subject to section 137(5).

136 Recognition of certain agencies without application

(1)

The chief executive may, without receiving an application under section 135(1), recognise any of the following, or any group of persons within each of the following, as an agency that is responsible for the management and carrying out of specified functions and activities:

(a)

the Ministry:

(b)

a department of the Public Service listed in Schedule 1 of the State Sector Act 1988.

(2)

Section 135(2) and (3) apply to subsection (1) accordingly, with all necessary modifications.

(3)

This section is subject to section 137(5).

137 Recognition of territorial authorities for certain verification functions and activities

(1)

A territorial authority is recognised as the agency that is responsible for the management and carrying out of verification functions and activities in relation to a food business that is—

(a)

operating under a food control plan that is based on a template or model issued under section 39; and

(b)

operating entirely within the district of that territorial authority; and

(c)

selling food primarily directly to consumers.

(2)

The recognition of a territorial authority under subsection (1) must be treated as if it were recognition by the chief executive under section 136 for an indefinite duration.

(3)

However, sections 158 to 167 do not apply in respect of a territorial authority’s recognition under subsection (1).

(4)

To avoid doubt,—

(a)

other provisions of this subpart that apply to an agency recognised under section 136 (such as section 147) apply in respect of a territorial authority’s recognition under subsection (1); and

(b)

nothing in this section limits or affects the application of sections 184 to 197 in respect of a territorial authority managing and carrying out verification functions and activities described in subsection (1).

(5)

The chief executive must not recognise any person besides a territorial authority as an agency that is responsible for the management and carrying out of the verification functions and activities described in subsection (1).

138 Review of operation of section 137

As soon as practicable after the expiry of the Act’s introductory period (as defined in section 415), the chief executive must—

(a)

review the operation of section 137 since the date of commencement of that section; and

(b)

consider whether any amendments to the law are necessary or desirable and, in particular, whether there is a need to retain, amend, or repeal section 137; and

(c)

present a report of the review to the Minister within 6 months of commencing the review.

139 Recognition of persons

(1)

The chief executive may, on the application of a natural person, recognise that person to carry out specified functions and activities.

(2)

Before recognising an applicant, the chief executive must—

(a)

consider whether to impose a condition under section 147(1) requiring the applicant to be managed, employed, or engaged by a recognised agency to carry out some or all of the permissible functions and activities for which recognition is sought; and

(b)

be satisfied that the applicant is a fit and proper person to carry out the permissible functions and activities for which recognition is sought.

(3)

In determining whether an applicant is a fit and proper person, the chief executive—

(a)

must take into account the following matters:

(i)

the competency of the applicant to carry out the permissible functions and activities for which recognition is sought; and

(ii)

any specified conviction entered against the applicant; and

(iii)

the applicant’s character and reputation; and

(iv)

the applicant’s ability to maintain an appropriate degree of impartiality and independence in carrying out the permissible functions and activities for which recognition is sought; and

(v)

any applicable requirements of this Act; and

(b)

may take into account any other matters that the chief executive considers relevant.

140 Recognition of certain persons without application

(1)

The chief executive may, without receiving an application under section 139(1), recognise any of the following natural persons to carry out specified functions and activities:

(a)

any officer or employee of the Ministry:

(b)

any officer or employee of any department of the Public Service listed in Schedule 1 of the State Sector Act 1988:

(c)

any officer or employee of a territorial authority.

(2)

Section 139(2) and (3) apply to subsection (1) accordingly, with all necessary modifications.

141 Recognition of classes of persons

(1)

The chief executive may recognise a class of natural persons to carry out specified functions and activities.

(2)

The chief executive may recognise a class of natural persons—

(a)

on the application of any person who the chief executive is reasonably satisfied—

(i)

represents that class of persons; or

(ii)

is an appropriate person to make an application on behalf of that class of persons; or

(b)

without receiving an application.

(3)

Before recognising a class of natural persons, the chief executive must—

(a)

consult the members of the class and the applicant (if any) in accordance with section 169 about the application for recognition of the class; and

(b)

be satisfied that the class is an appropriate class to carry out the permissible functions and activities for which the class is proposed to be recognised.

(4)

In determining whether a class is an appropriate class, the chief executive—

(a)

must take into account the following matters:

(i)

whether the class can be defined with appropriate accuracy and specificity; and

(ii)

the degree to which members of the class share common characteristics (for example, qualifications, skills, and experience); and

(iii)

the degree to which the ordinary qualifications, skills, functions, and activities of members of the class correspond with, and demonstrate adequate competency to carry out, the permissible functions and activities for which the class is proposed to be recognised; and

(iv)

whether the class is supervised, regulated, governed, or controlled by or under a professional or regulatory body or system (for example, a disciplinary body or system), or an enactment; and

(v)

whether the class is subject to a code of ethics or standards of professional conduct to which members must adhere; and

(vi)

any applicable requirements of this Act; and

(b)

may take into account any other matters that the chief executive considers relevant.

(5)

If the chief executive recognises a class of persons under this section, the chief executive may, if he or she considers on reasonable grounds that it is appropriate to do so, exclude 1 or more members of the class, or categories of members of the class, from the recognised class (see section 146).

142 Interrelationship between sections 135, 136, and 139 to 141

To avoid doubt, a natural person may be recognised under any 1 or more of sections 135, 136, and 139 to 141 despite already being recognised in another capacity under any 1 or more of those sections.

Recognition process

143 Application for recognition

An application for recognition under section 135, 139, or 141 must—

(a)

be in the appropriate form and manner provided or approved by the chief executive for that purpose; and

(b)

be accompanied by the prescribed application fee (if any).

144 Chief executive may require further information

(1)

The chief executive may require a person who applies for recognition to supply further information or material before determining whether to grant the recognition.

(2)

An application for recognition lapses if the additional information or other material is not supplied—

(a)

within 3 months after the date of the requirement; or

(b)

within any further time that the chief executive allows by notice in writing.

145 Proposal to refuse application to recognise agency, person, or class of persons

(1)

If the chief executive proposes to refuse an application for recognition in whole or in part, the chief executive must consult the applicant in accordance with section 169 about the proposed refusal.

(2)

The notification given to the applicant in accordance with section 169(a)(i) must—

(a)

specify the grounds for proposing to refuse the application; and

(b)

include a copy (or an adequate summary) of all material information the chief executive relies on in proposing to refuse the application.

(3)

If the chief executive finally determines to refuse the application (in whole or in part), the chief executive must, as soon as practicable, give the applicant written notice of—

(a)

the decision and the chief executive’s reasons for it; and

(b)

the applicant’s right to seek a review of that decision under section 355.

146 Proposal to exclude members, or categories of members, from recognition of class

(1)

If the chief executive proposes to exclude any members, or categories of members, from the recognition of a class, the chief executive must consult those members and the applicant (if any) in accordance with section 169 about the exclusion of the members.

(2)

The notification given to the members and the applicant (if any) in accordance with section 169(a) must—

(a)

specify the grounds for proposing to exclude the members; and

(b)

include a copy (or an adequate summary) of all material information the chief executive relies on in proposing to exclude the members.

(3)

If the chief executive finally determines to exclude any members, or categories of members, from the recognition of a class, the chief executive must, as soon as practicable, give those members and the applicant (if any) written notice of—

(a)

the decision and the chief executive’s reasons for it; and

(b)

the members’ and the applicant’s right to seek a review of that decision under section 355.

147 Chief executive may impose or vary conditions of recognition

(1)

The chief executive may impose any conditions the chief executive thinks fit when he or she recognises an agency, a person, or a class of persons under any of sections 135, 136, and 139 to 141.

(2)

The chief executive may vary any conditions by, as appropriate,—

(a)

giving a recognised agency or a recognised person written notice of the variation; or

(b)

notifying a recognised class of the variation in accordance with section 168.

(3)

However, before varying a condition the chief executive must consult the recognised agency, recognised person, or recognised class in accordance with section 169 about the proposed variation, unless the agency is, or is within, the Ministry or the person is within the Ministry.

(4)

If the chief executive varies a condition, the recognised agency, the recognised person, or a member of the recognised class to whom the condition applies may seek a review of the variation under section 355.

(5)

Subsections (3) and (4) do not apply if the variation is made on the application of the recognised agency, recognised person, or recognised class in accordance with the terms of that application.

(6)

In this section, vary means—

(a)

to impose additional conditions; or

(b)

to revoke or amend any conditions.

148 Grant of recognition

(1)

If the chief executive recognises an agency, a person, or a class of persons, the chief executive must, as soon as practicable,—

(a)

enter the name of the recognised agency or recognised person, or a definition of the class that allows the class to be accurately and readily identified, in the relevant public register; and

(b)

for a recognised agency or a recognised person, give the agency or person a notice of recognition; and

(c)

for a recognised class,—

(i)

notify the class in accordance with section 168 of its recognition; and

(ii)

if there was an applicant, give the applicant written notice of the recognition of the class.

(2)

A notice of recognition must specify—

(a)

the permissible functions and activities for which the recognition is granted; and

(b)

for a recognised class, any members or categories of members that are excluded from the recognised class in accordance with section 141(5); and

(c)

any conditions of recognition imposed under section 147(1); and

(d)

the duration of the recognition under section 150.

149 Scope, effect, and transfer of recognition

(1)

Recognition of a recognised agency or a recognised person applies only to the particular agency or particular person specified in the notice of recognition.

(2)

If a class of persons is recognised,—

(a)

that recognition applies—

(i)

to the class as defined in the relevant public register; and

(ii)

to each member of that class, but only—

(A)

to the extent that the member carries out the specified functions and activities for which the class is recognised; and

(B)

while the member continues to hold the qualifications or meet the other membership criteria according to which the class is defined in the relevant public register in accordance with section 148(1)(a); and

(b)

each member of the class—

(i)

is a recognised person; and

(ii)

is subject to the duties of recognised persons set out in section 156; and

(iii)

may independently carry out the specified functions and activities for which the class is recognised; and

(iv)

may have the recognition of the class of which he or she is a member suspended or withdrawn for him or her only; and

(c)

all conditions of recognition imposed on the class under section 147, and all directions or other requirements that apply to the class, also apply to, and must be complied with by, each member of the class individually; and

(d)

a suspension or withdrawal of the recognition of the class, and any condition or corrective action imposed under section 158(3) on the suspension of the class, also applies to each member of the class individually; and

(e)

each member of the class who carries out the specified functions and activities for which the class is recognised—

(i)

does so on his or her own account; and

(ii)

is personally responsible for his or her own actions or omissions.

(3)

Further to subsection (2), this subpart applies to a recognised person who is recognised by virtue of being a member of a recognised class, as far as applicable and with all necessary modifications, as if—

(a)

a reference to a recognised person’s specified functions and activities were a reference to the specified functions and activities of the recognised class of which he or she is a member; and

(b)

a reference to a recognised person’s recognition were a reference to the class’s recognition; and

(c)

a reference to a recognised person’s notice of recognition were a reference to the class’s notice of recognition.

(4)

Recognition may not be transferred to a different agency, person, or class of persons, and may not vest by operation of law in any person other than the agency, person, or class of persons specified in the notice of recognition.

150 Duration of recognition

(1)

Recognition has effect for—

(a)

a specified period commencing and ending on the dates stated in a notice of recognition in accordance with section 148(2)(d); or

(b)

if no period is specified, an indefinite period.

(2)

However,—

(a)

recognition ends if it is withdrawn under section 162 or 163 or surrendered under section 165; and

(b)

recognition has no effect while it is suspended under section 158 or 159.

151 Renewal of recognition before expiry

(1)

If an agency, a person, or a class of persons is recognised for a specified period, then no later than 1 month before the end of that period—

(a)

the agency, the person, or an appropriate representative may apply to the chief executive for renewal of the recognition; or

(b)

the chief executive may renew the recognition without application if the agency, person, or class was initially recognised by the chief executive without application.

(2)

In determining whether to renew the recognition of an agency, a person, or a class of persons, the chief executive must consider the matters set out in (as applicable) section 135(2) and (3), 139(2) and (3), or 141(3)(b) and (4) unless the chief executive is satisfied that—

(a)

either—

(i)

the circumstances of the agency, person, or class have not changed; or

(ii)

if the circumstances of the agency, person, or class have changed, those changes do not adversely affect the current recognition; and

(b)

the reasons why the chief executive recognised the agency, person, or class still apply; and

(c)

the agency or person has, or a sufficient proportion of the members of the class have, complied with all applicable conditions of recognition imposed under section 147 and requirements of this Act during the period of recognition.

(3)

If the chief executive proposes to vary any conditions of recognition imposed on the agency, person, or class of persons under section 147 when the chief executive renews the recognition, the chief executive—

(a)

must vary the conditions in accordance with section 147(2) to (6); and

(b)

may, by notice in writing to the agency, person, or class, temporarily extend the specified period of the existing recognition in order to allow consultation in accordance with section 147(3) (if required) to be completed before the period of recognition ends.

(4)

Sections 144 to 150 apply with all necessary modifications to applications under this section.

(5)

An application under this section that is received by the chief executive after the deadline specified in subsection (1) must be treated as if it were a new application for recognition under section 135, 139, or 141, as applicable.

(6)

In this section, appropriate representative means any person who the chief executive is reasonably satisfied—

(a)

represents the recognised class; or

(b)

is an appropriate person to make an application on behalf of the class.

152 Application for renewal of recognition

An application for renewal of recognition under section 151 must—

(a)

be in the appropriate form and manner provided or approved by the chief executive for that purpose; and

(b)

be accompanied by the prescribed application fee (if any).

153 Substituted notice of recognition

(1)

A recognised agency or a recognised person may apply to the chief executive for a new notice of recognition to be issued in substitution for an existing notice of recognition if—

(a)

any conditions of recognition imposed on the agency or person are varied under section 147(2); or

(b)

the existing notice has become disfigured or dilapidated, or contains a mistake; or

(c)

the existing notice has been lost or destroyed.

(2)

The chief executive must cancel the existing notice of recognition and give a new notice of recognition in substitution for it if—

(a)

an application for a substituted notice of recognition is made to the chief executive in the appropriate form and manner provided or approved by the chief executive for that purpose; and

(b)

the application is accompanied by the prescribed application fee (if any).

154 Ongoing recognition fees, charges, or levies

Recognised agencies and recognised persons must pay the prescribed fee, charge, or levy (if any) for ongoing recognition for the prescribed period on or before the date provided or approved by the chief executive for that purpose.

Performance of specified functions and activities

155 Duties of recognised agencies

(1)

When carrying out its specified functions and activities, a recognised agency must ensure that it—

(a)

carries out only functions and activities that are within the scope of those specified; and

(b)

is adequately resourced and its systems are maintained to a level that ensures it is able to carry out those functions and activities; and

(c)

has documented policies and procedures to safeguard the confidentiality of the information obtained or created while carrying out those functions and activities; and

(d)

has systems, processes, and procedures to manage appropriately any conflict of interest that might arise while carrying out those functions and activities; and

(e)

complies with all applicable requirements of this Act.

(2)

When carrying out its specified functions and activities, a recognised agency must also ensure that each recognised person that the agency manages and supplies (if any)—

(a)

maintains all competency requirements applicable to his or her recognition; and

(b)

is not placed in a position or a situation that compromises his or her impartiality and independence in carrying out his or her specified functions and activities.

(3)

The duties in section 156 apply to a recognised agency (in addition to the duties in subsection (1)), but only to the extent that the agency is recognised to carry out its specified functions and activities itself (instead of being recognised to manage or supply a recognised person to carry out its specified functions and activities).

156 Duties of recognised persons

When carrying out his or her specified functions and activities, a recognised person must ensure that he or she—

(a)

carries out only functions and activities that are within the scope of those specified; and

(b)

maintains all competency requirements applicable to his or her recognition; and

(c)

maintains an appropriate degree of impartiality and independence; and

(d)

maintains appropriate confidentiality (particularly in respect of commercially sensitive matters) relating to operations and activities the person comes into contact with in the course of carrying out those functions and activities (except to the extent that the person is required to report under paragraph (e) or otherwise for the purposes of this Act), including matters relating to design, technology, systems, personnel, and practices; and

(e)

reports to the registration authority, in accordance with any applicable requirements of this Act,—

(i)

a failure to comply with, or any inadequacy in, a food control plan:

(ii)

a failure to comply with a national programme:

(iii)

a failure to comply with a monitoring programme:

(iv)

any other matter that a recognised person is required to report; and

(f)

complies with all applicable requirements of this Act.

157 Recognised agency or person may act in other capacities

Nothing in section 155 or 156 prevents a recognised agency or a recognised person from carrying out functions and activities that are outside the scope of the agency’s or person’s specified functions and activities, provided that the agency or person does not do so—

(a)

in the agency’s or person’s capacity as a recognised agency or a recognised person; or

(b)

while purporting to act as a recognised agency or a recognised person.

Suspension of recognition

158 Suspension of recognition of recognised agency, etc

(1)

The chief executive may suspend all or part of the recognition of a recognised agency, recognised person, or recognised class if the chief executive has reasonable grounds to believe that—

(a)

the performance of the agency, person, or a significant proportion of the members of the class is unsatisfactory, taking into account the requirements of the recognition; or

(b)

the agency, person, or a significant proportion of the members of the class no longer meets 1 or more of the criteria on which that agency, person, or class was recognised under whichever of sections 135, 136, and 139 to 141 applies; or

(c)

the agency, person, or a significant proportion of the members of the class has failed to comply with section 155 or 156 or any other applicable requirements of this Act, and that failure causes the chief executive to question the ability of the agency, person, or class to carry out the specified functions or activities of the agency, person, or class; or

(d)

for an agency or a person, the agency or person has failed to pay an ongoing recognition fee, charge, or levy within 30 days after the date on which it was due and payable.

(2)

The maximum period of suspension under this section is 3 months.

(3)

The chief executive may do either or both of the following:

(a)

impose conditions that must be satisfied before the suspension is lifted:

(b)

require a suspended agency, person, or class to take appropriate corrective action to remedy the deficiency or failure that resulted in the suspension.

159 Chief executive may extend suspension

(1)

The chief executive may extend the period of a suspension under section 158 if the chief executive has reasonable grounds to believe that—

(a)

any conditions imposed under that section have not been satisfied within the suspension period; or

(b)

any corrective actions imposed under that section have not been fulfilled within the suspension period.

(2)

The period of extension—

(a)

may be for any further period that the chief executive notifies in writing to the agency or the person, or notifies to the class in accordance with section 168, before the expiry of the original suspension; but

(b)

must not exceed a further 3 months.

(3)

The chief executive may (in addition to any conditions or requirements imposed under section 158(3)) do either or both of the following:

(a)

impose conditions that must be satisfied before the extended period of suspension is lifted:

(b)

require a suspended agency, person, or class to take appropriate corrective action to remedy the deficiency or failure that resulted in the suspension.

160 Method of suspension of recognition

(1)

The chief executive must, as soon as practicable after deciding to suspend, or extend the suspension of, a recognised agency, recognised person, or recognised class, notify—

(a)

a recognised agency or recognised person of the suspension of the agency or person; and

(b)

a recognised agency of the suspension of a recognised person for whom the agency is responsible; and

(c)

a recognised person of the suspension of any recognised agency that is responsible for that person; and

(d)

a recognised class of the suspension of the class.

(2)

A notice of suspension must—

(a)

be given to a recognised agency or a recognised person by notice in writing; and

(b)

be given to a recognised class by notifying the class in accordance with section 168; and

(c)

specify—

(i)

the reason for the suspension; and

(ii)

the date and time the suspension starts; and

(iii)

the period of the suspension; and

(iv)

the specified functions and activities that the suspension relates to; and

(v)

any conditions or corrective actions imposed under section 158(3) or 159(3); and

(d)

set out the right of the recognised agency, recognised person, or recognised class (under section 355) to seek a review of the decision to suspend the recognition.

(3)

The chief executive may notify any suspension of recognition in the Gazette.

(4)

In subsections (1) to (3), suspension includes an extension of a suspension.

161 Suspension does not limit other actions

A suspension under section 158 or an extension of a suspension under section 159 does not affect any other actions that the chief executive may take under this Act.

Withdrawal of recognition

162 Withdrawal of recognition of recognised agency or recognised person

(1)

The chief executive may withdraw all or part of the recognition of a recognised agency or a recognised person if the chief executive has reasonable grounds to believe that—

(a)

suspending all or part of the agency’s or person’s recognition under section 158 (or extending a suspension under section 159) would be justified, but repeated suspensions in the past have been ineffective; or

(b)

the agency or person is no longer a fit and proper person to carry out the agency’s or person’s specified functions and activities; or

(c)

the agency or person has failed to comply with section 155 or 156 or any other applicable requirements of this Act, and that failure causes the chief executive to question the agency’s or the person’s ability to carry out the agency’s or person’s specified functions or activities; or

(d)

the agency or person has ceased to operate as a recognised agency or a recognised person; or

(e)

the agency or person has continued to fail to pay an ongoing recognition fee, charge, or levy after the agency’s or person’s recognition has been suspended on the ground set out in section 158(1)(d); or

(f)

the agency or person has failed to comply with or maintain any criteria or competencies that led to the recognition of the agency or person; or

(g)

the agency is no longer the appropriate agency to hold the recognition, but only if the agency is, or is within, the Ministry or a department of the Public Service listed in Schedule 1 of the State Sector Act 1988.

(2)

However, before withdrawing recognition, the chief executive must consult the agency or person in accordance with section 169 about the proposed withdrawal of recognition, unless the agency is, or is within, the Ministry or the person is within the Ministry.

(3)

The notification given to the agency or person in accordance with section 169(a)(i) must—

(a)

specify the grounds for the proposed withdrawal; and

(b)

include a copy (or an adequate summary) of all material information the chief executive relies on in proposing to withdraw the recognition.

163 Withdrawal of recognition of recognised class

(1)

The chief executive may withdraw all or part of the recognition of a recognised class if the chief executive has reasonable grounds to believe that a significant proportion of the members of the class—

(a)

have ceased to hold a qualification or meet 1 or more other membership criteria according to which the class is defined in the relevant public register in accordance with section 148(1)(a); or

(b)

have failed to comply with section 156 or any other applicable requirements of this Act, and that failure causes the chief executive to question the class’s ability to carry out the class’s specified functions or activities.

(2)

However, before withdrawing recognition on the ground set out in subsection (1)(b), the chief executive must consult the recognised class in accordance with section 169 about the proposed withdrawal of recognition.

(3)

The notification given to the recognised class in accordance with section 169(a)(ii) must—

(a)

specify the grounds for the proposed withdrawal; and

(b)

include a copy (or an adequate summary) of all material information the chief executive relies on in proposing to withdraw the recognition.

164 Method of withdrawal of recognition

(1)

The chief executive must, as soon as practicable after deciding to withdraw all or part of the recognition of a recognised agency, recognised person, or recognised class, notify—

(a)

a recognised agency or recognised person of the withdrawal of recognition of the agency or person; and

(b)

a recognised agency of the withdrawal of recognition of a person for whom the agency is responsible; and

(c)

a recognised person of the withdrawal of recognition of any recognised agency that is responsible for that person; and

(d)

a recognised class and, if there was an applicant on behalf of the class, the applicant of the withdrawal of recognition of the class.

(2)

A notice of withdrawal must—

(a)

be given to a recognised agency, a recognised person, or an applicant by notice in writing; and

(b)

be given to a recognised class by notifying the class in accordance with section 168; and

(c)

specify—

(i)

the reason for the withdrawal; and

(ii)

the date and time the withdrawal takes effect; and

(iii)

the specified functions and activities that the withdrawal relates to; and

(d)

set out the right of the recognised agency, recognised person, or recognised class (under section 355) to seek a review of the decision to withdraw the recognition.

(3)

The chief executive may notify any withdrawal of recognition in the Gazette.

(4)

An agency or a person who is recognised under any of sections 135, 136, 139, and 140 and whose recognition is withdrawn must return the agency’s or person’s notice of recognition to the chief executive as soon as practicable after the withdrawal of recognition takes effect.

(5)

An agency or a person whose recognition is withdrawn must, as soon as practicable after the withdrawal of recognition takes effect, take reasonable steps to notify each person who was a client of the agency or person immediately before the withdrawal that the agency’s or person’s recognition has been withdrawn.

Surrender of recognition

165 Surrender of recognition

(1)

A recognised agency or recognised person may—

(a)

surrender his, her, or its recognition by written notice to the chief executive; and

(b)

specify in the notice a future date on which the surrender is to take effect.

(2)

Before the date on which a surrender takes effect, the recognised agency or recognised person that is surrendering his, her, or its recognition must,—

(a)

for a recognised agency, notify the surrender to any recognised persons for whom the agency is responsible; and

(b)

for a recognised person, notify the surrender to any recognised agency that is responsible for that person; and

(c)

take reasonable steps to notify each person who will be a client of the agency or person immediately before the surrender that the agency’s or person’s recognition is surrendered.

166 Effective date of surrender

A surrender takes effect on the later of—

(a)

the date specified in the notice given under section 165(1); or

(b)

the date on which the chief executive records the surrender in the relevant public register under clause 10(1)(b)(v) of Schedule 5 or removes the agency or person from the relevant public register under section 167(3).

Removal of registration of recognised agencies, recognised persons, and recognised classes

167 Removal from public register

(1)

The chief executive must, as soon as practicable, remove the name of a recognised agency, recognised person, or recognised class from the relevant public register if the period for which the recognition is granted expires and is not extended under section 151(3)(b) or renewed.

(2)

Subsection (3) applies if the recognition of a recognised agency, a person who is recognised under section 139, or a recognised class is—

(a)

withdrawn under section 162 or 163; or

(b)

surrendered under section 165.

(3)

The chief executive must, as soon as practicable after withdrawing the recognition or being notified of the surrender,—

(a)

record the withdrawal or surrender and the date on which it takes effect; and

(b)

remove that agency, person, or class from the relevant public register.

Miscellaneous matters

168 Notification to category or class of persons

(1)

If any matter is required to be notified to a category or class of persons or a recognised class under this subpart, it must be notified in 1 or more of the following ways:

(a)

by notice in the Gazette:

(b)

by publication in all major metropolitan daily newspapers on at least 2 occasions:

(c)

by notifying a person who the chief executive is reasonably satisfied represents the category or class or is an appropriate person to receive a notification on behalf of the category or class:

(d)

if there was an applicant for the recognition of the class, by notifying that applicant:

(e)

by publication, either temporarily or permanently, on the Ministry’s public Internet site:

(f)

by post or email to all members of the category or class:

(g)

in any other manner that the chief executive is reasonably satisfied will ensure that the matter is sufficiently notified to the category or class.

(2)

In deciding which methods of notification are most appropriate in any particular case, the chief executive must consider—

(a)

the nature and significance of the matter required to be notified; and

(b)

the size and type of the category or class of persons and its characteristics, geographical spread, and degree of representation and organisation.

169 Means of consultation

If the chief executive is required to consult a person or a category or class of persons under this subpart, the chief executive must—

(a)

notify the person or persons of the matter to be consulted on (the matter) by, as applicable,—

(i)

giving the person written notice; or

(ii)

notifying the category or class of persons in accordance with section 168; and

(b)

give all persons who are notified of the matter a reasonable opportunity to make a written submission on the matter; and

(c)

if provided for in the notice (at the discretion of the chief executive), give all persons who are notified of the matter a reasonable opportunity to make an oral submission on the matter; and

(d)

consider any submissions that he or she receives on the matter from any person who was notified of the matter.

170 Chief executive may require notification of termination of contracts

(1)

The chief executive may, by notice under section 405, require any verifier or verification agency to notify the chief executive of the termination of any contract with a client for managing or carrying out verification functions and activities.

(2)

The notice may apply generally or to any particular case or class of case.

(3)

The verifier or verification agency must notify the chief executive in writing of the termination as soon as practicable, and in no case later than 7 days after it occurs.

171 Chief executive must consider exemption, waiver, or refund of fees

(1)

The chief executive must consider whether an exemption, a waiver, or a refund of all or part of a prescribed fee, charge, or levy is appropriate if—

(a)

an application is made under section 143 by 1 person for more than 1 type of recognition (for example, if a person applies to be recognised as both a recognised agency and a recognised person); or

(b)

an application is made under section 151 by 1 person to renew more than 1 type of recognition; or

(c)

1 person is liable under section 154 to pay a prescribed fee, charge, or levy for ongoing recognition under more than 1 of sections 135, 136, and 139 to 141.

(2)

However, subsection (1) only applies if regulations prescribing the relevant fee, charge, or levy authorise the chief executive to grant an exemption, a waiver, or a refund in these circumstances (see section 208).

172 Liability for loss

(1)

The following are not liable for any loss arising through the actions or omissions of a recognised agency or a recognised person:

(a)

the Crown:

(b)

the chief executive:

(c)

an employee of the Ministry.

(2)

However, subsection (1) does not apply to a recognised agency or to a recognised person who is—

(a)

the Ministry, or a group of persons within the Ministry, and granted recognition as a recognised agency under section 136; or

(b)

an officer or employee of the Ministry who is granted recognition as a recognised person under section 140; or

(c)

a department of the Public Service listed in Schedule 1 of the State Sector Act 1988, a group of persons within a department who are recognised as a recognised agency under section 136, or an officer or employee of a department who is recognised as a recognised person under section 140.

(3)

A person recognised as a recognised person under section 139 may not be treated as an employee of the Ministry only by reason of that appointment.

Subpart 2—Territorial authorities

Functions and duties of territorial authorities

173 Functions of territorial authority

(1)

A territorial authority has the following functions:

(a)

to perform the function of a registration authority:

(b)

to manage and train its staff to carry out functions and activities in relation to this Act:

(c)

to manage verification functions (including acting as a recognised agency) in relation to certain food control plans and national programmes, and as otherwise provided for under this Act:

(d)

to investigate non-compliance and complaints regarding the safety and suitability of food in relation to food control plans or, as the case may be, food businesses subject to national programmes registered by the territorial authority, or to investigate any other matters:

(e)

to instigate appropriate corrective and preventative actions for matters described in paragraph (d):

(f)

to enable its food safety officers to enforce the applicable requirements of this Act:

(g)

to respond to recalls and to respond in an emergency situation:

(h)

to disseminate information and provide advice promoting the safety and suitability of food to food businesses and the public:

(i)

to perform administrative functions relating to this Act, including—

(i)

gathering information:

(ii)

receiving applications for registration of food control plans and of food businesses subject to national programmes:

(iii)

transferring information to the Ministry:

(iv)

if requested under section 184(1)(b), reporting to the chief executive:

(j)

in relation to its district, to carry out monitoring and information-gathering activities for the purpose of ascertaining compliance with the applicable requirements of this Act:

(k)

to perform any other function relevant to its role.

(2)

A territorial authority may, by written agreement, combine with 1 or more other territorial authorities for the purpose of performing the function of a registration authority referred to in subsection (1)(a) in the combined district of the territorial authorities that are parties to the agreement.

(3)

If 2 or more territorial authorities have combined under subsection (2), they may designate any of them as the territorial authority responsible for performing the function of a registration authority for the combined district.

(4)

A territorial authority may not contract out any of the following functions, except to another territorial authority:

(a)

the function of a recognised agency; and

(b)

any of the functions referred to in subsection (1)(a) and (d) to (h).

(5)

A territorial authority may not contract out the function referred to in subsection (1)(c) to a person who is not recognised to carry out that function under this Act.

(6)

If a territorial authority contracts out 1 or more of its functions, it continues to have responsibility for that function.

174 Duties of territorial authority

A territorial authority must—

(a)

take all reasonable steps to ensure it has adequate resources and capability to carry out its role, functions, and duties and to exercise its powers under this Act:

(b)

take all reasonable steps to ensure its functions, duties, and powers under this Act are managed, performed, and exercised in accordance with any relevant national outcomes issued under section 175:

(c)

take all reasonable steps to ensure that relevant persons who are employed or engaged by the territorial authority are able to carry out their functions and activities under this Act, including verification, investigation, and enforcement activities:

(d)

take all reasonable steps to ensure that relevant persons who are employed or engaged by the territorial authority for the purposes of this Act maintain their competencies:

(e)

take all reasonable steps to ensure that any person who is employed, engaged, or used by the territorial authority is not placed in a situation that compromises his or her impartiality or independence in relation to the performance of his or her functions or activities under this Act:

(f)

monitor its performance of its functions and duties and its exercise of its powers under this Act and provide written reports on these matters to the chief executive annually or at intervals specified in a notice under section 405 (which reports must include any details specified in the notice under that section):

(g)

provide capability to respond as required in an emergency situation:

(h)

if it is being reviewed under section 185, facilitate the conduct of the review and provide any information required under section 189 by the person conducting the review:

(i)

carry out any other function, duty, or direction imposed or given by or under this Act.

National outcomes for territorial authorities

175 Minister may issue national outcomes for territorial authorities

(1)

For the purposes of this Act, the Minister may—

(a)

issue national outcomes in relation to the performance or exercise by territorial authorities of functions, duties, and powers under this Act, including the measures to determine whether territorial authorities achieve those outcomes:

(b)

amend or revoke a national outcome issued under paragraph (a).

(2)

The Minister must not issue, amend, or revoke a national outcome under this section unless the Minister—

(a)

has first consulted the Minister of Local Government; and

(b)

is satisfied that consultation has been carried out in accordance with section 379 with respect to issuing, amending, or revoking that national outcome.

(3)

If the Minister issues, amends, or revokes a national outcome, the Minister must, as soon as practicable, notify that fact—

(a)

to every territorial authority; and

(b)

in the Gazette.

Transfer of territorial authority’s functions, duties, and powers to another territorial authority or regional council

176 Transfer of functions, duties, and powers to territorial authority or regional council

(1)

A territorial authority that has functions, duties, and powers under this subpart may, under the Local Government Act 2002, transfer any of those functions, duties, and powers to another territorial authority or to a regional council if the other territorial authority or the regional council—

(a)

agrees in writing to the transfer; and

(b)

is able to meet any national outcomes issued under section 175 for the relevant district.

(2)

However, a territorial authority may not transfer the function of a recognised agency.

177 Effect of transfer to territorial authority or regional council

(1)

If a territorial authority transfers any functions, duties, or powers under section 176, the territorial authority ceases to be responsible for the performance or exercise of those functions, duties, and powers.

(2)

If functions, duties, and powers are transferred under section 176 to a territorial authority, that territorial authority is responsible for the performance or exercise of those functions, duties, and powers.

(3)

If functions, duties, and powers are transferred under section 176 to a regional council, the regional council is to be treated as a territorial authority for the purposes of this Act.

178 Records of transfer

(1)

A territorial authority that transfers any functions, duties, or powers to another territorial authority or to a regional council under section 176 must—

(a)

keep and maintain a record of the transfer (including a record of the relevant transfer arrangement made under that section); and

(b)

as soon as practicable after the transfer, provide a summary to the chief executive of the following:

(i)

the functions, duties, and powers that have been transferred; and

(ii)

to whom they have been transferred; and

(iii)

if applicable, for how long they have been transferred.

(2)

A territorial authority or regional council to whom any functions, duties, or powers are transferred under section 176 must keep and maintain a record of the transfer (including a record of the relevant written agreement under that section).

Transfer of territorial authority’s functions, duties, and powers to chief executive

179 Transfer of functions, duties, and powers to chief executive

(1)

A territorial authority that has functions, duties, and powers under this subpart may transfer those functions, duties, and powers to the chief executive if the chief executive agrees to the transfer.

(2)

However, subsection (1) is subject to subsections (3) and (4).

(3)

A territorial authority may not transfer all or any of the following, including any related powers or duties:

(a)

its power to transfer functions, duties, and powers under subsection (1):

(b)

its function of receiving applications for registration of food control plans and of food businesses subject to national programmes:

(c)

its function of disseminating information and providing advice to promote the safety and suitability of food to food businesses and the public:

(d)

its function as a recognised agency:

(e)

any administrative and reporting functions relating to paragraphs (a) to (d).

(4)

A territorial authority may not transfer any functions, duties, or powers under this section unless the requirements of section 180 are satisfied and either of the following applies:

(a)

the territorial authority has included the proposal for the transfer in its long-term council community plan; or

(b)

the territorial authority has done both of the following:

(i)

used the special consultative procedure set out in section 83 of the Local Government Act 2002; and

(ii)

given prior notice to the chief executive of the proposal.

180 Transfer agreement

A transfer of functions, duties, or powers under section 179 must—

(a)

be made in writing; and

(b)

be made by agreement between the territorial authority concerned and the chief executive; and

(c)

include any terms and conditions that are agreed, including any financial arrangements.

181 Effect of transfer to chief executive

(1)

If a territorial authority transfers any functions, duties, or powers under section 179, that territorial authority ceases to be responsible for the performance or exercise of those functions, duties, and powers.

(2)

If functions, duties, and powers are transferred under section 179,—

(a)

the chief executive is responsible for the performance or exercise of those functions, duties, and powers; and

(b)

the functions, duties, and powers of the chief executive are deemed to be extended as necessary to enable the chief executive to carry out, perform, and exercise the functions, duties, and powers transferred to him or her; and

(c)

the chief executive may contract out, or enter into, arrangements for the carrying out of the transferred functions, duties, and powers.

182 Change, revocation, or relinquishment of transfer

(1)

A territorial authority that has transferred any functions, duties, and powers under section 179 may,—

(a)

if the chief executive agrees, change the transfer at any time by amendment to the transfer agreement:

(b)

revoke the transfer by following sections 179(4) and 180 as if they applied to revocation.

(2)

If an amendment to the transfer agreement has the effect of adding to or removing any function, duty, or power (excluding any extensions to the period of transfer) then section 179(4) must be complied with.

(3)

The chief executive may relinquish the transfer in accordance with the transfer agreement.

183 Records of transfer, change, etc

(1)

A territorial authority must keep and maintain a record of—

(a)

any transfer to the chief executive made under section 179 (including a record of the relevant transfer agreement required by section 180); and

(b)

any change, revocation, or relinquishment made under section 182.

(2)

A territorial authority must provide the records to the chief executive as soon as practicable after the transfer, change, revocation, or relinquishment has been completed.

Monitoring performance of functions and duties, and exercise of powers, by territorial authorities

184 Powers of chief executive for monitoring performance of functions and duties and exercise of powers

(1)

The chief executive may—

(a)

monitor the performance of functions and duties and the exercise of powers by territorial authorities under this Act; and

(b)

request a report from a territorial authority in relation to the carrying out of its role specified in sections 19 and 173.

(2)

For the purposes of this section, the chief executive—

(a)

must have full access at all reasonable times to—

(i)

all relevant information that is in the possession or control of a territorial authority; and

(ii)

any place where that information is kept:

(b)

may impose any requirements on a territorial authority as to the form and content of reports and the frequency of reporting:

(c)

may require a territorial authority to—

(i)

supply any relevant information; or

(ii)

answer any question that relates to its performance of functions and duties and the exercise of its powers under this Act:

(d)

may, by written notice, require a person with possession or control of any relevant information to supply to the chief executive, in a manner specified in the notice, all or any of that information.

(3)

Subsection (2) does not limit any Act that imposes a prohibition or restriction on the availability of any information.

(4)

In this section, relevant information

(a)

means any information of any description that relates to the performance by a territorial authority of its functions and duties, and the exercise of its powers, under this Act; and

(b)

includes information that is kept in any form (whether in electronic form or otherwise).

Review of territorial authorities

185 Reviews initiated by Minister

(1)

The Minister may initiate a review of—

(a)

a territorial authority’s performance of all or any of its functions and duties under this Act:

(b)

a territorial authority’s exercise of all or any of its powers under this Act.

(2)

However, the Minister must consult the Minister of Local Government before exercising the powers given to the Minister by subsection (1).

186 Terms of reference

(1)

The Minister may determine the terms of reference for each review of a territorial authority.

(2)

The terms of reference must include—

(a)

the territorial authority’s performance during the time of review and any earlier period as determined by the Minister; and

(b)

the impact on the territorial authority’s potential future performance.

(3)

In considering the territorial authority’s performance under subsection (2), the Minister must consider the performance of all or any, as appropriate to the scope of the review, of the functions and activities of the territorial authority, taking into account, without limitation, the following factors:

(a)

the extent to which it has exercised its powers under this Act; and

(b)

the extent to which it has established strategies, policies, processes, and systems relating to its functions, duties, and powers; and

(c)

the extent to which it is resourced and has built capacity to enable it to perform its functions and duties, and to exercise its powers; and

(d)

the extent to which and the manner in which it has, or has attempted to, transfer or contract out its functions, duties, and powers.

187 Minister to consult on terms of reference

(1)

The Minister must—

(a)

consult the territorial authority concerned about the terms of reference; and

(b)

take into account any representations made under paragraph (a).

(2)

The Minister may consult any other person, as the Minister considers appropriate, about the terms of reference.

188 Appointment of person to conduct review

(1)

The Minister may appoint the person (the reviewer) to conduct a review of a territorial authority.

(2)

The Minister must—

(a)

consult the territorial authority concerned before making an appointment under subsection (1); and

(b)

take into account any representations made under paragraph (a).

189 Powers of reviewer

(1)

The reviewer may examine a territorial authority’s strategies, policies, systems, processes, and records.

(2)

The reviewer may, during business hours,—

(a)

enter any place—

(i)

the territorial authority occupies for the purpose of its business; or

(ii)

where documents relating to the territorial authority are held or are likely to be held:

(b)

examine, inquire about, and copy any documents or other records (including records in electronic or other form) held by the territorial authority, or by or on behalf of the territorial authority, that relate to the territorial authority’s performance of its functions and duties, or the exercise of its powers, under this Act.

(3)

For the purposes of subsection (2)(b), the reviewer may—

(a)

remove documents or records to another place for a reasonable time for the purpose of copying them; and

(b)

require a person who has control or knowledge of the documents or records to reproduce or to assist in reproducing in usable form information recorded or stored in a computer or any other device or system.

190 Conduct of review

A review of a territorial authority must be conducted in accordance with the terms of reference determined by the Minister under section 186.

191 Report of review

(1)

Once a review has been completed, the reviewer must—

(a)

prepare a written draft report of the review that includes—

(i)

the conclusions reached; and

(ii)

any recommendations formulated as a result of conducting the review; and

(b)

provide the chief executive and the territorial authority with a copy of the draft; and

(c)

give the chief executive and the territorial authority a reasonable opportunity to make written submissions on the draft; and

(d)

take those submissions (if any) into account.

(2)

The reviewer, after complying with subsection (1), must—

(a)

prepare a written final report on the conclusions reached and recommendations formulated as a result of conducting the review and considering any comments from the chief executive and the territorial authority; and

(b)

give a copy of the final report to the Minister, the chief executive, and the territorial authority.

(3)

The final report must include—

(a)

the review’s conclusions; and

(b)

the facts on which those conclusions were based.

192 Part 10 of Local Government Act 2002 not affected

Sections 185 to 191 do not affect the powers of the responsible Minister under Part 10 of the Local Government Act 2002 to assist local authorities or to intervene in their affairs in certain situations.

Non-performance by territorial authority

193 Powers of Minister in relation to non-performance by territorial authority

(1)

If the Minister considers that either or both of the grounds in subsection (2) exist, the Minister may appoint, on terms and conditions that the Minister thinks fit, the chief executive, another territorial authority, a regional council, or a recognised agency to perform and exercise all or any of a territorial authority’s functions, duties, and powers under this Act.

(2)

The grounds are that—

(a)

the territorial authority has had a reasonable opportunity to address any concerns set out in a final report under section 191 about the performance of all or any of its functions and duties, or the exercise of all or any of its powers, under this Act, but has not addressed those concerns to the satisfaction of the Minister:

(b)

the territorial authority is not able to perform or exercise all or any of its functions, duties, or powers under this Act to the extent that the Minister considers necessary to achieve the purposes of this Act, and the Minister considers it necessary to take action without a review.

(3)

The Minister must not make an appointment under subsection (1) unless—

(a)

the Minister has given the territorial authority concerned at least 20 working days’ written notice of his or her intention to do so and in that notice has invited the territorial authority to make submissions within the notified period; and

(b)

the Minister has considered any submissions received by him or her that were made within the notified period; and

(c)

the chief executive, other territorial authority, regional council, or recognised agency agrees to the appointment in accordance with section 194.

(4)

In making an appointment under subsection (1), the Minister must state the functions, duties, or powers, or any of those functions, duties, or powers, that are transferred to the chief executive, other territorial authority, regional council, or recognised agency.

(5)

However, the Minister may not transfer a territorial authority’s function of a recognised agency.

194 Requirements for appointment

An appointment under section 193 must—

(a)

be made in writing; and

(b)

be made by agreement between the Minister and the chief executive, other territorial authority, regional council, or recognised agency concerned; and

(c)

include any terms and conditions that are agreed, including any financial arrangements.

195 Effect of appointment

(1)

If an appointment is made under section 193,—

(a)

the territorial authority from whom all or any functions, duties, or powers are transferred ceases to be responsible for the performance or exercise of those functions, duties, and powers; and

(b)

the chief executive, other territorial authority, regional council, or recognised agency is responsible for the performance or exercise of those functions, duties, and powers; and

(c)

the functions, duties, and powers of the chief executive, other territorial authority, regional council, or, as the case may be, recognised agency are deemed to be extended as necessary to enable them to carry out, perform, and exercise the transferred functions, duties, and powers; and

(d)

the chief executive, other territorial authority, regional council, or, as the case may be, recognised agency may contract out, or enter into arrangements for the carrying out of, the transferred functions, duties, and powers.

(2)

If appointed under section 193, the chief executive, other territorial authority, regional council, or, as the case may be, recognised agency—

(a)

may perform or exercise the transferred functions, duties, or powers, or any of those functions, duties, or powers, only in place of the territorial authority; and

(b)

must perform or exercise the functions, duties, or powers of a territorial authority under this Act as if they were the territorial authority, and the provisions of this Act apply accordingly.

(3)

Subsection (1)(d) is subject to section 173(4) and (5).

196 Duration of appointment

(1)

The Minister must specify the duration of an appointment made under section 193.

(2)

The Minister may renew an appointment.

(3)

When determining whether an appointment should be renewed or whether a new appointment should be made, the Minister must—

(a)

consider any evidence that the territorial authority from which the transfer was made is or will be capable of performing or exercising its functions, duties, and powers under this Act; and

(b)

if he or she considers that the territorial authority is or will be so capable, direct the territorial authority to resume all or any of those functions, duties, and powers.

197 Costs, charges, and expenses incurred

All costs, charges, and expenses incurred for the purposes of section 193 by the chief executive, other territorial authority, regional council, or recognised agency in performing or exercising any functions, duties, and powers of a territorial authority may be recovered from the territorial authority from which the function, duty, or power was transferred as a debt due to—

(a)

the Crown, if the chief executive is appointed; or

(b)

the other territorial authority, regional council, or recognised agency, if it is appointed.

Subpart 3—Cost recovery

198 Principles of cost recovery

(1)

The Minister and the chief executive must take all reasonable steps to ensure that the direct and indirect costs of the Ministry in administering this Act that are not provided for by money that is funded by the Crown for the purpose are recovered under this subpart, whether by way of fees, levies, or otherwise.

(2)

In determining the most appropriate method of cost recovery under section 199, the Minister and the chief executive must take into account, as far as is reasonably practicable, the following criteria:

(a)

equity, in that funding for a particular function, power, or service, or a particular class of function, power, or service, should generally, and to the extent practicable, be sourced from the users or beneficiaries of the relevant functions, powers, or services at a level commensurate with their use or benefit from the function, power, or service:

(b)

efficiency, in that costs should generally be allocated and recovered in order to ensure that maximum benefits are delivered at minimum cost:

(c)

justifiability, in that costs should be collected only to meet the actual and reasonable costs (including indirect costs) of the provision or exercise of the relevant function, power, or service:

(d)

transparency, in that costs should be identified and allocated as closely as practicable in relation to tangible service provision for the recovery period in which the service is provided.

(3)

Costs should not be recovered under this subpart unless—

(a)

there has been appropriate consultation with persons or organisations that the chief executive considers representative of the interests of persons likely to be substantially affected by the exercise of the power; and

(b)

the persons involved have been given sufficient time and information to make an informed contribution.

(4)

Subsection (3) does not require consultation in relation to specific fees or charges, or the specific levels of fees or charges, so long as the fees or charges set are reasonably within the scope of any general consultation or any consultation carried out for the purposes of section 379 or 380.

(5)

A failure to comply with subsection (3) does not affect the validity of any regulations made for the purposes of this subpart.

(6)

This section does not require a strict apportionment of the costs to be recovered for a particular function or service based on usage.

(7)

Without limiting the way in which fees or charges may be set under this subpart, a fee or charge may be set at a level or in a way that—

(a)

is determined by calculations that involve an averaging of costs or potential costs:

(b)

takes into account costs or potential costs of services (that are not directly to be provided to the person who pays the fee or charge but which are an indirect or potential cost) arising from the delivery of the service to a class of persons or all persons who use the service.

199 Methods of cost recovery

The methods by which costs may be recovered under this subpart are as follows:

(a)

fixed fees or charges:

(b)

fees or charges based on a scale or formula or at a rate determined on an hourly or other unit basis:

(c)

the recovery by way of fee or charge of actual and reasonable costs expended in or associated with the performance of a service or function:

(d)

estimated fees or charges, or fees or charges based on estimated costs, paid before the provision of the service or function, followed by reconciliation and an appropriate further payment or refund after provision of the service or function:

(e)

refundable or non-refundable deposits paid before provision of the service or performance of the function:

(f)

fees or charges imposed on users of services or on third parties:

(g)

levies:

(h)

any combination of the above.

200 Territorial authority responsible for collection

A territorial authority—

(a)

must collect an amount payable if—

(i)

the amount is prescribed by regulations made under this subpart; and

(ii)

the regulations provide for the territorial authority to be the collection agent; and

(iii)

the requirement to pay the amount in the particular case has not been waived or exempted under this subpart; and

(b)

may, if allowed by regulations made under section 204, recover the costs of collection at a rate not exceeding the maximum rate of collection costs specified in the regulations; and

(c)

must forward the amount collected (other than the costs of collection) to the Ministry.

201 Cost recovery to relate generally to financial year

(1)

Except as provided in subsection (2), any regulations under this subpart that set a fee, charge, or levy that applies in any financial year—

(a)

must have been made before the start of that financial year; but

(b)

except as the regulations may otherwise provide, apply in that year and all subsequent years until revoked or replaced.

(2)

Subsection (1) does not prevent the alteration or setting during any financial year of a fee, charge, or levy payable in that year if—

(a)

the fee, charge, or levy is reduced or removed (or restated without substantive alteration); or

(b)

in the case of an increase or a new fee, charge, or levy,—

(i)

appropriate consultation has been carried out with persons or representatives of persons substantially affected by the alteration or setting; and

(ii)

the Minister is satisfied that those persons, or their representatives, agree or substantially agree with the alteration or setting.

(3)

Subsection (1) does not prevent the amendment of any regulations that set a fee, charge, or levy if any substantive alteration effected by the amendment is for the purpose of correcting an error.

(4)

Recovery may be made in any financial year of any shortfall in cost recovery for any of the preceding 4 financial years, and allowance may be made for any over-recovery of costs in those years (including any estimated shortfall or over-recovery for the immediately preceding financial year).

202 Three-yearly review of cost recovery

(1)

The Minister must review the levels and methods of cost recovery in relation to any class of food or food product, food product business, persons, or other matter at least once in every 3-year period occurring since the original setting of, or latest change to, the cost recovery for those things.

(2)

The Minister must ensure that appropriate consultation in accordance with section 379 takes place in relation to each review.

(3)

A review may make provision for recovery in any relevant financial year of any shortfall in cost recovery for any of the preceding 4 financial years, or make allowance for any over-recovery of costs in those years (including any estimated shortfall or over-recovery for the immediately preceding financial year).

(4)

Subsection (1) does not—

(a)

require all areas of cost recovery to be reviewed at the same time:

(b)

impose any time limit on the making of regulations to implement the results of a review.

203 Regulations about fees, charges, and levies

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations imposing and setting fees, charges, levies, and other cost recovery mechanisms for the purposes of this Act in accordance with the requirements for regulations made under sections 204 and 207, including—

(a)

fees or charges for applications, renewals, or related matters under this Act:

(b)

fees, charges, or levies that are payable on an ongoing basis by a person given a particular status under this Act.

204 Regulations may impose fees and charges

(1)

Regulations may be made under this section, on the recommendation of the Minister, prescribing fees and charges for the purposes of this subpart.

(2)

The fees may be prescribed using any 1 or more of the methods specified in section 199.

(3)

Different fees and charges, or different rates or types of fees or charges, may be prescribed in respect of different classes or descriptions of food, food products, persons or businesses, operations, or other matters, or any combination of them.

(4)

Without limiting subsection (3), the fees and charges prescribed may—

(a)

differ depending on whether or not a special or an urgent service is provided:

(b)

include more than 1 level of fee or charge for the same service provided in different ways, or provided in or in respect of different places:

(c)

differ for otherwise similar services provided in different ways:

(d)

differ for otherwise similar services provided to different categories of persons:

(e)

differ depending on the amount of service required or the components of the service required for the particular person or class of persons.

(5)

If regulations prescribe a formula for determining a fee or charge, the formula may specify the value attributed to any component of that formula.

(6)

The Minister may not recommend the making of regulations under this section unless satisfied that, to the extent appropriate in the circumstances, the requirements of sections 198 and 201 have been met.

(7)

This section does not limit or affect section 205.

(8)

Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

205 Territorial authority to set fees

(1)

A territorial authority may, by resolution, fix fees to recover the direct and indirect costs of any of the following functions under this Act:

(a)

registration:

(b)

verification:

(c)

compliance and monitoring activities.

(2)

In making any resolution under this section, the territorial authority must use the special consultative procedure as provided in section 83 of the Local Government Act 2002.

(3)

Any fee fixed under this section must be for a function specified in subsection (1) and a territorial authority must not provide for the recovery of more than the reasonable costs incurred by the territorial authority in performing that function.

(4)

Subsection (3) is subject to and not limited by subsection (5) or (9).

(5)

In fixing fees under this section, the territorial authority—

(a)

must take into account the criteria in section 198(2); and

(b)

has the options provided by sections 198(6) and (7) and 199 (other than paragraph (g)); and

(c)

must comply with any regulations made under section 206.

(6)

An increase in fees for any financial year must not come into effect other than at the commencement of that financial year.

(7)

Subsection (6) does not prevent the fixing during any financial year of an increased fee or a new fee payable in that year if, following the special consultative procedure, the territorial authority is satisfied that the persons, or their representatives, affected by the increase in fees or the new fees agree or substantially agree with the alteration or fixing.

(8)

Subsection (6) does not prevent the amendment of any resolution that fixes a fee if any substantive alteration effected by the amendment is for the purpose of correcting an error.

(9)

Section 204(3) to (5) applies with the necessary modifications for the purposes of this section.

(10)

To avoid doubt, section 150 of the Local Government Act 2002 does not apply to the fixing of fees by territorial authorities for the purposes of this Act.

206 Regulations may prescribe methodology or framework for fee fixing

(1)

Regulations may be made under this section, on the recommendation of the Minister, that prescribe a methodology or framework to be applied by a territorial authority in fixing any fees under section 205.

(2)

Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

207 Regulations may impose levies

(1)

Regulations may be made under this section, on the recommendation of the Minister, prescribing levies for the purposes of this subpart.

(2)

Any levies prescribed by regulation are payable to the chief executive.

(3)

Different levies or rates of levy, or bases on which an amount of levy is to be calculated or ascertained, may be prescribed for—

(a)

different purposes:

(b)

different classes or descriptions of food material, food products, persons or businesses, operations, or other matters, or any combination of them.

(4)

Without limiting subsection (1), regulations imposing levies may—

(a)

specify when and how a levy is to be paid:

(b)

require that a levy, or estimated amount of levy, be paid in advance of the performance of the services or functions to which it relates:

(c)

specify persons, other than persons primarily responsible for paying the levy, who are to be responsible for collecting a levy, and provide for retention of any part of the levy money collected as a fee for that service:

(d)

require, or empower the chief executive to require, the provision of information and returns in relation to levies:

(e)

require the keeping of separate trust accounts for levy money received or deducted by persons responsible for collecting levies, and prescribe matters in relation to those trust accounts:

(f)

prescribe a method of arbitration or mediation for disputes as to the following, and provide for related matters, including procedures and remuneration for arbitrators or mediators:

(i)

whether or not any person is required to pay, or collect, the levy concerned; or

(ii)

the amount of levy any person is required to pay or collect.

(5)

The Minister may not recommend the making of regulations under this section unless satisfied that, to the extent he or she considers appropriate in the circumstances, the requirements of sections 198 and 201 have been met.

(6)

Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

208 Regulations may provide for exemptions, waivers, and refunds

(1)

Regulations may be made under this section, on the recommendation of the Minister, that—

(a)

provide for exemptions from, or waivers or refunds of, any fee, charge, or levy payable under this subpart, in whole or in part, in any class of case:

(b)

authorise the chief executive to grant an exemption, waiver, or refund in any particular case or class of case:

(c)

authorise a territorial authority to grant an exemption, waiver, or refund in any particular case or class of case.

(2)

Regulations made under this section must—

(a)

expire within a specified period not exceeding 5 years; and

(b)

set out the circumstances in which the exemption, waiver, or refund may be granted.

(3)

Before recommending the making of regulations under this section, the Minister must be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

209 Trust accounts required to be kept by persons collecting levies

(1)

If regulations made under section 207 require the operation of a trust account for any levy money by the person responsible for collecting the levy,—

(a)

any amount held on trust that is due to be paid to the chief executive by the levy collector is to be treated as levy money held on trust for the chief executive; and

(b)

any amount held on trust is not available for the payment of any creditor (other than the chief executive) of the levy collector, and is not liable to be attached or taken in execution at the instance of any such creditor; and

(c)

a person who ceases to be responsible for collecting a levy must continue to maintain the trust account until all the levy money payable to the chief executive for the period during which the person was responsible for collecting the levy has been paid.

(2)

Subsection (1)(c) does not affect any obligation or liability under this Act of any other person who has become responsible for collecting the levy concerned.

210 Other charges not requiring to be prescribed

(1)

This subpart does not prevent the chief executive from requiring a reasonable charge to be paid for any—

(a)

of the services the Ministry provides in relation to the administration of this Act; or

(b)

actual and reasonable expenses incurred in providing those services.

(2)

However, subsection (1) does not apply to any services in respect of which a fee or charge or levy is prescribed under this subpart.

(3)

Without limiting subsection (1), and to avoid doubt, the chief executive may—

(a)

operate a telephone information service for which each caller pays—

(i)

according to the caller’s usage; or

(ii)

on an averaged basis:

(b)

charge persons for the cost of posting, faxing, emailing, or couriering information to them:

(c)

charge for the cost of written material, unless that material is required by an Act or by regulations made under this Act to be provided free of charge:

(d)

charge for access to any Internet site, or for information or services provided by any Internet site, operated by the Ministry:

(e)

charge for access to any library or research services provided in relation to matters pertaining to food material, food products, or food-related accessories:

(f)

charge any person for administrative services provided in relation to a food product business or otherwise under this Act.

(4)

Any money received by the Ministry for charges made under this section must be paid into the Departmental Bank Account.

211 Fees, charges, and levies to constitute debt

(1)

Any fee, charge, or levy that has become payable to the Crown is—

(a)

a debt due to the chief executive; and

(b)

recoverable as a debt by the chief executive in any court of competent jurisdiction.

(2)

Any fee or charge that has become payable to a territorial authority is—

(a)

a debt due to the territorial authority; and

(b)

recoverable as a debt by the territorial authority in any court of competent jurisdiction.

(3)

Until the fee, charge, or levy is paid in full, it remains a debt due to the chief executive or the territorial authority, as the case may be.

212 Penalties for failure to pay fee, charge, or levy

(1)

If a person has failed to pay to the chief executive by the due date any fee, charge, or levy payable under this subpart,—

(a)

section 215 applies to increase the amount payable; and

(b)

section 216 applies to allow the chief executive, in appropriate cases, to waive the payment of all or any of the amount of any such increase; and

(c)

section 217 applies to allow the chief executive to withdraw, or refuse to provide the person in default with, any service of the kind to which the debt relates.

(2)

For the purposes of subsection (1)(c) and section 217, and without limiting section 216, the references in those provisions to the withdrawal or refusal to provide any service are to be treated as also authorising the chief executive, in an appropriate case, to—

(a)

withhold or suspend any approval under this Act:

(b)

refuse to perform any function under this Act in relation to the person in default:

(c)

withhold the registration of any food control plan.

(3)

If the withdrawal of any approval or registration under this section, or any suspension of operations, requires the chief executive to provide any further service, perform any further function, or incur any further costs in the interests of ensuring the fitness, for the intended purpose, of the food involved in the withdrawal or suspension, the chief executive may recover any reasonable amount for the additional service, function, or costs as a debt due from the person who owns or is responsible for the operation concerned.

(4)

This section does not apply to any debt owed to the Ministry by a territorial authority.

213 Dispute does not suspend obligation to pay fee, charge, levy, or penalty

A dispute between a person and the chief executive about the person’s liability to pay a fee, charge, levy, or penalty under this subpart does not suspend—

(a)

the obligation of the person to pay the fee, charge, levy, or penalty; or

(b)

the right of the chief executive to receive and recover the fee, charge, levy, or penalty.

214 Levy regulations are confirmable instruments

The explanatory note of regulations made under section 207 must indicate that—

(a)

they are a confirmable instrument under section 47B of the Legislation Act 2012; and

(b)

they are revoked at a time stated in the note, unless earlier confirmed by an Act of Parliament; and

(c)

the stated time is the applicable deadline under section 47C(1)(a) or (b) of that Act.

Section 214: replaced, on 1 January 2016, by section 14 of the Legislation (Confirmable Instruments) Amendment Act 2015 (2015 No 120).

Subpart 4—Payment of statutory debt

215 Penalty for failure to pay statutory fees, etc

(1)

In this section, and in sections 216 and 217, statutory debt

(a)

means any fee, charge, or levy required to be paid to the Ministry or the holder of any specified office by or under this Act; but

(b)

does not include any debt owed to the Ministry by a territorial authority.

(2)

If, after the expiry of the time provided for by or under this Act or by subsection (4), all or any part of a statutory debt remains unpaid, the debt increases by an amount calculated in accordance with subsection (3).

(3)

The amount by which an unpaid statutory debt, or any unpaid part of a statutory debt, increases is the sum of—

(a)

10% of the debt (or of that part of the debt that remained unpaid after the expiry of the time provided for the debt’s payment); and

(b)

for every complete period of 6 months after that expiry during which the debt or any part of it (including any deemed increase calculated under this subsection) has remained unpaid, 10% of the debt or that part.

(4)

If a time for payment is not provided for by or under this Act, the debt must be paid within 20 working days after the written demand for payment from the Ministry is received by the person responsible for payment.

(5)

When the Ministry notifies a person of the incurring of a statutory debt, it must also notify that person of the consequences of non-payment under this section.

(6)

This section applies only in respect of statutory debts that first arise after the commencement of this Act.

216 Waiver of penalty

(1)

The chief executive may waive the payment of all or any part of the penalty added to the debt under section 215 if he or she is satisfied that the failure or refusal of a person to pay all or any part of a statutory debt was a result of a genuine dispute between the person and the Ministry as to either or both of the following:

(a)

the person’s liability to pay the debt:

(b)

the amount of the debt.

(2)

The chief executive may also waive the payment of all or any part of the penalty if he or she is satisfied that there is some other good reason for waiving payment.

(3)

In any action for the recovery of a statutory debt, the court may waive the payment of all or any part of the penalty added to the debt under section 215 if the court is satisfied that the failure or refusal of a person to pay all or any part of a statutory debt was a result of a genuine dispute between the person and the Ministry as to either or both of the following:

(a)

the person’s liability to pay the debt:

(b)

the amount of the debt.

217 Services may be withdrawn until debt paid

(1)

If the chief executive is satisfied under subsection (2), he or she may give written notice to the person liable to pay the statutory debt stating that service of the kind to which the debt relates may be withdrawn or no longer provided to the person unless—

(a)

the debt is paid within 20 working days; or

(b)

the chief executive agrees that the debt or part of the debt is not payable.

(2)

The chief executive must be satisfied that—

(a)

a statutory debt has been correctly calculated; and

(b)

the time provided by or under this Act (or by section 215(4)) for the debt’s payment has expired; and

(c)

the debt has not been paid.

(3)

The chief executive may withdraw or refuse to provide the service concerned if—

(a)

20 or more working days have expired since the chief executive gave any person notice under subsection (1); and

(b)

the person concerned has not—

(i)

paid the statutory debt or part of the statutory debt concerned; or

(ii)

satisfied the chief executive that it is not payable.

(4)

If the chief executive has withdrawn or refused to supply a service under subsection (3), the chief executive is not required to reinstate or supply it until a court holds that—

(a)

the debt or part of the debt concerned is paid; or

(b)

the debt or part of the debt is not payable; or

(c)

some lesser amount is payable, and the amount is so paid.

Subpart 5—Offences

Infringement offences

218 Proceedings for infringement notices

(1)

This section applies when a person is alleged to have committed an infringement offence.

(2)

The person may—

(a)

be proceeded against by filing a charging document under section 14 of the Criminal Procedure Act 2011; or

(b)

be served with an infringement notice as provided in section 219 and, in that case, section 21 of the Summary Proceedings Act 1957 applies with all necessary modifications.

(3)

Proceedings commenced in the way described in subsection (2)(a) do not require leave of a District Court Judge or Registrar under section 21(1)(a) of the Summary Proceedings Act 1957.

219 Issue and cancellation of infringement notices

(1)

An infringement notice may be served on a person if a food safety officer—

(a)

observes the person committing an infringement offence; or

(b)

reasonably believes that the person is committing an infringement offence; or

(c)

reasonably believes that the person has committed an infringement offence.

(2)

An infringement notice may be cancelled by a food safety officer if—

(a)

the interests of justice require cancellation; and

(b)

neither the particulars of a reminder notice nor a notice of hearing relating to the infringement notice has been filed in a District Court.

(3)

An infringement notice is cancelled by the service of a cancellation notice.

(4)

An infringement notice or a cancellation notice may be served by a food safety officer personally delivering it to the person alleged to have committed the infringement offence. A different food safety officer from the one who issued the notice may deliver the notice and the notice served may be a copy.

(5)

Alternatively, an infringement notice or a cancellation notice may be served by post addressed to,—

(a)

if the person is a natural person,—

(i)

the address of the person’s last-known place of residence; or

(ii)

the address on the person’s driving licence; or

(iii)

the person’s address on the latest electoral roll; or

(iv)

the person’s last-known registered address, if the person has or has had a registered address for any purpose; or

(v)

the person’s address in the latest telephone directory; or

(vi)

the address of the person’s last-known place of business; or

(b)

if the person is not a natural person,—

(i)

the person’s last-known registered address, if the person has or has had a registered address for any purpose; or

(ii)

the person’s address in the latest telephone directory; or

(iii)

the address of the person’s last-known place of business.

(6)

For the purposes of the Summary Proceedings Act 1957, an infringement notice or a cancellation notice served under subsection (5) is treated as having been served on the person when it was posted.

220 Form of infringement notice

(1)

An infringement notice must be in the form prescribed under section 391.

(2)

The prescribed form must contain the following details:

(a)

sufficient details to inform the person served with the notice of the time, place, and nature of the alleged offence; and

(b)

the amount of the infringement fee prescribed for the offence; and

(c)

the time within which the infringement fee must be paid; and

(d)

the address of the place at which the infringement fee must be paid; and

(e)

a statement of the person’s right to ask for a hearing; and

(f)

a statement of the person’s right to ask for cancellation of the notice; and

(g)

a statement of what will happen if the person does not pay the infringement fee or ask for a hearing or ask for cancellation of the notice; and

(h)

a summary of the provisions of section 21(10) of the Summary Proceedings Act 1957.

221 Payment of infringement fees

All infringement fees paid for infringement offences must be paid to the body—that is, the Ministry or a territorial authority—on whose behalf the food safety officer issued the infringement notice.

Offences

222 Offence involving knowingly or recklessly endangering or harming

(1)

A person commits an offence if the person breaches or fails to comply with an applicable requirement of this Act and—

(a)

the person knows that the breach or failure endangers or harms or is likely to endanger or harm the lives or health of members of the public or the life or health of an individual; or

(b)

the person is reckless as to whether the breach or failure endangers or harms or is likely to endanger or harm the lives or health of members of the public or the life or health of an individual.

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $500,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 5 years; and

(ii)

a fine not exceeding $100,000.

223 Offence involving knowingly or recklessly creating or increasing risk

(1)

A person commits an offence if the person breaches or fails to comply with an applicable requirement of this Act and—

(a)

the person knows that the breach or failure—

(i)

directly or indirectly creates a risk to the lives or health of members of the public or to the life or health of an individual; or

(ii)

directly or indirectly increases the likelihood of an existing risk to the lives or health of members of the public or to the life or health of an individual being realised; or

(b)

the person is reckless as to whether the breach or failure—

(i)

directly or indirectly creates a risk to the lives or health of members of the public or to the life or health of an individual; or

(ii)

directly or indirectly increases the likelihood of an existing risk to the lives or health of members of the public or to the life or health of an individual being realised.

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $300,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 2 years; and

(ii)

a fine not exceeding $75,000.

224 Offence involving negligently endangering, harming, creating risk, or increasing risk

(1)

A person commits an offence if the person breaches or fails to comply with an applicable requirement of this Act and the person ought reasonably to have known that the breach or failure may—

(a)

endanger or harm the lives or health of members of the public or the life or health of an individual; or

(b)

directly or indirectly create a risk to the lives or health of members of the public or the life or health of an individual; or

(c)

directly or indirectly increase the likelihood of an existing risk to the lives or health of members of the public or the life or health of an individual being realised.

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $250,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 1 year; and

(ii)

a fine not exceeding $50,000.

225 Offences involving intentionally defeating purpose of Act or deceiving in relation to documents or information

(1)

A person commits an offence if the person, with intent to deceive and for the purpose of obtaining any material benefit or avoiding any material detriment,—

(a)

provides a document or information to a food safety officer or a person performing a function or duty, or exercising a power, under this Act that—

(i)

an applicable requirement of this Act requires to be provided to the officer or person; and

(ii)

is false or misleading in a material detail; or

(b)

fails to provide a document or information to a food safety officer or a person performing a function or duty, or exercising a power, under this Act, contrary to an applicable requirement of this Act; or

(c)

alters, conceals, or destroys a document or information, contrary to an applicable requirement of this Act.

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $500,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 5 years; and

(ii)

a fine not exceeding $100,000.

226 Offences involving documents or information

(1)

A person commits an offence if the person—

(a)

provides a document or information to a food safety officer or a person performing a function or duty, or exercising a power, under this Act that—

(i)

an applicable requirement of this Act requires to be provided to the officer or person; and

(ii)

is false or misleading in a material detail; or

(b)

fails to provide a document or information to a food safety officer or a person performing a function or duty, or exercising a power, under this Act, contrary to an applicable requirement of this Act; or

(c)

alters, conceals, or destroys a document or information, contrary to an applicable requirement of this Act.

(2)

In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

(3)

Section 251 contains defences to a prosecution for an offence against this section.

(4)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $250,000:

(b)

for an individual, to a fine not exceeding $50,000.

227 Offences involving intentionally defeating purpose of Act or deceiving in relation to identifying or representing food

(1)

A person commits an offence if the person, with intent to deceive and for the purpose of obtaining any material benefit or avoiding any material detriment,—

(a)

alters, falsifies, misapplies, misrepresents, misuses, removes, or fails to apply a form of identification of food, contrary to an applicable requirement of this Act; or

(b)

adulterates, misrepresents, or tampers with food or a food-related accessory so that it does not conform with—

(i)

its label:

(ii)

its package:

(iii)

a statement made under section 290.

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $500,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 5 years; and

(ii)

a fine not exceeding $100,000.

(3)

In this section, misrepresentation, in relation to food or a food-related accessory, includes both a graphic and verbal misrepresentation in all forms as to the source, consignment, characteristics, description, labelling, safety and suitability, intended use, composition, ingredients or other constituents, and the proportion of ingredients or other constituents of the food or food-related accessory.

228 Offences involving identifying or representing food

(1)

A person commits an offence if the person—

(a)

alters, falsifies, misapplies, misrepresents, misuses, removes, or fails to apply a form of identification of food, contrary to an applicable requirement of this Act; or

(b)

adulterates, misrepresents, or tampers with food or a food-related accessory so that it does not conform with—

(i)

its label:

(ii)

its packaging:

(iii)

a statement made under section 290.

(2)

In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

(3)

Section 251 contains defences to a prosecution for an offence against this section.

(4)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $250,000:

(b)

for an individual, to a fine not exceeding $50,000.

(5)

In this section, misrepresentation, in relation to food or a food-related accessory, includes both a graphic and verbal misrepresentation in all forms as to the source, consignment, characteristics, description, labelling, safety and suitability, intended use, composition, ingredients or other constituents, and the proportion of ingredients or other constituents of the food or food-related accessory.

229 Offences involving intentionally defeating purpose of Act or deceiving in relation to sampling, testing, or evidence

(1)

A person commits an offence if the person, with intent to deceive and for the purpose of obtaining any material benefit or avoiding any material detriment, falsifies, suppresses, or tampers with—

(a)

a sample of food taken, an example of a food-related accessory taken, test procedures done, or test results produced,—

(i)

for the purposes of a risk-based measure or an applicable requirement of this Act, by or for a person who operates under the risk-based measure; or

(ii)

for the purposes of the person’s compliance with section 312(2)(c) or with any other applicable requirement of this Act; or

(b)

a sample of food taken, an example of a food-related accessory taken, test procedures done, test results produced, or evidence taken—

(i)

by a food safety officer or recognised agency or recognised person in performing a function or duty, or exercising a power, under this Act; or

(ii)

by an approved laboratory or an approved person in performing a function or duty, or exercising a power, under this Act.

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $500,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 5 years; and

(ii)

a fine not exceeding $100,000.

230 Offences involving intentionally defeating purpose of Act or deceiving in relation to statements

(1)

A person commits an offence if the person, with intent to deceive and for the purpose of obtaining any material benefit or avoiding any material detriment,—

(a)

makes a statement that purports to be a statement made under section 290 or a statement of the New Zealand Government’s assurance about food or a consignment of food; or

(b)

falsifies or misuses a statement made under section 290.

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $500,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 5 years; and

(ii)

a fine not exceeding $100,000.

231 Offences involving statements

(1)

A person commits an offence if the person—

(a)

makes a statement that purports to be a statement made under section 290 or a statement of the New Zealand Government’s assurance about food or a consignment of food; or

(b)

falsifies or misuses a statement made under section 290.

(2)

In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

(3)

Section 251 contains defences to a prosecution for an offence against this section.

(4)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $250,000:

(b)

for an individual, to a fine not exceeding $50,000.

232 Offence involving knowingly or recklessly selling non-complying food

(1)

A person commits an offence if—

(a)

the person sells food that—

(i)

is not safe or suitable for its intended purpose; or

(ii)

has not been produced or processed and handled as required by an applicable requirement of this Act; or

(iii)

does not comply with an applicable requirement of this Act; and

(b)

the person—

(i)

knows that the food is as described in paragraph (a); or

(ii)

is reckless as to whether the food is as described in paragraph (a).

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $500,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 2 years; and

(ii)

a fine not exceeding $100,000.

233 Offences involving knowingly or recklessly importing non-complying food

(1)

A person commits an offence if—

(a)

the person imports food to sell that is not safe or not suitable; and

(b)

the person—

(i)

knows that the food is not safe or not suitable; or

(ii)

is reckless as to whether the food is safe or suitable.

(2)

A person commits an offence if—

(a)

the person breaches prescribed requirements for imported food; and

(b)

the person—

(i)

knows that the person is breaching the requirements; or

(ii)

is reckless as to whether the person is breaching the requirements.

(3)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $500,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 2 years; and

(ii)

a fine not exceeding $100,000.

234 Offences involving imported food

(1)

A person commits an offence if the person—

(a)

sells food that was imported on the basis that it was for personal consumption only; or

(b)

sells food for human consumption that was imported on the basis that it was not for human consumption; or

(c)

breaches or fails to comply with section 108.

(2)

A person commits an offence if the person,—

(a)

knowing that or being reckless as to whether food was imported on the basis that it was for personal consumption only, sells that food; or

(b)

knowing that or being reckless as to whether food was imported on the basis that it was not for human consumption, sells that food; or

(c)

knowing that the person is not a registered importer or being reckless as to whether the person is a registered importer, breaches or fails to comply with section 108.

(3)

In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant intended to commit the offence.

(4)

Sections 251 and 253 contain defences to a prosecution for an offence against subsection (1).

(5)

A person who commits an offence against subsection (1) is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $200,000:

(b)

for an individual, to a fine not exceeding $50,000.

(6)

A person who commits an offence against subsection (2) is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $500,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 2 years; and

(ii)

a fine not exceeding $100,000.

235 Offence involving intentionally hindering or obstructing official

(1)

A person commits an offence if the person intentionally hinders or obstructs a person—

(a)

who is one of the following:

(i)

a food safety officer; or

(ii)

an officer of a territorial authority performing a function or duty, or exercising a power, under this Act; or

(iii)

a person assisting an officer described in subparagraph (i) or (ii); or

(iv)

a person employed by a recognised agency; or

(v)

a recognised person; or

(vi)

a person appointed under section 357(2); and

(b)

who is performing a function or duty, or exercising a power, under—

(i)

a risk-based measure; or

(ii)

an applicable requirement of this Act.

(2)

Without limiting what constitutes intentionally hindering or obstructing, intentionally hindering or obstructing includes failing to allow a person to perform a function or duty or to exercise a power under this Act.

(3)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $250,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 3 months; and

(ii)

a fine not exceeding $50,000.

236 Offence involving threatening or assaulting official

(1)

A person commits an offence if the person threatens or assaults a person—

(a)

who is one of the following:

(i)

a food safety officer; or

(ii)

an officer of a territorial authority performing a function or duty, or exercising a power, under this Act; or

(iii)

a person assisting an officer described in subparagraph (i) or (ii); or

(iv)

a person employed by a recognised agency; or

(v)

a recognised person; or

(vi)

a person appointed under section 357(2); and

(b)

who is performing a function or duty, or exercising a power, under—

(i)

a risk-based measure; or

(ii)

an applicable requirement of this Act.

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $250,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 3 months; and

(ii)

a fine not exceeding $50,000.

237 Offence involving intentionally deceiving by pretending to be official

(1)

A person commits an offence if, with intent to deceive, the person pretends to be—

(a)

a food safety officer; or

(b)

an officer of a territorial authority performing a function or duty, or exercising a power, under this Act; or

(c)

a person assisting an officer described in paragraph (a) or (b); or

(d)

a person employed by a recognised agency; or

(e)

a recognised person; or

(f)

a registration authority performing a function or duty, or exercising a power, under this Act.

(2)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $250,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 3 months; and

(ii)

a fine not exceeding $50,000.

238 Offences involving publishing non-complying advertisement

(1)

A person commits an offence if both subsections (2) and (3) apply.

(2)

This subsection applies if the person publishes an advertisement relating to food or a food-related accessory that—

(a)

does not comply with all applicable requirements of this Act relating to advertising or promoting food or food-related accessories; or

(b)

is false as to the age, composition, effects, nature, origin, purity, quality, or strength of the food or the safety or suitability of the food or the safety or suitability of the food-related accessory; or

(c)

is likely to deceive a buyer as to the age, composition, effects, nature, origin, purity, quality, or strength of the food or the safety or suitability of the food or the safety or suitability of the food-related accessory; or

(d)

is prohibited by a requirement of this Act from being marked on or attached to the kind of food or the kind of food-related accessory or packages containing that kind of food or that kind of food-related accessory; or

(e)

makes a statement prohibited by a requirement of this Act to be made in an advertisement relating to the kind of food or the kind of food-related accessory; or

(f)

expressly or impliedly qualifies, or is contrary to, details required by a requirement of this Act to be marked on or attached to the kind of food or the kind of food-related accessory or packages containing that kind of food or that kind of food-related accessory; or

(g)

omits from the name or description of the food or the food-related accessory any word or words required by a requirement of this Act to be included in the name or description marked on or attached to the kind of food or the kind of food-related accessory or packages containing that kind of food or that kind of food-related accessory; or

(h)

fails to make a statement required by a requirement of this Act to be made in an advertisement relating to the kind of food or the kind of food-related accessory; or

(i)

fails to show, in an advertisement shown on a screen, a word or words or a statement required by paragraph (g) or (h) in clearly legible lettering for a sufficient length of time for an ordinary viewer to read them.

(3)

This subsection applies if the person publishes the advertisement as—

(a)

the person selling, promoting the sale, or appearing to promote the sale of the food or the food-related accessory; or

(b)

the agent or employee of the person selling, promoting the sale, or appearing to promote the sale of the food or the food-related accessory.

(4)

In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

(5)

Section 252 contains a defence to a prosecution for an offence against this section.

(6)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $250,000:

(b)

for an individual, to a fine not exceeding $50,000.

239 Offences involving automated electronic system

(1)

A person commits an offence who intentionally obstructs or hinders an automated electronic system doing an action under section 374(2).

(2)

A person commits an offence who knowingly damages or impairs an automated electronic system.

(3)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $250,000:

(b)

for an individual, to—

(i)

imprisonment for a term not exceeding 3 months; and

(ii)

a fine not exceeding $50,000.

240 Offence involving breaching or failing to carry out duty

(1)

A person commits an offence if the person breaches or fails to carry out the duty specified in section 14.

(2)

A person commits an offence if the person breaches or fails to carry out a duty specified in section 48 (food control plans must be registered) or section 79 (food businesses subject to national programme must be registered).

(3)

A person who is the operator of a food control plan or the operator of a food business to which the plan applies commits an offence if the person breaches or fails to carry out a duty specified in section 50(1)(a) to (g).

(4)

A person who is the operator of a food business subject to a national programme commits an offence if the person breaches or fails to carry out a duty specified in section 80.

(5)

A person who is an importer commits an offence if the person breaches or fails to carry out a duty under section 110 or 111.

(6)

A person commits an offence if the person breaches or fails to carry out a duty specified in section 155 (duties of recognised agencies) or section 156 (duties of recognised persons).

(7)

In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

(8)

Sections 251 and 253 contain defences to a prosecution for an offence against this section.

(9)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $200,000:

(b)

for an individual, to a fine not exceeding $50,000.

241 Offence involving breaching or failing to comply with suspension, direction, or improvement notice

(1)

A person commits an offence if the person breaches or fails to comply with—

(a)

a suspension imposed under section 62, 90, or 122 (including a suspension extended under section 63, 91, or 123); or

(b)

a direction given under any of sections 279, 281, and 282 to 286; or

(c)

a direction given under any of sections 300, 301, 304, and 305; or

(d)

an improvement notice issued by a food safety officer under section 302; or

(e)

a requirement imposed by a food safety officer under any of sections 301, 306, and 308; or

(f)

a direction given by a food safety officer executing a search warrant; or

(g)

a requirement imposed by a food safety officer executing a search warrant.

(2)

In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

(3)

Section 251 contains a defence to a prosecution for an offence against this section.

(4)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $300,000:

(b)

for an individual, to a fine not exceeding $50,000.

242 Offence involving breaching or failing to comply with order

(1)

A person commits an offence if the person breaches or fails to comply with an order made under any of sections 272, 273, 334, 335, and 337(6)(a).

(2)

A person commits an offence if the person fails or refuses to make property available to the Crown in accordance with section 271(6).

(3)

In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

(4)

Section 251 contains a defence to a prosecution for an offence against this section.

(5)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $300,000:

(b)

for an individual, to a fine not exceeding $75,000.

(6)

If an order is made under any of sections 272, 273, 334, 335, and 337(6)(a) and an appeal is filed in any court against the making of the order, the court appealed to may grant a stay of proceedings or any other interim relief in respect of the operation of the order as it thinks fit pending the determination of the appeal by that court.

243 Offence involving breaching or failing to comply with food standard, etc

(1)

A person commits an offence if the person breaches or fails to comply with—

(a)

a requirement in an adopted joint food standard or a domestic food standard; or

(b)

a condition imposed under any of sections 27(5)(b), 33(4)(d), 60, 147, 158(3)(a), and 291(6) or under clause 4(4)(e) or 9 of Schedule 4; or

(c)

a requirement imposed on the person by regulations made under section 383.

(2)

In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

(3)

Sections 251 and 253 contain defences to a prosecution for an offence against this section.

(4)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $100,000:

(b)

for an individual, to a fine not exceeding $20,000.

244 Offence involving breaching or failing to comply with requirement

(1)

A person commits an offence if the person breaches or fails to comply with—

(a)

a requirement in this Act; or

(b)

a requirement in regulations made under this Act; or

(c)

a requirement in a notice given under this Act; or

(d)

any other requirement under this Act.

(2)

In a prosecution for an offence against this section, it is not necessary to prove that the defendant intended to commit the offence.

(3)

Sections 251 and 253 contain defences to a prosecution for an offence against this section.

(4)

A person who commits an offence against this section is liable on conviction,—

(a)

for a body corporate, to a fine not exceeding $20,000:

(b)

for an individual, to a fine not exceeding $5,000.

Liability for offences

245 Liability of body corporate

(1)

This section applies when—

(a)

a body corporate is charged with an offence against this Act; and

(b)

for the purpose of the prosecution, it is necessary to establish the body corporate’s state of mind.

(2)

It is sufficient to show that a director, an employee, or an agent of the body corporate, acting within the scope of his or her actual or apparent authority, had the state of mind.

246 Liability of body corporate, principal, or individual

(1)

This section applies when—

(a)

a body corporate is charged with an offence against this Act for an action or omission of a director, an employee, or an agent:

(b)

a principal is charged with an offence against this Act for an action or omission of an agent:

(c)

an individual is charged with an offence against this Act for an action or omission of an employee or agent.

(2)

The action or omission is treated as also the action or omission of the body corporate, principal, or individual.

(3)

In this section, agent includes a contractor.

247 Liability of director or manager of body corporate

(1)

This section applies when a body corporate commits an offence against this Act.

(2)

A director or manager of the body corporate is also guilty of the offence if it is proved that the director or manager—

(a)

authorised, permitted, consented, or participated in the act or omission that constituted the offence; or

(b)

knew, or could reasonably be expected to have known, that the offence was to be or was being committed and failed to take all practicable steps to prevent or stop it.

(3)

A director or manager may be convicted of an offence against this section even though the body corporate has not been charged with that offence or a similar offence.

248 Parties to offences

(1)

Section 66 of the Crimes Act 1961 applies to offences against this Act.

(2)

Section 310 of the Crimes Act 1961 applies to offences against this Act.

(3)

In addition, if a body corporate commits an offence against this Act, a director or an agent of the body corporate is a party to the offence if the director or agent—

(a)

authorised, permitted, consented, or participated in the offence; or

(b)

knew that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

(4)

In addition, a person described in subsection (5) is a party to an offence against this Act that occurs in the following circumstances:

(a)

a person buys food in a package; and

(b)

the person sells the food in that package; and

(c)

the person does not open that package before selling the food; and

(d)

no employee or agent of the person opens the package before the person sells the food; and

(e)

the sale of the food constitutes an offence against this Act.

(5)

The persons are—

(a)

a person who appears from a statement or label on, attached to, or associated with the package to be the person who imported, produced, or processed and handled the food:

(b)

the person who is the owner of the rights of manufacture of the food:

(c)

a person who packaged the food:

(d)

an employee or agent of a person referred to in any of paragraphs (a) to (c) if the employee or agent knew that the offence was to be or was being committed and failed to take all reasonable steps to prevent or stop it.

(6)

Accordingly, a person described in subsection (5) is liable in the same manner and to the same extent as if the person had actually sold the food at the time and place at which the sale was made.

249 Defences for liability arising under section 246 or 248

(1)

Section 254 contains a defence to a prosecution in which liability arises under section 246.

(2)

Section 255 contains a defence to a prosecution in which liability arises under section 248(4) to (6).

Provisions about charging documents

250 Charging documents

Despite anything to the contrary in the Criminal Procedure Act 2011, a charging document in respect of any offence against this Act may be filed in any case within 4 years after the time when the offence was committed or within any longer time allowed by that other Act.

Defences

251 Defence in prosecution for strict liability offence, except advertising offence

(1)

This section applies in a prosecution for an offence against any of sections 226, 228, 231, 234(1), and 240 to 244.

(2)

The defendant has a defence if the defendant proves that—

(a)

the commission of the offence was due to—

(i)

the act or omission of another person; or

(ii)

an accident; or

(iii)

some other cause outside the defendant’s control; and

(b)

the defendant took all reasonable precautions and exercised due diligence to avoid the commission of the offence or offences of the same kind.

252 Defences in prosecution for advertising offence

(1)

This section applies in a prosecution for an offence against section 238.

(2)

The defendant has a defence if the defendant proves that—

(a)

the commission of the offence—

(i)

was the act or omission of another person; or

(ii)

was an accident; or

(iii)

resulted from some other cause outside the defendant’s control; and

(b)

the defendant took all reasonable precautions and exercised due diligence to avoid the commission of the offence.

(3)

The defendant has a defence if the defendant proves that—

(a)

the defendant carried on the business of publishing or arranging for the publication of advertisements; and

(b)

the defendant published or arranged for the publication of the advertisement in the ordinary course of the business.

(4)

Subsection (3) does not apply if the defendant—

(a)

was informed that publication of the advertisement would constitute an offence—

(i)

before the advertisement was published; and

(ii)

in writing; and

(iii)

by a food safety officer or a person performing functions or duties, or exercising powers, under this Act; or

(b)

ought reasonably to have known that the publication of the advertisement was an offence; or

(c)

is the operator of a food business for which the advertisement was published; or

(d)

is involved in the management of a food business for which the advertisement was published.

253 Defences in prosecution for selling non-complying food

(1)

This section applies in a prosecution for an offence against any of sections 234(1), 240, 243, and 244.

(2)

The defendant has a defence if the defendant proves that—

(a)

the defendant bought the food in reliance on a statement as to the nature of the food that was in writing and supplied by or on behalf of the person from whom the defendant bought the food; and

(b)

the defendant’s sale of the food would not have constituted the offence with which the defendant is charged if the food had in fact conformed to the statement; and

(c)

a reasonable person would have had no reason to suspect that the food did not conform to the statement or that the statement was not genuine; and

(d)

when the defendant sold the food, it was in the same condition as it was when the defendant bought it.

(3)

The defendant has a defence if the defendant proves that—

(a)

the defendant bought the food in a package and sold it in the same package and in the same condition as it was in when the defendant bought it; and

(b)

the defendant could not reasonably have found out that selling the food would constitute the offence with which the defendant is charged.

(4)

The defences provided by this section only apply to offences involving the sale of non-complying food.

254 Defence in prosecution of body corporate, principal, or individual for action of director, agent, or employee

(1)

This section applies when a defendant’s liability to prosecution arises under section 246.

(2)

The defendant has a defence if the defendant proves that the defendant took all reasonable steps to prevent the commission of—

(a)

the particular offence; or

(b)

all offences of the class committed.

(3)

Subsection (2) is subject to subsection (4).

(4)

The defence under subsection (2) is available to a defendant only to the extent that it can be proved in relation to the act or omission of the relevant other person referred to in section 246, unless the court is satisfied that it would be repugnant to justice for that defence to be so limited, having regard to—

(a)

any likely or possible benefit accruing to, or detriment suffered by, the person or body corporate from the act or omission in respect of which the proceedings are brought had the alleged offence remained undetected; and

(b)

the purpose or motive of the relevant other person; and

(c)

the relationship between the defendant and the relevant other person, or between the defendant and any person appearing or likely to benefit from the alleged offence; and

(d)

if the defendant is a body corporate, whether or not any person responsible for, or closely associated with, the management of the body corporate appears to have benefited from the act or omission, or would have been likely to benefit if the alleged offence had remained undetected; and

(e)

whether or not the defendant had taken all reasonable steps and exercised due diligence to control the activities of the relevant other person to ensure that the act or omission did not occur.

255 Defence in prosecution of importer, producer, processor and handler, manufacturing rights owner, or packer

(1)

This section applies when a defendant’s liability to prosecution arises under section 248(4) to (6).

(2)

In a prosecution relating to the condition of food, the defendant has a defence if the defendant proves that the food was in a condition that would not have given rise to the offence when the package in which the food was packed left the defendant’s possession.

(3)

In a prosecution relating to the safety of food, the defendant has a defence if the defendant proves that, when or before the food left the defendant’s possession, the defendant gave notice to the person to whom the defendant consigned or delivered the food that it was not intended for human consumption.

(4)

In a prosecution relating to a label or package, the defendant has a defence if the defendant proves that the offence with which the defendant is charged arises from an alteration made to the label or package after the label or package left the defendant’s possession.

256 Employees and agents have same defences

The defences in sections 251 to 255 are available to an employee or agent of a body corporate, a principal, or an individual in the same manner and to the same extent as they would be available to the body corporate, principal, or individual if the body corporate, principal, or individual were charged with the offence.

257 Prosecutor to be notified of defences

(1)

The defences in sections 251 to 255 are available only if the defendant—

(a)

prepares a written notice for the prosecutor that complies with subsection (2); and

(b)

gives the notice to the prosecutor—

(i)

at least 15 working days before the hearing date; or

(ii)

within another time that the court allows.

(2)

The notice must—

(a)

state the defendant’s intention to rely on the defence; and

(b)

include,—

(i)

in the case of the defence in section 255(3), information about the identity of the person to whom the defendant consigned or delivered the food or an explanation as to why the defendant is unable to identify that person:

(ii)

in the case of the defence in section 251 or 252, notice in writing identifying the person or the nature of the accident or cause relied on by the defendant:

(iii)

in any other case, the facts or circumstances that support the defence.

258 Standard of proof for establishing defence

The standard of proof for establishing a defence provided by this Part for an offence against this Act is the balance of probabilities.

Evidence

259 Evidence of requirement of this Act

(1)

This section applies to the production in evidence of the documents described in subsection (2) in a prosecution for an offence against this Act.

(2)

The documents are—

(a)

a document presented by a food safety officer purporting to be a requirement of this Act; and

(b)

a copy of the Gazette in which the requirement was notified, if applicable.

(3)

The production in evidence of the documents is sufficient evidence, in the absence of evidence to the contrary, of the existence, notification, and contents of the requirement.

260 Evidence of person’s documents

(1)

This section applies to the production in evidence of a document described in subsection (2) in a prosecution for an offence against this Act.

(2)

The document is one that—

(a)

is an application, form, record, report, return, transaction, or other means of stating information; and

(b)

purports to be completed, kept, or provided by a person or on the person’s behalf.

(3)

The production in evidence of the document is sufficient evidence, in the absence of evidence to the contrary, that the person completed, kept, or provided the document.

261 Evidence of testing

(2)

The evidence may be produced by way of—

(a)

a certificate given by an employee of a recognised agency; or

(b)

a certificate given by a recognised person; or

(c)

a certificate given by an employee of a recognised person; or

(d)

a certificate given by an employee of an approved laboratory; or

(e)

some other means acceptable to the court.

(3)

When produced in a prosecution for an offence against this Act, the evidence must not be ruled inadmissible or disregarded only because compliance with the relevant Act’s requirements on the taking or testing of a sample of food or of an example of a food-related accessory has been reasonable instead of strict.

(4)

However, the evidence is inadmissible if—

(a)

the prosecutor (or a person authorised by the prosecutor) does not—

(i)

serve a copy of the certificate or summary of that evidence on the defendant or the defendant’s agent or lawyer at least 20 working days before the hearing at which the certificate or evidence is to be tendered; and

(ii)

at the same time inform the person served, in writing, that the prosecutor does not propose to call the person who signed the certificate or summary as a witness at the hearing; or

(b)

not less than 5 working days before the hearing (or any lesser period that the court in the special circumstances of the case thinks fit) and on the application of the defendant made within 10 working days after receipt of the certificate or summary, the court orders that the certificate or evidence is inadmissible as evidence in the proceedings.

(5)

The court must not make an order under subsection (4) unless it is satisfied that there is reasonable doubt as to—

(a)

the accuracy of the information contained or referred to in the certificate or summary of evidence; or

(b)

the validity of the certificate or summary of evidence.

262 Evidence of office

(1)

The chief executive may give a certificate stating that a person holds a particular office or position under or relevant to this Act.

(2)

A certificate given under subsection (1) is admissible in any proceedings in a New Zealand court that relate to an offence alleged or proved to have been committed against this Act and is, in the absence of proof to the contrary, sufficient evidence of the matters stated in the certificate.

(3)

It is not necessary to prove the signature on a certificate given under this section.

Presumptions

263 Application of sections 264 to 267

(1)

Sections 264 to 267 apply in a prosecution for an offence against any of sections 226, 228, 231, 234, and 238 to 244.

(2)

Sections 264 and 265 do not apply in a prosecution for an offence against any of sections 222 to 225, 227, 229, 230, 232, 233, and 235 to 237.

(3)

Sections 266 and 267 apply in a prosecution for an offence against any of sections 222 to 225, 227, 229, 230, 232, 233, and 235 to 237.

264 Presumption as to contents and label

(1)

The contents of a package are presumed to conform with the description of the contents on the package’s label until the contrary is proved.

(2)

Any information on the label that identifies the person who imported, produced, or processed and handled the food in the package is presumed to be correct until the contrary is proved.

265 Presumption as to possession for sale

(1)

This section applies when food is found at a place a person uses for—

(a)

the sale of food; or

(b)

the production, processing and handling, and merchandising of food for sale.

(2)

The food is presumed to be in the person’s possession for the purpose of sale for human consumption until the contrary is proved.

266 Presumption as to sample

(1)

This section applies to a sample of food—

(a)

taken from an identified quantity of food; and

(b)

taken as required by a requirement of this Act; and

(c)

interpreted as required by a requirement of this Act.

(2)

The sample is presumed to be representative of the quantity of food from which the sample was taken until the contrary is proved.

(3)

The sample is also presumed to be representative of the batch, lot, or production run from which the identified quantity was taken until the contrary is proved.

267 Presumption as to electronic identification

(1)

This section applies when information sent electronically purports to have been sent by a particular person because—

(a)

it has the person’s signature on it; or

(b)

it identifies the person as the sender in some other way.

(2)

The information is presumed to have been sent by the person until the contrary is proved.

Sentencing

268 Application of sections 269 to 273

A court may make an order under any of sections 269 to 273 in addition to, or instead of, a penalty that the court may impose under the relevant offence provision.

269 Order to pay amount because of commercial gain

(1)

This section applies to a person convicted of an offence against any of sections 222 to 225, 228, 229, 230, 232, 233, and 238 to 244.

(2)

The court may make an order under subsection (3) or (4), if it is satisfied that the offence was committed in the course of producing a commercial gain.

(3)

The court may make an order under this subsection whether or not the person is a body corporate. The order is that the person pay an amount up to 3 times the value of the commercial gain resulting from committing the offence.

(4)

The court may make an order under this subsection if the person is a body corporate and the value of the gain cannot be readily ascertained. The order is that the person pay an amount up to 10% of the combined turnover of the body corporate and every interconnected body corporate it has over the period of the offending.

(5)

The court must assess the value of a gain that is readily ascertainable.

(6)

An amount that the court orders to be paid under this section is recoverable in the same manner as a fine.

(7)

In this section, interconnected and turnover have the same meanings as in the Commerce Act 1986.

270 Order to pay expenses

(1)

This section applies to a person convicted of an offence against this Act.

(2)

A court may order the person to pay to the chief executive or to a territorial authority, as the case may be, all or any of the expenses incurred in taking, holding, detaining, storing, or testing food or a food-related accessory for the purposes of the prosecution.

(3)

An amount that the court orders to be paid under this section is recoverable in the same manner as a fine.

271 Order to forfeit and dispose of food or food-related accessory

(1)

This section applies to a person convicted of an offence against this Act.

(2)

Before making an order under this section, the court must give the following persons an opportunity to be heard:

(a)

the person convicted; and

(b)

any other person who the court considers has an interest in the food or food-related accessory in relation to which the offence was committed.

(3)

The court may order that—

(a)

the following are forfeited to the Crown or to the territorial authority that brought the prosecution:

(i)

all or some of the food or food-related accessories in relation to which the offence was committed that are in the possession of the person convicted:

(ii)

all or some of the food or food-related accessories in relation to which the offence was committed that were in the possession of the person convicted before being seized under this Act and are still in the custody of the court or the prosecuting body; and

(b)

the food or food-related accessories must be disposed of as the chief executive or the territorial authority directs.

(4)

The court may order the person convicted to pay all or any of the expenses incurred in disposing of food or food-related accessories under subsection (3)(b).

(5)

An amount that the court orders to be paid under this section is recoverable in the same manner as a fine.

(6)

A convicted person who is subject to an order under this section must, without delay, make the forfeited property available to the Crown for collection.

272 Order to withdraw material

(1)

This section applies to a person who—

(a)

imports, produces, processes and handles, or sells food or food-related accessories; and

(b)

is convicted of an offence against this Act in relation to advertisements, labels, or packages.

(2)

The court may order the person to withdraw from use all advertisements, labels, or packages of the same kind until the chief executive is satisfied that the problem that resulted in the conviction has been remedied or until further order of the court.

(3)

The chief executive must give the person concerned notice of his or her reasons for concluding that the problem has not been remedied and of the right of review under section 355.

(4)

The person must withdraw the advertisements, labels, or packages.

273 Order to restrict or prohibit trading in food

(1)

This section applies when—

(a)

a person is convicted of an offence against this Act; and

(b)

the person has previously been convicted of an offence under the current or a former food safety regime or has previously been convicted outside New Zealand of an offence comparable to an offence under the current or a former food safety regime.

(2)

This section also applies when—

(a)

a person is convicted of an offence against this Act; and

(b)

the court considers that the person’s trade in food should be restricted or prohibited because—

(i)

the offence of which the person has been convicted is serious; or

(ii)

the person has breached a previous order under this section.

(3)

The court may make—

(a)

a restriction order, which specifies the ways in which the person is restricted in trading in food; or

(b)

a prohibition order, which prohibits the person from trading in food.

(4)

The following provisions apply if the person wants a restriction order or prohibition order cancelled:

(a)

the person may apply to the court to cancel it:

(b)

the application must be served on the relevant registration authority:

(c)

an employee or agent of the relevant registration authority may appear and be heard to help the court to determine whether to grant the application.

(5)

The court may—

(a)

cancel the order from the date stated in the order; or

(b)

change the order from the date stated in the order; or

(c)

change a prohibition order to a restriction order; or

(d)

refuse the application, in which case the court may specify the earliest date upon which the person may make a further application for cancellation.

(6)

The court must take into account—

(a)

the nature of the offence of which the person was convicted; and

(b)

the steps taken (if any) to remedy the problem that resulted in the order; and

(c)

the person’s conduct since the order was made; and

(d)

the person’s character; and

(e)

any other circumstances of the case.

(7)

If the court changes the order or refuses the application, the person may apply for cancellation again—

(a)

once the date that the court specified under subsection (5)(d) has passed; or

(b)

once there has been a material change in the person’s circumstances.

274 Sentencing criteria

(1)

This section applies when a Judge is determining how to sentence or otherwise deal with a person convicted of an offence against this Act.

(2)

The Judge must apply the Sentencing Act 2002.

(3)

In addition, the Judge must have regard to the orders available under sections 269 to 273.

(4)

In determining how to sentence or otherwise deal with the person, the Judge must take the following matters into account to the extent that they are relevant:

(a)

how likely it was that a person would be harmed by the conduct constituting the offence:

(b)

how many people were likely to be harmed by the conduct constituting the offence:

(c)

how serious the harm was that was likely to be done by the conduct constituting the offence:

(d)

whether there were potential or actual implications for trade, including international trade.

(5)

Subsection (4) does not limit the Sentencing Act 2002. Nor does it prevent the Judge from taking into account any other relevant factors.

(6)

In subsection (4), harm means illness or injury, or both.

275 Fines or amounts to be paid to prosecuting territorial authority

(1)

This section applies—

(a)

when a court imposes or is deemed to have imposed a fine as a result of non-payment of an infringement fee to a territorial authority:

(b)

when a court imposes a fine on a person for an offence against this Act prosecuted by a territorial authority:

(c)

when a court orders the payment of an amount under section 269 for an offence prosecuted by a territorial authority.

(2)

The court must order the payment of the fine or amount to the territorial authority.

(3)

Ten percent of the fine or amount must be credited to a Crown Bank Account nominated by the Minister of Finance for the purposes of this section.

(4)

If any money awarded by a court in respect of loss or damage is recovered as a fine, and that fine is ordered to be paid to a territorial authority under subsection (2), no deduction is to be made under subsection (3) in respect of that money.

(5)

The court’s order under subsection (2) is sufficient authority for the Registrar receiving the fine or amount to—

(a)

pay 10% of it to the Crown; and

(b)

pay the balance to the territorial authority entitled to it.

(6)

Section 73 of the Public Finance Act 1989 does not apply to a fine or an amount that a court orders to be paid to a territorial authority under this section.

Subpart 6—Powers and enforcement

Appointments by chief executive

276 Appoint food safety officers

(1)

The chief executive may appoint a person as a food safety officer for the purposes of this Act, whether or not the person is employed in the State sector.

(2)

The officer’s appointment document may authorise the officer to perform all the functions and duties, and exercise all the powers, that this Act confers on food safety officers.

(3)

Alternatively, the officer’s appointment document may specify the particular functions and duties that the officer may perform and the particular powers that the officer may exercise.

(4)

The chief executive may impose written conditions on the appointment of a food safety officer.

(5)

Food safety officers must not delegate any of their functions, duties, or powers.

(6)

A person appointed as a food safety officer who is not already a State sector employee does not become a State sector employee for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 only because of the appointment.

(7)

If a food safety officer who is not employed in the State sector or by a territorial authority receives information in the course of performing his or her functions or duties under this Act, the Official Information Act 1982 applies in relation to—

(a)

the organisation that employs the food safety officer as if it were an organisation listed in Schedule 1 of that Act; and

(b)

the information as if it were held by the organisation.

277 Suspend or cancel appointments of food safety officers

(1)

The chief executive may decide to suspend a person’s appointment as a food safety officer.

(2)

The chief executive must give the person a written notice that—

(a)

states that the person’s appointment is suspended; and

(b)

states one of the following:

(i)

what the period of the suspension is; or

(ii)

that the suspension is for an indefinite period; and

(c)

states the reason for the suspension; and

(d)

states that the person may apply for a review of the decision under section 355.

(3)

The chief executive may decide to cancel a person’s appointment as a food safety officer.

(4)

The chief executive must give the person a written notice that—

(a)

states that the person’s appointment is cancelled; and

(b)

states when the cancellation takes effect; and

(c)

states the reason for the cancellation; and

(d)

states that the person has the right to seek a review of the decision under section 355.

(5)

When the chief executive gives a notice under subsection (2) or (4), he or she must also give a copy of it to the person’s employer, if the person has an employer.

Directions by chief executive

278 Give general directions on functions, duties, or powers

(1)

The chief executive may give a direction to all or any of the following persons, either individually or as a class:

(a)

an approved person:

(b)

a food safety officer:

(c)

a recognised agency:

(d)

a recognised person:

(e)

a territorial authority.

(2)

The direction must be about the performance of the person’s functions or duties, or the exercise of the person’s powers, under this Act and may, without limitation, include instructions or requirements relating to the performance of specific tasks.

(3)

A person to whom a direction is given under this section must ensure that it is complied with.

(4)

However, an action taken by a person to whom a direction is given under this section is not invalid by reason only of a failure of that person to comply with the direction.

279 Give directions on seized imported food or food-related accessory

(1)

The chief executive may give a person a direction to—

(a)

dispose of imported food or an imported food-related accessory seized and detained under section 306 or recalled under section 284; and

(b)

carry out the disposal in the manner the chief executive specifies.

(2)

All costs reasonably incurred in the seizure and detention—

(a)

must be paid by the importer on demand by the chief executive; and

(b)

if not paid by the importer in accordance with the chief executive’s demand, are recoverable from the importer in a court of competent jurisdiction as a debt due to the Crown.

(3)

To avoid doubt, all costs reasonably incurred in the disposal must be met by the importer at the importer’s expense.

280 Persons to whom directions may be given under sections 281 to 286

(1)

This section describes the persons to whom the chief executive or a territorial authority, as the case may be, may give directions under any of sections 281 to 286.

(2)

A direction may be given to all or any of the following persons, either individually or as a class:

(a)

a person who operates under a risk-based measure:

(b)

an exporter of food or food-related accessories:

(c)

an importer of food or food-related accessories:

(d)

a person in control of, or reasonably appearing to be in control of, food, a food-related accessory, or anything that may become food.

281 Give general directions to operators and other persons required to comply with Act

(1)

The chief executive may give a direction described in subsection (2) to the persons described in section 280.

(2)

The direction must be about the taking of preventative or corrective action in respect of food or food-related accessories that the chief executive reasonably believes is necessary to ensure compliance with this Act.

282 Give directions to complete and supply declarations

(1)

The chief executive may give a direction described in subsection (2) to the persons described in section 280.

(2)

The direction must be about requiring the person to complete and supply a declaration if—

(a)

there is to be a change of ownership of any food or anything that may become food (food in question); or

(b)

the food in question is to be moved to a new property or a new place.

(3)

The chief executive may require the declaration to contain all or any of the following information:

(a)

matters relating to the history of the food in question, including, if appropriate,—

(i)

identification or details of any owner or previous owner of the food in question, or any person who presented or supplied it to the person required to make the declaration:

(ii)

identification or details of the area or place where the food in question was kept or was taken, harvested, or procured, and any surrounding area or place at which it was stored:

(b)

matters relating to treatments or applications applied by way of veterinary medicines or agricultural compounds (as those terms are defined in section 2 of the Agricultural Compounds and Veterinary Medicines Act 1997) during production of the food in question:

(c)

information relating to the feeding of an animal, if the food in question contains an animal product:

(d)

information relating to the possible exposure of the food in question to hazards:

(e)

information relating to any movement or related controls imposed in respect of the food in question:

(f)

the status of the food in question in relation to any testing performed:

(g)

the place the food in question is being moved from, the place it is being moved to, and any previous place it has been moved from:

(h)

matters relating to the transport or movement of the food in question:

(i)

the existing owner and new owner of the food in question:

(j)

any other matter necessary or relevant to establishing the safety and suitability of the food in question for human consumption.

(4)

The chief executive may require the declaration—

(a)

to accompany the food in question, or be provided to the recipient or new owner of the food in question by post, fax, email, or other appropriate means:

(b)

to be kept by all or any of the supplier, recipient, or new owner of the food in question for a period of up to 4 years.

(5)

In considering whether to give a direction under this section, the chief executive must have regard to the following matters:

(a)

the need to protect the health of consumers of food:

(b)

the desirability of maintaining consistency between New Zealand food standards and any relevant standards, requirements, or recommended practices that apply or are accepted internationally.

(6)

Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to any information or document required to be produced under this section.

283 Give directions to impose movement or related controls

(1)

The chief executive may give a direction described in subsection (2) to the persons described in section 280 if he or she reasonably suspects—

(a)

that food or any thing that may become food does not comply with an applicable requirement of this Act; or

(b)

the existence of a hazard or a source of contamination that may affect food or any thing that may become food.

(2)

The direction must impose movement or related controls to determine, minimise, manage, or control the risk to human life or public health created by the suspected non-compliance or suspected existence of the hazard or the source of contamination.

(3)

The controls may be imposed on all or any of the following:

(a)

activities:

(b)

areas:

(c)

food-related accessories:

(d)

conveyances:

(e)

craft:

(f)

food:

(g)

any thing that may become food:

(h)

food businesses:

(i)

vehicles:

(j)

anything else that the chief executive suspects relates to the suspected non-compliance or he or she suspects is the suspected hazard or the source of suspected contamination.

(4)

The controls on those things described in subsection (3) may do all or any of the following in relation to food or any thing that may become food:

(a)

restrict its movement, sale, production, or processing and handling:

(b)

apply conditions to its movement, sale, production, or processing and handling:

(c)

prohibit its movement, sale, production, or processing and handling:

(d)

require the taking of specific actions such as sampling and testing to determine the risk (if any) to human life or public health:

(e)

require the taking of specific actions to minimise, manage, or control the risk to human life or public health:

(f)

do anything else that is necessary to achieve the purpose described in subsection (2).

(5)

The directions must specify the suspected non-compliance, hazard, or source of contamination.

(6)

The directions may specify the suspected non-compliance, hazard, or source of contamination by any means, including by reference to—

(a)

a thing described in subsection (3); or

(b)

a place (where, for example, there may be contamination from the land or the environment); or

(c)

a particular person or food business or a specified class of food business (where, for example, the contamination may have been caused by a human act or omission).

(7)

The directions may—

(a)

direct the keeping of information about the matters that are the subject of the directions; and

(b)

direct the provision of reports about matters that are the subject of the directions; and

(c)

require the person to whom the directions are given to notify the chief executive when—

(i)

the non-compliance, hazard, or source of contamination has been identified; or

(ii)

the non-compliance, hazard, or source of contamination has been minimised or removed; or

(iii)

no non-compliance, hazard, or source of contamination has been identified.

(8)

The chief executive may approve a system under section 291 for giving directions under this section automatically when a specific occurrence indicates that controls are needed to minimise the risk created by the suspected non-compliance or the suspected existence of a specific hazard or a specific source of contamination.

(9)

Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to any information or document required to be produced under this section.

284 Give directions to recall food or food-related accessory

(1)

The chief executive may give the directions described in subsection (3) to the persons described in section 280 for the purpose of examining, rectifying, controlling, or disposing of food or a food-related accessory.

(2)

In determining whether to give the directions, the chief executive may take into account any relevant information or warnings about food or a food-related accessory that he or she has received from an international organisation or authority.

(3)

The directions are—

(a)

to recall food or a food-related accessory that is not safe or suitable or whose safety or suitability is in doubt:

(b)

to recall a food-related accessory that has, or for which there is doubt about whether it has, contaminated food or caused food to be no longer safe or suitable:

(c)

to recall a food-related accessory if there is doubt about whether it may contaminate food:

(d)

to recall food or a food-related accessory that is mislabelled or incorrectly identified:

(e)

to take food or a food-related accessory recalled under any of paragraphs (a) to (d) to—

(i)

a place specified in the directions; or

(ii)

a place agreed to between the chief executive and the person to whom the directions are given.

(4)

The directions may also specify any directions that may be given under section 285, as appropriate.

(5)

If a person to whom a direction is given under this section fails or refuses to comply with the direction, the chief executive may—

(a)

take any reasonable steps necessary to ensure control of the food or food-related accessory (including entry by food safety officers to a place under a warrant); and

(b)

recover the costs and expenses reasonably incurred in assuming control of the food or food-related accessory as a debt due from that person.

(6)

This section does not affect the chief executive’s power to publish a statement under section 289.

285 Give directions to manage food or food-related accessory

(1)

The chief executive may give the directions described in subsection (2) to the persons described in section 280 if the chief executive—

(a)

suspends operations under a registered food control plan under section 62; or

(b)

extends the period of a suspension under section 63, 91, or 123; or

(c)

accepts a voluntary suspension of a registered food control plan under section 64; or

(d)

cancels the registration of a food control plan under section 67; or

(e)

removes a food business from the coverage of a registered food control plan under section 70; or

(f)

accepts a surrender of registration of a registered food control plan under section 71; or

(g)

suspends operations of a registered food business that is subject to a national programme under section 90; or

(h)

accepts a voluntary suspension of the operations of a registered food business that is subject to a national programme under section 92; or

(i)

cancels the registration of a food business that is subject to a national programme under section 95; or

(j)

accepts a surrender of registration of a food business that is subject to a national programme under section 98; or

(k)

suspends a registered importer’s operations under section 122; or

(l)

accepts a voluntary suspension under section 124; or

(m)

cancels the registration of an importer under section 127; or

(n)

accepts a surrender of an importer’s registration under section 130; or

(o)

reasonably believes that food or a food-related accessory that is already the subject of a direction under section 283 is not safe or suitable and further controls are required; or

(p)

recalls food or a food-related accessory under section 284.

(2)

The directions must be about doing any of the following to the food or food-related accessory:

(a)

classifying it:

(b)

condemning it:

(c)

destroying it:

(d)

disposing of it:

(e)

identifying it:

(f)

processing and handling it:

(g)

reclassifying it:

(h)

relabelling it:

(i)

re-exporting it:

(j)

reprocessing it:

(k)

regrading it:

(l)

rectifying it:

(m)

sampling it:

(n)

storing it:

(o)

transporting it:

(p)

testing it:

(q)

verifying it.

(3)

See also sections 65, 69, 93, 97, 125, 129, and 284.

286 Give directions to publish statement

(1)

The chief executive may give a direction described in subsection (2) to the persons described in section 280.

(2)

The direction must be about publishing a statement for the purpose of protecting the public.

(3)

The chief executive may specify that the statement must include all or any of the following:

(a)

the nature of the problem:

(b)

the remedy that the person will provide:

(c)

the way in which the person will prevent the problem arising in future.

(4)

The chief executive may specify the actual words to be used in the statement or any part of it.

(5)

The chief executive may specify all or any of the following:

(a)

who must publish the statement:

(b)

where the statement must be published:

(c)

the date on which the statement must be published.

(6)

Statements published under this section are protected by absolute privilege.

287 Supplementary provisions about directions under sections 281 to 286

(1)

This section applies to a direction given by the chief executive under any of sections 281 to 286.

(2)

The direction is binding on—

(a)

the person to whom it is addressed; and

(b)

if applicable, the personal representatives, successors, and assignees of the person to whom it is addressed to the same extent as it applies to that person.

(3)

The direction must be appropriate and reasonable.

(4)

The direction must state whether the person to whom it is given must—

(a)

advise the chief executive of the details of the manner in which the person proposes to comply with the direction; and

(b)

keep information about the matters that are the subject of the direction; and

(c)

regularly notify the chief executive about the steps being taken towards compliance with the direction; and

(d)

give written notice to the chief executive when the person has complied with the direction.

(5)

The direction must state that—

(a)

it is an offence against this Act to fail to comply with the direction; and

(b)

if the person to whom the direction is given fails to comply with it, the chief executive may carry out the direction; and

(c)

if the chief executive carries out the direction, the chief executive may recover the costs reasonably incurred in carrying out the direction from the person to whom the direction was given.

(6)

The direction must—

(a)

be in writing; or

(b)

be confirmed in writing as soon as practicable after being given orally.

(7)

The direction continues in force until the earlier of the following occurs:

(a)

the expiry date (if any) stated in the direction is reached; or

(b)

the chief executive revokes the direction.

(8)

The direction may—

(a)

be amended or revoked at any time; and

(b)

be extended or renewed, if the chief executive is satisfied that the circumstances warrant it.

(9)

If a person to whom the direction is given fails or refuses to comply with it, the chief executive may—

(a)

carry out the direction; and

(b)

recover the costs and expenses reasonably incurred in carrying out the direction as a debt due from the person to whom the direction was given.

288 Service of directions under sections 281 to 286

(1)

This section also applies to a direction given by the chief executive under any of sections 281 to 286.

(2)

A direction addressed to a person is sufficiently served if it is—

(a)

delivered personally to the person by a food safety officer; or

(b)

delivered to the person at the person’s usual or last-known place of residence or business; or

(c)

sent by fax or email to the person’s last known fax number or email address; or

(d)

posted in a letter addressed to the person at the person’s usual or last known place of residence or business.

(3)

A direction addressed to a class of persons is sufficiently served if it is—

(a)

served on each of the persons in the class in accordance with subsection (2); or

(b)

published both—

(i)

in a daily newspaper or trade journal or in any other news media that, in the opinion of the chief executive, will be most likely to bring the direction to the attention of the persons who belong to the class; and

(ii)

on the Ministry’s Internet site.

(4)

A direction addressed to a department of State or local authority is sufficiently served if it is served on the chief executive (however described) of the organisation in accordance with subsection (2).

(5)

A direction served in accordance with subsection (2) takes effect when it is served.

(6)

A direction served in accordance with subsection (3)(a) takes effect when it is served on all the persons in the class in question.

(7)

A direction served in accordance with subsection (3)(b) takes effect at the beginning of the day after the date on which subsection (3)(b) has been complied with.

Statements by chief executive

289 Publish privileged statements

(1)

The chief executive may publish a statement for the purpose of protecting human life or public health or informing the public.

(2)

The statement may be about—

(a)

the safety or suitability of food or a food-related accessory:

(b)

anything contained or implied in advertisements about food or a food-related accessory—

(i)

generally; or

(ii)

in a particular advertisement; or

(iii)

in a class of advertisement; or

(iv)

in classes of advertisements:

(c)

the performance or non-performance of any function or duty imposed on any person by this Act or any regulations made under this Act.

(3)

The statement is protected by qualified privilege.

(4)

The chief executive must not delegate the power in this section.

(5)

This section does not limit—

(a)

any other enactment or rule of law; or

(b)

the functions of the chief executive or of any other person or body.

290 Give statement about compliance with New Zealand requirements

(1)

This section applies to a written statement that—

(a)

is about food produced or processed and handled in New Zealand; and

(b)

is about a particular consignment of the food or a particular class of consignment of the food; and

(c)

is to the effect that the food in the consignment or class—

(i)

has been produced or processed and handled as required by the applicable requirements of this Act, to the extent to which they are relevant to the intended use of the food; or

(ii)

is safe or suitable, so far as is relevant to the intended use of the food; or

(iii)

has been subject to specified treatment.

(2)

The chief executive may give a statement to a person if—

(a)

the chief executive is satisfied that it is correct; and

(b)

the person asks for it; and

(c)

the person pays any fee prescribed for the giving of statements.

(3)

The chief executive may determine the form and content of the statement.

(4)

The chief executive may withdraw the statement at any time if satisfied that—

(a)

it was incorrectly or inappropriately given; or

(b)

events or circumstances occurring since it was given mean that—

(i)

it no longer applies; or

(ii)

it is misleading.

(5)

The statement is not a guarantee that the food—

(a)

necessarily meets the commercial requirements of the consumer; or

(b)

necessarily meets the specific requirements of overseas markets; or

(c)

is safe and suitable on arrival in the overseas market.

(6)

The Crown, the chief executive, and the employees of the Ministry are not liable in any civil proceedings for loss arising because the relevant authority of an overseas market does not admit food about which the chief executive has given a statement to the market.

Approvals by chief executive

291 Approvals by chief executive

(1)

This section applies if a requirement of this Act requires any of the following to be used:

(a)

an approved document, material, or facility:

(b)

an approved person or approved class of persons.

(2)

The chief executive may approve—

(a)

a document, material, or facility; or

(b)

a person or a class of persons.

(3)

Examples of the kinds of documents, materials, or facilities that the chief executive may approve are—

(a)

compounds:

(b)

devices:

(c)

documents:

(d)

equipment:

(e)

identification systems:

(f)

laboratories:

(g)

methodologies:

(h)

places:

(i)

sampling techniques:

(j)

security devices:

(k)

systems:

(l)

techniques.

(4)

Before approving a document, material, or facility, the chief executive—

(a)

must be satisfied that the document, material, or facility is appropriate, safe, and suitable for a purpose for which a requirement of this Act may require it to be used; and

(b)

must take into account the criteria prescribed in regulations made under section 386, if there are any such regulations.

(5)

Before approving a person or class of persons, the chief executive—

(a)

must be satisfied that the person or class of persons has the competencies, training, qualifications, and experience that are suitable for a purpose for which a requirement of this Act may require the person or class of person to be used; and

(b)

must take into account the criteria prescribed in regulations made under section 386, if there are any such regulations.

(6)

The chief executive may give an approval under this section subject to conditions.

(7)

In the case of an approved laboratory, a condition may include reporting requirements relating to certain test results (including specified contaminants in food).

(8)

An approval must end within 3 years from the date of approval.

(9)

The chief executive gives approval by issuing a notice under section 405.

(10)

The notice must state—

(a)

any conditions subject to which the approval is given; and

(b)

the date on which the approval ends.

(11)

Before an approval ends, the chief executive may issue a new notice under section 405 approving the document, material, or facility or the persons or class of person for a period of up to 3 years.

(12)

The chief executive may suspend or withdraw an approval by issuing a notice under section 405.

(13)

For the purposes of subsection (12), Parts 3 and 4 of Schedule 4 apply to the suspension or withdrawal of approval to the extent that they are relevant and with all necessary modifications.

Information collection by chief executive

292 Require production of information for purpose of determining safety and suitability of food

(1)

This section applies if the chief executive reasonably suspects that an operator of a food business has any information described in subsection (2) that the chief executive considers is necessary for the purpose of determining the safety and suitability of food to protect human life or public health.

(2)

The information referred to in subsection (1) is information about—

(a)

food or anything that may become food, or anything that has become food; or

(b)

a food-related accessory used in producing or processing and handling food for sale; or

(c)

any place used for the production, processing and handling, or sale of food.

(3)

The chief executive may—

(a)

require the operator of the food business to produce the information to the chief executive or a food safety officer; and

(b)

copy the information or require a food safety officer to copy the information.

(4)

A copy made under subsection (3), certified by the chief executive or the food safety officer as a true and correct copy, is presumed to be a true and correct copy, until the contrary is proved.

(5)

Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to requirements made, and the copying of information, under this section.

293 Require production of information if reasonable belief that requirement of this Act has been breached

(1)

This section applies if the chief executive reasonably believes that, in breach of a requirement of this Act, a person is in possession of—

(a)

any food for sale; or

(b)

any substance, appliance, or food-related accessory used in producing or processing and handling food for sale; or

(c)

any advertisements or labels about food for sale.

(2)

The chief executive may—

(a)

require the person to produce any information about the importation, purchase, reception, manufacture, processing and handling, preparation, packing, storage, transport, delivery, or sale of the food, substance, appliance, or food-related accessory to the chief executive or a food safety officer; and

(b)

copy the information or require a food safety officer to copy the information.

(3)

A copy made under subsection (2), certified by the chief executive or the food safety officer as a true and correct copy, is presumed to be a true and correct copy until the contrary is proved.

(4)

For the purposes of this section, any thing that has been seized or detained, whether under this Act or any other enactment, must be treated as being in the possession of the person who had it in his or her possession when it was seized or ordered to be detained.

(5)

Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to requirements made, and the copying of information, under this section.

Powers of verifiers

294 Verifiers’ rights of access and certain verifier powers

(1)

The operator of a food business that is operating under a risk-based measure must provide a verifier with the following:

(a)

reasonable access to the places covered by the risk-based measure that is being verified; and

(b)

reasonable access to the risk-based measure; and

(c)

reasonable access to information about the risk-based measure; and

(d)

reasonable access to documents that are required to be kept under the risk-based measure; and

(e)

reasonable access to food and to food-related accessories that are used in connection with the risk-based measure or that ought to be used in connection with the risk-based measure.

(2)

A verifier must do the following:

(a)

give the operator reasonable notice of the verifier’s intention to carry out the verification; and

(b)

identify himself or herself on entry to the place and when asked at any time by any person at the place.

(3)

A verifier is not required to comply with subsection (2)(a) if giving notice would defeat the purpose of the particular visit.

(4)

A verifier may do 1 or both of the following if necessary for the purpose of the verification:

(a)

open food-related accessories, such as containers and packages, used in connection with the risk-based measure and verify their contents:

(b)

identify or mark food and food-related accessories.

(5)

A verifier may ask an operator or another person for assistance in carrying out a verification.

(6)

A person providing assistance under subsection (5) is protected from civil and criminal liability for an act that the person does or omits to do—

(a)

under the supervision of, and as instructed by, the verifier; and

(b)

in good faith.

(7)

Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to any information or document required to be produced under this section.

295 Recognised persons’ rights of access

(1)

The operator of a food business must provide a recognised person (other than a verifier) with the following, so as to enable the person to perform functions or duties or exercise powers:

(a)

reasonable access to places used by the operator for the business; and

(b)

reasonable access to information relating to the business; and

(c)

reasonable access to documents relating to the business; and

(d)

reasonable access to food and to food-related accessories.

(2)

A recognised person must do the following:

(a)

give the operator reasonable notice of the recognised person’s intention to perform the functions or duties or exercise the powers; and

(b)

identify himself or herself on entry to the place and when asked at any time by any person at the place.

(3)

A recognised person is not required to comply with subsection (2)(a) if giving notice would defeat the purpose of the particular visit.

(4)

A recognised person may do 1 or both of the following if necessary for the purpose of performing the functions or duties or exercising the powers:

(a)

open food-related accessories, such as containers and packages:

(b)

identify or mark food and food-related accessories.

(5)

A recognised person may ask an operator or another person for assistance in performing the functions or duties or exercising the powers.

(6)

A person providing assistance under subsection (5) is protected from civil and criminal liability for an act that the person does or omits to do—

(a)

under the supervision of, and as instructed by, the recognised person; and

(b)

in good faith.

(7)

Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to any information or document required to be produced under this section.

Powers and duties of food safety officers

296 Powers in sections 292 and 293 exercisable by food safety officers

A food safety officer may exercise the powers of the chief executive under sections 292 and 293 and has the same immunity and other protections that the chief executive has in exercising those powers.

297 Power to ask for assistance

(1)

A food safety officer who considers it necessary to do so may ask a person for assistance in performing the officer’s functions or duties, or exercising the officer’s powers, under a requirement of this Act (other than the power of entry under section 310).

(2)

If the person agrees to assist, he or she—

(a)

must act under the supervision of, and as instructed by, the officer; and

(b)

may accompany the officer into any place that the officer enters.

(3)

The person is protected from civil and criminal liability for an act that the person does or omits to do—

(a)

under the supervision of, and as instructed by, the officer; and

(b)

in good faith.

298 Purposes of powers in sections 296, 299 to 308, and 310 to 312

A food safety officer may exercise a power in any of sections 296, 299 to 308, and 310 to 312 only for 1 or more of the following purposes:

(a)

to determine whether the applicable requirements of this Act have been, or are being, complied with:

(b)

to ensure that the applicable requirements of this Act have been, or are being, or will be complied with:

(c)

to investigate any thing that might have, or might potentially have, contaminated food or a food-related accessory:

(d)

to determine whether food is safe and suitable:

(e)

to determine whether food or a food-related accessory poses a risk to human life or public health.

299 Powers to facilitate entry, search, and seizure

(1)

A food safety officer must take all reasonable steps to ensure that any equipment the officer has taken into a place is—

(a)

free from contamination; and

(b)

in good working order.

(2)

Section 110(e) of the Search and Surveillance Act 2012 applies.

300 Information powers and evidence gathering

(1)

A food safety officer may get a copy of a document relating to the applicable requirements of this Act by—

(a)

copying the document at the place where it is; or

(b)

removing the document to another place for as long as is necessary to copy it; or

(c)

directing the person in charge of it to send the document or a copy of it to the officer by a reasonable means that the officer specifies and within a reasonable time that the officer specifies.

(2)

An officer may take photographs, video recordings, or other visual images.

(3)

An officer may take audio sound recordings.

(4)

An officer may make electronic records.

(5)

Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to anything done by an officer under this section.

301 Powers of examination, identification, and rectification, and associated detention powers

(1)

A food safety officer may examine every thing, process, or operation.

(2)

If an officer reasonably believes that any container, package, or other thing contains food or a food-related accessory, the officer may—

(a)

open the container, package, or other thing; or

(b)

direct the owner, person in charge, or importer of the container, package, or other thing, or the owner or occupier of the place where it is, to open it.

(3)

An officer may identify food or a food-related accessory and require the person in charge to hold it, until a further lawful direction of the officer,—

(a)

at the place where the food or food-related accessory is; or

(b)

at any other reasonable place that the officer specifies.

(4)

An officer may use, or require the use of, a reasonable means to identify or mark food or a food-related accessory.

(5)

An officer may do the following to food or a food-related accessory:

(a)

secure it by—

(i)

marking it; or

(ii)

using some other means; and

(b)

hold it at a place; and

(c)

direct its owner not to trade in it or use it until—

(i)

the results of testing are available; or

(ii)

necessary remedial action has been completed.

(6)

An officer may require that food, imported food, food that is being held before export, or a food-related accessory be rectified if the officer reasonably believes that it—

(a)

is not safe and suitable; and

(b)

does not comply with the applicable requirements of this Act.

302 Power to issue improvement notice

(1)

A food safety officer may issue an improvement notice to any person if the officer reasonably believes that the person is failing, or has failed, to comply with 1 or more applicable requirements of this Act.

(2)

An improvement notice must state—

(a)

the applicable requirement of this Act that the food safety officer reasonably believes the person is failing, or has failed, to comply with; and

(b)

the reasons for the food safety officer’s reasonable belief; and

(c)

the nature and extent of the failure to comply with the requirement; and

(d)

the date by which the person must comply with the requirement; and

(e)

the person’s right, under section 303, to seek a review of the decision to issue the improvement notice.

(3)

A food safety officer may, by written notice, withdraw an improvement notice at any time, but may reissue it if subsection (1) applies.

(4)

An improvement notice must be issued in accordance with section 378.

(5)

A person to whom an improvement notice is issued must comply with the notice, subject to any extension of the date by which the person must comply with the applicable requirement of this Act that the food safety officer may grant on the person’s request.

303 Review of improvement notice

(1)

A person to whom an improvement notice is issued under section 302 may apply to have it reviewed.

(2)

For the purposes of subsection (1), sections 355(2) to (4), 356(1) and (3), 358, and 359 apply to an improvement notice, subject to the following modifications:

(a)

the improvement notice must be treated as if it were a decision described in section 354(4); and

(b)

any references in those sections to the notice of the decision must be read as if they were references to the improvement notice; and

(c)

any references in those sections to the relevant territorial authority must be read as if they were references to the food safety officer who issued the improvement notice (the issuing officer); and

(d)

any references in those sections to the chief executive must be read as if they were references to—

(i)

the territorial authority that employs, or has engaged, the issuing officer, if that issuing officer is employed or engaged by a territorial authority; or

(ii)

the chief executive, if the issuing officer is employed or engaged by the chief executive; and

(e)

any references to the Ministry must be read as if they were references to—

(i)

the territorial authority that employs, or has engaged, the issuing officer, if that issuing officer is employed or engaged by a territorial authority; or

(ii)

the Ministry, if the issuing officer is employed or engaged by the chief executive.

(3)

The chief executive may initiate a review of a food safety officer’s decision to issue an improvement notice on his or her initiative and without an application for review being made under subsection (1).

(4)

For the purposes of subsection (3), sections 358 and 359 apply to the improvement notice, subject to the following modifications:

(a)

the improvement notice must be treated as if it were a decision described in section 354(4); and

(b)

any references in those sections to the chief executive must be read as if they were references to—

(i)

the territorial authority that employs, or has engaged, the issuing officer, if that issuing officer is employed or engaged by a territorial authority; or

(ii)

the chief executive, if the issuing officer is employed or engaged by the chief executive; and

(c)

any references to the Ministry must be read as if they were references to—

(i)

the territorial authority that employs, or has engaged, the issuing officer, if that issuing officer is employed or engaged by a territorial authority; or

(ii)

the Ministry, if the issuing officer is employed or engaged by the chief executive.

(5)

Nothing in section 358(4) (as applied by subsection (2) or (4)) limits or affects the privilege against self-incrimination.

304 Powers to take, purchase, and sample

(1)

A food safety officer may buy or take advertisements or labels that the officer reasonably believes are intended for use in connection with the sale of food or a food-related accessory.

(2)

An officer may buy food.

(3)

An officer may take a sample of food.

(4)

An officer who wants to exercise the power in subsection (3) by taking a sample of food that is in an unopened package may direct the owner, person in charge, or importer of the food or food-related accessory, or the owner or occupier of the place where the food is, to open the package.

(5)

An officer may buy a food-related accessory.

(6)

An officer may take an example of a food-related accessory.

(7)

An officer may take a swab of a food-related accessory.

(8)

An officer may take a sample of any thing that is or has been or may be in contact with or in the vicinity of food or a food-related accessory.

(9)

An officer may direct the owner, person in charge, or importer of food or a food-related accessory, or the owner or occupier of the place where the food or food-related accessory is, to take a sample of the food or an example of the food-related accessory.

(10)

An officer who exercises the powers in any of subsections (2), (3), and (5) to (9) must tell the owner, person in charge, or importer of the food or food-related accessory, or the owner or occupier of the place where the food or food-related accessory is, whether or not the officer intends to exercise the power in section 312. However, having told the owner, person in charge, importer, owner of the place, or occupier of the place that the officer intends to exercise the power in section 312, the officer is not required to exercise the power.

305 Power to interrupt operations and give certain directions

(1)

A food safety officer may, by a direction to the person in charge or in control of any food or any advertisement, label, process, operation, or food-related accessory, interrupt, restrict, or prohibit the use of the food, advertisement, label, process, operation, or food-related accessory.

(2)

An officer may direct the person in charge or in control of food or any advertisement, label, process, operation, or food-related accessory to take any reasonable action that the officer specifies.

306 Powers to seize, condemn, and require disposal

(1)

A food safety officer may seize, detain, and dispose of food or a food-related accessory if the officer reasonably believes that the food or food-related accessory does not comply with the applicable requirements of this Act.

(2)

An officer may seize and detain food or a food-related accessory if the officer reasonably believes that the food or food-related accessory constitutes a risk to human life or public health.

(3)

An officer may seize and detain food or a food-related accessory if the officer reasonably believes, after making the inquiries that are reasonable in the circumstances, that the food or food-related accessory—

(a)

has been abandoned; or

(b)

has no apparent or readily identifiable owner.

(4)

An officer may seize and detain advertisements or labels that breach or fail to comply with a requirement of this Act.

(5)

An officer may condemn or dispose of food or a food-related accessory that the officer reasonably believes is not safe or not suitable for human consumption.

(6)

An officer may condemn and require the disposal of food that the officer reasonably believes is not safe or not suitable for human consumption.

(7)

An officer may seize and dispose of food that the officer reasonably believes is not safe or not suitable for human consumption.

(8)

An officer may reasonably believe that an entire consignment or batch of food is not safe or not suitable for human consumption for the purpose of exercising a power in any of subsections (5) to (7) if the officer—

(a)

samples part of the consignment or batch; and

(b)

forms the opinion that the sample is unsafe for human consumption; and

(c)

forms the opinion that the consignment or batch—

(i)

has probably been managed in the same way as the sample; or

(ii)

has been subject to the same conditions or treatment as the sample.

(9)

Part 4 of the Search and Surveillance Act 2012 (other than subparts 2, 3, 6, and 8 and sections 118, 119, 125(4), 131(5)(f), and 133) applies.

307 Power to restrict use of or close place

A food safety officer may restrict the use of or close, a place for non-compliance with the applicable requirements of this Act that the officer reasonably believes would result in food not being safe or suitable.

308 Other powers

(1)

A food safety officer may ask about a document relating to the applicable requirements of this Act.

(2)

An officer may require a person in possession of food for sale, or for delivery, to state—

(a)

the person’s full name and full address; and

(b)

the person’s telephone numbers; and

(c)

the person’s date of birth; and

(d)

the person’s occupation; and

(e)

the full name and full address of the person from whom the food was obtained, if that person is known; and

(f)

whether the person is employed or self-employed, and (if an employee) the name of the person’s employer.

(3)

An officer may exclude a particular person from all or part of a place.

(4)

Subsection (5) applies if a food safety officer believes on reasonable grounds that a person is committing or has committed an offence against this Act.

(5)

If this subsection applies, a food safety officer may at any reasonable time—

(a)

question the person believed to be committing or to have committed an offence or any other person; and

(b)

require the person being questioned to provide an answer, including any explanation or information concerning any food or food-related accessory or any place, record, document, or thing relating to trade in any food.

(6)

Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (privilege and confidentiality) applies to any information or document required to be produced under this section.

309 Means of exercising powers in sections 299 to 308

(1)

This section applies to the powers in sections 299 to 308.

(2)

A food safety officer may exercise any of the powers if the officer enters a place, as described in section 310.

(3)

An officer may exercise any of the powers if the officer has not exercised a power to enter a place but is at the place.

(4)

An officer may exercise any of the powers by a telecommunication means if doing so is reasonable in the circumstances.

(5)

An officer who intends to exercise a power under subsection (4) must—

(a)

use the means only at a reasonable time; and

(b)

make a reasonable effort to speak to the person in charge of the place where food or a food-related accessory is; and

(c)

make a reasonable effort to ensure that the person to whom the officer is speaking understands that the officer is a food safety officer before the officer exercises the power.

(6)

An officer may exercise any of the powers by an electronic means if doing so is reasonable in the circumstances.

(7)

An officer who intends to exercise a power under subsection (6) must—

(a)

make a reasonable effort to communicate with the person in charge of the place where food or a food-related accessory is; and

(b)

make a reasonable effort to ensure that the person with whom the officer is communicating understands that the officer is a food safety officer before the officer exercises the power.

(8)

Section 131 of the Search and Surveillance Act 2012 applies.

(9)

An officer is not required to comply with section 131(1) of the Search and Surveillance Act 2012 if the place is an authorised place that is owned or occupied by the Crown.

310 Powers to enter

(1)

An officer’s power to enter without a search warrant is described in section 311.

(2)

An officer’s power to enter with a search warrant is described in sections 322 to 327.

311 Power to enter without search warrant

(1)

A food safety officer may enter a place described in subsection (2) without a search warrant.

(2)

The places are—

(a)

a place where a food business operates:

(b)

a place where a person intends to operate a food business:

(c)

the specific place in a dwellinghouse or marae where a food business operates:

(d)

the places necessary to get to the specific place in the dwellinghouse or marae where a food business operates:

(e)

a place, except a dwellinghouse or marae, where the officer reasonably believes documents relating to trading in food will be found:

(f)

a place, except a dwellinghouse or marae, adjoining or near to a food business where the officer reasonably believes activities are being carried out that adversely affect the food business:

(g)

a place, except a dwellinghouse or marae, adjoining or near to a food business whose conditions the officer reasonably believes are adversely affecting the food that the food business is trading in:

(h)

an international port:

(i)

an authorised place:

(j)

any other place, except a dwellinghouse or marae, where the officer reasonably believes that—

(i)

imported food is held; or

(ii)

food is being traded in; or

(iii)

a food-related accessory is being traded in.

(3)

Part 4 of the Search and Surveillance Act 2012 (other than subparts 2, 3, 6, and 8 and sections 118 and 119) applies to anything done by an officer under this section.

(4)

Any exercise of the power of entry at a marae or a building associated with a marae must take account of the kawa of the marae so far as practicable in the circumstances.

312 Power to test samples of food or examples of food-related accessories

(1)

This section applies to a food safety officer who acquires a sample of food or an example of a food-related accessory—

(a)

under section 304; or

(b)

from a member of the public who has complained about the food or food-related accessory.

(2)

The officer may—

(a)

test the sample or example; or

(b)

arrange for the testing of the sample or example; or

(c)

require the owner, person in charge, or importer of the food or food-related accessory, or the owner or occupier of the place, to—

(i)

arrange for the testing of the sample or example; and

(ii)

provide the results to the officer.

(3)

The owner, person in charge, or importer of the food or food-related accessory, or the owner or occupier of the place from which the sample or example was acquired,—

(a)

must pay the costs reasonably incurred in taking the sample or example and testing it; and

(b)

is not entitled to compensation for losses resulting from the taking or testing of a sample or example if the taking or testing was reasonable and was done in a reasonable manner.

313 Duties relating to imported consignments

(1)

If food or a food-related accessory seized and detained under section 306 is still under the control of Customs or has not been given a biosecurity clearance by the Ministry, the food safety officer must give written notice to Customs or the Ministry.

(2)

Customs or the Ministry must ensure that the food or food-related accessory is not released from the control of Customs, or destroyed by Customs or the Ministry, until the food safety officer has given his or her written consent.

314 Detaining food or food-related accessory seized

(1)

This section applies to food or a food-related accessory that a food safety officer seizes and detains under section 306.

(2)

The officer may decide that the food or food-related accessory must be detained at the place where the officer seized it.

(3)

Alternatively, the officer may decide that the food or food-related accessory must be removed to another place and detained there.

(4)

Food or a food-related accessory to which subsection (3) applies is removed and detained at the cost of the person who imported it or who owned it at the time it was seized.

(5)

However, if the officer does not know who the importer or owner is, the food or food-related accessory is removed and detained at the cost of the person who possessed it at the time it was seized.

(6)

The chief executive may waive the payment of all or any of the cost referred to in subsection (4) or (5) if he or she is satisfied that, in all the circumstances, it would be unreasonable or inappropriate to require the person to pay all or any of the cost.

(7)

Despite subsection (6), if the officer is employed or engaged by a territorial authority, the authority or a person authorised by it may exercise the power in that subsection.

315 Exporting or returning imported food or food-related accessory that has been detained

(1)

If the chief executive does not give directions under section 279 about imported food or an imported food-related accessory that a food safety officer seized and detained under section 306, the officer must offer the importer, subject to any conditions that the chief executive may impose (if any), the options of—

(a)

exporting it; or

(b)

returning it to its place of origin.

(2)

In determining whether to impose conditions for the purposes of subsection (1), the chief executive may take into account the following matters:

(a)

the requirements of the place of origin or the destination markets of the imported food or imported food-related accessory:

(b)

the reason for the seizure of the imported food or imported food-related accessory:

(c)

New Zealand’s international obligations.

(3)

All costs reasonably incurred in the seizure, detention, and disposal—

(a)

must be paid by the importer before the disposal; and

(b)

are recoverable from the importer as a debt due to the Crown.

316 Releasing food or food-related accessory that has been detained

(1)

A food safety officer must release food or a food-related accessory that the officer seized and detained under section 306 when satisfied that—

(a)

the costs of removal and detention under section 314 have been paid and the other applicable requirements of this Act have been complied with; and

(b)

the food or food-related accessory is safe and suitable; and

(c)

the food or food-related accessory is not required as evidence in proceedings for an offence against this Act.

(2)

The officer must release the food or food-related accessory to the person who possessed it at the time it was seized.

317 Application to District Court for return of seized food or food-related accessory

(1)

This section applies when a person claims an interest in food or a food-related accessory that has been seized and detained.

(2)

The person may apply to a District Court for an order described in section 318.

(3)

The application must—

(a)

be made as an originating application; and

(b)

be made within 5 working days of the seizure and detention; and

(c)

be served on the respondent on or before the date on which it is filed in the court; and

(d)

be filed in the office of the court nearest to the place where the food or food-related accessory was seized and detained; and

(e)

be dealt with as an originating application; and

(f)

be dealt with under the rules of procedure under the District Courts Act 1947, as modified by paragraphs (a) to (e).

318 District Court may order return of seized food or food-related accessory

(1)

This section applies when a person applies to a District Court under section 317.

(2)

The court may order that—

(a)

the seizure of the food or food-related accessory be disallowed as to all the food or food-related accessory or a part of it and that the food or food-related accessory, or part of it, be returned or made available to the person within the time specified in the order; or

(b)

the detention of the food or food-related accessory be ended as to all the food or food-related accessory or a part of it and that the food or food-related accessory, or part of it, be returned or made available to the person within the time specified in the order.

(3)

Alternatively, the court may refuse the application.

(4)

The court must not make an order under subsection (2) if the court considers that—

(a)

the use to which the food or food-related accessory, or the part of it, is intended to be put is likely to involve the commission of an offence; or

(b)

the continued detention of the food or food-related accessory, or the part of it, is expedient for the purposes of an investigation or proceedings pending under this Act; or

(c)

that the food or food-related accessory may be liable to forfeiture.

(5)

The court may impose conditions on an order it makes under subsection (2).

(6)

An order under subsection (2) is final and binding on all parties.

319 Food or food-related accessory unable to be released

(1)

This section applies when—

(a)

a food safety officer has seized and detained food or a food-related accessory under section 306; and

(b)

the officer cannot release the food or food-related accessory under section 316; and

(c)

either—

(i)

no one has applied for disallowance of the seizure and detention; or

(ii)

all proceedings about disallowance have been determined or the time for bringing them has ended.

(2)

If the food safety officer had a contract of service or a contract for services with the Ministry at the time of the seizure and detention, the food or food-related accessory becomes the property of the Ministry.

(3)

If the officer had a contract of service or a contract for services with a territorial authority at the time of the seizure and detention, the food or food-related accessory becomes the property of the territorial authority.

(4)

The food or food-related accessory is disposed of at the cost of its importer or owner at the time it was seized.

(5)

All costs reasonably incurred in the seizure, detention, and disposal—

(a)

must be paid by the importer or owner before the disposal; and

(b)

are recoverable from the importer or owner as a debt due to the Crown.

(6)

If the officer does not know who the importer or owner is, the food or food-related accessory is disposed of at the cost of the person who possessed it at the time it was seized.

(7)

The chief executive may waive the payment of all or any of the costs referred to in subsection (5) if he or she is satisfied that, in all the circumstances, it would be unreasonable or inappropriate to require the person to pay all or any of the costs.

(8)

Despite subsections (5) to (7), if the officer is employed or engaged by a territorial authority,—

(a)

the costs referred to in subsections (5) and (6) are recoverable by the authority; and

(b)

the authority or a person authorised by it may exercise the power in subsection (7).

320 Reasonable belief by food safety officer

If this Act requires a food safety officer to reasonably believe something before exercising a power, it is sufficient if a more highly ranked food safety officer or the chief executive reasonably believes it and directs the food safety officer to exercise the power.

321 Matters may be completed by different food safety officer

(1)

An action initiated or taken under this Act by a food safety officer may be completed by another food safety officer.

(2)

Without limiting subsection (1), if an officer has given any notice, authorisation, or consent under this Act (whether or not subject to conditions), any food safety officer may—

(a)

take further steps on or in relation to that notice, authorisation, or consent; or

(b)

revoke or withdraw it; or

(c)

vary it; or

(d)

revoke or vary any condition on or subject to which it was given.

Search warrants

322 Application for search warrant

(1)

The following provisions of the Search and Surveillance Act 2012 apply in relation to applications for a search warrant:

(a)

section 98 (application for search warrant):

(b)

section 99 (application must be verified):

(c)

section 100 (mode of application for search warrant).

(2)

An application for a search warrant is made to an issuing officer.

323 Issue of search warrant

(1)

This section applies if an issuing officer reasonably believes that there is, at a place, any thing—

(a)

in relation to which an offence against this Act has been or is being committed; or

(b)

that has been, is being, or is intended to be used by a person for the commission of an offence against this Act; or

(c)

that is evidence of the commission of an offence against this Act.

(2)

The issuing officer may issue a search warrant for a place.

(3)

Sections 102 to 104 and 107 and subpart 5 of Part 4 of the Search and Surveillance Act 2012 apply.

324 Who can execute search warrant

Whomever the warrant is directed to, it may be executed by—

(a)

any constable; or

(b)

any food safety officer.

325 Use of copy of search warrant

Section 105 of the Search and Surveillance Act 2012 applies.

326 Powers under search warrant

(1)

This section applies to a constable or food safety officer who is authorised by a search warrant to exercise powers at a place.

(2)

Any exercise of the powers at a marae or a building associated with a marae must take account of the kawa of the marae so far as practicable in the circumstances.

(3)

The constable or officer may search for, inspect, and seize food or a food-related accessory that the constable or officer reasonably suspects has been the subject of a direction to recall food or a food-related accessory given by the chief executive under section 284 that has not been complied with.

(4)

The constable or officer may exercise—

(a)

all the powers of a food safety officer under any of sections 299 to 308 and 312; or

(b)

the powers of a food safety officer specified in the warrant.

(5)

Section 110 of the Search and Surveillance Act 2012 applies.

327 Carrying out search powers

(1)

Sections 106, 111 to 114, 115(1)(b) and (3), 116 to 130, 131(1) to (5), and 132 to 135 of the Search and Surveillance Act 2012 apply.

(2)

However, sections 118 and 119 of that Act apply only to search warrants issued to constables.

328 Disposal of property seized under search warrant

(1)

Part 4 of the Search and Surveillance Act 2012 (other than subparts 2, 3, 4, and 8) applies.

(2)

If a person applies to the court under subpart 6 of Part 4 of the Search and Surveillance Act 2012, the court must take into account whether or not the property is safe or suitable.

329 Retention of documents

Section 101 of the Search and Surveillance Act 2012 applies to a copy (whether in electronic form or otherwise) of every written application for a search warrant or (in the case of an oral application) the record of the application made by the issuing officer.

Compliance orders

330 Meaning of compliance order

(1)

In sections 331 to 342, compliance order

(a)

means an order made by a District Court under this section about anything that, in the court’s opinion, breaches or is likely to breach a requirement of this Act; and

(b)

to avoid doubt, includes an order that has been confirmed or changed under section 337.

(2)

The order may prohibit a person from starting anything that the person—

(a)

intends to do; or

(b)

intends to have done by another person.

(3)

The order may require a person to stop anything that the person—

(a)

is doing; or

(b)

is having done by another person.

(4)

The order may require a person to do something to avoid, remedy, or mitigate any actual or likely adverse effect of anything that the person—

(a)

is doing; or

(b)

intends to do; or

(c)

is having done by another person; or

(d)

intends to have done by another person.

(5)

The order may require a person to meet the actual and reasonable costs and expenses that the Crown or a territorial authority has incurred or is likely to incur in avoiding, remedying, or mitigating any adverse effect of the person’s failure to comply with a compliance order made against the person earlier.

(6)

For the purposes of subsection (5), actual and reasonable costs and expenses include—

(a)

the costs of investigation, supervision, and monitoring; and

(b)

the costs of actions required to avoid, remedy, or mitigate the adverse effect.

331 Application for compliance order

(1)

The following may apply to a District Court for a compliance order:

(a)

the chief executive; or

(b)

a territorial authority.

(2)

An application under this section—

(a)

must be made by originating application; and

(b)

is subject to the District Courts Rules 2009, as modified by—

(ii)

rules made under section 342.

332 Notification of application

(1)

The chief executive or, as the case may be, the territorial authority concerned must serve notice of the application on every person whom it directly affects.

(2)

The notice must be served within—

(a)

5 working days after the date on which the application is filed in the court; or

(b)

a longer time that the court allows.

(3)

Nothing in this section applies to an interim compliance order made under section 335.

333 Right to be heard on application

(1)

The court must hear—

(a)

the applicant; and

(b)

every person against whom the order is sought who wishes to be heard.

(2)

Nothing in this section applies to an interim compliance order made under section 335.

334 Decision on application

(1)

The court may—

(a)

make a compliance order; or

(b)

refuse to make a compliance order.

(2)

The court may make a compliance order on any terms that it considers appropriate, including the provision of security or the entry into a bond for performance.

(3)

The court may order that a compliance order applies to the personal representatives, successors, and assignees of the person to whom the order is addressed to the same extent as it applies to the person.

(4)

A compliance order takes effect when the later of the following occurs:

(a)

the order is served; or

(b)

a date stated in the order is reached.

335 Interim compliance orders

(1)

A District Court may make an interim compliance order without—

(a)

requiring service under section 332; or

(b)

holding a hearing.

(2)

The court must consider—

(a)

whether human life or public health is likely to be endangered through the sale of the food or food-related accessory concerned if the order is not made; and

(b)

whether the integrity of a statement made under section 290 is likely to be prejudiced if the order is not made; and

(c)

whether the court should hear the applicant or any person against whom the order is sought; and

(d)

any other matters that the court considers appropriate.

(3)

The court must direct the applicant or another person to serve a copy of the interim compliance order on the person or persons against whom the order is made.

(4)

The interim compliance order—

(a)

takes effect when the later of the following occurs:

(i)

the order is served; or

(ii)

a date stated in the order is reached; and

(b)

remains in force until the earlier of the following occurs:

(i)

the application for a compliance order is determined; or

(ii)

the interim order is cancelled under section 337.

336 Form and content of interim compliance order or compliance order

An interim compliance order or a compliance order must state—

(a)

the name or names of the person or persons against whom it is made; and

(b)

the reasons for the order; and

(c)

the action required to be taken, stopped, or prohibited; and

(d)

the period within which the action must be taken or stopped (which must be a reasonable period within which to take the action or to stop the action); and

(e)

the consequences of not complying with the order or lodging an appeal against the order; and

(f)

the right to apply under section 337 for the order to be changed or cancelled, and the right to appeal against the order under section 339; and

(g)

the name and office address of the applicant.

337 Change or cancellation of interim compliance order or compliance order

(1)

A person against whom an interim compliance order has been made without the person having been heard may apply to a District Court to change or cancel the order.

(2)

The court—

(a)

must hear from the person and the applicant for the order; and

(b)

may confirm, change, or cancel the interim compliance order.

(3)

A person directly affected by a compliance order may apply to a District Court to change or cancel the order.

(4)

The applicant under subsection (3) must serve notice of the application—

(a)

within 5 working days after making the application; and

(b)

on the applicant for the original compliance order (that is, either the chief executive or, as the case may be, the territorial authority concerned); and

(c)

on any other person who was directly affected by the original compliance order.

(5)

The court must hear—

(a)

the applicant under subsection (3); and

(b)

the applicant for the original compliance order; and

(c)

any other person who—

(i)

was directly affected by the original compliance order; and

(ii)

wishes to be heard.

(6)

The court may—

(a)

change or cancel the compliance order; or

(b)

refuse to change or cancel the compliance order.

(7)

The court hearing an application under this section has the same powers under section 334 as the court that heard the original compliance order had under that section.

338 Compliance with interim compliance order or compliance order

(1)

A person against whom an interim compliance order or a compliance order is made and served must—

(a)

comply with the order; and

(b)

pay all the costs and expenses of complying with the order, unless the order states otherwise.

(2)

An amount payable under an order is recoverable in the same manner as a fine.

(3)

If the person fails to comply with the order, the chief executive or, as the case may be, the territorial authority concerned, may, with the consent of the court, comply with the order on the person’s behalf.

(4)

For the purposes of subsection (3), the chief executive or relevant territorial authority may—

(a)

exercise, or direct the exercise of, any of the powers of a food safety officer; and

(b)

recover the costs and expenses reasonably incurred in complying with the order as a debt due from the person against whom the order was made.

339 Appeals to High Court

(1)

This section applies to a decision of a District Court under section 334, 335, or 337.

(2)

The following persons may appeal to the High Court against the decision:

(a)

a party to the application on which the decision was made; or

(b)

any other person directly affected by the decision.

(3)

The High Court Rules and sections 74 to 78 of the District Courts Act 1947 apply to an appeal under subsection (2)—

(a)

as if it were an appeal under section 72 of the District Courts Act 1947; and

(b)

with all necessary modifications.

340 Appeals to Court of Appeal or Supreme Court

(1)

A party to an appeal under section 339 may appeal to the Court of Appeal or the Supreme Court against any determination of the High Court on a question of law arising in that appeal, with the leave of the court appealed to.

(2)

The Court of Appeal or the Supreme Court hearing an appeal under this section has the same power to adjudicate on the appeal as the High Court had.

(3)

Subsection (1) is subject to section 14 of the Supreme Court Act 2003 (which provides that the Supreme Court must not give leave to appeal directly to it against a decision made in a court other than the Court of Appeal unless it is satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court).

341 Effect of appeal

(1)

The operation of an order that is the subject of an appeal under section 339 or 340 is not suspended by the appeal unless the court appealed to makes an order to that effect under subsection (4).

(2)

The order that is the subject of the appeal may be enforced in the same manner in all respects as if no appeal were pending.

(3)

Subsections (1) and (2) apply unless the court making the order appealed from directs otherwise.

(4)

The court appealed to may, on application, make an order suspending the order that is the subject of the appeal, pending its determination of the appeal.

342 Rules of court

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make rules—

(a)

regulating the practice and procedure of District Courts in proceedings under this Act that relate to orders under sections 334 to 337:

(b)

providing for matters contemplated by, or necessary for giving full effect to, the provisions of this Act that relate to orders under sections 334 to 337.

(2)

The power in subsection (1) is additional to all other powers conferred on the Governor-General by the District Courts Act 1947.

Part 5 Miscellaneous provisions

Subpart 1—Exemptions

Exemption from application of this Act generally

343 Exemption by Order in Council from application of this Act generally

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations exempting the following from the application of all or any requirements of this Act:

(a)

any food or any 1 or more classes or descriptions of food:

(b)

any 1 or more classes or descriptions of persons who trade in food:

(c)

any 1 or more classes or descriptions of operations or places in relation to any trade in food:

(d)

any combination of the things referred to in paragraphs (a) to (c).

(2)

An exemption under this section may be subject to any conditions specified in the regulations.

(3)

An exemption under this section may have retrospective effect.

(4)

This section is not limited by section 33.

Compare: 1999 No 93 s 9(1), (5)

344 When Minister may recommend exemption under section 343

Before recommending the making of regulations under section 343, the Minister must—

(a)

be satisfied that, taking into account the matter to be exempted, 1 or more of the following applies:

(i)

the risk to public health of providing the exemption is negligible; or

(ii)

there are other sufficient safeguards under this Act or any other enactment, or by other means, to minimise any risk to public health in providing the exemption; or

(iii)

there are requirements in another enactment or there are other means that deal with the matter to be exempted besides the applicable requirement of this Act; and

(b)

take into account the following matters:

(i)

the need to protect public health:

(ii)

the desirability of avoiding unnecessary restrictions on trade:

(iii)

the desirability of maintaining consistency between the standards in regulations made under section 383 and any relevant standards, requirements, or recommended practices that apply or are accepted internationally:

(iv)

the need to give effect to New Zealand’s obligations under a relevant international agreement, convention, protocol, or treaty:

(v)

the identifiable costs of the exemption, who bears those costs, and the positive and negative effects on New Zealand consumers and food businesses:

(vi)

the most effective way of achieving the safety and suitability of food:

(vii)

any other matters that the Minister considers relevant; and

(c)

be satisfied that there has been appropriate consultation on the regulations in accordance with section 379.

Compare: 1999 No 93 s 9(2), (4)

Exemptions for certain exports

345 Exemption by Order in Council for certain exports

(1)

The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations exempting food that is to be exported from the requirements of all or any of the following:

(a)

adopted joint food standards or domestic food standards, in the case of food intended for export to a destination other than Australia:

(b)

regulations made under section 383:

(c)

notices made under section 405.

(2)

An exemption under subsection (1) may apply to—

(a)

exports to any destination; or

(b)

exports to specified destinations; or

(c)

exports to any destination other than specified destinations.

(3)

An exemption under subsection (1) may be subject to any conditions specified in the regulations.

(4)

Without limiting anything in this section, food to be exported that may be exempted by Order in Council under subsection (1) includes—

(a)

food that does not meet New Zealand’s labelling requirements:

(b)

food that does not meet New Zealand’s compositional requirements because of what it contains or does not contain:

(c)

food that does not meet New Zealand’s food labelling and compositional requirements.

(5)

To avoid doubt, nothing in this section has the effect of exempting food that is to be exported from any requirements specified in a notice issued under section 60 of the Animal Products Act 1999.

346 When Minister may recommend exemption under section 345

Before recommending the making of regulations under section 345, the Minister must be satisfied that—

(a)

the exemption is necessary or desirable to facilitate access to an overseas market or to overseas markets; and

(b)

he or she has taken into account the requirements of the overseas market or overseas markets to which the food is to be exported; and

(c)

in the case of regulations that would grant an exemption for food intended for export to Australia, the appropriate Australian authority has been consulted; and

(d)

if appropriate, the risks in relation to the safety and suitability of the food are managed by an applicable risk management programme or regulated control scheme under the Animal Products Act 1999 or any other applicable risk-based measure; and

(e)

there has been appropriate consultation on the regulations in accordance with section 379.

347 Exemption by chief executive

(1)

The chief executive may, by notice under section 405, exempt food that is to be exported from the requirements of all or any of the following:

(a)

adopted joint food standards or domestic food standards, in the case of food intended for export to a destination other than Australia:

(b)

regulations made under section 383:

(c)

notices made under section 405.

(2)

Before issuing the notice, the chief executive must—

(a)

be satisfied that the exemption is necessary or desirable to facilitate access to an overseas market or to overseas markets; and

(b)

be satisfied that, if appropriate, the risks in relation to the safety and suitability of food are managed by an applicable risk management programme or regulated control scheme under the Animal Products Act 1999 or any other applicable risk-based measure; and

(c)

take into account the requirements of the overseas market or overseas markets to which the food is to be exported.

(3)

An exemption under subsection (1)—

(a)

must be specific to a particular market or markets and to a particular food; and

(b)

may be subject to any conditions that the chief executive may specify in the notice.

348 Relationship between sections 345 and 347 and Animal Products Act 1999

(1)

Sections 345 and 347 may be used to exempt food that is also an animal material or animal product under the Animal Products Act 1999.

(2)

Nothing in section 345 or 347 limits or affects the application of any notice made under section 60B, or any regulations made under section 60B or 166, of the Animal Products Act 1999.

Other exemptions

349 Exemption for certain persons covered by Animal Products Act 1999

(1)

This section applies to a person who—

(a)

is required to have, or has, a registered risk management programme under the Animal Products Act 1999; or

(b)

is covered by a regulated control scheme under that Act for the production and processing of an animal material or animal product; or

(c)

is exempt under section 9 or 14 of that Act from the requirement to have a risk management programme for an animal material or animal product unless the exemption is provided on the ground that the person is operating, or is required to operate, under a risk-based measure; or

(d)

is exempt under section 13(3) of that Act from the requirement to operate under a risk management programme.

(2)

A person to whom this section applies is exempt from the requirement to operate under an applicable risk-based measure for the activities to which the risk management programme, regulated control scheme, or exemption relates.

350 Exemption for certain persons covered by Wine Act 2003

(1)

Subsection (2) applies to a person who—

(a)

is required to have, or has, a registered wine standards management plan under the Wine Act 2003 for the production and processing of a wine that is also food; or

(b)

is exempt under section 6 or 11 of that Act or under regulations made under that Act from the requirement to have a wine standards management plan unless the exemption is provided on the ground that the person is operating, or is required to operate, under a risk-based measure.

(2)

A person to whom this subsection applies is exempt from the requirement to operate under the applicable risk-based measure for the activities to which the wine standards management plan or exemption relates.

(3)

Subsection (4) applies to a person who is in 1 or more classes of the following categories of persons:

(a)

transporters of commodities or wine:

(b)

producers of commodities:

(c)

persons manufacturing wine products.

(4)

A person to whom this subsection applies is exempt from the requirement to operate under the applicable risk-based measure for the person’s activities relating to the commodities, wine, or wine products.

(5)

In subsections (3) and (4), commodity, wine, and wine product have the meanings given to them in section 4 of the Wine Act 2003.

Subpart 2—Immunity, delegation, and review provisions

Protection from civil and criminal liability

351 Protection from civil and criminal liability

(1)

This section applies to the following persons:

(a)

the chief executive:

(b)

an employee or agent of the Ministry:

(c)

a member, an employee, or an agent of a territorial authority:

(d)

an employee or agent of a recognised agency:

(e)

a recognised person employed or engaged by a recognised agency:

(f)

an employee or agent of a recognised person:

(g)

a food safety officer:

(h)

a person appointed to carry out a review under section 355.

(2)

The person is protected from civil and criminal liability, however it may arise, for any act that the person does or omits to do—

(a)

under a requirement of this Act; or

(b)

in the performance or purported performance of the person’s functions or duties, or the exercise or purported exercise of the person’s powers, under a requirement of this Act—

(i)

in good faith; and

(ii)

with reasonable cause; or

(c)

in the performance or purported performance of the person’s functions or duties, or the exercise or purported exercise of the person’s powers, under this Act—

(i)

in good faith; and

(ii)

with reasonable cause.

(3)

See also section 6 of the Crown Proceedings Act 1950.

(4)

A territorial authority has no immunity under subsection (2) for the actions or omissions of any member, employee, or agent of the territorial authority.

352 Immunity of food donors

(1)

A donor is protected from civil and criminal liability that results from the consumption of food donated by the donor if—

(a)

the food was safe and suitable when it left the possession or control of the donor; and

(b)

as applicable, the donor provided the recipient with the information reasonably necessary to maintain the safety and suitability of the food.

(2)

In this section, donor means a person who donates food—

(a)

in good faith for a charitable, benevolent, or philanthropic purpose; and

(b)

with the intention that the consumer of the food would not have to pay for it.

Delegation

353 Chief executive may delegate

(1)

The chief executive may delegate under section 41 of the State Sector Act 1988 all or any of his or her functions, duties, and powers under this Act.

(2)

Subsection (1) does not apply to the chief executive’s powers in sections 289 and 410.

Review of decisions

354 Application of sections 355 to 360

(1)

Sections 355(1), 356(1) and (2), 357, and 359 apply to decisions that—

(a)

are described in subsection (2); and

(b)

are made by—

(i)

the chief executive; or

(ii)

a person acting under the delegated authority of the chief executive.

(2)

The decisions are a decision to—

(1)

refuse, under section 27, to include a person’s winemaking operations under the person’s registered food control plan or under a national programme; or

(2)

refuse, under section 57, to register an amended food control plan; or

(3)

refuse, under section 57, to register a food control plan; or

(4)

impose or vary, under section 60, conditions on the registration of a food control plan, unless the variation is made on the application of the operator of the food control plan in accordance with the terms of that application; or

(5)

refuse, in accordance with Part 2 of Schedule 4, to renew the registrati