under’ an Act, another statutory instrument or ‘power conferred by an Act or statutory instrument and also under power conferred otherwise by law’. section 14 H 3 Victoria Interpretation of Legislation Act 1984 (Vic); and Statutory Legislation Act 1994 (Vic) Does or is likely to apply. Section 38 definition of subordinate instrument includes an instrument that is not a statutory rule within the meaning of the but is ‘of a legislative character’ 4 South Australia Acts Interpretation Act 1915 (SA) Does or is likely to apply. Definition of statutory instrument in section 4 includes ‘a code or standards made, approved or adopted under an Act’ as well as ‘any other instrument of a legislative character made or in force under an Act’ 5 Western Australia Interpretation Act 1984 (WA) Does not apply. subsidiary legislation in section 6 includes an ‘instrument, made under any written law and having legislative effect’. written law means all Acts and subsidiary legislation in force. Act means Acts of Western Australia. The Standards are not ‘made’ under a WA Act. 6 Tasmania Acts Interpretation Act 1931 (Tas); and Publication Act 1953 (Tas) It probably does not It’s not clear whether the expression ‘under an Act’ includes incorporated material.(eg, s 29) The adopted standards are unlikely to be included under the expression ‘where an Act confers
12 Conflict with regulation 4 (1)(d) Food Regulation 2004 (NSW) Reg 4 (1) (d) of the Food Regulation 2004 (NSW) provides that ‘to demonstrate is to be read as a reference to demonstrate to the satisfaction of the Director-General’. Clause 25 of Standard 3.2.2 provides that: Without limiting the ways in which a food business can demonstrate that the temperature and any heating or cooling process it uses will not adversely affect the microbiological safety of food, a food business satisfies this requirement by complying with – (a) a food safety program that the requirements for food safety programs in the Act, regulations the Act, or a food safety standard other than this Standard; (b) if no such requirements apply to the food business, a ‘food safety program’ as defined in this Standard; (c) a process that according to documented sound scientific evidence is a process that will not adversely affect the microbiological safety of the food; or (d) a process set out in written guidelines based on sound scientific evidence that are recognised by the relevant food industry. You may like to get AGS advice about whether clause 25 conflicts with the modification in 4(1)(d) of the Food Regulations. ‘demonstrate’ means demonstrate to the satisfaction of the Director General. On one interpretation it may mean that each of the methods in (a), (b), (c) or (d) needs to be demonstrated to the satisfaction of the Director General in order to satisfy the requirement. The requirement may be to demonstrate that the temperature and any heating or cooling process it uses will not adversely affect the microbiological safety of food. Or, it might be that the requirement is that the temperature and heating or cooling the food business uses will not adversely affect the microbiological safety of food. We would suggest that the modifying provision be amended to make it clear that clause 25 operates so as to require the Director-General to be satisfied that the methods in (a), (b), (c) or (d), and any other methods, are demonstrated to the satisfaction of the Director General (if that is the policy).
39 as above ……. comment regarding defn of ‘small package’ in Standard 1.2.1 The definitions in Standard 1.2.1 are expressed to ‘In this Part’ so they should apply to each of the Standards in the Part. For abundant caution, you should provide that ‘this Part’ means Standards 1.2.1, 1.2.2, 1.2.3 and 1.2.4.
is it clear what, in relation to the processed finfish, ‘other than fully retorted finfish’ means? If not, it needs to be explained. ‘cereal based foods for infants’ cereal-based food is defined for the purpose of Standard 2.9.2. It should be defined for the purposes of the Code as that definition won’t apply for Standard 1.6.1 (the microbiological Standard). The definition in Standard 2.9.2 of ‘infant’ and ‘food for infants’ (defined only for the purpose of that Standard) are also be needed in Standard 1.6.1. I note that infant formula product, and egg products are defined for the purposes of the Code. is it clear what ‘cultured’ seeds and grains are? If not, it should be explained. (it seems the term only occurs in this Standard) Problems with the Schedule. Schedule heading should have a clause reference below it ‘(clause 2)’. See comments above about providing definitions for foods (and taking explanations out of column 1) the location of each of the micro-organisms should be identifiable in the table, ie, either in their own item, or paragraphed.
99 ……. Standard 1.2.1, clause 8 “(1) The facilities listed in Column 1 of the Table to this clause are ‘other similar institutions’ for the purposes of Standard 1.1.1 and Part 1.2 of this Code.” NZ ask how it relates to Standard 1.1.1. The phrase ‘prisons, hospitals or other similar institutions listed in the Table to clause 8 of Standard 1.2.1’ occurs in paragraph (g) of the definition of package in Standard 1.1.1. It’s not immediately clear why the detailed material about ‘similar institutions’ has been put in Standard 1.2.1 (application of labelling and other information requirements). The cross references need to be improved. The provision needs to refer to ‘paragraph (g) of the definition of package in clause 2 of Standard 1.1.1’. However, I think the use of the concept ‘and other similar institutions’ in that definition should be examined. It may be better and more direct to have application clauses that apply labelling requirements to foods. ‘other similar institutions’ also occurs in Standard 1.2.11 to disapply the Standard. I can’t find that it is mentioned anywhere else (but I have not searched beyond Part 1.2). There should be an editorial note that illustrates this. The phrase is not picked up in the definition of food for catering purposes in Standard 1.2.1. Is that intentional? Rules about labelling and what information is required to be displayed on or with food flow from whether food is packaged. For instance, clause 2 in Standard 1.2.1 has the effect that food that is not packaged is not required to be labelled. I think the connection could be made more clearly, so that the reader is not left trying to find what the significance of clause 8 is. Do the words ‘for the purposes of Standard 1.1.1 and Part 1.2 of this Code’ refer to anything else? The comprises definitions for ‘acute care hospitals’, psychiatric hospitals’, ‘nursing homes for the aged’, ‘hospices’, ‘same day establishments for chemotherapy and renal dialysis services’, ‘respite care establishments for the aged, ‘same-day aged care establishments’, and ‘low care aged establishments’. These descriptions could be improved. Do the terms occur in the Code?