The Food Act 2008 (the Food Act) provides enforcement agencies with the ability to charge fees in association with food regulatory activities such as registration, notification and surveillance.
The Food Act enables enforcement agencies to make decisions relating to the imposition of fees associated with food regulatory activities so that they can recover costs associated with the administration and enforcement of the Food Act.
If a local government enforcement agency chooses to set fees, the fees must be set in accordance with provisions of the Local Government Act 1995.
In addition to being able to charge fees for registration and notification, enforcement agencies can charge fees for the provision of information or for the carrying out of any services performed in accordance with their prescribed functions under the Food Act.
Under the Food Act a proprietor of a food business needs only to register once – the Act does not contain an annual registration or licensing scheme.
Relevant provisions of the Food Act
- Section 107 – Notification of conduct of a food business
- Section 110 – Registration of a food business
- Section 112 – Variation of conditions or cancellation of registration of food businesses
- Section 140 – Fees and charges may be imposed and recovered by local governments that are enforcement agencies.
Are food businesses that are exempt from registration still required to pay fees?
The Food Regulations 2009 (WA) prescribe certain food businesses as exempt from the registration requirements. These food businesses must however still notify the appropriate enforcement agency of their intention to operate as a food business and enforcement agencies are able to impose a fee for this notification process.
The Food Act enables enforcement agencies to impose fees in order to recover costs for the performance of functions such as inspections and requests for information. As such, businesses that are exempt from registration may still be required to pay annual or one-off fees that relate to food surveillance activities if these fees are imposed by the enforcement agency.
It is important to note that certain types of food businesses that are operated solely not-for-profit are exempt from any notification fee.
Different types of fees
If the enforcement agency has imposed a notification fee, this fee must accompany all written notifications of intention to conduct a food business (except for those community and charitable activities that are exempt from the fee for notification). Notification only applies to those businesses exempt from the registration provisions. Please refer to exempted food businesses for information on businesses to which the notification provisions apply.
A registration fee, if imposed, must accompany all applications for registration of a food business. The purpose of providing enforcement agencies with the ability to charge a registration fee is to enable them to recover costs associated with the approval of food businesses.
The ability to charge businesses annual or other fees must correspond with the ongoing surveillance and monitoring activities undertaken by enforcement agencies on food businesses operating within their districts. A local government is able to impose under provisions of the Local Government Act 1995 these types of fees regardless of whether a food business is registered or exempt from registration.
It may be the case that such a fee is being termed a 'registration fee' when in fact it reflects this ongoing surveillance or inspection charge.
Getting advice on fees
If you are a business operating in Kings Park, Rottnest Island or Perry Lakes, a dairy primary production, processing or transport business, public hospital or a business engaged in the primary production of seafood (bivalve molluscs only), your appropriate enforcement agency is the Department of Health. Fees imposed by the Department of Health are prescribed in the Food Regulations 2009.
For all other businesses, your appropriate enforcement agency is the local government where your premises are located. It is advisable that you seek a schedule of fees and charges from your local government to determine what basis fees are actually being charged. All queries relating to fees need to be directed to local government.
Please note local governments have the ability to charge other fees for services or approvals provided by the local government under the Local Government Act 1995 or other legislation. This means that not all fees being imposed on food businesses necessarily relate to the Act.
Important advice for local government
If fees and charges are being imposed in relation to the administration of the Food Act, it is important that they reflect the relevant provision of the Food Act that enables them to be raised. For example, a registration fee collected in accordance with section 110(4)(b) should be separated from any annual surveillance fee imposed under section 112 or any other fee imposed under section 140. This will ensure that food businesses are clear about the nature of the fees being charged.
A food business that is required to be registered is exempt from the notification requirements of section 107 and clause 4 of Standard 3.2.2 of the Australia New Zealand Food Standards Code. This means that a food business cannot be charged both a registration fee and a notification fee.