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Update of Victoria's Food Bill

Published: 10 Aug 2009

By Joe Lederman and Alexandra Jannetto
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, August 2009

On 10 June 2009, the Food Amendment (Regulation Reform) Bill 2009 was introduced into Parliament.  The new Bill proposes changes to reform the Victorian Food Act 1984 in order to create an improved approach for regulating the safety of food sold for human consumption. The Victorian government says that the legislation has the purpose of reducing the regulatory burden on food businesses registered under the Food Act.  These amendments do not affect businesses registered under the Dairy Act 2000 (VIC) or the Meat Industry Act 1993 (VIC) as these two key Acts are not part of this revision.  This article examines the amendments proposed in the Bill.

Background

In September 2006, the Victorian Government commissioned the Victorian Competition and Efficiency Commission (‘VCEC’) to inquire and report on the nature of compliance and administrative burdens of food regulation on businesses, consumers and the not-for-profit sector, whether the objectives of current food regulation were being met, and the opportunities for reducing or reforming regulation whilst still meeting the objectives of current regulation.  VCEC released its final report in September 2007 entitled ‘Simplifying the Menu: Food Regulation in Victoria’ (‘the VCEC Report’).  This report contains a range of recommendations to change the current framework governing food safety in the State of Victoria. 

In January 2008, the Victorian Government issued a response to the VCEC Report, announcing that changes could be made to the law to protect the food supply and that it would implement the majority of VCEC’s recommendations.

On 7 July 2008, the Victorian Department of Human Services (‘DHS’) released its Consultation Paper (‘the DHS Consultation Paper’) in response to the VCEC Report.  This Consultation paper also contains recommendations to alter the Food Act 1984 (VIC) (‘the Food Act’) to improve the regulation of food businesses. 

The recommendations in both the VCEC Report and the DHS Consultation Paper related to areas such as:

1.         The divisions of powers and responsibilities of the Minister of Health, DHS and local municipal councils;

2.         Enforcement powers available to authorised officers; and

3.         Risk classification systems and reform of regulatory compliance requirements for food premises autonomously.

While the recommendations in both reports had focused on similar areas of law reform, the recommendations themselves differed.  For example, the VCEC Report recommended that local municipal councils be required to report their food law enforcement performance to the DHS.  On the other hand, the DHS Consultation Paper had proposed that councils should be required to collect and submit specified data to the DHS to enable it to publish an annual assessment report on the operation of the Food Act. FoodLegal’s August 2008 article “Victorian DHS Response to VCEC’s Recommended Food Law Changes” provided information about these recommendations.

In developing the Food Amendment (Regulation Reform) Bill 2009 (‘the Bill’) which makes amendments to the Food Act, the views expressed in both the VCEC inquiry report and the DHS Consultation Paper appear to have been considered.

The general framework of the Food Amendment (Regulation Reform) Bill 2009

The objectives of the Bill are expressed to be to amend the Food Act in order to:

·         strengthen the governance and accountability of food safety regulators;

·         reduce the duplication of regulatory requirements and better target regulation to the particular risk  associated with any particular food premises without compromising food safety and public health; and

·         improve the enforcement and administration of the Food Act.

Part 2 of the Bill contains changes to the Food Act to establish a new food premises classification scheme and create a register of convictions.  Part 3 of the Bill contains provisions to expand the enforcement tools of the Food Act for authorised officers.  Part 4 establishes a single State-wide notification of registration system for temporary and mobile food premises.

Division of responsibilities in the administration of the Food Act

Clause 7 of the Bill inserts a new Part IA ‘Administration and Reporting’ into the Food Act.  The Explanatory Memorandum to the Bill states that this Part is intended to promote a greater level of consistency and accountability in the administration of the Food Act across Victoria by establishing the roles and responsibilities of the DHS and local municipal councils (see page 3).    

Following the recommendation made by the VCEC Report, the new Part IA is to require the DHS to provide information and guidance to local municipal councils to achieve consistent application of the Food Act throughout Victoria (new section 7B).   Following the recommendation of the DHS Consultation Paper, the Bill mandates that local municipal councils will be required to report specified data to the DHS about how they have administered the Food Act such as reporting the number of food premises registered and about the performance of food safety enforcement (new section 7A).  This data will form part of an annual report on food safety regulation to be published by the DHS (new section 7C).

New enforcement mechanisms

Currently under the Food Act, enforcement options for non-compliance include formal warnings, giving directions to remedy a problem (such as cleaning or altering premises to ensure that food prepared is safe and suitable), revoking or suspending registration and follow-up inspections to ensure any problems have been fixed and prosecuting a food business for a breach of the Food Act. 

As discussed in FoodLegal’s August 2008 FoodLegal Bulletin article mentioned above, local municipal councils have been the main source of food law enforcement in Victoria.  However, the municipal councils previously have not had the power to close down food businesses that breach the Food Act. 

Therefore, a very significant change introduced by the Bill is an express power for local municipal councils to order food premises to be temporarily closed down in circumstances specified in new section 19 of the Food Act, which include premises that are not clean or where food has been prepared in an unsafe manner.

Other new enforcement mechanisms, which have been introduced by the Bill and which were recommended by the DHS Consultation Paper, include the obtaining of legally enforceable undertakings and of publishing in a public forum (such as on the internet) the details of those food premises where there has been a finding of guilt for a breach of the Food Act,  and also a new power has been issuing of on-the-spot fines. 

Undertakings

Clause 34 of the Bill inserts a new provision Part 111A “Undertakings” into the Food Act.  This provision provides that in the case of contraventions against sections 13, 16(3) and 16(4) of the Food Act, the Secretary may accept a written undertaking from a person.  The Undertaking will be required to name the premises or businesses, set out the action proposed to be taken, the timeframe for which the action will be taken and any other relevant matters.  Court proceedings will not be able to be brought for an offence while an Undertaking in relation to that offence is in force.  In relation to the enforcement of Undertakings, councils may be authorised by the Secretary to accept and enforce Undertakings.

Publication of Convictions (via the Internet)

Clause 27 of the Bill inserts new Part 8A in the Food Act under the heading of "Publication of Convictions". This Part provides for the establishment of a register of convictions for offences made against the Food Act. The purpose of this register is to inform the public about convictions committed by food businesses.  Entries into the register are not to be made until the time for an appeal against a conviction has expired, or until the appeal has been dealt with by the courts.  This register will be kept on the internet website of the DHS. 

On the spot fines - Infringement Notices

Clause 39 of the Bill inserts a new section 56A into the Food Act.  This new section empowers authorised officers under the Food Act to serve an infringement notice on a person who has committed an offence specified in column 2 of Schedule 1 of the Food Act (to be inserted by Clause 42 of the Bill) or any other offence specified in regulations made under the Food Act.  Schedule 1 contains a table of infringement offences and the corresponding penalty for each offence.  For example, offences in Schedule 1 relate to typical breaches of Standards 3.2.2 and 3.2.3 of the Australia New Zealand Food Standards Code such as in relation to contamination of food, or failing to maintain appropriate temperature control and hygiene.

Risk classification

It is proposed from 1 July 2010, the Food Act will incorporate a new food premises classification system.  Clause 13 of the Bill amends Section 19C of the Act to allow the Secretary to declare classes of food premises.  It is expected that the current classification system for food premises imposed by the current regulatory requirements is to be expanded from two to four classes.  All food premises currently fall into either Class 1 ‘High Risk’ or Class 2 ‘Medium Risk’.  Prior to the introduction of the proposed new regime, Class 1 has applied to food premises that handle and supply high risk ready-to-eat food predominantly for vulnerable population groups (e.g. the elderly, children aged 5 or less, and hospital patients), while Class 2 has applied to all other food premises.

The VCEC Report considered this statutory framework inappropriate for the correct targeting of the food safety risks in food premises.  For example, a video shop with packaged food was categorised under the same class as a butcher shop.  The result of this classification system was considered to impose too much of a regulatory burden and cost for businesses that did not necessarily need to have a high level of food regulation. 

Accordingly, the definition of ‘declared premises’ is to be omitted from the Act.  The Explanatory Memorandum on the Bill states that “the concept of ‘declared premises’ is to be replaced by a more flexible classification system whereby classes of food premises declared under the new section 19C of the Act will have to comply with specified food safety requirements”.  In this way, regulatory compliance will become more targeted towards the level of food safety risk which each respective class of food premises needs to manage.  The proposed four new classes are as follows:

  • Class 1 – for food premises similar to current Class 1.
  • Class 2 – for food premises engaged in manufacture or handling of any un-packaged, potentially hazardous foods.
  • Class 3 – for food premises handling low risk food (for example, baking bread) or wholesale of pre-packaged food, or selling pre-packaged, potentially hazardous food that requires temperature control and also includes some community group food events.
  • Class 4 – for food premises selling shelf-stable, pre-packaged food or running low risk community food activities.

New requirements for Audits and Inspections

Prior to the Bill, there were no prescribed requirements in the Victorian Food Act in relation to fees for compliance audits of a food safety program or inspections of food premises.  However, the Bill has introduced new section 19UA into the Food Act which provides that a council may charge fees for food safety assessments (audits) and inspections.  The Explanatory Memorandum states nonetheless that under the new system “no fee is charged for the conducting of the minimum number of assessments or inspections that ordinarily apply under the Food Act to the particular class of premises” (see page 14 of the Explanatory Memorandum).

New section 19UA(3) sets out the factors to be taken into account by a council in determining the fees that may be charged and provides that the council may waive or vary the costs of the audit if the council believes there are special circumstances that require it to do so. 

In relation to the frequency of audits, under Section 19C(2), the Secretary of the DHS may specify for each class of food premises how often food safety program audits are required.  For example, it is proposed that food premises in Class 1 and Class 2 will require council inspection prior to the decision to grant initial registration, and food safety programs will be required to be audited once a year. In relation to the frequency of inspections, new section 39 of the Food Act requires an annual inspection to be conducted by a registration authority of food premises registered under the Food Act.  Typically, the registration authority will be the food safety inspection personnel of the local municipal government.

Timetable for changes

The changes to the Food Act are expected to take effect in stages between 1 July 2010 and mid-2011.  The proposed food premises risk classification system, register of Food Act convictions, clarification of the roles and responsibilities of the DHS and local municipal councils and system for councils to report data about their administration of the Food Act have been scheduled to commence by 1 July 2010.  By 1 March 2011, the provisions relating to enforceable Undertakings and infringement notices are expected to be in operation with all other operational changes to be in force by 1 July 2011.