Why not a Road Traffic style Demerit Points scheme for enforcing food law?

by Professor Joe Lederman © Lawmedia Pty Ltd, August 2007
Australian Lawyers and Consultants

Concerns are often raised about the inability of many municipal councils to enforce adequately the food laws in their area. A few councils excel but many seem to be failing miserably at the task of getting food-related businesses to clean up their act. In this article, the writer proposes the adoption of on-the-spot fines for non-compliant food-related businesses. This article proposes how such reform could include a road traffic style demerit points scheme.

Anecdotal evidence suggests that many food businesses are not complying with current food regulatory requirements. The Victorian Competition and Efficiency Commission (VCEC) recently considered the matter in a draft Report on food regulation, Simplifying the Menu: Food Regulation in Victoria, April 2007. This VCEC draft Report quoted an earlier 2001 survey of municipal councils by the Victorian Auditor-General which found that approximately one in every four food businesses registered by municipal councils required a follow-up inspection due to non-compliance.

Despite penalties existing for offences under the Food Act, the procedures or lack of procedures by a large number of municipal councils make it difficult to pursue many forms of non-compliant behaviours among food businesses. In practice, many councils are faced with the unenviable choice between the too soft option of infrequent inspections by staff spread too thin issuing warning notices, and the too hard option of implementing the more complicated steps for revoking or suspending the food business registration, or finding great difficulty in even following the process for prosecuting in court. 

There have been various instances of higher risk food-related businesses (such as nursing homes) being discovered to have offended food safety laws in a very serious fashion – resulting in deaths and serious illness. Had the current procedures not been as complex and costly, but been replaced by a simpler Demerit Points Scheme with zero tolerance and on-the-spot fines for certain specific offences, actual human lives might have been saved.

Some councils, namely those with greater financial resources, are in a better position to enforce food laws. Some have increased their levels and frequency of inspection and even impose ‘revisit’ fees for higher risk or repeat offenders. A small number of councils in larger urban areas prosecute regularly but they are a minority. Some such councils might even be generating a cash flow that has transformed their food safety unit into a “profit centre” when sufficient food businesses within the municipality are successfully prosecuted and ordered to pay their fines by ongoing instalments. However court prosecutions for breaches of the Food Act are a drawn out process because the law is complex and technical and the evidentiary requirements seem to be too difficult for some councils to meet.

For example, the evidence of the unsafe food must be preserved for a long period of time before the matter reaches the courtroom. The evidence itself can deteriorate in the interim or someone may have forgotten to take the necessary photograph from the right angle or with enough light for the photograph to constitute vivid proof of what occurred. All this adds to the costs for both the municipality and its ratepayers – compounded by the great risk of failure on a technicality because of the legal and evidentiary process rather than for want of a just prosecution.

The laws between the different jurisdictions throughout Australia are numerous and inconsistent in relation to the different rules for entering premises, inspecting premises, food sampling, measuring, testing, photographing and filming. Take for example a comparison of laws such as Queensland’s Food Act section 182, Victoria’s Food Act sections 21, 22 and 23, New South Wales’s Food Act sections 37, 38 and 66A to 72, and Western Australia’s Health Act section 246ZB. This is an area where the expertise of this firm could be used to help design a simplified and more uniform approach, even Australia-wide. 

Where an offence carries a relatively small financial penalty, court proceedings can appear to some officials an overkill; yet they may be forgetting it is still necessary to protect the public from a repetition after the event.  Furthermore, the idea of educating or rehabilitating habitual offenders does not necessarily work when it comes to poor safety practices by poorly-managed businesses. Moreover, many food businesses operate across more than one municipal jurisdiction and yet in most Australian States and Territories in Australia, consumers are unable to discover the risk of buying food from a particular establishment especially where the same business operates from different geographical locations. The NSW initiative in July 2007 of introducing a “shame register” (see: “Name and shame register” launched to identify dodgy food outlets) was one possible course of action that governments had been looking at.

The current compliance burden is also being borne unevenly: Well run complying food businesses that operate at a lower risk are in effect subsidising the higher risk businesses. A more risk-based approach to enforcement would be ideally one that differentiates between individual business and targets the problem areas. 

A good regulatory compliance regime can still be based on the principle of graduated deterrence with a wide range of penalties. However, the legislative framework needs to be better targeted and easier to enforce than the current system. It needs to target particularly risky behaviour or groups at risk of not complying. Most importantly, there is a need for a regulatory regime with a simpler and quicker procedure for imposing a range of warnings and financial penalties, rather than relying as much on the ultimate sanction of cancelling the food business registration.

A “best-practice system” for comparison purposes would be the road traffic demerit points scheme that was first implemented in Victoria, and then Australia-wide and internationally with great success. We have achieved success in improving road safety by preventative measures involving zero tolerance and strict liability and we have saved many lives while reducing the instances of unsafe practices and at the same time lowering the overall cost to the community. It is now time to adopt a similar approach to improving food safety and lowering the cost to the community in like fashion.

In Victoria under the Road Safety (Drivers) Regulations 1999 each licensed driver, including probationers, on gaining their licence are allowed to accumulate 12 demerit points in any 3 year period. Except for parking, all traffic infringements attract demerit points. If more than 12 demerit points are amassed before the three year period ends the driver’s licence is suspended for a period of time. The number of demerit points that each infringement attracts depends on the nature of the infringement. Immediate licence suspensions or cancellations can still occur immediately for the most serious offences irrespective of the level of accumulated demerit points. Persons aggrieved can still have their right of appeal to a court but the advantage of the system is that the danger and risk to the community is removed in the meantime at low cost to the community. 

It is time for such a scheme to be used to enforce food laws. Different types of food businesses could be given a different quota of demerit points for different time periods depending on the level of risk. Even better, the quota of demerit points could be set after inspecting the food business on a checklist system based on a number of different matrices to register that business with an initial score. Those whose scores indicate a higher-than-acceptable level of non-compliance would face a higher degree of monitoring and repeat inspections. Thereafter, failure to rectify previous failings could be a basis for both on-the-spot fines and demerit points.

Like the road traffic demerit points scheme, the penalties would be greater for riskier behaviour and also for those operating with greater risk of offending.

Revenue from current enforcement processes has been found to be insufficient to meet the ongoing cost of administering the Food Act, according to the submission made to VCEC by the Municipal Association of Victoria to VCEC. This submission highlighted the problem, based on 2002 figures, that municipal councils in aggregate recovered only 60 per cent of their food law enforcement costs. The proportion of costs recovered by individual municipal councils varied from 30 per cent to 91 per cent. Most of this revenue was from registration fees and financial penalties. In the author’s opinion, an on-the-spot fine and demerit points scheme could overcome this problem while penalising principally those responsible for non-compliance.

A percentage of each council’s revenue from fines could also be paid to the relevant Department of Health or Human Services (of the relevant State or Territory) in order to help finance investment in an upgraded Food Information Network so that on-the-spot fines and the demerit points of registered food business proprietors across the whole State or Territory can be monitored. Ideally, the network information could also be made available to consumers on the Internet so that the process becomes transparent and the market of potential consumers is better informed. The revenue for this could be supplemented by other income from food business registrations, inspections or audits – mainly from the offending businesses.

In Victoria, there are 79 municipal councils responsible for administering the many elements of the Food Act. A combined on-the-spot fine and demerit points scheme for the enforcement of food regulation would make it much easier for councils to meet their responsibilities.

I believe that a combined on-the-spot fine and demerit points scheme as outlined in this article would be capable of fitting into a national food enforcement strategy. This can still be based on proportionate and graduated responses, as outlined in the framework that was outlined by Australia and New Zealand Food Regulation Ministerial Council’s Implementation Sub Committee (ISC). The ISC was commissioned several years ago to develop a uniform system but progress appears to be quite slow. The time has come for greater action.

This is general information rather than legal advice and is current as of 12 Dec 2015. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.