Queensland Food Act moves in the wrong direction: What happened to simplification and national uniformity?
by Joe Lederman © Lawmedia Pty Ltd, October 2007
Australian Food Lawyers and Consultants
The Food Act 2006 (Qld) came into operation 1 July 2007. It is a peculiar mix of some very retrograde and prescriptive legislation. This article identifies some very disconcerting provisions of the Food Act 2006 (Qld) and discusses how they could fail if the objective was to have been a better food safety outcome.
The Food Act of each Australian State or Territory is supposedly meant to be based based on the Model Food Act, which was developed by the Ministerial Council and the predecessor food standards agency of Food Standards Australia and New Zealand. The idea was that a nationally consistent framework to food regulation would be adopted by all Australian State and Territories. The new Queensland Food Act 2006 however has adopted a much more prescriptive approach than found in other jurisdictions.
Food Safety Audits
One example of where Queensland has digressed is in its approach to the regulation of food safety audits.
Food Safety Audits were introduced by the Model Food Act requiring a proprietor of a food business to prepare, implement, maintain or monitor a Food Safety Program. The Food Safety Program was to identify the hazards to food safety and provide for appropriate corrective action. The Food Safety Program was then to be audited by an authorised food safety auditor at regular intervals.
This fairly simple set of requirements was intended to have an outcomes focus. Instead good food safety management has been made into a heavy-handed bureaucratic task for proprietors under the new Queensland Food Act 2006. The Act creates huge administrative provisions with substantial penalties attached for relatively small administrative offences such as a failure to notify of the cessation of an individual from the position of food safety supervisor within 14 days.
Amending the accredited Food Safety Program - an example of bureaucratic complexity
Sections 112-115, Food Act 2006, provide a complicated set of procedures for approving any amendment to Food Safety Programs in Queensland and whether initiated by the holder of a Food Safety Program or the local government.
Before changing the way food is handled in the food business the business proprietor, as the holder of the accredited Food Safety Program, must amend the Food Safety Program by applying for approval of the amendment. Further information may then be sought by the local government, and then a formal determination is to be made in relation to the application (see section 112).
Under section 114, the local governments may direct the holder of an accredited Food Safety Program to amend the program if the local government considers it necessary or desirable. The holder must comply with the direction “unless the holder has a reasonable excuse”. The holder of the Food Safety Program has “30 days to make the amendment after notice has been given” by the local government of the need to amend. If it is not done, without a reasonable excuse, the food business as holder of the Food Safety Program can be fined up to $15,000.00 (maximum penalty for failure to comply is 200 penalty units; note a “penalty unit” for the purposes of the Food Act 2006 is $75.00 in Queensland).
Non-compliance with section 114 includes large monetary penalties for failing to state in their Food Safety Program that records for the food business must be kept, or failing to amend the program within 30 days of the notice to amend.
Queensland Act obsessed with penalties
The Queensland Act imposes penalties of up to 1000 penalty units ($75,000) for failing to possess a Food Safety Program when one is required under section 99 of the Food Act 2006. In addition to this and the penalty for failing to amend a Food Safety Program under section 114 noted above, Sections 123 to 126 of the Food Act 2006 set out an array penalties which can be imposed on the actual licensee, such as:
The situation in Queensland can be contrasted to that in Victoria, where section 19W of the Victorian Food Act 1984 states (in relation to the Part IIIB of the Act which regulates Food Safety Plans):
No penalties other than those expressly provided for in this Part apply to any failure to comply with this Part.The only penalty provisions in Part IIIB of the Victorian Act relate to the auditors of a food safety plan and not the actual business itself. Unlike the Queensland Act, the Victorian Act does not impose a specific penalty for the failure to comply with a food safety plan (which is the same thing as a 'food safety program'). However, instead, any non-compliance in relation to a food safety plan in Victoria is dealt with by the Food Act as a breach of the Food Standards Code. Clause (3)(d) of Standard 3.2.1 of the Australia New Zealand Food Standards Code requires that a business must comply with its Food Safety Program, and therefore any failure to comply would would breach section 16 of the Victorian Food Act that imposes a penalty of up to $40,000 for individuals and a $200,000 penalty for corporations for breaches of the Food Standards Code. However, the law is relatively straight-forward and does not require the Queensland approach of prescriptive technical rules buried in reams of paper and procedure which create separate legal offences for technical breaches that might not have a direct relationship with the state of food safety at the premises.
It should also be noted that by incorporating penalties directly into each of the separate requirements governing aspects of the Food Safety Program provisions in the Food Act 2006, the Queensland Act imposes penalties for situations which do not exist in Standard 3.2.1 of the Food Standards Code, such as the requirement to make the Food Safety Program available for inspection to employees, and there is also a separate extra penalty in the Queensland Food Act for advertising the existence of an accredited Food Safety Program when one does not exist.
Government legislation ought to be outcomes-focused. The fact that there are hefty monetary penalties does not necessarily mean there will be increased food safety. Penalties for minor paperwork non-compliance simply creates the opportunity for bureaucratic nastiness and potentially may lead to corruption of the food safety enforcement system. Legislators need to retain an appreciation of the purpose for which the law is being created.
Commencing proceedings in court against infringers for minor paperwork omissions can potentially undermine the effectiveness of legislation. It is possibly time to review the way in which food law offences are prosecuted in all states and territories around Australia (refer to our previous FoodLegal bulletin article on one possible avenue to explore concerning this subject "Why not a Road Traffic style Demerit Points scheme for enforcing food law?"). There are other possibly better solutions and systems for food law enforcement (with a view to better food safety outcomes) that still require further work to be developed but a strictly technical code of hefty penalties, such as in the Queensland legislation, seems to be a case of laws that go against the flow.
The potential hardship that might be caused to any food business in Queensland caused by overlooking some minor technical compliance requirements, combined with the cost of defending a business against any charge brought on such technical grounds, creates a potential handicap for a food business operating in Queensland. The Queensland law seems to be out-of-kilter with the simpler framework that was planned for during the past decade of discussions at Ministerial Council level in relation to a uniform national approach to food law.
This is general information rather than legal advice and is current as of 19 Oct 2007. 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.