Improving the Relationship between State and Local Governments in Food Regulation in Victoria - Part 1: Inspection Powers

by Joe Lederman © Lawmedia Pty Ltd, November 2007
Australian Food Lawyers and Consultants

Food law enforcement is, by virtue of the Australian Constitution, principally a function of the States and Territories. There are exceptions such as the Commonwealth government exercising controls over imports and exports, and the Commonwealth, acting through the agency of the Australian Competition and Consumer Commission (ACCC), in prosecuting illegal trade practices and in protecting consumers against misleading or deceptive conduct or misrepresentations and against risks from unsafe products. Yet most Food Laws (including the Food Standards contained in the Australia New Zealand Food Standards Code) are enforced at State and Territory and local government levels.  In Victoria the said Food Standards Code is enforced under the Food Act by virtue of Section 16 of the Food Act, and the State government department that is responsible for overseeing general compliance with the Food Act (Vic) is the Department of Human Services (DHS). Local governments in Victoria are responsible, under the Food Act, for monitoring food premises in their municipality. This article now explores in more detail, the nature of the relationship in food safety law enforcement between the State and local governments and the scope for improving that relationship in Victoria.

In Victoria, the Secretary of the Department of Human Services (DHS) can delegate food safety enforcement powers to authorised officers of Local governments (they are generally known as Environmental Health Officers or EHOs) (s. 20). In a submission dated 22 December 2006 made by DHS to the government “Inquiry into Food Regulation in Victoria” that was conducted by  the Victorian Competition and Efficiency Commission (VCEC), DHS expressed the view that ‘local authorities have a better understanding of the food businesses operating in their local area than is likely to be the case with a state wide regulator authority and that they are thus potentially able to achieve greater regulator effectiveness’ (p. 15). No mention was made as to any willingness of the State government to provide sufficient funding for local governments to fulfil the duties of monitoring and enforcing compliance with food laws by proprietors of food premises.

For completeness of the big picture in Victoria, there are also additional separate industry-focused food regulatory regimes for the meat and seafood industries jointly (operating through the enforcement agency of PrimeSafe) and for the dairy industry (operating through the enforcement agency of Dairy Food Safety Victoria), and separate legislation applies to these industries.

Currently, local government EHOs have legal power enabling them to inspect food premises or articles of food (s. 21 of the Food Act) and to take samples of food (s. 22). The Food Act specifies that inspections of food premises are to occur before a food business can be registered or before a renewal of registration can be accepted by the local government (s. 39(1)). These inspections are therefore meant to occur on an annual basis and ideally to precede each registration or renewal date.

The requirement that a food business must be registered with the local council (s.35(1)) means that the local government EHO is principally concerned with matters of registration including checking the adequacy of the Food Safety Program (FSP) of the relevant business (s. 19(E)(5)) and assessing whether to register a new business and/or renewal of registration of an existing business (s. 39) having regard to the actual Food Safety Plan.

However, a more thorough inspection of food premises is likely to occur if or when an authorised EHO deems it ‘necessary’ (s.21), such as when a council has received a complaint. For example, if a food consumer has become sick and calls the local council for the area where the food product was purchased or manufactured, the council may send out at least one EHO in order to ascertain the cause of the problem. Samples can be taken away by the Council EHO from the premises. In some cases, early steps may be needed to initiate a voluntary withdrawal of all affected products and, in a worst case scenario, a product recall may become necessary. Another possible consequence of a thorough inspection might be the initiation of a prosecution by the local council against the offending food business.

Notwithstanding all of the powers that have been delegated under the Food Act to local councils, it is somewhat ironic that Victorian local councils do not have an express power under the Food Act to shut down an unsafe food business. This seems to be a major lacuna, given that the local council does have legal power to withhold registration or renewal of registration of the food premises. Yet, the power to shut down an unsafe food business is retained solely by the Secretary of the DHS (s. 19(2)). Local councils are legally entitled to suspend or to revoke the registration of a food business before that registration expires automatically after a one year period (s. 40D). Yet even this power is rendered less effective because the current Food Act makes no provision to ensure the public is made aware of the revocation or suspension.  The ability of local government to meet the DHS’s primary aim of health and safety is being possibly compromised by this loose regulatory framework.

VCEC in its 2005 Issues Paper(p. 249) argued that ‘inconsistencies between councils in the ways in which they interpret and enforce the Food Act’ impact significantly on reaching a consistent level of compliance between different municipalities. The DHS, in its December 2006 submission to the VCEC Inquiry, agreed that problems in the food law regulatory system were in part due to ‘significant differences between local councils in terms of the nature and extent of enforcement activity undertaken’ (p. 14).

Most would agree that the public is entitled to expect a standardised approach to food safety. It would be a matter of concern if any local council were to be so relaxed about food safety that it might not bother enforcing the law. This would rarely be the case. Different local council practices do, however, raise issues of equity for businesses to operate in a situation whereby one food business is likely to be subjected to harsher treatment than a different food business in another municipality, all other things being equal.

According to the DHS, these concerns would be addressed if the DHS were given powers to direct local councils in a meaningful way and to impose sanctions on any council that fails to meet its statutory obligations. The irony is that DHS has the power to act in its own name but is wanting councils to do more and, if need be, have the law expressly place the liability onto the local council. Yet it is not always easy for a local EHO to challenge bad food safety practices. Local councils are limited not only by lack of funds but are also handicapped by small town politics. Local council EHOs are likely to be residents of the local community and some may therefore be associated with at least some of the local businesses in small towns. If the local food premises happen to be owned by connections of powerful people within a town or neighbourhood, this can cloud the independent judgement of a Council EHO. Council EHOs can find it difficult to withstand community pressure or may fear personal reprisals.

For these reasons, expanding the legal powers of the local EHO may not necessarily make the current regulatory system more effective. By contrast, the DHS may be in a stronger position because it can act with greater freedom from the influence of local politics.

An increased level of co-operation between the State and local Governmental bodies would certainly improve the current food law enforcement system in Victoria. DHS could re-allocate some of its own resources to assist local Councils in enforcing compliance with the Food Act.

Merely expanding the powers of DHS to direct local councils to act ignores these issues while adding another layer of complexity and uncertainty to the current Victorian food law regulatory enforcement system.

The Victorian DHS has been doing many good things for food administration in the past year. One excellent example is the work DHS has been doing in standardising food safety program templates. Another excellent initiative in Victoria has been the highly innovative and efficient creation of an internet-based one-stop-shop platform called EasyBiz and the Foodsmart Program. Both programs allow the on-line registration of food businesses 24 hours a day, 7 days a week. Any applicant for a food business registration can simply complete all the requisite information on-line and the information can then be received and processed by the local council, where the information can also be accessed and used by other governmental agencies. Food law administration and enforcement at a State level must, however, venture beyond templates and websites given the obvious constraints – both practical and legal – of local Council powers. A serious suggestion is that there ought to be a more regular use of a ‘good guy – bad guy strategy’ – if only the DHS were willing to accept the ‘bad guy’ role if called upon to do so by the local EHO.

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.