The Problematic Issue of "Name and Shame" Registers

FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, February 2012

In recent interviews of FoodLegal’s Joe Lederman with the Herald Sun newspaper and Channel 10 and Channel 7 television news in Melbourne, it was revealed that Victoria’s system for “naming and shaming” unsafe food shops and restaurants was not working. This article considers some of the issues in greater depth.

Public health and safety ought to be the number one priority of governments in the framework of food law enforcement. Each State and Territory government is responsible for its own Food Act. In most Australian jurisdictions, it is local municipal councils who are responsible for monitoring compliance and enforcing food safety laws to ensure food from restaurants and food outlets is safe for human consumption.

New South Wales through its agency the New South Wales Food Authority plays a very ‘hands on’ role in food safety.  In Victoria and elsewhere, there are industry-specific bodies, such as Dairy Food Safety Victoria for the dairy industry and Primesafe for the meat and seafood industries, that also play an important role in food safety enforcement for those industries. However, regular food shops, takeaways and restaurants are the main targets of municipal councils to prosecute and subsequently be entered on the Name and Shame Register

As part of their food safety strategies, the New South Wales Food Authority and the Victorian Department of Health respectively set-up “name and shame” registers for their States to publicise food businesses that have failed to comply with the Food Act food safety requirements. While other States or Territories may also maintain similar public registers, this article will focus on the systems in NSW and Victoria.

New South Wales was the first State in Australia to set up a ‘name and shame’ register in April 2008. In New South Wales, the NSW Food Authority publishes lists of businesses that have breached or are alleged to have breached NSW food safety laws. Publishing these lists is intended to give consumers more information to make decisions about where they eat or buy food. The ‘name and shame’ registers in NSW were the first of their kind in Australia, and were based on the notion that consumers have a right to know where food outlets have serious problems with respect to safety. In a Ministerial press release (28 February 2008) regarding the Register of penalty notices, the then Primary Industries Minister of NSW, Mr Ian Macdonald, stated that the law “achieves a balance between the public's right to know and the rights of food businesses to their good reputation.”

The NSW Food Authority maintains two lists which have the effect of being “name and shame” registers. These are:

  • the Register of Penalty Notices, and
  • the Register of Offences (Prosecutions).

NSW Register of Penalty Notices

In NSW, businesses or individuals who have been issued with a penalty notice for an alleged food safety offence relating to the handling or sale of food may be included on the Register of Penalty Notices. The requirements for this Register are found in s133A of the Food Act 2003.

The information about each notice will generally be published for one year from the time it was first eligible to be published.

Penalty notice publication protocol

The types of breaches of the NSW Food Act which may lead to being listed on the Register of Penalty Notices include the following:

  1. Where conduct is “very likely to result in, or has resulted in, production of unsafe, unsuitable or inaccurately labelled food.” This includes where there has been a failure to comply with a previous enforcement request; or
  2. Where the breach is “likely to result in production of unsafe, unsuitable or inaccurately labelled food”

[Source: “Penalty notice publication protocol”, published on the NSW Food Authority website, referring to Department of Health and Ageing 2007 report, Business sector food safety risk priority classification framework, Australian Government, Canberra (unpublished) 19 April 2007. ]

 Removal of Information from Penalty Notice Register

Subparagraph 5 of section 133D of the Food Act sets out the circumstances in which the NSW Food Authority must remove information from the Register of Penalty Notices. These circumstances include:

1. the relevant penalty notice was not properly served, or

2. the person on whom the notice was served has elected to have the matter dealt with by a court, or

3. a decision has been made by the enforcement agency or other body under the direction of which, or on behalf of whom, the penalty notice was issued not to enforce the penalty notice, or

4.  a period of 12 months has elapsed since the date on which the Food Authority was first authorised to publish information about the particular penalty notice on the register.

Information must be removed from the register as soon as practicable after the Food Authority has become aware of these facts.

 NSW Register of Offences

The Register of Offences is intended to list businesses or individuals who have been found guilty by a court of a breach of food safety laws. Each listing will be published for two years after any appeal.

Removal of Information From Offences Register

Section 133D of the Food Act sets out the circumstances in which the NSW Food Authority must remove information about a conviction for a particular offence. These circumstances include:

  • Where  the conviction has been quashed or annulled, or  
  • Where an appeal has been made against the conviction, or  
  • Where a period of 2 years has elapsed since the end of the period during which an appeal could have been made against the conviction, or if an appeal was made against the conviction, the date on which a final order was made affirming the conviction.

However, information may be restored if an appeal was unsuccessful.

Victorian Register of Convictions

Partialy following the lead of NSW, since 1 July 2010 the Victorian Department of Health has maintained an online “Register of Convictions” for food safety offences. The register is intended to record the names of offending businesses and individuals following a conviction. These convictions follow from prosecutions for serious food safety breaches and non-compliance or a repeated failure to comply with food laws.

The Register is maintained pursuant to sections 53D and 53E of the Food Act. Names of individuals or businesses are only listed on this public register after a person is convicted by a court, and after all appeal processes have been exhausted. The person may be an individual proprietor, company or a company director.

Once a conviction is listed on the website, it is intended to remain on the Register for 12 months.

Shortcomings of the Name and Shame Systems

1. One of the biggest failings of the Victorian system is that only convictions are listed on the register, and this will only occur after all avenues for appeal are exhausted. As a result of this process, by the time convictions are listed, the offences to which they relate are out of date.

2. A further failing of the system is that individuals who have received convictions for offences under the Food Act, are free to run food businesses again (providing they otherwise meet the requirements for opening a food business). A business/proprietor may have been monitored by the local council for non-compliances for some time before prosecution is launched, but nonetheless it has been reported to FoodLegal by some councils that they lack systems to monitor the track records of individuals in relation to food safety breaches.

3. On the one hand it may be commendable for NSW and Victoria to create websites for ‘outing’ individuals and businesses who put at risk the community’s health and safety. However, the registers are not always maintained sufficiently accurately or up to date.

4. Systems should not exist only to pay lip-service to this promise of naming businesses for enabling consumers to make informed decisions about where to eat or what food to buy.

5. There needs to be monitoring or tracking systems in place to easily identify troublesome premises or repeat offenders.

6. Many municipal governments appear to be under-resourced in food regulatory enforcement matters. Many food safety officials and environmental health officials in Victoria have made it known to FoodLegal that they are inadequately trained and unclear in the performance of their statutory responsibilities.

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.