Guidelines on infringement
notices under the Food Act
1984 (Vic)
Information for councils
Department of Health
Guidelines on infringement
notices under the Food Act 1984
(Vic)
Information for councils
If you would like to receive this publication in an accessible format, please email:
foodsafety@health.vic.gov.au
© Copyright, State of Victoria, Department of Health, 2011
Published by Food Safety and Regulation, Victorian Government, Department of Health, Melbourne,
Victoria. This publication is copyright, no part may be reproduced by any process except in accordance
with the provisions of the Copyright Act 1968.
This document is also available in PDF format on the internet at:
http://www.health.vic.gov.au/foodsafety/regulatory_info/eho/bulletins.htm
Authorised by the State Government of Victoria, 50 Lonsdale Street, Melbourne.
Contents
1. Definitions and Abbreviations
1
2. Introduction
2
3. Overview of the infringements system
4
4. When can an infringement notice be issued under the Food Act?
6
4.1 Introduction
6
4.2 Penalties
6
4.3 Hierarchy of enforcement tools
6
4.4 Exercising discretion: when should an infringement notice be issued?
8
4.5 Checklist on when to use infringement notices
15
4.6 Bringing it together
17
4.7 Multiple infringement offences
21
5. How to issue an infringement notice
22
5.1 Who may issue an infringement notice?
22
5.2 Informal warnings
22
5.3 Official warnings compared with Food Act warnings
22
5.4 Issuing an infringement notice
24
5.5 Mandatory information in infringement notices
24
5.6 Instructions to businesses to take remedial action
25
5.8 What happens after an infringement is issued?
26
5.9 Withdrawal of infringements
28
5.10 Enforceability
28
5.11 Data collection
29
5.12 VIMS codes
30
6. What councils need to do
31
Appendix A – Infringement notice template
33
Appendix B – Relevant excerpts from legislation and regulations
43
Official Warnings
43
Infringement Notice Requirements
45
Form of Penalty Reminder Notice
48
Withdrawal of Infringement Notices
51
Service of Notices
54
1. Definitions and Abbreviations
Authorised Officer
This has the same meaning as in the Food Act 1984 (Vic). For the
purposes of these guidelines, this will generally be:
•
•
an environmental health officer; or
a person referred to in section 20 of the Food Act who is suitably
qualified or trained and is appointed by a council under the Local
Government Act 1989 (Vic) as an authorised officer for the
purposes of the Food Act.
DoJ
Victorian Government Department of Justice
EHO
Environmental health officer
Food Act
Food Act 1984 (Vic)
Food Standards Code
The Food Standards Code (sometimes referred to in this document as
‘the Code’) is comprised of individual food standards relating to the
manufacture and sale of food in Australia and New Zealand. In Victoria,
the obligation to comply with the Code is found in section 16 of the Food
Act.
FSANZ
Food Standards Australia New Zealand
Infringements Act
Infringements Act 2007 (Vic)
Infringement offences
Offences for which infringement notices may be issued. The use of this
term in these guidelines generally refers to infringement offences under
the Food Act listed in Schedule 1 of that Act.
Non-compliance
In these guidelines this is used interchangeably with the term ‘breach’
and refers to a failure to comply with requirements of the Food Act,
including requirements of the Food Standards Code.
Section 19 order
Section 19 of the Food Act allows councils to make written orders
requiring food businesses to undertake specified remedial actions within
a specified timeframe in order to protect public health and safety.
This section also allows for the temporary closure of food premises,
pending the undertaking of remedial action.
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Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
2. Introduction
These guidelines are designed to assist authorised officers in issuing infringement notices under the
Food Act 1984 (Vic) (Food Act). From 1 March 2011, councils will be able to issue infringement notices
for certain food safety or hygiene offences. This will include a range of offences regarding:
•
•
•
•
•
storing, processing, displaying, and transporting food;
cleanliness and adequacy of food premises;
cleaning and sanitising food equipment;
operating food premises without registration or notification; and
failure to keep certain documents on site.
Infringement notices only apply to certain offences. The offences for which infringement notices may be
issued will be listed in Schedule 1 of the Food Act from 1 March 2011, and are reproduced in Table 1 in
section 4 of these guidelines.
The promotion of food safety, including by assisting food premises to handle food safely, remains a key
priority. However, to complement this educative approach, under the changes, councils will also have a
wider range of enforcement options, including the ability to issue infringement notices for certain food
safety or hygiene offences.
In 2008 the Victorian Competition and Efficiency Commission noted the lack of a power to issue
infringement notices as a gap in the enforcement hierarchy available to councils. These amendments to
the Food Act will address this gap and provide councils with a broader range of tools to further allow a
graduated and proportionate approach to the enforcement of the Food Act. The use of infringement
notices will give councils another way to redress what in practice are less severe food safety or hygiene
problems, in those cases where a warning or education are not considered sufficient.
The issue of infringement notices will allow enforcement action to be taken as an alternative to
prosecution, and thereby provide councils with a less resource intensive tool for enforcing the Food Act.
The penalties that apply to infringement notices are lower than that which would apply if the same
offence were prosecuted. This provides the incentive for the person against whom the notice was served
to expiate the offence by payment of the infringement, which finalises the offence without the matter
going to court or the recording of a conviction. This makes an infringement notice an appropriate tool to
deal with the kind of non-compliance that may not lend itself well to prosecution, owing to the time, cost
and resources involved, or because it is not serious enough to warrant prosecution.
Feedback from councils and business during the consultation on the changes in 2008 supported lower
level penalties for infringement notices so as to allow councils to maintain collaborative and cooperative
relationships with food businesses in ensuring compliance. In addition, given that food standards are
outcomes based, this ensures that the use of infringement notices as an enforcement tool will not be
unduly punitive.
For these reasons the offences for which infringement notices are most likely to be relevant are limited to
‘mid-level’ breaches for which it is appropriate that there be a direct deterrent to their conduct, but for
which it would not ordinarily be appropriate to prosecute. In addition, infringement notices will allow
councils to promptly take enforcement action, rather than to conduct a prosecution months after the
conduct. This will have the result that the conduct and the punishment are more closely linked, and may
therefore have a greater impact on behavioural change.
The availability of infringement offences does not preclude prosecution for the more serious occasions of
these offences, but an infringement notice cannot be issued in addition to prosecution for the same
offence.
Page 2
Because infringement notices will be only one tool in the hierarchy of enforcement options available to
councils, it is important that the most appropriate power is used in the given circumstances. This will
involve the exercise of discretion by an authorised officer when inspecting food businesses and following
up complaints, based on the circumstances of the case at hand.
These guidelines are intended to provide guidance to councils and authorised officers on procedures to
be followed when issuing an infringement notice, and also on the relevant considerations when
exercising discretion.
These guidelines are not intended to provide exhaustive advice to authorised officers and councils as to
how and when to issue infringement notices under the Food Act, but rather, to provide a common
framework by which authorised officers and councils throughout the state may approach the use of
infringement notices as an effective enforcement tool. It is anticipated that councils will use the advice
within these guidelines in extending their existing enforcement policies and codes of conduct to
accommodate the new infringement powers provided by these changes to the Food Act.
Although infringement notices will become available to councils from 1 March 2011, there is no need to
make use of them immediately. Instead, councils should ensure that they have relevant policies and
procedures in place before authorised officers begin issuing infringement notices.
These guidelines are to be read in conjunction with the:
•
•
•
•
•
Food Act 1984 (Vic)
Infringements Act 2006 (Vic)
Infringements (Reporting and Prescribed Details and Forms) Regulations 2006 (Vic)
Infringements (General) Regulations 2006 (Vic)
Attorney General’s Guidelines to the Infringement Act 2006.
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Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
3. Overview of the infringements system
The Infringements Act 2006 provides a standard framework for issuing and enforcing infringement
notices in Victoria, and includes a wide range of sanctions to help motivate payment by the minority of
people who default on fines.
Given that councils will already have experience with the infringements system and the operation of the
Infringements Act, these guidelines will not provide comprehensive information on the process aspects of
service and administration. More specific information may be obtained from the Department of Justice
website at www.justice.vic.gov.au, however an outline of the system is provided below. A flow chart
of the Victorian infringements system is provided below in Figure 1.
Figure 1: Flowchart describing the infringements system in Victoria
Agency issues
infringement
notice
Infringement
paid or payment
plan agreed
Adults
(>18 years)
Infringements
Court
Children and
young people
(<18 years)
Magistrates’
Court
(open court)
Children’s Court
Reproduced from A workers’ guide to fines, published by Victoria Legal Aid, available
at www.legalaid.vic.gov.au
Page 4
Infringement notices, more commonly known as ‘fines’ or ‘on the spot’ fines, are penalties for minor
offences like littering and traffic or parking offences. They are designed to save the costs of going to
court by providing for a reduced penalty and quick and easy expiation method (i.e. payment of the fine).
Minor offences are covered by more than 60 Victorian acts, and are administered by a wide variety of
state and local government agencies, including universities and hospitals.
Because one of the aims of the Infringements Act is to make information on infringement notices as
consistent as possible, all notices must contain the standard prescribed information or they may be
invalid. Further general guidance on this is contained in the Infringements (Reporting and Prescribed
Details and Forms) Regulations 2006, and specific guidance is contained at Appendix B to these
guidelines.
The most common method for the resolution of infringements is the payment of the infringement by the
person to whom it has been issued. For Food Act infringement offences this person will be the proprietor
of the food business. In such a case the proprietor:
• may choose to have the infringement reviewed by the issuing authority (i.e. for the Food Act this will
be council) or apply to enter into a payment plan; and
• also has the right to have the offence heard by the Magistrates’ Court, in which case the council will
need to prove the offence to the Magistrate in the usual fashion.
Where the penalty is not paid by the due date, the enforcement agency may lodge the infringement
1
notice with the Infringements Court to enforce the penalty. This is done via the court making an
enforcement order against the individual. If the individual further fails to pay the fine, an infringement
warrant may be issued against that person by the Infringements Court and directed to the Sherriff. The
Sherriff has access to a variety of sanctions to enforce compliance, depending upon whether the person
is a body corporate (such as a company) or a natural person (i.e. an individual).
1
This will only be the case when regulations are made under the Infringements Act to make Food Act infringement offences
“lodgeable infringement offences”.
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Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
4. When can an infringement notice be issued under the Food Act?
4.1 Introduction
The ability to serve an infringement notice, rather than to prosecute an offence, provides a quicker and
simpler enforcement mechanism for councils. However they are only one of the tools available under the
Food Act. Authorised officers must exercise their discretion to decide which available tool would most
appropriately achieve compliance with the Food Act.
When considering this, an authorised officer should bear in mind that the core purpose of the Food Act is
to ensure that food for sale is safe and suitable for human consumption. In addition, infringement notices
should only be issued where the elements of the offence are clearly made out.
Infringement notices cannot be issued in addition to prosecuting for the same conduct. However it is
possible for the council to withdraw the infringement notice and to subsequently prosecute the offence.
4.2 Penalties
The penalties for infringements are expressed in terms of penalty units, which are used to describe a
fine. Penalty units are set and calculated according to the Monetary Units Act 2004 (Vic).
For the 2010–11 financial year (1 July 2010 to 30 June 2011) one penalty unit is $119.45. The rate for
penalty units is indexed annually, so that it is raised in line with inflation. Any change to the value of a
penalty unit will happen on 1 July each year.
Example
The penalty (for an individual) for an offence against section 16(1) of the Food Act (i.e. failure to comply
with one of the listed requirements of the Food Standards Code relating to food safety practices) is 5
penalty units.
This equates to 5 × $119.45 = $597.25
4.3 Hierarchy of enforcement tools
There are a number of enforcement tools available to councils under the Food Act. These can be loosely
considered as an enforcement hierarchy with 3 different levels, each with a number of enforcement
options that can be effective and appropriate in response to certain non compliance, as illustrated on the
following page:
Page 6
•
Level 1
Advice
Warnings
Official warnings (new)
•
Level 2
Notices to comply following a food safety assessment (section 19IA) or
food safety audit (section 19M)2
Directions / orders about hygiene (section 19) or food safety programs,
minimum records or appointing a food safety supervisor (section 19W)
Seizures
Infringement offences (section 56A) (new)
Registration conditions (section 39A)
• Level 3
Temporary closure or restriction of operations (section 19)
Prosecutions (section 45AC)
Refusal to renew registration (section 38D)
Revocation or suspension of registration (section 40D)
When an authorised officer observes non-compliance, they will need to consider which enforcement tool
will be most effective to achieve compliance.
It is important that an officer selects an enforcement response that is proportionate to the identified noncompliance, and that also provides sufficient incentive to the proprietor of the food business to amend
the non-compliant behaviour. The introduction of infringement notices provides an additional
enforcement tool that will be useful and appropriate for certain non-compliance. As a general rule,
authorised officers should use the lowest level of the appropriate enforcement tools in the first instance.
The new infringement offences effectively introduce 2 new tools; the infringement notices themselves, as
well as the option to issue an official warning. An official warning has specific requirements, similar to an
infringement notice, and occupies a similar place in the enforcement hierarchy as a warning letter.
The Australia and New Zealand Food Regulation Enforcement Guideline provides further guidance on
the use of enforcement actions available under the model food code, and is available on the Food
Regulation Secretariat website at: www.foodsecretariat.health.gov.au.
2
Refer to discussion below about actions to be taken following a food safety audit conducted by an approved auditor for council.
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Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
4.4 Exercising discretion: when should an infringement notice be
issued?
An authorised officer should have regard to a number of factors when considering whether an
infringement is appropriate in all the circumstances. The following considerations may be borne in mind
when evaluating the situation before them.
The following checklist of factors could be used:
a) has the business already been given advice about how to comply?
b) is the offence an infringement offence?
c) the nature of the alleged breach;
d) the severity of the alleged breach;
e) the compliance history of the business and enforcement action already taken; and
f)
how to best ensure remedial action is taken.
Each of these elements is expanded upon below. Figure 3 on page 15 illustrates the way in which these
considerations may guide decision making.
a) Has the business been given an opportunity to comply?
Councils typically seek a collaborative and cooperative approach to ensure the compliance of food
businesses with the Food Act, wherever possible. It is important that the proprietor has had a
reasonable opportunity to understand their legal obligations. The use of warnings prior to the issue of an
infringement notice will help to ensure this, as the person will have been made aware of the need to
comply with the relevant law.
As a general rule, businesses should be made aware of their non-compliance and advised as to what
actions need to be taken to achieve compliance, and be provided with an appropriate timeframe in which
to do so. Councils already do this by way of an inspection report or via a section 19 order to remedy.
In addition, since 1 July 2010, there are two additional procedures under the Act available to councils:
•
•
the power under section 19W(2) to give a direction that:
o
the proprietor of a class 2 food premises have a food safety program on site, supply
details of name and qualifications of the food safety supervisor, or comply with record
keeping requirements in its food safety program; or
o
the proprietor of a class 3 food premises to have their minimum records on site, or to
keep those records;
the requirement under section 19IA for council to issue a notice to remedy deficiencies.
This section applies if a council conducts an annual food safety assessment of:
o
a class 1 food premises; or
o
a class 2 food premises with a template food safety program; and
the council finds that the Food Safety Standards (in the Food Standards Code) or the food safety
program are not being complied with, or that the wrong template is being used.
This written notice must set out the areas of non-compliance, and the timeframe in which the
deficiencies must be remedied. Those deficiencies that pose a serious threat to public health
must be remedied as soon as practicable, and others must be remedied within the period
Page 8
specified in the notice. (However, this notice is not required if the council takes other appropriate
action, such as making a section 19 order.)
The Act therefore requires that this notice to remedy defects will be the way in which breaches
are followed up after the annual food safety assessment. It would in practice serve a similar
purpose as a warning in the sense that it tells the proprietor what must be done to comply.
Generally these approaches should be used before considering whether to issue an infringement notice.
This recommendation applies to all infringement offences.
However, particular care should be taken regarding the following offences -
• a class 3 premises failing to have minimum records on site; and
• a class 2 premises failing to have a food safety program on site, or not providing council with the
name and qualifications of a food safety supervisor when requested to do so.
This is because these requirements are affected by the classification of the food business. As such, it is
only appropriate to issue infringements for these offences where the decision to classify the premises as
class 2 or class 3:
• is clearly correct; and
• has been communicated to the proprietor (including the resultant obligation to have the food safety
program and minimum records documents).
The use of an educative approach would be the recommended standard response for the first occasion
in which such a breach is identified.
b) Is the offence an infringement offence?
The Food Act allows authorised officers to serve an infringement notice on any person that they have
reason to believe has committed an offence which is listed in Schedule 1 of the Food Act. These
offences (and corresponding penalties) are reproduced in the infringement notice template at Appendix
A. Infringement notices served under the Food Act are subject to the requirements of the Infringements
Act.
The only breaches of the Food Standards Code which are infringement offences (under section 16 of the
Food Act) are the listed clauses from standards 3.2.2 and 3.2.3. Not all breaches of these standards are
infringement offences. Authorised officers will need to be familiar with the exact offences to ensure that
notices are only issued for those listed.
If the offence is an infringement offence, the next question to consider is:
Is it reasonable in all the circumstances to issue an infringement notice?
The questions on the following pages aid in answering this key question.
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Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
c) The nature of the alleged breach
The first question to ask is:
Is there sufficient evidence of a breach?
If there is insufficient evidence to prove the breach, an infringement notice will not be appropriate.
The second question to ask is:
Is this a clear cut breach of the Act?
The use of appropriate discretion in the issue of infringement notices is important given that a number of
offences are breaches of certain requirements of standards 3.2.2 or 3.2.3 of the Food Standards Code.
Many of these standards are outcome based, and allow the proprietor a choice as to how to comply.
For example, many of the structural requirements in standard 3.2.3 are not as prescriptive as the
superseded regulations (which are no longer enforceable).3 Some of these offences also contain
exceptions and qualifications.
In these instances it is only appropriate to issue an infringement notice where, in the particular case, the
breach is clear cut. The elements of the offence should be clearly established. None of the exceptions or
qualifications should apply in the particular case, and there should be no defence available.
If the officer and the proprietor disagree about whether the premises have breached an outcome based
law (arguably because there are different ways to comply) then the officer should consider whether this
‘alternative’ is permitted under the Code. This should be discussed with a senior council officer.
Even if the officer remains of the view that there is a breach, the disagreement may indicate that the
breach is not clear cut and is not suitable to be dealt with as an infringement offence.
In such a case consideration should be given to whether an alternative approach should be taken to
deciding whether there is a breach, and if so, how to ensure compliance.
In determining compliance with standards 3.2.2 and 3.2.3, authorised officers should have regard to Safe
Food Australia, published by FSANZ to help interpret Chapter 3 of the Food Standards Code and
available on the FSANZ website at www.foodstandards.gov.au. Copies of this document are also
being made available to those officers attending training in early 2011.
d) The severity of the alleged breach
Consideration should be given to the seriousness of the breach, as this will help determine whether an
infringement notice is, or is not, a proportionate response.
Generally, lower-level enforcement options should be pursued first, escalating to the issue of an
infringement notice where there is a deliberate or continued failure to comply with the requirements of the
Food Act.
In the case of serious threats to public health, or repeated offending despite the issuing of infringements
4
in the past , alternative higher-order measures available under the Act may be required.
Further discussion about classifying non-compliance (including about major and critical non5
compliances) can be found in the Guide to reporting Food Act activities . The following discussion uses
the terminology adopted in that guide (and which also applies in the conduct of audits).
3
For further information, refer to the bulletin on approval of food premises plans (November 2010) available at
http://www.health.vic.gov.au/foodsafety/downloads/approval_food_plans.pdf
4
This second factor relates to the compliance history of the business, and is addressed in the following section.
5
www.health.vic.gov.au/foodsafety/regulatory_info/eho/bulletins.htm
Page 10
Minor breach at a business that is generally compliant
This is essentially for a business assessed as compliant, but where there are some minor defects to be
remedied. These defects do not in the particular case pose an immediate serious threat to public health
6
and safety would not usually warrant the issuing of an infringement notice, when first identified. Based
on the circumstances, examples of these breaches may include:
• minor cracks in tiles in the kitchen;
• class 3 minimum records are generally kept, but with some records missing;
• failure to have in place a food safety program and food safety supervisor where there is doubt or
confusion concerning the classification of the food business (i.e. is it a class 2 or 3?).
Note that a number of minor non-compliances, when taken collectively, may lead to the conclusion that
there is a major non-compliance or, if together they pose a serious threat to public health at that time,
and therefore amount to a “critical” non-compliance.
Serious non-compliance
An infringement notice may be appropriate to deal with a serious breach that does not pose an
immediate serious threat to public health, but which needs to be remedied to ensure that it does not pose
such a threat in the future (i.e. a major non-compliance). Depending on the circumstances, examples of
these breaches could include:
• use of inappropriate material to handle food (e.g. degraded wooden spoon, etc);
• flies present in the food preparation area;
• cleaning products not correctly stored, etc.
Critical non-compliance
For breaches that do pose a serious threat to public health (i.e. a critical non-compliance), the authorised
officer will need to assess which enforcement tool is the most appropriate to ensure public health and
safety. Examples of critical non-compliance for which an infringement notice may be appropriate,
7
depending upon the compliance history of the business, include:
• cross contamination of raw meat on a chopping board that is used for preparation of ready to eat
food;
• unsafe storage of hazardous food (i.e. incorrect temperature storage);
• inappropriate hand washing, etc.
Numerous instances of the same offence at the same time should only be dealt with by a single
infringement notice for the one offence.
Multiple infringement offences could attract multiple infringement notices, however;
• it is suggested that authorised officers should select the most significant infringement and issue a
single notice; or
• if the multiple offences give rise to a critical non-compliance (i.e. a serious threat to public health),
consider other enforcement options.
6
Refer to the discussion under the following section for repeated breaches.
7
Refer to the discussion under the following section for repeated breaches.
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Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
e) Compliance history of the business and enforcement action already taken
Related factors in determining whether an infringement notice is a proportionate response are -
• the compliance history of the food business; and
• where the business has been non-compliant, the enforcement action taken to date.
Not withstanding the general approach to be taken with respect to ‘minor’, ‘major’ and ‘critical’ noncompliance, as outlined above, the history of any non-compliance may also need to be taken into
account:
• if there is a history of non-compliance, and a warning or direction/notice under the Act has previously
been issued but the breach has continued, then an infringement notice may be appropriate for any
further non-compliance, including a minor non-compliance that is longstanding;
• if more than one infringement notice has been issued to the same food business for the same offence
within a short period, then consideration should be given to using other enforcement tools to ensure
compliance (such as prosecution, or a section 19 order); or
• if a business is usually compliant, where the proprietor is willing to remedy a breach straight away
advice and either a warning or section 19IA notice may be sufficient. An infringement may not be
required, even when the breach relates to a major non-compliance or critical non-compliance.
If more than one infringement notice has been issued to a food business for the same infringement
offence within a relatively short period (perhaps 12 months), then it may be inappropriate to continue to
issue infringement notices for that same offence. Other enforcement tools may be needed to protect
public health and ensure compliance.
The regulatory infringement offences
The ‘regulatory’ infringement offences are those that relate to the failure to comply with a regulatory
requirement, such as not keeping the required minimum records on site at a class 3 premises, not having
a food safety program on site at a class 1 or 2 premises, or not providing the name and qualifications of a
food safety supervisor of a class 1 or 2 premises where required.
Compliance with these requirements is important, as they are designed to promote the embedding of
safe food handling practices in a food business over the long term. Therefore, whilst the above
considerations are also relevant in deciding whether to issue an infringement notice (or taking other
action), if the only offence is the failure to comply with a regulatory requirement, councils will need to
consider whether an infringement notice is a proportionate response, based on the severity of the breach
and knowledge about the particular business.
These regulatory breaches may occur at a food premises at which the food handling appears to be
satisfactory, or they may co-exist with hygiene breaches. Different actions may need to be taken, in
either case. A warning or advice may be all that is needed if there are no food handing problems,
particularly for an initial or minor breach. Conversely, if there are food handing problems, it may be
preferable to:
• issue a direction under section 19W to comply with the requirements in the Act regarding food safety
programs, minimum records or food safety supervisors; and
• issue an infringement or take other action regarding the hygiene breaches.
It is suggested that for breaches of these regulatory requirements, the usual initial response could be a
direction under section 19W to obtain a food safety program or the minimum records set, or ensure that
there is a food safety supervisor and provide the name and qualifications of that person to council. A
Page 12
reasonable time would be allowed for this to be done. However, if after this has occurred, the business
is still in breach such that:
• the proprietor is unable to provide details of a food safety supervisor because there is no such
person; or
• there are no food safety program or no minimum records on site;
then this would constitute a more serious breach of the regulatory requirements, and therefore an
infringement notice may be appropriate, unless there are mitigating circumstances.
It is also suggested that a section 19W direction may be appropriate where, for instance, a class 3
premises has minimum records on site, but fails to complete some records from time to time.
f) How best to ensure remedial action is taken
A final factor to consider is whether there is an immediate need to remedy the non-compliance in order to
protect public health. Authorised officers should bear in mind that an infringement notice is primarily to
require payment to expiate a breach that has already occurred. In practice it may also deter the
business from continuing to commit the offence, but it does not specifically require remedial action to be
taken.
If the officer considers that the business is likely to change its practice in response to the issuing of a
8
notice, the officer should still separately communicate to the proprietor:
• what remedial action is required to comply with the Act; and
• the timeframe for taking this action.
On the other hand, if remedial action is required, and the authorised officer considers that the issuing of
an infringement may not be sufficient to deter the business from continuing to breach the Act, another
enforcement option tailored to the action required may be appropriate, for example an order under
section 19 of the Food Act.
Where a section 19 order is issued in relation to an offence that is also an infringement offence, should
the non-compliance continue, an infringement notice or prosecution for failure to comply with the section
19 order may be used, but not both, for the same breach. The reason for this is to avoid punishing a
proprietor twice for the same infringement offence.
An alternative procedure is to:
1. Warn the business of any noted non-compliance in the first instance via an inspection report or
equivalent such as a section 19W direction or a notice under section 19IA (including advice on
how to comply and the timeframe required, as well as the consequences of a failure to comply).
2. Follow up continued non-compliance with an infringement notice where:
• the non-compliance is an infringement offence; and
• the authorised officer is of the view that an infringement notice is appropriate in the
circumstances.
3. If non-compliance continues, a section 19 order to remedy may be issued.
4. Where non-compliance continues, the council may prosecute for the further breach of the Food
Standards Code or other specific offences, or for the failure to comply with the section 19 order.
In this procedure, if an authorised officer has reason to believe that the business will not undertake the
required remedial action at the time of issuing an infringement (i.e. step 2), they may consider also
issuing a section 19 order (i.e. step 3) at the same time, if it is thought that the infringement notice and
8
This information should not be included in the infringement notice itself, to avoid confusion about the nature of the breach that is
the subject of the notice and any other matters, or about the consequences of not paying the fine. The infringement notice is
an instrument under the Infringements Act and should not be used for other purposes.
Page 13
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
specific council advice about how to comply is not likely to result in the desired change. However,
where possible, proprietors should be given the opportunity to bring their business into compliance
following the issue of an infringement notice, without reversion to multiple enforcement tools, to ensure a
proportionate response and to avoid the potential confusion that can arise from multiple orders.
The flowchart in Figure 2 below outlines both procedures described above in relation to the use of
section 19 orders in conjunction with infringement notices.
Page 14
Figure 2: Flowchart depicting the use of a section 19 order in conjunction with infringement
notices.
Non-compliance noted by EHO
Issue warning / Inspection report / section 19IA, 19W,
Further
breach
Section 19 notice
to remedy
Further
Infringement
notice
(for a further
breach that is an
infringement
offence)
breach
Prosecution
(for breach of s19
order)
Further
breach
Infringement
notice
Further
breach
Section 19 notice
to remedy
Further
breach
Prosecution
Note that you should not issue an infringement
notice AND prosecute for failure to comply with the
section 19 order.
for breach
of s19
order
OR
for the further
breach of the Food
Code or other
specific offences
4.5 Checklist on when to use infringement notices
The factors to consider about whether to issue an infringement notice for a given breach, as discussed at
4.4 above, can lead you in different directions; some factors may lead towards the issue of an
infringement notice, while others may lead away. In order to assist in this weighing exercise, these
factors may be considered in sequence in the form of a ‘decision tree’, as illustrated in Figure 3:
Page 15
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
Figure 3: Decision tree of relevant factors to consider when issuing an infringement notice.
NO
Has the business already been given advice about how to comply?
General approach is to advise the
business of actions required to
comply, and timeframe for
compliance.
YES
NO
Is the offence an infringement offence?
An infringement notice cannot be
issued.
Consider other appropriate
enforcement options.
YES
INSUFFICIENT EVIDENCE
An infringement notice should not
be issued.
Nature of alleged breach - evidence
SUFFICIENT
EVIDENCE
NO
An infringement notice should not
be issued.
Nature of alleged breach - is the breach clear cut?
YES
“MINOR”
Severity of alleged breach
MAJOR
Business generally compliant,
only a minor defect to be
addressed. Would not usually
warrant the issuing of an
infringement notice, when first
identified.
CRITICAL
GOOD COMPLIANCE
Compliance history
Consider whether an infringement
notice is warranted.
HISTORY
POOR
COMPLIANCE
HISTORY
Consider enforcement options.
Previous enforcement action
APPROPRIATE
ENFORCEMENT
OPTIONS EXHAUSTED*
INFRGINEMENT NOTICE MAY BE APPROPRIATE
Page 16
ALTERNATIVE
ENFORCEMENT OPTIONS
SUITABLE*
*Whether other enforcement options are suitable
may depend on the council’s preference for the
sequence in which a s. 19 order is used, and any risk
to public health (refer to Figure 2).
4.6 Bringing it together
In considering the appropriateness of issuing an infringement notice, authorised officers should consider
whether the non-compliance might better be remedied by the issue of a warning or direction, or in the
case of more serious non-compliance, the use of other enforcement tools.
The aim is to act fairly, and to protect public health. Serious threats to public health will always require
special consideration.
That said, as a general rule, in practice businesses can often be warned of their non-compliance in
writing and advised as to what actions need to be taken to achieve compliance, and be provided with an
appropriate timeframe for bringing their operations into compliance. Should non-compliance continue,
the authorised officer may then escalate to the issuing of an infringement notice, with further ongoing or
critical non-compliance dealt with through the higher level enforcement sanctions.
Table 1 below provides scenarios of when infringement notices may or may not be appropriate. In all
cases where there is some doubt, the authorised officer should discuss the issue with a senior officer.
Please note these are illustrations only, and circumstances may vary.
Page 17
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
Table 1: Offences listed in Schedule 1 of the Food Act from 1 March 2011
The circumstances described are general illustrations only. In all cases the EHO must exercise discretion to decide the appropriate course in the particular case.
Circumstances
Offence
An offence against section
16(1) constituted by a failure
to comply with the
requirements of any of the
following clauses of Standard
3.2.2 of the Food Standards
Code—
5(2)(a), 5(2)(b), 6(1)(a), 6(2),
7(1)(b), 7(2), 8(1), 8(2)(b),
8(2)(c), 8(4), 8(5)(a), 8(5)(b),
10(b), 10(c), 11(3), 11(4), 12,
16(3), 17, 19, 20(1), 21(2),
22(a), 23(b)(ii), 24(1)(a),
24(1)(b).
Summary of offence
Failure to comply with
requirement of Food
Standards Code relating to
food safety practices or
general requirements.
Penalty
5 penalty units for a
natural person;
10 penalty units for a body
corporate.
Infringement notice may not be the
most appropriate action
Infringement notice may be the
most appropriate action
Minor non-compliances only are evident
and do not pose an immediate threat to
public health, particularly on the first
occasion that they are identified.
(1)
Where the breach poses an
immediate risk to public health and
safety, and the EHO is of the view
that an infringement notice is an
appropriate enforcement response,
having regard to these guidelines.
Example:
A restaurant provides a customer with
water served in a chipped glass.
Example:
When inspecting a café, an EHO
observes that a single chopping
board is used to cut up both raw
chicken and ready to eat food.
(2)
Repeated minor non-compliances
that have not been remedied
following advice/warnings.
Page 18
An offence against section
16(1) constituted by a failure
to comply with the
requirements of any of the
following clauses of Standard
3.2.3 of the Food Standards
Code—
4(2), 5(a), 6(a), 6(b),
10(2)(a), 10(2)(b), 10(2)(c),
11(4)(a), 12(2)(b), 12(2)(c),
12(3), 12(4), 13, 14, 15(2).
Failure to comply with
requirement of Food
Standards Code relating to
food premises or equipment.
5 penalty units for a
natural person;
10 penalty units for a body
corporate.
Minor non-compliances only are evident
and do not pose an immediate threat to
public health, particularly on the first
occasion that they are identified.
Example:
The kitchen contains cracked wall tiles (i.e.
not a food preparation surface).
(1) Where the breach poses an
immediate risk to public health and
safety, and the EHO is of the view
that an infringement notice is an
appropriate enforcement response,
having regard to these guidelines.
Example:
A food business is preparing ready to
eat food on a heavily cracked bench
top that, owing to the degree of
cracking, cannot be sanitised.
(2) Repeated minor non-compliances
that have not been remedied
following advice/warnings.
An offence against section
17.
Failure by proprietor to display
name on food premises.
2 penalty units for a
natural person;
The proprietor has not been made aware
of this requirement.
The proprietor has been made aware
of the requirement and previously
warned to comply.
Individual data entries are missing from the
records log, but it is clear that the business
is endeavouring to maintain the minimum
records.
No record log is kept by the
proprietor, after being advised of the
need to do so.
3 penalty units for a body
corporate.
An offence against section
19CB(6).
Failure to keep minimum
records at a class 3 premises.
2 penalty units for a
natural person;
3 penalty units for a body
corporate.
Records are not on site at time of
inspection, but the officer has reason to
believe they are ordinarily made and kept
on site,
Page 19
A record log is kept but with sparse
information that indicates that food
temperature records, etc are not
made.
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
An offence against section
19F
Failure to keep food safety
program at a class 1 or class
2 premises.
(Note that it is sufficient if the
FSP is in an electronic format
and is accessible from the
premises. This is not a breach
of the provision.)
An offence against section
19GB.
Failure to give name and
qualifications of food safety
supervisor when requested.
2 penalty units for a
natural person;
3 penalty units for a body
corporate.
2 penalty units for a
natural person;
3 penalty units for a body
corporate.
An offence against section
35A(1).
Operate from a food premises
which is not registered.
5 penalty units for a
natural person;
Where there is doubt or confusion
concerning the classification of the food
business (i.e. class 2 or 3).
The requirement for the business to have a
food safety program has not been made
clear by council.
If the failure is because the business has
no food safety supervisor and the
proprietor reasonably believes that the
business is a class 3 or 4 business.
Where the classification is correct
and the requirement to have in place
an appropriately qualified food safety
supervisor has been communicated
to the proprietor.
The proprietor reasonably believes that the
business is a class 4 business.
The proprietor has previously been
advised of the correct business
classification and the requirement for
registration
The proprietor is unaware of the
requirement for notification.
The proprietor has previously been
warned that the business needs to
notify council.
The proprietor is unaware of the
requirement to lodge a statement of trade.
The proprietor has previously been
warned that the business needs to
lodge a statement of trade.
10 penalty units for a body
corporate.
An offence against section
35A(2).
An offence against section
43I(1).
This offence will apply from 1
July 2011
Page 20
Operate from a food premises
exempt from requirement to
be registered for which
notification has not been
given.
5 penalty units for a
natural person;
Failure to lodge a statement of
trade by a temporary or
mobile food premises.
2 penalty units for a
natural person;
Where the classification of the
business is correct and the obligation
to have a FSP has been clearly
communicated to the proprietor.
10 penalty units for a body
corporate.
4 penalty units for a body
corporate.
4.7 Multiple infringement offences
Where an EHO observes multiple infringement offences (i.e. different offences) occurring on
the one occasion, and has formed a view that an infringement notice is appropriate in the
circumstances, it is recommended that generally the EHO should select the most significant
infringement and issue a single infringement notice for that infringement offence.
This is for two reasons:
•
multiple breaches may give rise to a critical non-compliance (i.e. a serious threat to
public health), and other enforcement options to protect public health should be
considered;
•
the simultaneous issuing of multiple infringements may amount to a substantial fine,
more like the amount that may be ordered by a court in the case of a prosecution.
(Infringement notices are intended to be provide a lower level of punishment.)
Council health units should develop a policy to guide officers in this area. This can be
incorporated into the code of conduct for authorised officers (refer to section 6 of these
guidelines). Such a policy should promote the judicious use of infringement notices by:
• ensuring that, in conjunction with the issuing of an infringement notice, ongoing health and
safety risks are also addressed;
• ensuring that proprietors are made aware of the offence committed and what remedial
action is required to bring the business into compliance;
• ensuring that multiple infringement notices are not issued for the same offence where the
business has not had adequate time to take remedial action; and
• use of alternative enforcement tools to discourage inappropriate issuing of multiple
infringement notices to the same business for the same infringement offences over time,
as the failure to comply demonstrates that some other form of action is necessary to
protect public health.
Page 21
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
5. How to issue an infringement notice
5.1 Who may issue an infringement notice?
Only an authorised officer may issue an infringement notice. An authorised officer is defined
in section 4 of the Food Act. An authorised officer is typically an EHO.
An authorised officer also includes any person referred to in section 20 of the Food Act who is
suitably qualified or trained, and is appointed by a council under the Local Government Act
1989 (Vic) as an authorised officer for the purposes of the Food Act. If any such authorisation
is limited under section 20(2) of that Act (rather than being expressed as general), care
should be taken to ascertain that the officer’s authorisation includes issuing infringements in
the particular case.
Managers should ensure that any such authorisations of officers (who are not EHOs) to issue
infringements are appropriate, and that the officer has the necessary skills and training.
In addition, if a council authorised officer is also an approved auditor, and conducts audits for
the council, they will need to consider how to act if, in the course of conducting an audit they
discover breaches that are of a nature that would generally form grounds for issuing an
infringement notice. In any such audits the officer must complete the processes required
under the Food Act regarding audits, such as issuing a notice to comply under section 19M
when deficiencies are identified. This notice is required in all such cases except where an
order is made under Part III of that Act, such as a section 19 order to remedy defects (section
19M(4)).
The officer will need to determine at what point in the audit process an infringement notice is
also warranted, if the breach amounts to an infringements offence. Typically this would not
be during the initial audit where the proprietor would ordinarily be given the opportunity to
address breaches listed in the section 19M notice. The question of whether to issue an
infringement would usually only arise, in practice, for an ongoing non-compliance that is
detected at a follow up audit that is conducted to ‘close out’ and finalise the audit process.
5.2 Informal warnings
Many councils use verbal warnings or assessment reports to warn proprietors of food
business about non-compliance issues. These warnings, even where written, are not official
warnings for the purposes of the Infringements Act. An official warning requires certain
information (see below) and may only be issued where an authorised officer is satisfied that
an infringement offence has occurred, but that in considering all of the circumstances is of the
view that an infringement notice is not appropriate. Councils should ensure that
comprehensive records of any informal warnings issued are kept, including to whom the
warning was given.
5.3 Official warnings compared with Food Act warnings
Section 8 of the Infringements Act allows an issuing officer to serve an official warning in
writing instead of an infringement notice. This can be done where the officer believes that a
person has committed an offence, but that in considering all the circumstances, is of the view
that an infringement notice is not appropriate.
An official warning can only be issued where the issuing officer is satisfied that an
infringement offence has occurred.
In considering the issuing of an infringement notice or the service of an official warning, those
officers must observe any relevant policy of the council and have regard to any relevant
Page 22
guidelines of the council (refer to section 8(3) of the Infringements Act). Some councils may
currently have such guidelines in place.
The following information must be included in an official warning (refer to section 6 of the
Infringements (Reporting and Prescribed Details and Forms) Regulations 2006, included at
Appendix B).
•
•
•
•
•
•
that it is an official warning;
the date of the official warning;
the name and address (if known) of the person served with the official warning;
the name of the enforcement agency;
the enforcement agency identifying reference of the official warning;
either the name of the issuing officer or the enforcement agency identifying reference of
the issuing officer;
• the date and approximate time and place of the infringement offence alleged to have been
committed;
• the Act or other instrument that creates the infringement offence and a brief description of
the infringement offence alleged to have been committed;
• that further information may be obtained from:
o
a nominated telephone number;
o
designated address; and
o
if available, the enforcement agency's website.
An official warning must be served in accordance with section 162 of the Infringements Act.
This allows service to be effected personally, via post, or by leaving the warning at the last or
most usual place of residence or business of the person to be served, or with a person who
apparently resides at, or works at, the residence or business (and who appears not to be less
than 18 years of age) (refer to Regulation 42 of the Infringements (General) Regulations
2006).
These official warnings are optional. They are included in the Infringements Act to provide an
alternative to issuing an infringement notice. This is likely to be very relevant to those areas
of law where there are no statutory warning/advice processes.
However, as noted above, non-compliance with the Food Act is an area where there is a long
history of advising businesses about how to comply, and warning about the consequences of
continued non-compliance. A section 19 order is one example. Other examples are
directions under section 19W and the new notices when there is non-compliance detected at
9
a food safety assessment.
Councils will need to decide whether they wish to add official warnings under the
Infringements Act to their ‘enforcement repertoire’, to be used in addition to the statutory
measures outlined above. This may depend upon overarching existing council policies.
9
Refer to the discussion at section 4.4 of these guidelines.
Page 23
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
5.4 Issuing an infringement notice
An infringement notice must be served in accordance with section 12 of the Infringements
Act. This requires that the infringement notice be delivered personally to the person to whom
the notice was issued or sent by post to their last known home address or business address,
or as allowed under the Food Act. Section 55 of the Food Act also allows service of a notice
to the proprietor by leaving the notice with some adult person on the premises, or if there is
no such person on the premises, by fixing it or a copy to a conspicuous part of the premises.
A mode of service should be selected that is appropriate for the circumstances.
Note that section 37 of the Infringements Act provides that a person may apply to court to
have a lodgeable infringement notice cancelled if they can establish that the notice was not
served by ‘personal service’, and the person was not aware of the infringement notice.
Service by the additional means outlined in section 55 of the Food Act may therefore not be
the preferred means of service.
Excerpts of the Acts and Regulations relevant to the service of warnings and infringements
are reproduced at Appendix B.
Important tips
Below are a number of useful tips for issuing infringement notices, however this is not an
exhaustive list of good practice requirements:
• Do not issue an infringement notice unless you are prepared to prove the offence in court.
Taking comprehensive notes and photos may help satisfy you that you could prove the
offence, if it was referred to the Court.
• Where hand writing an infringement notice, make sure to complete the details clearly and
legibly.
• Ensure that the correct name and address are used on the infringement notice.
• Given that Food Act infringement offences relate to obligations of the proprietor,10 you
should ensure that infringements are issued to the proprietor.
11
• Ensure that the correct penalty for the offence is written on the infringement notice,
bearing in mind that greater penalties apply to bodies corporate.
• Ensure that the offence is worded correctly on the infringement notice.
5.5 Mandatory information in infringement notices
Section 13 of the Infringements Act and Regulation 8 of the Infringements (Reporting and
Prescribed Deals and Forms) Regulations 2006 provide that an infringement notice must
contain certain information. An example of an infringement notice is included at Appendix A
and may be used by councils for the issue of infringement notices, and contains prompts for
the requisite information. The relevant provisions of the Infringements Act and Regulations
are reproduced at Appendix B.
10
In the case of the listed breaches of standards 3.2.2 and 3.2.3 of the Food Standards Code which are infringement
offences, refer to clause 4(1) of standard 3.1.1 of the Code. Generally standards 3.2.2 and 3.2.3 simply refer to a
“food business”. However, a “food business” is not a legal person. Clause 4(1) of standard 3.1.1 therefore
provides that a proprietor of a food business must ensure that the food business complies with the requirements
in the relevant clauses of chapter 3 of the Code (which in this case are standards 3.2.2. and 3.2.3).
11
Further advice will be provided at a later stage about whether a notice can be issued to a director, in the case of a
proprietor that is a body corporate.
Page 24
Drafting the infringement
The infringement notice must include a brief description of the offence, as well as the Act or
instrument that creates the infringement offence. Infringement notices may promote
behavioural change so that a non-compliant business becomes compliant. The issuing of a
notice can be challenged in court. For both of these reasons it is important to use the
relevant actual wording of the offence wherever possible, so that the nature of the breach is
clear.
To aid in this, a table of the Food Act infringement offences is appended to the infringements
notice template at Appendix A. However, this is only a guide as some of the offences have
quite complex wording and truncation may be needed in some cases. Authorised officers
should also be aware that when describing the offence, if using this appendix, they will need
to re-cast these obligations as offences – by describing the failure of the proprietor to comply
with the relevant obligation- and cannot simply re-state the obligations as they currently
appear in the document.
The table in appendix A will be revised to provide possible wording of these Food Standards
Code clauses as offences committed by proprietors. It will be distributed electronically (as a
Word document) as soon as possible in March 2011, together with the template for the
infringement notice.
Authorised officers should ensure that they have reference to the Food Standards Code itself
when examining the obligations imposed by the Code.
A good way of drafting Food Code infringement notices can be as follows:
Failure to comply with [relevant clause of Standard] of the Food Standards Code in
that the business failed to [state the wording of the relevant part of the Code]
or
Failure to [state the wording of the relevant part of the Code], contrary to [relevant
clause of Standard] of the Food Standards Code
Therefore, an infringement notice issued for failing to store food under temperature control
could be expressed in the following way:
Failure to comply with clause 6(2) of Standard 3.2.2 of the Food Standards Code in
that the food business failed to store potentially hazardous food under temperature
control.
An example of an infringement notice issued for conducting a food business from an
unregistered premises could be drafted in the following way:
Operating from a food premises that was not registered with [the relevant council]
5.6 Instructions to businesses to take remedial action
Given that infringement notices do not specifically require remedial action to be undertaken by
the food business (that is, they are a penalty for a certain breach of law), when issuing an
infringement notice, authorised officers should ensure that they separately communicate to
the business the remedial action that needs to be undertaken to ensure compliance (i.e. to
remove the health risk) and the timeframe for taking this action.
Page 25
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
The timeframe for taking remedial action will depend upon the health risk posed by the
conduct that constitutes the infringement offence. For example, where an infringement notice
is issued for the cross-contamination of raw meat on a chopping board that is used for
preparation of ready to eat food, owing to the immediacy and degree of the health risk, an the
business would be required to modify its food handling practice quickly. In the case of an
infringement notice being issued for breaches of a lower risk, a longer timeframe may be
appropriate.
In communicating this information to proprietors, authorised officers should do this in
conjunction with issuing the infringement notice, but must be careful not to include these
details on the infringement notice itself or to leave an impression that the remedial
requirements form a part of the penalty infringement.
5.8 What happens after an infringement is issued?
This depends on the how the person issued with the notice responds (or does not respond).
Typical outcomes are as follows:
• the penalty is paid to the council (section 57(2) of the Food Act) and the matter is resolved;
or
• there is no response prior to the due date for payment (typically 28 days) and council
issues a penalty reminder notice; or
• either initially, or in response to penalty reminder notice, the person does one of the
following:
o
agrees to pay the penalty amount but requests a payment plan be put in
place; or
o
requests an internal review of the issuing of the notice, whether because of
special circumstances or other reasons permitted under the Infringements
Act. This will result in either the notice being withdrawn by council or the
notice being confirmed by council.
Where an individual seeks an internal review on the grounds of special
circumstances, in the case that the council confirms the notice, it must refer it
to the Magistrates’ Court.
• the matter is referred to the Magistrates’ Court before the matter is lodged with the
Infringements Court. This may be done by either party; however council must first
withdraw the infringement notice. Where a matter is referred to the Magistrates’ Court it
proceeds as a prosecution.
Where the person does not respond in any of the above ways to the penalty reminder notice
within the time specified in the reminder notice, the council may lodge the notice with the
Infringement Court of the Magistrates’ Court so that it can be enforced. The following
12
discussion explains these aspects in more detail.
Referral to the Magistrates’ Court
Infringements can be referred to the Magistrates Court at various stages before the matter is
lodged with the Infringements Court (refer to sections 16 and 17 of the Infringements Act).
This may be referred to the court by either party, although a council may only do this after
12
This will only be the case when regulations are made under the Infringements Act to make Food Act infringement
offences “lodgeable infringement offences”.
Page 26
withdrawing the infringement notice. Referral to the Magistrates’ Court can be made at any
time before an enforcement order is made.
Given that an infringement notice is able to be tested in court, it is important that officers have
sufficient relevant evidence that is able to establish each element of the alleged offence, prior
to issuing an infringement notice.
An infringement notice should never be used as a means to overcome the deficiencies of a
potential prosecution.
Person served may request an internal review
A person served with an infringement notice may request the enforcement agency to review
the decision to serve the notice (refer to section 22 of the Infringements Act). In this case the
‘enforcement agency’ is the council. Applications for an internal review may be made once
only per infringement, at any time before the infringement is lodged with the Infringements
Registrar.
Applications must be made to council in writing, stating the grounds for review, which may
include:
• that the decision:
o
was contrary to law; or
o
involved a mistake of identity; or
• that special circumstances apply to the person; or
• that the conduct for which the infringement notice was served should be excused having
regard to any exceptional circumstances relating to the infringement offence.
Sections 24 to 27 of the Infringements Act detail the requirements on councils when
conducting a review. This includes that the review must be conducted by an officer not
involved with issuing the infringement. The Department recommends that wherever possible
reviews are conducted by an appropriate independent council officer. It is suggested that
health unit managers check that there are appropriate delegations, and arrangements in
place, for the conduct of internal reviews by council.
The Infringements Act also prescribes a time limit for undertaking reviews. More information
about internal reviews is available:
• in the Attorney-General’s Guidelines to the Infringements Act 2006;
• on the Victorian Government website www.fines.vic.gov.au; and
• at pages 122-123 of the Guidance Manual for Local Government Authorised Officers,
Public Health and Wellbeing Act 2008, June 2010.
Special circumstances
One ground for a review is on the basis of special circumstances. The Infringements Act
takes special circumstances into account so that genuinely vulnerable people are not caught
up by the infringements system. The special circumstances category covers people with
intellectual disabilities, disorders or mental health conditions, serious addictions or the
homeless.
Special circumstances can be taken into account before the enforcement stage; however this
requires that the agency has a relevant code of conduct in place.
Page 27
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
Where a council receives an application for a review citing special circumstances, but
reaffirms its decision to issue the infringement notice, the council must then refer the matter to
the Magistrates’ Court as a confirmed infringement notice where it has been alleged that
special circumstances apply.
Penalty reminder notice
The council will issue a penalty reminder notice where the penalty has not been paid on time.
This notice will include additional costs, and must allow at least 28 days to pay and provide a
warning that further action may be taken by the agency to enforce the infringement, if it is not
paid.
Person served may seek a payment plan
A person served with an infringement notice may apply to the council to pay by instalments,
or ask for an extension of time to pay where they hold any one of the following:
• Commonwealth Government (Centrelink) Pensioner Concession Card;
• Department of Veterans' Affairs Pensioner Concession Card or Gold Card; or
• Centrelink Health Care Card (all types including non-means tested).
The person served may also apply for a payment plan if they suffer from financial hardship;
councils must exercise discretion in considering such an application.
5.9 Withdrawal of infringements
An infringement notice may be withdrawn in accordance with section 18 of the Infringements
Act. This includes where the council determines that:
• an official warning should be served on the person rather than an infringement notice (i.e.
after having conducted an internal review); or
• proceedings are to be commenced against the person in respect of the infringement
offence for which the infringement notice had been served; or
• the matter should be abandoned.
An infringement notice may be withdrawn by the issue and service of a withdrawal notice, the
information requirements for which are listed in section 19 of the Infringements Act. Relevant
provisions of the Infringements Act and Regulations are reproduced at Appendix B.
Appropriate delegations and arrangements should be in place for the withdrawal of Food Act
infringement notices by council.
5.10 Enforceability
The non-payment of fines for infringement offences under the Food Act can only be enforced
by the sheriff and the Infringements Court when:
• the offence is a ‘lodgeable infringement offence’ within the meaning of the Infringements
Act; and
• council, as the enforcement agency, takes the required initiatory steps under the
Infringements Act.
Council will already have procedures in place to take this action, but it is suggested that
health unit managers contact the relevant council staff to ensure that these procedures are
suitable for Food Act infringement offences.
Page 28
However, this will question of enforcement will only arise when the offences are ‘lodgeable
infringement offences’. Amendment of the Infringements (General) Regulations 2006 is
needed to achieve this.
The Department of Justice (DoJ) has advised that the amendments to these regulations are
intended to be made after the changes to the Food Act that will enable infringement notices to
be issued, come into effect.
DoJ has advised that infringement notices may be issued from 1 March 2011, but will not be
lodgeable until the regulations are amended. However, it is understood that in practice it will
take 77 days as a minimum for the various steps to be taken from the issuing of an
infringement to the time that it may need to be lodged with the Infringements Court. DoJ has
advised that it is expected that the regulations will be amended within this period, so that
notices issued from 1 March 2010 will be lodgeable (and thus able to be enforced via the
infringements system). Further advice will be provided to councils about the regulations when
it is available.
In order to enforce infringement notices, councils/authorised officers will need to lodge the
infringement on the Victorian Infringement Management System (VIMS) system (see 5.12
below). This is done via reference to individual codes for each offence, so care should be
taken to ensure that the correct code is used, bearing in mind that different codes must be
used for infringement notices issued to individuals as compared to bodies corporate, even for
the same offence.
5.11 Data collection
Under the Infringements Act, enforcement agencies are required to report certain data to the
Attorney-General (refer to section 6 of the Act and regulation 5 of the Infringements
(Reporting and Prescribed Details and Forms) Regulations 2006). This data is reported by
enforcement agencies to the Attorney General every six months, in January and July.
The information reported to the Attorney-General is for the purposes of monitoring the
operation of the infringements system, and includes information relating to the numbers of
official warnings issued and withdrawn for each category of infringement offence, notices
issued and withdrawn, how many people elected to go to court, applications for internal
reviews and their outcomes, and applications for payment plans. Councils will already have
procedures in place to provide the Attorney-General with this data as it relates to other
infringement notices currently issued by council. The data on infringement notices issued
under the Food Act would also be provided by councils to the Attorney General as a part of
this process. The DoJ collect this data from councils on behalf of the Attorney-General via
spreadsheets provided to councils every six months.
In consultation with the Department of Health, the DoJ has assigned codes to each
infringement offence, with separate codes for breaches by individuals and by bodies
corporate (such as a company). The main use of these codes is for council administration,
when lodging a failure to pay a fine with the Infringements Court. However, they are also
relevant to the reporting to DoJ of notices issued by category of offence.
Councils are also required under the Food Act to provide certain data (quarterly) to the
Department of Health, under the data reporting regime that commenced under the Food Act
on 1 October 2010. The required data will include information about the offences for which
infringement notices are issued. Infringements are one important component of the Food Act
data set. When taken together, all of the data reported will provide a better picture for local
government, the department, and the community about Victoria’s food regulatory system, and
Page 29
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
will enable the issuing of infringements to be seen in context, as part of the range of actions
taken by councils in administering the Act.
For instance, in a de-identified form, the data about infringements can be linked to related
enforcement actions (such as inspections), to obtain a better understanding of what
enforcement actions work best in different situations. This type of analysis cannot be
conducted from the data reported to DoJ, as that data is not- and cannot be - associated with
Food Act activities more broadly. Part 8 of the Guide to reporting and recording Food Act
13
activities provides information on the reporting of infringement offences.
5.12 VIMS codes
The Victorian Infringement Management System (VIMS) manages a lodgeable infringement
throughout its enforcement lifecycle. Local councils will already be familiar with VIMS from
their administration of other infringement offences.
Details of infringement notices issued by enforcement agencies (including councils) are
loaded onto VIMS. For this, each lodgeable offence has a unique VIMS code (these are
provided in the description of infringement offences appended to the infringement notice
template at Appendix A).
VIMS then automatically initiates further steps in the enforcement process (e.g. issue of a
penalty reminder notice and lodgement with the Infringements Court), as required. Payments
are also recorded on VIMS. For councils, VIMS manages the process from the time the
unpaid infringement is lodged with the Infringements Court and any subsequent enforcement
action, such as the issue of an infringement warrant.
It may be necessary for an authorised officer issuing an infringement notice to include the
correct VIMS code in the infringement notice. This linkage will be required at the point where
the council wishes to lodge the non-payment with the Infringements Court (and for the
purposes of reporting to DoJ as outlined above). It is suggested that health unit managers
clarify at what stage in the infringement process the VIMS code is used in their council
systems.
The Infringements System Oversight Unit (ISOU) in DoJ conducts information sessions on the
infringements system throughout Victoria each year and provide information on the
infringements system via a regular newsletter. Should councils have any questions on the
infringements system and VIMS, they can contact the ISOU Stakeholder Engagement
Manager on 8684 1782.
13
This guide is available at http://www.health.vic.gov.au/foodsafety/regulatory_info/eho/bulletins.htm
Page 30
6. What councils need to do
Act changes are enabling
Councils should note that the changes to the Act that allow infringement notices to be issued
are enabling. This means that they allow councils to issue infringement notices for relevant
offences but do not require councils to do so. Therefore, councils should put in place the
relevant policies and procedures and only begin to make use of infringement notices once
they are prepared and ready to use them as an effective and appropriate enforcement tool.
Council actions list
In order to prepare for the introduction of infringement notices, councils need to do the
following:
• Forms
Develop forms for issuing infringement notices under the Food Act. A template for this is
provided in this guide and will be available electronically shortly, for those councils that
wish to use it.
• Administrative systems
Ensure that there is a system in place for monitoring the issue of infringement notices and
penalty reminder notices, as well as for the follow up of unpaid infringement notices (i.e.
VIMS). Food Act infringement penalties are payable directly to council (section 57 of the
Food Act).
• Procedures
Ensure that council procedures reflect the requirements of the Food Act, the Infringements
Act 2006, and the Attorney-Generals Guidelines to the Infringements Act 2006, some
guidance on which is provided in these guidelines. In particular, councils should have in
place:
– a code or policy that describes how authorised officers will exercise their discretion in
the issuing of infringement notices. This can be based on these Infringement
Guidelines and also on council policies that apply generally to infringements;
– delegations and arrangements, where required, of powers and functions of council as
an ‘enforcement agency’ under the Infringements Act (e.g. regarding withdrawal of
infringement notices under section 18 and internal reviews under Division 3 of Part 2);
– a procedure for conducting internal reviews by a senior officer, including the
consideration of special or exceptional circumstances;
– a policy for assessing and granting applications for payment plans (this could be based
on existing council practice) in accordance with Part 3 of the Infringements Act 2006;
– a system for recording required data and providing this to both the Attorney-General
(based on existing council procedures for reporting other infringement notices). These
reports are sent every six months and ensure that the Attorney-General can prepare a
report for the community about how the infringements system as a whole is working.
Managers should discuss with their IT areas what changes may be needed to ensure
that Food Act infringements can be included in these reports when they are sent by
councils to the Department of Justice; and
Page 31
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
• Data reporting to the Department of Health
Given that some data regarding infringement notices is also to be separately reported to
the Department of Health (as per section 5 above), councils must ensure that officers
record the relevant information to council Food Act databases, and that the required
statistical information is included in the quarterly reports to the department. For further
information, refer to Part 8 of the Guide to reporting and recording Food Act activities.
Page 32
Appendix A – Infringement notice template
Reference number:
VIMS code:
Date of issue:
Section 56A Food Act 1984 (Vic)
Enforcement agency: [council name and logo]
INFRINGEMENT NOTICE
To:
Address:
You have committed an offence under section
16(1) 17 19CB(6) 19F 19GB 35A(1) 35A(2)
of the Food Act 1984 (Vic).
Date of Offence:
Approximate time of Offence:
Location of Offence:
Description of Offence:
Infringement Penalty:
[if the breach is of the Food Standards Code, include
the clause and standard breached as well as a
description of the offence ]
$ [express as penalty unit and also a dollar amount based
on penalty units in Schedule 1 of the Food Act]
Due date:
[must be a period not less than 28 days after the
infringement notice has been served]
Issuing officer (authorised
officer):
[Name of officer or enforcement agency identifying
reference]
Signature
Date
You must pay the infringement penalty by the due date.
If you do not pay the infringement penalty by the due date further
enforcement action may be taken against you and you may incur further
costs.
Important information about your rights and how to pay the infringement penalty
is contained overleaf.
Page 33
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
IMPORTANT INFORMATION
How to pay the infringement penalty
[Must state the manner in which it is to be paid]
Right to have the matter determined by the Court
You are entitled to elect to have this matter heard and determined in the
Magistrates’ Court.
If you are a child within the meaning of the Infringements Act 2006 (Vic) you are
entitled to have this matter dealt with by the Children’s Court in accordance with
the Children, Youth and Families Act 2005 (Vic).
If you want this matter to be heard and determined by the Court you must notify
the issuing officer before the due date of the infringement penalty.
Internal Review
You, or a person acting on your behalf with your consent, may apply to have the
decision to serve this infringement notice on you internally reviewed by council.
Payment Plans
You may be eligible for a payment plan under section 46 of the Infringements Act
2006 (Vic) (unless you are a body corporate). Your reasons must be included in
a written application.
For further information about all of these matters, including payment plans and
internal review can be obtained from: [Name of Council, including phone number
and address, and website address if available. Email address is optional].
Page 34
Description of infringement offences under the Food Act 1984 (Vic)
These offence descriptions are for information only and reference should be made to the Food
Standards Code to ascertain the obligations imposed by the cited clauses.
Note that in the following table–
•
different VIMS codes apply for offences by individuals and bodies corporate;
•
commentary that is not part of the legislation is included in italics below as
explanation for authorised officers only, and should not be included in an
infringement notice; and
•
if this table is used to aid in issuing a notice, the description of the offence will
need to refer to the failure of the proprietor to comply with the described
obligation. Suggestions for drafting are contained in the guidelines and should
be read first. (This will be addressed in the forthcoming example of an
electronic template for an infringement notice.)
VIMS
code
Penalty
Provision
Description
9501
5 penalty units for a
natural person
Food Act 1984
S16(1)
9549
10 penalty units for a
body corporate
Food Standards Code, Standard 3.2.2 Clause 5(2)(a)
A food business must provide to the reasonable satisfaction of an
authorised officer, upon request, the following information relating to food
on the food premises: the name and business address in Australia of the
vendor, manufacturer or packer or, in the case of food imported into
Australia, the name and business address in Australia of the importer.
9502
5 penalty units for a
natural person
Food Act 1984
S16(1)
9550
10 penalty units for a
body corporate
Food Standards Code, Standard 3.2.2 Clause 5(2)(b)
A food business must provide, to the reasonable satisfaction of an
authorised officer upon request, the following information relating to food
on the food premises: the prescribed name of the food or, if there is no
prescribed name, an appropriate designation of the food.
9503
5 penalty units for a
natural person
Food Act 1984
S16(1)
9551
10 penalty units for a
body corporate
Food Standards Code, Standard 3.2.2 Clause 6(1)(a)
A food business must, when storing food, store the food in such a way
that it is protected from the likelihood of contamination.
During storage food may become contaminated in the following ways:
- microbiologically, such as by raw foods contaminating ready-to-eat food;
- chemically, such as by food not being stored in food-grade containers or
by chemicals being accidentally spilt onto food; and
- physically, from foreign objects including pests, glass, dirt, metal and
hair.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 6(2)
A food business must, when storing potentially hazardous food:
(a) store it under temperature control; and
(b) if it is food that is intended to be stored frozen, ensure the food
remains frozen during storage.
Potentially hazardous food must be stored at a temperature that will
minimise the growth of food poisoning bacteria in the food for the time
that the food is being stored. This temperature must be at or below 5°C or
above 60°C unless the business can demonstrate that maintaining stored
food between these temperatures will not adversely affect the
microbiological safety of the food.
9504
5 penalty units for a
natural person
9552
10 penalty units for a
body corporate
Page 35
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
9505
5 penalty units for a
natural person
9553
10 penalty units for a
body corporate
9506
5 penalty units for a
natural person
9554
10 penalty units for a
body corporate
9507
5 penalty units for a
natural person
9555
10 penalty units for a
body corporate
9508
5 penalty units for a
natural person
9556
10 penalty units for a
body corporate
9509
5 penalty units for a
natural person
9557
10 penalty units for a
body corporate
9510
5 penalty units for a
natural person
9558
10 penalty units for a
body corporate
9511
5 penalty units for a
natural person
9559
10 penalty units for a
body corporate
9512
5 penalty units for a
natural person
9560
10 penalty units for a
body corporate
9513
5 penalty units for a
natural person
9561
10 penalty units for a
body corporate
Page 36
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 7(1)(b)
A food business must, when processing food, take all necessary steps to
prevent the likelihood of food being contaminated; and where a process
step is needed to reduce to safe levels any pathogens that may be
present in the food – use a process step that is reasonably known to
achieve the microbiological safety of the food.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 7(2)
A food business must, when processing potentially hazardous food that is
not undergoing a pathogen control step, ensure that the time the food
remains at temperatures that permit the growth of infectious or toxigenic
micro-organisms in the food is minimised.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 8(1)
A food business must, when displaying food, take all practicable
measures to protect the food from the likelihood of contamination.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 8(2)(b)
A food business must, when displaying unpackaged ready-to-eat food for
self-service, provide separate serving utensils for each food or other
dispensing methods that minimise the likelihood of the food being
contaminated.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 8(2)(c)
A food business must, when displaying unpackaged ready-to-eat food for
self-service, provide protective barriers that minimise the likelihood of
contamination by customers.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 8(4)
A food business must not display for sale on any counter or bar, any
ready-to-eat food that is not intended for self-service unless it is enclosed,
contained or wrapped so that the food is protected from likely
contamination.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 8(5)(a)
A food business must, when displaying potentially hazardous food,
display it under temperature control.
Potentially hazardous food on display must be maintained either at or
below 5°C or above 60°C unless the business display ing the food can
demonstrate that the microbiological safety of the food will not be
adversely affected by displaying the food at another temperature.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 8(5)(b)
A food business must, when displaying potentially hazardous food, if it is
food that is intended to be displayed frozen, ensure the food remains
frozen when displayed.
The freezer used for this purpose must keep the food frozen while it is
being displayed.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 10(b)
A food business must, when transporting food, transport potentially
hazardous food under temperature control.
During transport, potentially hazardous food must be maintained either at
or below 5ºC or at or above 60ºC unless the food business responsible
for transporting the food can demonstrate that keeping the food between
5ºC and 60ºC for the transport time will not adversely affect the
microbiological safety of the food.
9514
5 penalty units for a
natural person
9562
10 penalty units for a
body corporate
9515
5 penalty units for a
natural person
9563
10 penalty units for a
body corporate
9516
5 penalty units for a
natural person
9564
10 penalty units for a
body corporate
9517
5 penalty units for a
natural person
9565
10 penalty units for a
body corporate
9518
5 penalty units for a
natural person
9566
10 penalty units for a
body corporate
9519
5 penalty units for a
natural person
9567
10 penalty units for a
body corporate
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 10(c)
A food business must, when transporting food, ensure that potentially
hazardous food which is intended to be transported frozen remains frozen
during transportation.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 11(3)
A food business must clearly identify any food for disposal that is held
and kept separate (in accordance with the Code) as returned food,
recalled food, or food that is or may not be safe or suitable, as the case
may be.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 11(4)
A food business must not sell food to a person that has already been
served to another person, unless the food was completely wrapped when
served and has remained completely wrapped.
This allows packaged food to be resold if the food was completely
wrapped when served and has remained completely wrapped.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 12
A food business engaged in the wholesale supply, manufacture or
importation of food must:
(a) have in place a system to ensure the recall of unsafe food;
(b) set out this system in a written document and make this document
available to an authorised officer upon request; and
(c) comply with this system when recalling unsafe food.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 16(3)
A food business may permit a person excluded from handling food on the
basis of being a person known to be suffering from a food-borne disease,
or who is a carrier of a food-borne disease, to resume handling food only
after receiving advice from a medical practitioner that the person is no
longer suffering from, or is a carrier of, a food-borne disease.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 17
A food business must, for each food premises:
(a) maintain easily accessible hand washing facilities;
(b) maintain, at or near each hand washing facility, a supply of warm
running water and soap or other items that can be used to thoroughly
clean hands;
(c) ensure hand washing facilities are only used for the washing of hands,
arms and face; and
(d) provide, at or near each hand washing facility single use towels or
other means of effectively drying hands that are not likely to transfer
pathogenic micro-organisms to the hands, and a container for used
towels, if needed.
These requirements do not apply in relation to hand washing facilities at
food premises that are used principally as a private dwelling if the
proprietor of the food business has the approval in writing of the
appropriate enforcement agency (i.e. council).
With the approval in writing of the appropriate enforcement agency, a
food business that operates from temporary food premises does not have
to maintain, at or near each hand washing facility, a supply of warm
running water or provide, single use towels or other means of effectively
drying hands (in accordance with (d) above), that are specified in the
written approval.
Page 37
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
9520
5 penalty units for a
natural person
9568
10 penalty units for a
body corporate
9521
5 penalty units for a
natural person
9569
10 penalty units for a
body corporate
9522
5 penalty units for a
natural person
9570
10 penalty units for a
body corporate
9523
5 penalty units for a
natural person
9571
10 penalty units for a
body corporate
9524
5 penalty units for a
natural person
9572
10 penalty units for a
body corporate
9525
5 penalty units for a
natural person
9573
10 penalty units for a
body corporate
9526
5 penalty units for a
natural person
9574
10 penalty units for a
body corporate
9527
5 penalty units for a
natural person
9575
10 penalty units for a
body corporate
9528
5 penalty units for a
natural person
9576
10 penalty units for a
body corporate
Page 38
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 19
A food business must maintain food premises to a standard of cleanliness
where there is no accumulation of garbage (except in garbage containers)
and recycled matter (except in containers) and must also maintain food
premises, and all fixtures, fittings and equipment, having regard to its use,
and those parts of vehicles that are used to transport food, to a standard
of cleanliness where there is no accumulation of food waste, dirt, grease
or other visible matter.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 20(1)
A food business must ensure the following equipment is in a clean and
sanitary condition in the circumstances set out below:
(a) eating and drinking utensils — immediately before each use; and
(b) the food contact surfaces of equipment — whenever food that will
come into contact with the surface is likely to be contaminated.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 21(2)
A food business must not use any chipped, broken or cracked eating or
drinking utensils for handling food.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 22(a)
A food business must, at food premises where potentially hazardous food
is handled, have a temperature measuring device that is readily
accessible.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 23(b)(ii)
A food business must, in relation to single use items that are intended to
come into contact with food or the mouth of a person, not reuse such
items.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 24(1)(a)
A food business must not permit live animals in areas in which food is
handled, other than seafood or other fish or shellfish, except for an
assistance animal only in dining and drinking areas and other areas used
by customers.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.2 Clause 24(1)(b)
A food business must permit an assistance animal only in dining and
drinking areas of food premises and any other areas used by customers.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 4(2)
A food business must use potable water for all activities that use water
that are conducted on the food premises, unless the food business
demonstrates that the use of non-potable water for a purpose will not
adversely affect the safety of the food handled by the food business. If a
food business so demonstrates, the food business may use non-potable
water for that purpose.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 5(a)
Food premises must have a sewage and waste water disposal system
that will effectively dispose of all sewage and waste water.
9529
5 penalty units for a
natural person
9577
10 penalty units for a
body corporate
9530
5 penalty units for a
natural person
9578
10 penalty units for a
body corporate
9531
5 penalty units for a
natural person
9579
10 penalty units for a
body corporate
9532
5 penalty units for a
natural person
9580
10 penalty units for a
body corporate
9533
5 penalty units for a
natural person
9581
10 penalty units for a
body corporate
9534
5 penalty units for a
natural person
9582
10 penalty units for a
body corporate
9535
5 penalty units for a
natural person
9583
10 penalty units for a
body corporate
9536
5 penalty units for a
natural person
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 6(a)
Food premises must have facilities for the storage of garbage and
recyclable matter that adequately contain the volume and type of garbage
and recyclable matter on the food premises.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 6(b)
Food premises must have facilities for the storage of garbage and
recyclable matter that enclose the garbage or recyclable matter, if this is
necessary to keep pests and animals away from it.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 10(2)(a)
Floors must be able to be effectively cleaned. However the following
floors do not have to comply:
- floors of temporary food premises, including ground surfaces, that are
unlikely to pose any risk of contamination of food handled at the food
premises; and
- floors of food premises that are unlikely to pose any risk of
contamination of food handled at the food premises provided the food
business has obtained the approval in writing of the appropriate
enforcement agency for their use.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 10(2)(b)
Floors must be unable to absorb grease, food particles or water. However
the following floors do not have to comply:
floors of temporary food premises, including ground surfaces,
that are unlikely to pose any risk of contamination of food
handled at the food premises; and
- floors of food premises that are unlikely to pose any risk of
contamination of food handled at the food premises provided the
food business has obtained the approval in writing of the
appropriate enforcement agency for their use.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 10(2)(c)
Floors must be laid so that there is no ponding of water. However the
following floors do not have to comply:
- floors of temporary food premises, including ground surfaces, that are
unlikely to pose any risk of contamination of food handled at the food
premises; and
- floors of food premises that are unlikely to pose any risk of
contamination of food handled at the food premises provided the food
business has obtained the approval in writing of the appropriate
enforcement agency for their use.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 11(4)(a)
Walls and ceilings must be able to be effectively cleaned.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 12(2)(b)
Fixtures and fittings must be designed, constructed, located and installed,
and equipment must be designed, constructed, located and, if necessary,
installed, so that they are able to be easily and effectively cleaned.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 12(2)(c)
Fixtures and fittings must be designed, constructed, located and installed,
Page 39
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
9584
10 penalty units for a
body corporate
9537
5 penalty units for a
natural person
9585
10 penalty units for a
body corporate
9538
5 penalty units for a
natural person
9586
10 penalty units for a
body corporate
9539
5 penalty units for a
natural person
9587
10 penalty units for a
body corporate
9540
5 penalty units for a
natural person
9588
10 penalty units for a
body corporate
9541
5 penalty units for a
natural person
9589
10 penalty units for a
body corporate
9542
2 penalty units for a
natural person
9590
3 penalty units for a
body corporate
Page 40
and equipment must be designed, constructed, located and, if necessary,
installed, so that adjacent floors, walls, ceilings and other surfaces are
able to be easily and effectively cleaned.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 12(3)
The food contact surfaces of fixtures, fittings and equipment must be:
(a) able to be easily and effectively cleaned and, if necessary, sanitised if
there is a likelihood that they will cause food contamination;
(b) unable to absorb grease, food particles and water if there is a
likelihood that they will cause food contamination; and
(c) made of material that will not contaminate food.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 12(4)
Eating and drinking utensils must be able to be easily and effectively
cleaned and sanitised.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 13
(1) Fixtures, fittings and equipment that use water for food handling or
other activities and are designed to be connected to a water supply must
be connected to an adequate supply of water;
(2) Fixtures, fittings and equipment that are designed to be connected to
a sewage and waste water disposal system and discharge sewage or
waste water must be connected to a sewage and waste water disposal
system; and
(3) Automatic equipment that uses water to sanitise utensils or other
equipment must only operate for the purpose of sanitation when the water
is at a temperature that will sanitise the utensils or equipment.
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 14
(1) Subject to subclause (4), food premises must have hand washing
facilities that are located where they can be easily accessed by food
handlers:
(a) within areas where food handlers work if their hands are likely to be a
source of contamination of food; and
(b) if there are toilets on the food premises — immediately adjacent to the
toilets or toilet cubicles.
(2) Subject to the following subclauses, hand washing facilities must be:
(a) permanent fixtures;
(b) connected to, or otherwise provided with, a supply of warm running
potable water;
(c) of a size that allows easy and effective hand washing; and
(d) clearly designated for the sole purpose of washing hands, arms and
face.
(3) Paragraph (2)(a) does not apply to temporary food premises.
(4) With the approval in writing of the appropriate enforcement agency,
food premises that are specified in the approval do not have to comply
with any requirement of this clause that is also specified in the approval.
(5) Only food premises that are used principally as a private dwelling or
are temporary food premises may be specified in an approval for the
purposes of subsection (4).
Food Act 1984
S16(1)
Food Standards Code, Standard 3.2.3 Clause 15(2)
Storage facilities must be located where there is no likelihood of stored
items contaminating food or food contact surfaces.
Food Act 1984
S17
Failure by the proprietor of a food business to ensure that his, her or its
name is prominently displayed on any food premises used in connection
with the food business.
9543
2 penalty units for a
natural person
9591
3 penalty units for a
body corporate
9544
2 penalty units for a
natural person
9592
3 penalty units for a
body corporate
9545
2 penalty units for a
natural person
9593
3 penalty units for a
body corporate
9546
5 penalty units for a
natural person
9594
10 penalty units for a
body corporate
9547
5 penalty units for a
natural person
9595
10 penalty units for a
body corporate
9548
2 penalty units for a
natural person
9596
4 penalty units for a
body corporate
Food Act 1984
S19CB(6)
Failure by the proprietor of a food premises required under the Act to
keep minimum records to ensure that the required records are kept at the
premises to which they relate.
Food Act 1984
S19F
Failure by the proprietor of a food premises required under the Act to
have a food safety program to ensure that the food safety program is kept
at the premises to which it relates.
Food Act 1984
S19GB
Failure by the proprietor of a food premises required under the Act to
have a food safety supervisor to give written details of the name and
qualifications of the current food safety supervisor within 7 days when
requested by the registration authority.
Food Act 1984
S35A(1)
Proprietor allowing a food business to operate from a food premises that
is not registered with the registration authority (including where the
registration of the premises is suspended).
Food Act 1984
S35A(2)
Proprietor allowing a food business to operate from a food premises
without giving notification to the registration authority of its operation.
Food Act 1984
S43I(1)
Failure to lodge a statement of trade.
This offence applies from 1 July 2011. It relates to temporary and mobile
food premises under state-wide registration.
Page 41
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
Page 42
Appendix B – Relevant excerpts from legislation and regulations
The provisions below reflect the law as at 25 February 2011 and are provided for training and initial implementation purposes only. As the Infringements Act
and the regulations made under that Act may change from time to time, councils should refer to the legislation on an ongoing basis.
Official Warnings
Infringements Act 2006
8
Issuing officer may serve an official warning
(1)
An issuing officer may serve a person with an official warning
rather than serve an infringement notice if—
(a)
the issuing officer believes on reasonable grounds that
a person has committed an infringement offence; and
(b)
the issuing officer is of the opinion that in all the
circumstances it is appropriate to serve an official
warning.
(2)
An official warning must be in writing and contain the prescribed
details.
(3)
In making a decision under subsection (1), an issuing officer,
other than a police member, must—
(a)
observe any policy of the relevant enforcement agency
in relation to the application of official warnings in
respect of any infringement offence; and
(b)
have regard to enforcement agency guidelines made
by the relevant enforcement agency in relation to the
application of official warnings in respect of any
infringement offence.
(4)
Nothing in this section limits an issuing officer's power to
exercise his or her discretion as to whether to serve an
infringement notice.
Infringements (Reporting and Prescribed Details and Forms) Regulations
2006
6
Official warning
For the purposes of section 8(2) of the Act, the prescribed details which
an official warning must contain are—
(a)
that it is an official warning;
(b)
the date of the official warning;
(c)
the name and address (if known) of the person served
with the official warning;
(d)
the name of the enforcement agency;
(e)
the enforcement agency identifying reference of the
official warning;
(f)
either the name of the issuing officer or the enforcement
agency identifying reference of the issuing officer;
(g)
the date and approximate time and place of the
infringement offence alleged to have been committed;
(h)
the Act or other instrument that creates the infringement
offence and a brief description of the infringement
offence alleged to have been committed;
(i)
that further information may be obtained from
(i)
a nominated telephone number;
(ii)
a designated address;
(iii)
if available, the enforcement agency's website.
Page 43
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
9
Enforcement agency guidelines and policies
An enforcement agency, other than a prescribed enforcement agency,
may make and publish enforcement agency guidelines and policies in
respect of the use of official warnings for infringement offences.
10
Official warning does not affect other powers
An official warning does not affect the power of an issuing officer or
enforcement agency—
(a)
to commence proceedings against a person to whom
an official warning was given; or
(b)
to serve an infringement notice; or
(c)
to take no further action; or
(d)
to take any other specified action permitted under this
Act or the Act or other instrument which establishes
the infringement offence.
11
Withdrawal of official warning
(1)
An issuing officer or enforcement agency must withdraw an
official warning if—
(a)
proceedings are to be commenced against the person
on whom an official warning was served in respect of
the infringement offence; or
(b)
an infringement notice in respect of the infringement
offence is to be served on the person on whom an
official warning was served.
(2)
An official warning may be withdrawn at any time before the
expiry of the prescribed period.
(3)
An official warning must be withdrawn by serving a withdrawal
of an official warning on the person on whom the official
warning was served.
(4)
A withdrawal of an official warning must—
(a)
be in writing; and
(b)
contain the prescribed details.
Page 44
7
Withdrawal of official warning
(1)
For the purposes of section 11(2) of the Act the prescribed period
is 6 months from the date of service of the official warning.
(2)
For the purposes of section 11(4) of the Act, the prescribed
details which a withdrawal of an official warning must contain
are—
(a)
that it is a withdrawal of an official warning;
(b)
the date of the withdrawal of an official warning;
(c)
the name and address (if known) of the person served
with the withdrawal of an official warning;
(d)
the name of the enforcement agency;
(e)
the enforcement agency identifying reference of the
withdrawal of an official warning;
(f)
the date and approximate time and place of the
infringement offence alleged to have been committed;
(g)
the Act or other instrument that creates the infringement
offence and a brief description of the infringement
offence alleged to have been committed;
(h)
a statement of how the enforcement agency intends to
proceed in respect of the infringement offence alleged
to have been committed.
Infringement Notice requirements
Infringements Act 2006
Infringements (Reporting and Prescribed Details and Forms) Regulations
2006
13
Regulation 8
(1)
Forms of infringement notice
An infringement notice must—
(a)
be in writing and contain the prescribed details;
(b)
state that—
(i)
the person is entitled to elect to have the matter of
the infringement offence heard and determined in
the Court; or
(ii)
in the case of an infringement notice served on a
child, is entitled to have the matter of the
infringement offence dealt with by the Children's
Court in accordance with the Children, Youth and
Families Act 2005.
For the purposes of section 13 of the Act, the prescribed details
which an infringement notice must contain are—
(a)
that it is an infringement notice;
(b)
the date of the infringement notice;
(c)
the name and address (if known) of the person served
with the infringement notice or, if the infringement notice
is in respect of an infringement offence that is a parking
infringement, the words "the Owner";
(d)
the name of the enforcement agency;
(e)
the enforcement agency identifying reference of the
infringement notice;
(f)
subject to paragraph (fa), either the name of the issuing
officer or the enforcement agency identifying reference
of the issuing officer;
(fa)
in the case of an infringement notice issued or served
on behalf of the Traffic Camera Office or the Toll
Enforcement Office, the title or name of the issuing
officer;
(g)
the date and approximate time and place of the
infringement offence alleged to have been committed;
(h)
the Act or other instrument that creates the infringement
offence and a brief description of the infringement
offence alleged to have been committed;
(i)
the infringement penalty;
Page 45
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
Page 46
the manner in which the infringement penalty may be
paid;
that the infringement penalty must be paid by a
specified due date, being not less than 28 days from the
date of service of the infringement notice;
that failure to pay the infringement penalty by the
specified due date may result in further enforcement
action being taken and the incurring of further costs;
that the person served with the infringement notice, or a
person acting on that person's behalf, may apply to
have the decision to serve the infringement notice
internally reviewed by the enforcement agency under
the Act unless the infringement notice is in respect of an
infringement offence to which any of the following
provisions apply—
(i)
sections 89A to 89D of the Road Safety Act
1986;
(ii)
section 215C of the Transport Act 1983;
(iii)
sections 61A and 61BA of the Marine Act
1988;
that the person served with the infringement notice may
be eligible for a payment plan under section 46 of the
Act, unless that person is a body corporate;
that further information and information relating to
eligibility for payment plans and applying for internal
review can be obtained from—
(i)
a nominated telephone number;
(ii)
a designated address;
(iii)
if available, the enforcement agency's website
address;
any further details specifically required to be included in
relation to an infringement offence under any Act or
other instrument which creates the infringement
offence.
Note
Section 13(b) of the Act requires that an infringement notice state that the person is
entitled to elect to have the matter of the infringement offence heard and
determined in the Court and if that person is a child, in the Children's Court.
(2)
If an infringement notice is in respect of an infringement offence
that is a parking infringement, in addition to the details required
under sub-regulation (1), the infringement notice must contain
the registered number or other identification of the vehicle
involved in the parking infringement.
Page 47
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
Form of Penalty Reminder Notice
Infringements Act 2006
Infringements (Reporting and Prescribed Details and Forms) Regulations 2006
Division 4—Penalty reminder notices
11
28
Application of Division
This Division, except section 29, does not apply to an infringement notice or
an infringement offence of a kind to which any of the following provisions
apply—
(a)
sections 89A to 89D of the Road Safety Act 1986;
(b)
section 215C of the Transport (Compliance and
Miscellaneous) Act 1983;
(c)
sections 61A and 61BA of the Marine Act 1988.
29
Penalty reminder notices
(1)
An enforcement agency may serve a penalty reminder notice on a
person on whom an infringement notice was served if it appears to
the enforcement agency that an infringement penalty has not been
paid—
(a)
within the period for payment specified in the infringement
notice; or
(b)
if an application for internal review under Division 3 has
been made and no previous penalty reminder notice has
been served in respect of the infringement notice, within
the time specified in section 26.
Page 48
Penalty reminder notice
For the purposes of section 29(5) of the Act, the prescribed details which a
penalty reminder notice must contain are—
(a)
that it is a penalty reminder notice;
(b)
the date of the penalty reminder notice;
(c)
the name and address (if known) of the person served with
the infringement notice;
(d)
the name of the enforcement agency;
(e)
the enforcement agency identifying reference of the
penalty reminder notice;
(f)
subject to paragraph (fa), either the name of the issuing
officer or the enforcement agency identifying reference of
the issuing officer;
(fa)
in the case of a penalty reminder notice issued or served
on behalf of the Traffic Camera Office or the Toll
Enforcement Office, the title or name of the issuing officer;
(g)
the date and approximate time and place of the
infringement offence alleged to have been committed;
(h)
the infringement penalty and any prescribed costs owing;
(i)
the manner in which the infringement penalty and any
prescribed costs may be paid;
(j)
that the infringement penalty and any prescribed costs
must be paid by a specified due date, being not less than
28 days after the penalty reminder notice has been served;
(2)
(3)
(4)
(5)
30
If a payment plan applies to a person, an enforcement agency may
serve a penalty reminder notice on that person if it appears to the
enforcement agency that no previous penalty reminder notice has
been served in respect of the infringement notice and the person
has—
(a)
cancelled the payment plan; or
(b)
removed an infringement penalty and prescribed costs in
respect of an infringement offence from a payment plan; or
(c)
is in default of a payment of the payment plan.
If a person is served with a penalty reminder notice in relation to an
infringement notice, the time for payment of the infringement
penalty is extended for a period specified in the penalty reminder
notice, being a period not less than 28 days after the penalty
reminder notice has been served.
The infringement penalty together with any prescribed costs may be
paid within the extended period as if the infringement notice or law
under which the notice was served also required the payment of
those costs.
A penalty reminder notice must be in writing and contain the
prescribed details.
Person may elect to have matter heard and determined in Court or
Children's Court
(1)
A person who has been served with a penalty reminder notice may
elect to have the matter of the infringement offence heard and
determined in the Court or, in the case of an infringement notice
served on a child, heard and determined in the Children's Court.
(2)
If a person elects to have the matter of the infringement offence
heard and determined in the Court or the Children's Court, as the
case requires, the person must—
(a)
make a written statement to the effect that the person has
elected to have the matter of the infringement offence
heard and determined in the Court or the Children's Court,
as the case requires; and
(k)
(l)
(m)
(n)
(o)
that the person may elect to have the matter heard and
determined in Court, or, in the case of a child, in the
Children's Court, unless the penalty reminder notice is in
respect of an infringement offence to which any of the
following provisions apply—
(i)
sections 89A to 89D of the Road Safety Act 1986;
(ii)
section 215C of the Transport Act 1983;
(iii)
sections 61A and 61BA of the Marine Act 1988;
that failure to pay the infringement penalty and prescribed
costs by the specified due date may result in further
enforcement action being taken and further costs being
incurred under—
(i)
the Act; or
(ii)
in the case of a child, Schedule 2A to the Children
and Young Persons Act 1989;
that the person served with the infringement notice,
or a person acting on that person's behalf, may
apply to have the decision to serve the
infringement notice internally reviewed by the
enforcement agency under the Act unless the
infringement notice is in respect of an infringement
offence to which any of the following provisions
apply—
(i)
sections 89A to 89D of the Road Safety Act
1986;
(ii)
section 215C of the Transport Act 1983;
(iii)
sections 61A and 61BA of the Marine Act
1988;
that the person served with the infringement notice
may be eligible for a payment plan under section
46 of the Act unless that person is a body corporate;
that further information including information
Page 49
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
(b)
serve that written statement on the enforcement agency
specified in the penalty reminder notice within 28 days
after the penalty reminder notice was served on the
person.
(p)
Page 50
relating to eligibility for payment plans and applying
for internal review can be obtained from—
(i)
a nominated telephone number;
(ii)
a designated address;
(iii)
if available, the enforcement agency's
website address;
a statement that if the person served with the
penalty reminder notice does not understand the
document, he or she should seek advice from the
registrar of the Court or Children's Court, as the
case requires, a lawyer or Victoria Legal Aid.
Withdrawal of Infringement Notices
Infringements Act 2006
Infringements (Reporting and Prescribed Details and Forms) Regulations 2006
18
9
Withdrawal of infringement notice
(1)
An enforcement agency may withdraw an infringement notice
by serving a withdrawal notice on the person served with the
infringement notice—
(a)
in the case of a lodgeable infringement offence, at any
time before an enforcement order is made; and
(b)
in the case of an infringement offence for which an
infringement penalty may be registered under clause 4
of Schedule 3 to the Children, Youth and Families Act
2005, at any time before an enforcement order under
that Schedule is made;
(c)
in the case of any other infringement offence, at any
time before the expiry of the period for bringing a
proceeding in relation to the offence to which the
infringement notice relates.
(2)
Subject to subsection (4), without limiting subsection (1), an
enforcement agency may withdraw an infringement notice if the
enforcement agency determines that—
(a)
an official warning should be served on the person
rather than an infringement notice; or
(b)
proceedings are to be commenced against the person
in respect of the infringement offence for which the
infringement notice had been served; or
(c)
the matter should be abandoned.
Withdrawal notice
For the purposes of section 19(a) of the Act, the prescribed details which a
withdrawal notice must contain are—
(a)
that it is a withdrawal notice;
(b)
the date of the withdrawal notice;
(c)
the name and address (if known) of the person served with
the infringement notice;
(d)
the name of the enforcement agency;
(e)
the enforcement agency identifying reference of the
infringement notice;
(f)
the date of the infringement notice;
(g)
the date and approximate time and place of the
infringement offence alleged to have been committed;
(h)
the Act or other instrument that creates the infringement
offence and a brief description of the infringement offence
alleged to have been committed;
(i)
that further information may be obtained from—
(i)
a nominated telephone number;
(ii)
a designated address;
(iii)
if available, the enforcement agency's website
address;
Page 51
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
(3)
(4)
(5)
(6)
19
Subject to subsection (4), an infringement notice may be
withdrawn even if the infringement penalty and prescribed
costs (if any) have been paid.
In the case of an infringement notice in respect of an
infringement offence requiring additional steps to be taken, the
infringement notice cannot be withdrawn for the purposes of
commencing proceedings against the person in respect of the
offence for which the infringement notice had been served if the
person on whom the infringement notice was served—
(a)
has paid the infringement penalty and prescribed
costs (if any); and
(b)
has taken all the required additional steps.
If an infringement notice is withdrawn, the amount of any
infringement penalty and any prescribed costs paid must be
refunded and—
(a)
if the penalty and costs (if any) have been paid into
the Consolidated Fund, the Consolidated Fund is, to
the necessary extent, appropriated accordingly; or
(b)
if the penalty and costs (if any) have been paid into
another fund or account, the penalty and costs (if any)
are to be refunded from that fund or account.
This section does not apply to infringement offences to which
the following provisions apply—
(a)
sections 89A to 89D of the Road Safety Act 1986;
(b)
section 215C of the Transport (Compliance and
Miscellaneous) Act 1983;
(c)
sections 61A and 61BA of the Marine Act 1988.
Form of withdrawal notice
A withdrawal notice must—
(a)
be in writing and contain the prescribed details; and
(b)
state that the enforcement agency intends to proceed
in respect of the infringement offence by—
Page 52
(j)
that if the infringement penalty and any
prescribed costs have been paid, the infringement
penalty and prescribed costs will be refunded,
unless the person has an ongoing payment plan
in which case Part 3 of the Infringements Act
2006 applies.
Note
Section 19(b) of the Act requires that a withdrawal notice must state how an
enforcement agency intends to proceed in respect of the infringement offence alleged
to have been committed.
(i)
(ii)
(iii)
(iv)
20
continuing proceedings and issuing a
summons; or
issuing an official warning; or
taking no further action; or
taking any other specified action permitted
under this Act or the Act or other instrument
which establishes the infringement offence.
Effect of withdrawal
(1)
Subject to this Act, the withdrawal of an infringement notice
does not affect any other procedure or action that can be taken
under this Act or any other Act.
(2)
This section applies to an infringement notice—
(a)
withdrawn by withdrawal notice; or
(b)
deemed to be withdrawn by a provision of this Act or
any other Act.
Page 53
Guidelines on the use of infringement notices under the Food Act 1984 (Vic)
Service of Notices
Infringements Act 2006
Food Act 1984
12
55
Service of infringement notice
(1)
An infringement notice for an infringement offence may be served on
a person—
(a)
by delivering it personally to the person; or
(b)
by sending it by post addressed to the person at the
person's last known place of residence or business; or
(c)
if a vehicle is involved in the alleged commission of the
offence, by affixing or placing the notice on that vehicle in a
conspicuous manner; or
(d)
in any other manner not specified in paragraphs (a) to (c) if
the Act or other instrument which establishes the
infringement offence or any other Act or other instrument
provides for any other manner of service.*
(2)
Subject to any evidence to the contrary and despite anything to the
contrary in section 49 of the Interpretation of Legislation Act 1984,
an infringement notice served by post in accordance with subsection
(1)(b) is deemed to be served 14 days after the date of the
infringement notice.
(3)
An infringement notice served on a person less than 28 days before
the date specified in the infringement notice as the due date for
payment of the infringement penalty is invalid.
* Refer to section 55(b) of the Food Act in next column
Page 54
56A
Mode of service of documents and certain samples
(1)
Where under this Act a notice, order or other document is required
or authorized to be given to or served on a person, the notice,
order or other document may be given or served—
(a)
by giving it to or serving it personally on the person or by
leaving it at or sending it by post to the person at his usual
or last known place of abode or business;
(b)
where it is addressed to the proprietor of any food
premises, by leaving it with some adult person on the
premises or, if there is no such person on the premises,
by fixing it or a copy of it on some conspicuous part of the
premises;
Infringements
(1)
An authorized officer may serve an infringement notice on a person
that the authorized officer has reason to believe has committed—
(a)
an offence specified in Column 2 of Schedule 1; or
(b)
a prescribed offence.
(2)
An offence referred to in subsection (1) for which an infringement
notice may be served is an infringement offence within the
meaning of the Infringements Act 2006.
(3)
For the purposes of subsection (1), an infringement notice—
(a)
must be in the form required by section 13 of the
Infringements Act 2006; and
(b)
may contain any additional prescribed details.
(4)
The infringement penalty for—
(a)
an offence specified in Schedule 1, is the amount
specified in Column 3 of Schedule 1 opposite that offence;
and
(b)
a prescribed offence, is the prescribed amount.
Page 55