Australian & New Zealand Food Regulation Enforcement
Guideline
Version 9
10 November 2009
Prepared by the Implementation Sub-Committee Enforcement Guideline Working Group
Version History
Version Date
8
10 November
2009
9
October 2015
Amendment
Initial
Preparation
Update to
Appendix 1 to
expand
enforcement
actions.
Prepared by
The Implementation Sub-Committee
Enforcement Guideline Working Group
The Joint Food Regulation Standing
Committee (FRSC)/ Implementation
Sub-Committee for Food Regulation
(ISFR) Working Group on Food Labelling
Monitoring and Enforcement
TABLE OF CONTENTS
Acknowledgements
Definitions
iii
iv
Context
Executive Summary
Objectives
Compliance & Enforcement Strategies
Food Legislation Enforcement Guideline Principles
5.1 A graduated and proportionate response to legislative non-compliance
5.1.1 Proportionate response
5.2 Authorised by law
5.3 Impartiality and Procedural fairness
5.4 Accountable and Transparent
5.5 Promote consistency of Enforcement activity between food regulators
5.6 The Public Interest
5.7 Application of multiple enforcement tools
Cross Jurisidictional Issues
Conclusion
1
3
4
5
6
6
6
8
9
10
10
10
11
11
12
Appendix 1 Enforcement Actions for Food Regulators to Address Non-Compliance
Introduction
i.
Verbal Warnings
ii.
Correction Action Requests
iii.
Written Warnings
iv.
Improvement Notices
v.
Prohibition Orders
vi.
Seizure Powers
vii.
Penalty Notices
viii.
Enforceable Undertakings
ix.
Prosecution
x.
Corrective Advertising
xi.
Injunctions or Injunctive Relief
xii.
Publication of the Names of Offenders
xiii.
Action against Registration
xiv. Mandated Recall
xv.
Emergency Orders
xvi. Privilege Statements
13
13
14
14
14
15
16
17
18
19
19
21
22
22
22
23
23
23
1.
2.
3.
4.
5.
6.
7.
Figures
Figure 1
Figure 2.
Figure 3.
Risk & Compliance Matrix
Enforcement Response
Graduated use of Enforcement tools.
5
8
24
ii
Acknowledgements
The Implementation Sub-Committee Enforcement Guideline Working Group prepared the
Australia and New Zealand Food Regulation Enforcement Guideline with assistance from
affiliated staff. Members of the working group included:
ACT Department of Health
Australian Quarantine and Inspection Service
Dairy Food Safety Victoria
Department of Human Services, Victoria
Department of Health, Western Australia
Food Safety Management Solutions
Environmental Health Australia
Local Government Association
New Zealand Food Safety Authority
NSW Food Authority
Primary Industry and Resources, South Australia
Queensland Health
Safe Food Production Queensland
South Australian Department of Health
iii
DEFINITIONS
Act
means the:
o
Model Food Provisions as adopted within the
jurisdictions;
o
AQIS legislation (including the Imported Food Control
Act); or
o
New Zealand Food Act 1981 as amended.
Compliance
refers to a state when persons, food businesses or primary
producers are operating within the regulatory requirements that
apply to that person, food and associated inputs, food business
or primary producer.
Corrective Action
an action taken by a food business/primary food producer to
rectify a non-conformance or systems deviation to ensure
ongoing compliance with its legislated food safety program and
relevant regulatory scheme.
Enforcement
refers to use of regulatory tools to achieve compliance.
Food Standards Code
means the Australia New Zealand Food Standards Code as
defined in the Food Standards Australia New Zealand Act, 1991
of the Commonwealth of Australia. Section 17 of the Model
Food Provisions 2002 provides for enforcement of the Food
Standards Code, which has requirements relating to:
labelling and advertising;
substances added to foods (food additives, vitamins and
minerals, processing aids, identity & purity);
contaminants and residues (metals & toxicants,
environmental residues, packing materials, moisture
absorbers, mould inhibitors, promotional materials,
graphics, prohibited & restricted plants, fungi);
foods requiring pre-market clearance (novel foods, food
produced using gene technology, food irradiation);
microbiological and processing requirements;
food product standards;
food safety standards (food safety programs, food safety
practices and food premises and equipment); and
primary production standards.
Food regulator
state, territory or Commonwealth bodies responsible for food
safety legislation; these organisations may be part of
government departments or be semi-independent of government
and, while many are enforcement agencies, some may delegate
enforcement responsibility to other bodies such as local
governments.
iv
Improvement Notice
improvement notices are provided for in Section 30 of the
Model Food Provisions 2002, and means a statutory notice
served by an authorised officer, which may require:
- compliance by a food business with the Food Standards
Code; or
- cleaning, repair or replacement of equipment, premises or
food transport vehicles.
Non-Compliance
refers to a state when persons, food businesses or primary
producers are operating outside the regulatory requirements,
including its legislated food safety program or relevant
regulatory scheme that applies to that person, food and
associated inputs, food business or primary producer.
Penalty Notice
penalty notices and infringement notices are provided for by
Sections 93 and 116 of the Model Food Provisions 2002 and
mean the same as a penalty infringement notice (PIN), expiation
fee or on the spot fine.
Prohibition order
prohibition orders are provided for by Section 33 of the Model
Food Provisions 2002, and means an order served upon a food
business by an enforcement agency prohibiting:
- handling of food on specified premises, parts of premises,
vehicles, or use of specified equipment where the proprietor
of a food business has not complied with an improvement
notice; or
- the order is necessary to prevent or mitigate a serious
danger to public health.
Prosecution
refers to the application of legal court procedures to seek a
conviction of an offence.
Registration
has the same meaning as licensing or accreditation as applied
within food legislation in various jurisdictions.
Sanctions
refers to a range of regulatory responses to a given noncompliance that involves the application of legal powers in
response to a given non-compliance or to the consequences of a
non-compliance.
Note:
Audit terms are defined in the National Food Safety Audit
Policy, which can be found at:
http://www.health.gov.au/internet/wcms/publishing.nsf/Content/foodsecretariat-policydocs.html
v
AUSTRALIAN AND NEW ZEALAND
FOOD LEGISLATION ENFORCEMENT GUIDELINE
1.
CONTEXT
On 3 November 2000, the Council of Australian Governments (COAG) signed an
Inter-governmental Food Regulation Agreement (FRA)1, (amended on 3 July 2008)
agreeing to a new food regulatory system. The Commonwealth of Australia and all
the Australian States and Territories are signatories to the Agreement.
The FRA requests all States and Territories to use their best endeavours to ensure
their respective Parliaments retain in force, legislation which gives effect to the
provisions of the Model Food Act. The purpose of this food legislation is to provide
for the effective and consistent administration and enforcement of the Food Standards
Code (including the Food Safety Standards).
The core provisions of the Model Food Act are contained in Annexure A, and under
the FRA, are required to be adopted into state/territory legislation in the same terms,
or in terms consistent with those used in Annexure A. The Annexure B provisions are
administrative in nature and, because of the differing administrative and enforcement
arrangements of particular jurisdictions may be adopted in a manner consistent with
the relevant provisions.
The FRA also established the Australia and New Zealand Food Regulation Ministerial
Council (Ministerial Council) and a Food Regulation Standing Committee (FRSC).
FRSC is responsible for co-ordinating policy advice to the Ministerial Council and
ensuring a nationally consistent approach to the implementation and enforcement of
food standards. It also advises the Ministerial Council on the initiation, review and
development of Standing Committee activities.
The Implementation Sub Committee (ISC) is a sub committee of FRSC and its role is
to develop and oversee a consistent approach across jurisdictions to the
implementation and enforcement of food regulations and standards, regardless of
whether food is sourced from domestic producers, export-registered establishments or
from imports. ISC will develop, or assist in the development of guidelines on
consistent enforcement of food regulations, which will also be aimed at minimising
cost to industry and meeting the objective of minimum effective regulation.
1
www.health.gov.au/internet/main/publishing.nsf/Content/foodsecretariat-system1
1
ISC has developed a strategy for consistent implementation and enforcement of food
regulation in Australia, the Strategy for Consistent Implementation of Food
Regulation in Australia (the Strategy)2 which was endorsed by FRSC and the
Ministerial Council in 2005.
The Australia New Zealand Food Regulation Enforcement Guideline has been
developed by ISC under the Strategy as a framework to assist in providing national
consistency in the application of enforcement provisions by food regulators to
identified non-compliance issues or breaches by food businesses. It is noted that this
Guideline offers advice to Australian and New Zealand food regulators.
2
www.health.gov.au/internet/main/publishing.nsf/Content/foodsecretariat-isc-strategy
2
2
EXECUTIVE SUMMARY
This Guideline provides a framework for food regulators to utilise to provide interjurisdictional consistency in enforcement and is not intended to provide a step by step
guide to enforcement activities or instructions on how to conduct enforcement
activity.
Given the variation in administrative and legislative arrangements (as provided for in
Annexure B of the Model Food Act) for the management of food safety in the various
Australian jurisdictions, it is not possible to develop a detailed policy document that
will address the specific circumstances of all food regulators, nor the specific
circumstances relevant to food safety compliance issues. Consequently, it is agreed
that the principles in this Guideline will not be modified, however, tools that may be
used by food regulators to enact these principles may be removed or inserted to reflect
the individual circumstances of food regulators.
Australian food law provides food regulators with a range of regulatory tools of
varying severity and efficiency that may be applied in the event of legislative noncompliance. This Guideline advocates the graduated application of enforcement
measures against food businesses, commencing with milder measures, such as verbal
warnings, but then progressing to more severe measures (e.g. prosecution) should the
milder measures not address the issue of concern. While advocating a graduated
approach to the application of enforcement provisions, it is important to note that
advice offered in this Guideline does not prevent food regulators applying more
severe provisions in the first instance (e.g. prohibition order), should serious
legislative breaches be encountered (e.g. serious hygiene breach with the potential to
be an imminent threat to food safety). As a result, this Guideline should be interpreted
as advising regulators to operate within a framework provided by a graduated but
proportionate response to legislative non-compliance.
The remit of advice provided in this Guideline is the full extent of food legislation of
Australian and New Zealand food regulators, and so includes food safety issues and
issues concerning the appropriate labelling, advertising, composition and sale of food.
It is expected that adoption of principles contained in this Guideline by food
regulators will provide greater consistency in the application of enforcement
provisions to food businesses, and help to provide a level playing field across
Australia for businesses that will assist in protecting them from unfair competition or
gain in commercial advantage due to their location within Australia or New Zealand.
3
3
OBJECTIVES
The objectives of this Guideline are to promote the following:
 Compliance with the legislative provisions of Australian and New Zealand
food regulation. Under the FRA, the legislation of Australian food regulators
will be consistent with the following objectives outlined in the Model Food
Provisions:
(a)
to ensure food for sale is both safe and suitable for human
consumption,
(b)
(c)

to prevent misleading conduct in connection with the sale of food,
to provide for the application of the Food Standards Code in all
jurisdictions

A consistent approach to the application of enforcement provisions by food
regulators;
A risk based approach to compliance and enforcement activities through
adoption of a graduated and proportionate response to legislative noncompliance;
Transparency in the decision making processes used by food regulators to
determine enforcement responses to legislative non-compliances;
Use compliance and enforcement strategies in such a way as to best achieve
legislative compliance;
A cooperative and collaborative approach with businesses or between

jurisdictions to legislative compliance, and one that does not place
unnecessary impost on food businesses in Australia;
Protection for consumers from inappropriate and/or misleading trade practices.



4
4
COMPLIANCE & ENFORCEMENT STRATEGIES
In meeting the objectives stated above, food regulators are advised to adopt a strategic
approach to the application of enforcement provisions.
In adopting a strategic approach to enforcement, it is important for food regulators to
implement a successful compliance strategy. This strategy should address a number of
elements:
 identification of food industry sectors with a history of adopting noncompliant practices;
 identification of inappropriate or misleading trade practices with the potential
to intentionally mislead consumers;




development of compliance level indicators for food businesses;
prioritisation of enforcement tasks based on a risk and compliance matrix;
identification of behavioural issues; and
the use of compliance data to evaluate/review the compliance strategy.
Figure 1 (below) provides further guidance.
Figure 1.
Risk & Compliance Matrix
RISK LEVEL
REGULAR AUDITS
& INSPECTIONS
PRIORITY
ACTIVITY
COMPLAINT
INVESTIGATION
ONLY
REGULAR AUDITS
& INSPECTIONS
NON - COMPLIANCE LEVEL
5
5
FOOD LEGISLATION ENFORCEMENT GUIDELINE PRINCIPLES
This Guideline advises food regulators to apply enforcement provisions consistent
with the following principles:







A graduated and proportionate approach;
Authorised by law;
Impartial and procedurally fair;
Accountable and transparent;
Promote consistency of enforcement response between food regulators;
In the public interest; and
Allow for application of multiple enforcement tools under appropriate
circumstances.
5.1 A graduated and proportionate response to legislative non-compliance
Food regulators are advised to adopt a graduated and proportionate approach to the
application of enforcement tools upon food businesses. This approach envisages the
application of mild enforcement tools to businesses in the first instance; to be
followed by more severe tools should the business continue the non-compliant
activity.
Examples of mild enforcement tools that may be employed include improvement
notices or warning letters. Examples of more severe tools include prohibition orders,
penalty notices, registration suspension/ cancellation or prosecution. The tool box
appended to this Guideline provides further detail.
Food regulators may also wish to consider using mediation and conciliation as
preliminary steps in enforcement processes. Mediation and conciliation provide the
proprietor of the business with the opportunity to explain mitigating circumstances of
the legislative non-compliance to the regulator. Following this explanation, the
regulator may make a determination on an appropriate course of action.
Through employment of a graduated approach, it is considered that offences may be
appropriately managed and allow regulators to use their resources to the greatest
effect.
5.1.1 Proportionate response
Notwithstanding the above advice, it is important that food regulators select an
enforcement response that is proportionate to the identified non-compliance and
capable of providing sufficient incentive to the business to amend the non-compliant
6
behaviour. For example, identification of a critical non-conformance in a businesses
food safety management program, or of a matter where a business is intentionally
providing inappropriate or misleading information to the consumer in order to capture
market share, may lead to more severe enforcement tools such as product seizure,
issue of a prohibition order or prosecution being used by a regulator in the first
instance. Furthermore, should the circumstances surrounding an offence be considered
sufficiently serious (e.g. an imminent risk to public health and safety), the regulator
may elect to employ multiple enforcement tools at the same time. This Guideline
should not be interpreted as preventing regulators from exercising such powers.
As a result, this Guideline should be interpreted as advising food regulators to operate
within the context of a graduated but proportionate response to legislative noncompliance.
Factors that regulators may wish to consider in making decisions concerning the
choice of enforcement tool to respond to a particular incident include:








Evaluating the impact of the alleged offence; on the consumer, to competitors
of the offending business, and to any profits earned by the business resulting
from the offence;
The particular circumstances of the alleged offence and the individual
circumstances of the business and persons associated with the business that is
subject to enforcement action;
The compliance history of the business that is subject to enforcement action,
both in general and with respect to the incident that is the subject of
enforcement action;
The co-operation demonstrated by the alleged offender; both in relation to
investigations conducted on the offender’s premises relating to the offence and
in respect to the co-operation demonstrated by the alleged offender following
commencement of enforcement action;
Any remedial action implemented by the alleged offender to address the noncompliance that is the subject of enforcement action;
The degree of care and due diligence exercised by the food business to avoid
non-compliance (e.g. implementation of Australian Standard AS3806-1998
Compliance programs);
The timeframe over which the offence was committed; and
The need to provide the enforcement agency staff with a safe working
environment within the requirements of occupational health and safety laws,
particularly in relation to matters involving assaults and intimidation.
7
The following diagram illustrates the graduated nature of enforcement responses in
concert with the seriousness of the non-compliance.
Figure 2 – Enforcement Response
Possible Response
registration
cancellation
ENFORCEMENT RESPONSE
prosecution
registration
suspension
i
ec
Sp
d
ete
arg
t
y
ll
fica
product
seizure
penalty
notice
Improvement
notice
Warning letter
d
ete
arg
t
dly
oa
Br
Increasing level of financial gain and/or risk to consumers
5.2
Authorised by law
Authorised officers should only act within their legal remit of statutory power when
undertaking enforcement activity against food businesses. Businesses should not be
required either directly or by inference, to observe requirements that are not
authorised by law.
The following advice is offered concerning the collection of evidence:

Evidence obtained by authorised officers relating to actual or alleged offences
should be obtained within the requirements of food legislation, and also within
the requirements of criminal law.

Evidence should be admissible under the appropriate rules of evidence,
(regardless of severity of action taken), and sufficient to establish that an offence
has been committed (this will assist in ensuring that enforcement action is only
taken under appropriate circumstances).

Evidence should also be sufficient to support a case against appeal (e.g. a
penalty notice referred to a court for a defended hearing, or matter appealable to
an Administrative Decisions Tribunal).

Evidence need not be assembled into a full prosecution brief for minor
enforcement action, however evidence collected should be sufficient to
substantiate the offence if questioned.
8
It is suggested that formal enforcement action should not proceed unless sufficient
evidence has been obtained to provide a reasonable prospect of conviction, should the
matter be heard before a Court.
5.3
Impartiality and Procedural fairness
Food regulators should undertake enforcement activity against food businesses in a
manner that is procedurally fair and impartial to the interests of any particular food
business. This will assist in minimising opportunities for arbitrary or inexplicable
differences between the handling of individual cases, or classes of cases, to occur.
Discrimination, (e.g. with regard to ethnicity, religion, age or gender), by food
regulators when undertaking enforcement action is unacceptable practice.
Decision making concerning application of enforcement provisions should not be
influenced by:



political advantage or disadvantage to a government or any political party or
group;
the consequences of a decision to undertake enforcement action on the
personal or professional circumstances of staff of the food regulator; or
the personal feelings of the decision makers towards the offenders.
Commencement of enforcement action should be timely to ensure food businesses
associate action with non-compliance. Delayed action runs the risk of businesses not
associating an enforcement action with a legislative breach.
Food business proprietors should receive written advice of available statutory rights of
appeal when decisions are made by food regulators to apply enforcement provisions.
This advice will preferably be provided, at the time that enforcement measures are
first applied to businesses.
It may also be worth commenting that regulators should appropriately document their
reasons for a decision (e.g. to suspend or revoke a licence) in case it is necessary to
provide a statement of reasons as part of any administrative review of the decision.
Many juveniles (10 -18 year olds) work in (or operate) food businesses and may
therefore be subject to enforcement action under some circumstances. Under these
circumstances, young offenders’ legislation for dealing with children (between the
ages of 10 and 18) should be applied to those who commit offences.
9
5.4
Accountable and Transparent
Food regulators should be accountable and transparent in their actions concerning the
application of enforcement measures on food businesses. Food regulators are
recommended to consider including the following issues in their enforcement
procedures to promote transparency and accountability:





Ensure that legislation, enforcement policies, complaints procedures and
relevant information are readily accessible to food businesses and the public;
Use plain language to communicate with the public and the food industry;
Ensure that policies and procedures that will be followed in addressing
stakeholder issues associated with enforcement action are readily available;
Advise of available complaint or appeal processes associated with
enforcement action, inclusive of timeframes applicable to these processes; and
Provide advice of fees and charges that may be applied in discharging
enforcement obligations or providing services under the relevant legislation.
It is noted that food regulators will observe the constraints of any privacy legislation
and confidentiality provisions when initiating enforcement action against food
businesses (unless a statutory requirement exists to disclose the information).
5.5
Promote consistency of Enforcement activity between food regulators
Consistency with respect to the application of enforcement provisions by food
regulators is important to ensure that food businesses in different Australian
jurisdictions do not receive differential treatment with respect to measuring
compliance with legislative obligations.
Food regulators should adequately train and monitor the performance of enforcement
staff to ensure that food businesses are treated in a consistent manner. Examples of
practices that may be implemented to promote consistency are staff rotation, peer
review and secondment.
5.6
The Public Interest
The overriding consideration in taking enforcement action should always be the
protection of public health and safety.
10
5.7
Application of multiple enforcement tools
While a graduated approach to the application of individual enforcement tools is
advocated by this Guideline, under appropriate circumstances, the simultaneous
application of multiple enforcement tools by regulators is not considered outside of
the scope of advice provided to food regulators by this Guideline (e.g. a serious
hygiene breach where the concurrent issue of a penalty notice and prohibition order is
considered appropriate).
Additionally there may be circumstances where there are multiple non-compliances
detected, each of varying significance. In such circumstances, the use of differing
enforcement tools may be warranted. Equally the existence of multiple breaches may
indicate system failure which may result in the use of more significant enforcement
tools.
6.
CROSS JURISIDICTIONAL ISSUES
ISC has created the Home Jurisdictional Rule to aid in resolving cross jurisdictional
issues involving food. The Home Jurisdiction Rule is an administrative process for
liaison and coordination between food regulators where goods produced and used by
food businesses are traded across borders and where the head office of a business is
located in a different state or territory.
The Home Jurisdiction Rule aims to:

Provide a framework for food regulators to manage issues of legislative noncompliance or complaints outside the scope of the National Food Incident
Response Protocol (NFIRP)3 for foods processed in one state or territory and
sold, transported or traded to another;

Facilitate and support efficient communication between food regulators on
cross jurisdictional matters;

Reduce duplication of enforcement action in more than one jurisdiction;

Promote the provision of information to another jurisdiction of any
compliance or enforcement activities involving a business that is based in the
other state/territory.
Further detail on the operation of the Home Jurisdiction Rule may be obtained by
contacting a food regulator.
3
Note that the NFIRP will generally override the Home Jurisdiction Rule (HJR), however there may be
incidences where the NFIRP may operate in conjunction with the HJR. The NFIRP may be
downloaded from the Food Regulation Secretariat website: www.foodsecretariat.health.gov.au
11
7.
CONCLUSION
This Guideline has been drafted as advisory material for food regulators in order to
promote a consistent approach to the application of enforcement provisions upon food
businesses. Food regulators are advised by this Guideline to adopt a graduated and
proportionate approach to the application of enforcement provisions to food
businesses.
12
ENFORCEMENT ACTIONS FOR FOOD REGULATORS
TO ADDRESS NON-COMPLIANCE
APPENDIX 1
Note: It is anticipated that food regulators will delete or add reference to any
enforcement tool discussed in this toolbox that is not available within the law
administered by that regulator. Note that AQIS administer legislation for imported
food and exports of meat, fish, dairy and other commodities, and consequently have
specialised enforcement tools. It is further noted that some differences may exist in
terminology used to describe enforcement tools in the legislative framework of some
food regulators compared to the Model Food Provisions.
Introduction
While the majority of food businesses comply with legislation voluntarily, a level of
non-compliance with food legislation has been observed to occur.
There are many enforcement tools available to food regulators that may be employed
in the event of an observed legislative non-compliance. The following list of tools is
not ranked in order of graduating severity, offers advice to regulators that can further
assist in enhancing national consistency in the application of enforcement provisions
against food businesses4. It should be noted that not all of the tools below are
available to all jurisdictions.

Warning letters;


A statutory improvement notice which may consider issues such as cleaning of
premises, equipment or transport, or repair or replacement of equipment or
transport, or request revision of a food safety management system;
A prohibition order which controls certain activities, the use of certain
appliances or prevents operation of the food business entirely. May be used in
situations where there is failure to comply with an improvement notice or to
prevent or mitigate a serious danger to public health;
Downgrading the status of food or restricting its use e.g. for reprocessing or
sale as animal food;
The seizure of food, vehicles, equipment, and labelling or advertising material



that does not comply with the legislation or as evidence of an offence;
A penalty notice;
Prosecution in the Local Court;
Publication of the names of offenders after conviction;


4
Note that regulators may choose to hold informal mediation and conciliation sessions with alleged
offenders prior to initiating enforcement action against food businesses. Further advice is offered in
Section 5.1 of this document.
13







Request of court orders for corrective advertising by a person found guilty of
an offence;
Requiring a registered food business to show cause why registration
conditions should not be altered or why a registration should not be suspended
or cancelled;
Alteration of registration conditions;
The institution of proceedings in the Supreme Court;
Suspension of a registration;
Cancellation of a registration; and
Enforceable undertakings, mandated recalls, emergency orders and privilege
statements.
Further detail on some of the more commonly used enforcement tools is provided in
this Appendix.
The success of strategies adopted by food regulators to address non-compliance may
be influenced by identification of the behavioural causes of non-compliance, and the
implementation of suitable measures to promote compliant behaviour.
i.
Verbal Warnings
Authorised officers are recommended to routinely provide food safety advice to food
businesses. Advice should be presented in a way that businesses may readily
determine the difference between general advice and directed compliance advice (i.e.
a legal requirement). Such advice should not extend beyond the level of expertise of
the authorised officer.
Verbal warnings, as they are not accompanied by formal notification are prone to
improper documentation by the regulator and the business, or misinterpretation or
being completely forgotten. Due to the informal nature of verbal warnings, it is
suggested that they are only used for issues of a minor technical nature.
ii.
Correction Action Requests
While predominately associated with compliance and auditing, Corrective Action
Requests (CARs) are useful as preliminary steps in the enforcement process. A
corrective action request (CAR) is a request for a business to implement action to
eliminate the cause of a detected non compliance during an audit.
iii.
Written Warnings
Food regulators are recommended to exercise discretion with regard to the issuing of
14
warning letters as opposed to improvement notices. Generally speaking, warning
letters should only be used for breaches, where the issuing of an improvement notice
is not appropriate or warranted in the first instance.
When issued, it is suggested that warnings letters detail the following:

the nature of the offence;

the relevant legislation and clauses breached;

the required remedial action;

the timeframe for implementation of the proposed remedial action; and

specify the maximum penalty for the offence and the intention of the agency
to enforce the legislation should the business fail to address the detected
breach.
Food regulators are encouraged to allow no more than 3 months following the expiry
of a timeframe in a warning letter before following up to ensure the required actions
have been undertaken.
It is likely that failure to comply with a warning letter may, in most cases, result in the
implementation of more serious enforcement action, e.g. A penalty notice.
iv.
Improvement Notices
Improvement notices are statutory notices issued by authorised officers upon food
businesses that address prescribed issues and have prescribed content.
An authorised officer may issue an improvement notice to a food business5 if it is
believed that the business is acting in contravention to the appropriate legislation, or
to particular instruments associated with the legislation (e.g. not operating in
accordance with a food safety management system). Improvement notices should only
be issued when it is considered to be an appropriate tool, i.e. capable of providing
sufficient incentive to the business to address the matter.
Improvement notices may be issued to businesses for cleaning and sanitation issues,
maintenance issues (including repair and replace) for premises, food transport
vehicles or processing equipment within premises. Improvement notices may also be
issued in relation to a businesses food safety management system, compliance with
the Food Safety Standards of the Food Standards Code (i.e. Standards 3.2.2 and
3.2.3), or concerning a businesses’ particular practice for handling a food.
5
It is suggested that Improvement notices only be issued to the proprietor of a food business.
15
Improvement notices should contain certain information. Authorised officers are
encouraged to include the following in improvement notices issued:

The provision(s) of the appropriate legislation that the authorised officer
reasonably believes is being, or has been, contravened;

A brief description of how the relevant legislative provision(s) have been or
are being breached;

The particular action that the business should undertake in order to rectify the
observed legislative non-compliance;

The timeframe in which the legislative contravention should be resolved by
the business; for more serious issues this period is likely to be 24 hours, and
for less serious issues, a period considered appropriate by the authorised
officer, but normally longer than 24 hours;

Advise the business that it is an offence not to comply with a notice without
reasonable cause.
Food regulators are encouraged to conduct follow-up inspections at the timeframe
nominated in the notice.
Extensions to the date of compliance provided in an improvement notice may be
granted at the discretion of an authorised officer, however it is recommended that
extensions are only provided in instances where the business requests an extension
before the expiry date of the notice. It is further suggested that extensions only be
considered for more minor matters such as repairs to equipment or replacement of
equipment parts, or for minor revision of a businesses food safety management
system. Exceptions may be granted by authorised officers at their discretion subject to
the business satisfying the officer that exceptional circumstances prevail.
Businesses are advised that failure to comply with an improvement notice will
generally result in implementation of more serious enforcement action such as a
prohibition order, penalty notice, or both.
v.
Prohibition Orders
A prohibition order forbids the handling of food on a specified premises, vehicle or
equipment, or requires that food may not be handled in a specified way or for a
specified purpose.
Prohibition orders may be issued where it is necessary to prevent or mitigate a serious
danger to public health or where an improvement notice has not provided sufficient
16
incentive to a business to address an issue of legislative non-compliance. A penalty
notice may also be issued to businesses that have not addressed matters listed in an
Improvement notice within the prescribed timeframe.
Prohibition orders may be very specifically directed, such as to apply to a specific
piece of equipment or part of the premises, or be more broadly directed and applied to
an entire premises. It should be noted that a food regulator’s legislation will most
likely define food handling very broadly, and include activities such as collection,
transporting, storing or displaying food. Regulators are further advised to only serve
prohibition orders to the proprietor of a food business.
A brief of evidence sufficient to prove all elements of a prosecution is the
recommended practice prior to the issue of a prohibition order. Breach of a
prohibition order is a serious matter that will likely result in prosecution.
It should be noted that the legislation of food regulators will likely contain
compensation provisions to be paid to food businesses if it is proven that a prohibition
order has been issued on insufficient grounds.
A prohibition order will remain in place until a certificate of clearance is issued
following a request for inspection from the business.
The legislation of a food regulator may require it to inspect a business under a
prohibition order within 48 hours of receiving a written request for inspection from
the proprietor of a food business. Should the regulator not undertake an inspection
within this timeframe, it is likely that the regulator’s legislation will require it to
automatically issue a certificate of clearance to a business under a prohibition order.
vi.
Seizure Powers
Authorised officers generally have legislative seizure powers to seize food, vehicles,
equipment, and labelling or advertising materials which the authorised officer
reasonably believes do not comply with a provision of the relevant legislation or may
form part of evidence that an offence has been committed.
17
Seized goods that are forfeited to the Crown should be destroyed or disposed of in a
manner that ensures there can be no allegation of improper conduct. Records should
be kept of how, when and where seized goods are disposed. It is further advisable to
have disposals of seized goods witnessed.
While seizures are undertaken to collect evidence or prevent further offences being
committed they effectively impose a penalty upon the person from whom the food,
vehicle, equipment and labelling or advertising material has been seized.
Persons from whom items are seized should be provided with at the time of seizure, a
statement that describes the items seized, the reasons for seizing those items, the
address where those items will be held, and informed of rights of appeal.
Should subsequent investigation reveal that the business has not contravened the
legislation, all seized materials should be returned to the business at the earliest
possible convenience.
It should be noted that the food regulator’s legislation will likely provide for
compensation to be paid to food businesses from whom materials (i.e. food,
equipment etc) have been seized should the grounds for the making of a seizure be
proven to be inadequate.
vii.
Penalty Notices
A penalty notice is issued to a person that has committed a specific offence against a
food regulator’s legislation. If the person does not wish to have the matter dealt with
before a Court they will need to pay a specified amount for the offence within a
specific timeframe. Alternatively, the person may elect to have the matter heard
before the Court.
Penalty notices provide food regulators with an efficient method of dealing with
breaches of food legislation, that may otherwise require presentation to a local Court.
As penalty notices may be referred to a Court for hearing, authorised officers are
advised to collect sufficient evidence to prove the elements of the alleged offence
before issuing penalty notices. It is suggested that this evidence be appropriately
logged and secured as for a prosecution.
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Food regulators are advised to not use penalty notices where the penalty imposed is
significantly out of proportion to the profit gained by the business through the noncompliance. Food regulators are further advised to not use penalty notices where the
penalty is not likely to have an impact on the proprietor of a very large food business.
In this instance, another enforcement tool may be more appropriate, e.g. prosecution
or the imposition of specific registration conditions upon a business.
viii.
Enforceable Undertakings
An Enforceable Undertaking involves an agreement between a business and a regulator
whereby a business undertakes to take a specified action within an agreed timeframe to
remedy an alleged breach. The terms of an Enforceable Undertaking are negotiated
between the parties, so that the Enforceable Undertaking is offered by the noncompliant business back to the regulator.
Key differences between an Enforceable Undertaking and other options are that it is
negotiated between the parties; includes an admission by the business that it has
contravened the law (admission of ‘guilt’ is not necessarily required but rather an
acknowledgement that the regulator believes the business has contravened legislation
and this is accepted by the business); and failure to comply generally results in court
proceedings.
An Enforceable Undertaking can be designed to simply achieve compliance rather than
apply a penalty or designed to also deliver other outcomes, such as remedying the
harm caused by conduct.
ix.
Prosecution
Prosecution will generally be utilised for more serious legislative breaches or for
matters where less severe enforcement action has not been sufficient to convince the
business to address the observed non-compliance. It should be noted that matters
heard in the Local Courts may not attract the full penalties provided by the regulator’s
legislation. Where offences are knowingly committed with intent, or where
defendants have previously been convicted in a Local Court of offences of a similar
nature within a reasonable timeframe, consideration should be given to having matters
heard before the Supreme Court.
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Submissions to Court on penalties should include details about the risk to public
health, including the severity of the possible harm that may result (where appropriate)
and take full account of the economic benefit gained by the food business in not
complying with the legislation.
If referred to a Court or appeal tribunal, it is recommended that all supportive
evidence concerning an enforcement action taken by a regulator be made available.
Evidence supporting enforcement action should be objective and as comprehensive as
possible.
Briefs of evidence for the commencement of proceedings may include the following:

Physical evidence (seized material);


Photographs or video recordings of evidence; and
Video or sound recordings of conversations and interviews with alleged
offenders; and

Records of interviews signed by all parties.
Full documentation of the chain of evidence and secure storage of all exhibits
submitted as evidence should further form part of the brief of evidence.
To enable an unprejudiced defence, the alleged offender will generally have access to
the brief of evidence once investigations have been completed and proceedings have
commenced. It is recommended that advice be sought from Crown lawyers on this
issue.
In all cases, an opportunity should be provided to alleged offenders to place their
version of events on record and to outline any mitigating circumstances to be
considered by those making decisions prior to the commencement of proceedings.
Prior to commencing a prosecution, authorised officers are advised to collect
sufficient evidence to prove each element of the alleged offence beyond reasonable
doubt. The prosecution case should be structured in an organised fashion that allows
for expedient processing by the Courts.
It is likely to be a legislative requirement for food regulators to commence
proceedings within 6 months for matters relating to food samples and 12 months for
all other matters. All matters should be prepared for hearing as quickly as possible6.
A food regulator’s legislation may extend liability to a wide range of persons who
6
Section 92 Model Food Provisions,
http://www.foodstandards.gov.au/aboutfsanz/modelfoodbilloctober779.cfm
20
could be in some way involved with legislative contraventions, including employees,
proprietors, managers and individual company directors. Where a food regulator has
elected to commence prosecution, it is at the regulator’s discretion as to whom the
prosecution is directed toward. Action against the directors and managers of food
businesses should only be considered where evidence exists that a director or a
manager knowingly allowed non-compliance to occur.
The charge/s laid should appropriately reflect the nature and extent of the legislative
breach disclosed by the gathered evidence and provides sufficient material for the
Courts to consider in imposing an appropriate penalty upon the offending business.
Care should be taken to ensure that the laying of multiple charges does not infringe
the prohibition against double jeopardy.
Furthermore, food legislation may provide several different provisions that may be
applied to the same offence, which may be activated by a single incident. Regulators
are advised to apply discretion in selecting the most appropriate charge/s to apply,
bearing in mind that sufficient evidence should be obtained to substantiate any
charges applied.
Upon commencing proceedings, the defence may wish to pursue charge
bargaining. Generally speaking, this process involves negotiations between the
defence and the prosecution that may result in the prosecution withdrawing one
or more charges in return for the defendant pleading guilty to some or all of the
remaining charges. Charge bargaining arrangements may sometimes include
agreements on submissions to be placed before the Court.
Charge bargaining should not be initiated by the prosecution. Where charge
bargaining occurs the prosecution should ensure that the remaining charges
adequately reflect the elements of the offence to assist the Court in making an
appropriate judgement.
The prosecution should not accept charge bargaining proposals should the
defendant wish to maintain their innocence with respect to a charge/s to which
they have previously offered to plead guilty as part of the charge bargaining
arrangement. Any agreements that the prosecution will not oppose defence
submissions on penalty, or the scale of the offence should only be made where
the penalty nominated is considered to allow a proper exercise of the sentencing
discretion.
x.
Corrective Advertising
Requests may be made for Court orders for corrective advertising should a person be
21
found guilty of an offence where there is potential ongoing risk to public health, or
where it has been proven that a food has been promoted through advertising, in an
inappropriate or intentionally misleading way (e.g. deliberately incorrect Country of
Origin Labelling).
xi.
Injunctions or Injunctive Relief
It is also possible for food regulators to seek an injunction or injunctive relief to
prevent continuing illegal activity. Consideration should however be given to the
potential for compensation following failure of any subsequent related prosecution.
xii.
Publication of the Names of Offenders
Food regulators may wish to publicise details of successful prosecutions. Legislative
constraints should be considered prior to a decision to publicise.
xiii. Action against Registration
Many food regulators require food businesses to be registered as a legislative
requirement. Where registration is a legislative requirement, operation of nominated
food businesses without registration will be an offence.
Actions against a businesses registration are likely to have defined legislative
procedures and be subject to administrative review.
Nominated food businesses that fail to comply with registration conditions imposed
by legislation will be subject to enforcement action. This may involve the imposition
of additional conditions upon a businesses registration to limit or otherwise control
their activities or the suspension or cancellation of a business’s registration.
Registration cancellation is a very serious level of enforcement action as the removal
of registration, if imposed by legislation as an operating condition for the business,
effectively closes the business. This is likely to impact not only on the proprietors of
the food business, but also employees, suppliers, and customers.
Evidence of the development, implementation and commitment to maintain a
compliance program in accordance with Australian Standard 3806-1998 Compliance
Programs is an example of the type of submission that a business may supply as part
of an adequate response to a show cause letter from a food regulator concerning a
businesses registration.
Failure to respond, or to respond in an adequate manner to a request from a food
regulator concerning a food businesses registration may result in changes to the
22
businesses registration conditions, or suspension of the businesses registration for a
set period, or the immediate cancellation of the businesses registration.
Persons who operate a food business required by legislation to be registered, while
that registration is under suspension or cancellation will usually be subject to
prosecution.
Applications to food regulators for registration may be refused where the applicant
does not satisfy the food regulator that they have the necessary capacity, experience or
qualifications to ensure the production of safe food, or the applicant is a person who
was previously the proprietor or director of a company that has had its registration
cancelled. In circumstances where a food regulator rejects a businesses application for
registration, the regulator must inform the applicant in writing of the reason for
refusal, citing the appropriate grounds of its legislation that support its decision to
refuse the application.
Appeals to the food regulator concerning changes to registration conditions,
registration suspensions or registration cancellations will undergo formal review by
senior officers independent of those who actioned the change of registration status.
Legislation may also provide for an external appeal mechanism.
xiv.
Mandated Recall
All food businesses engaged in the wholesale supply, manufacture or importation of
food in Australia are required to have a food recall plan under Standard 3.2.2,
allowing food product that poses a health and/or safety risk to the public to be
removed from all areas of the supply chain. While typically undertaken voluntarily by
the business, recalls can be mandated by the regulator. Some jurisdictions are also
able to mandate recalls for food that is not safe or suitable or if there is doubt about
the safety and suitability; and food that is mislabeled or incorrectly identified.
xv.
Emergency Orders
Relevant authorities have emergency powers to make an order if it is necessary to do
so to prevent or reduce the possibility of a serious danger to public health or mitigate
the adverse consequences of a serious danger to public health.
xvi.
Privilege Statements
In New Zealand the Chief Executive of the Ministry for Primary Industries has power
to make privileged statements for the purpose of protecting human life or public
health or informing the public. The statements are protected by qualified privilege.
23
Figure 3.
Graduated use of Enforcement tools.
Notes:
1
The severity of seizure as an enforcement measure can vary considerably, dependant upon not
only the value of the food, equipment or materials seized but the subsequent impact of the loss
of the food, equipment or materials on the conduct of the business.
2
Internal and informal mediation can be implemented at any stage in an enforcement process.
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