The Food Bill 2005 (Qld)Food Bill 2005 (Qld) EXECUTIVE SUMMARY The Food Bill 2005 (Qld) was...

Queensland Parliamentary Library

The Food Bill 2005 (Qld)

The Food Bill 2005 (Qld) was introduced into the Queensland Legislative Assembly on 8 November 2005 by the Minister for Health, the Hon Stephen Robertson MP. The Bill repeals the Food Act 1981 (Qld) and will –

• require all food businesses, not otherwise exempt from the application of the Bill, to provide safe food to consumers and to comply with the Food Standards Code, including the Food Safety Standards;

• require certain food businesses to have a licence and to comply with the conditions therein; and

• require certain high-risk food businesses to prepare, implement and maintain a food safety program.

Nicolee Dixon

Research Brief No 2006/01

Queensland Parliamentary Library Research Publications and Resources Section

Ms Karen Sampford, Director (07) 3406 7116 Mrs Nicolee Dixon, Senior Parliamentary Research Officer (07) 3406 7409 Ms Renee Giskes, Parliamentary Research Officer (07) 3406 7241

Research Publications are compiled for Members of the Queensland Parliament, for use in parliamentary debates and for related parliamentary purposes. Information in publications is current to the date of publication. Information on legislation, case law or legal policy issues does not constitute legal advice. Research Publications on Bills reflect the legislation as introduced and should not be considered complete guides to the legislation. To determine whether a Bill has been enacted, or whether amendments have been made to a Bill during consideration in detail, the Queensland Legislation Annotations, prepared by the Office of the Queensland Parliamentary Counsel, or the Bills Update, produced by the Table Office of the Queensland Parliament, should be consulted. Readers should also refer to the relevant Alert Digest of the Scrutiny of Legislation Committee of the Queensland Parliament. © Queensland Parliamentary Library, 2006

ISSN 1443-7902 ISBN 1 921056 26 6 JANUARY 2006

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Clerk of the Parliament on behalf of the Parliament of Queensland.

Inquiries should be addressed to: Director, Research Publications & Resources Queensland Parliamentary Library Parliament House George Street, Brisbane QLD 4000 Ms Karen Sampford. (Tel: 07 3406 7116) Email: [email protected] Information about Research Publications can be found on the Internet at: www.parliament.qld.gov.au/publications

CONTENTS

EXECUTIVE SUMMARY .....................................................................................1

1 INTRODUCTION.............................................................................................1

2 THE NEED FOR REGULATION OF FOOD BUSINESSES ......................1

3 BACKGROUND TO CURRENT FOOD SAFETY LAWS..........................5

3.1 JOINT AUSTRALIA NEW ZEALAND FOOD STANDARDS CODE AND FOOD SAFETY STANDARDS........................................................................... 5

3.2 MODEL FOOD BILL........................................................................................7

4 PREVIOUS IMPLEMENATION OF NEW FOOD LAWS IN QUEENSLAND................................................................................................. 7

5 OVERVIEW OF THE FOOD BILL 2005 ......................................................9

6 APPLICATION OF THE FOOD BILL 2005...............................................10

6.1 EXEMPTIONS................................................................................................10

6.2 DEFINITIONS................................................................................................11

7 COMPLIANCE WITH FOOD SAFETY STANDARDS AND OFFENCES RELATING TO FOOD ........................................................... 13

7.1 FOOD OFFENCES..........................................................................................13

7.2 PRESCRIBED CONTAMINANTS......................................................................15

8 LICENSING OF PARTICULAR FOOD BUSINESSES.............................15

8.1 NON-PROFIT ORGANISATIONS .....................................................................17

8.2 OFFENCES....................................................................................................18

8.3 APPLICATIONS FOR, AND CRITERIA FOR ISSUING OF, LICENCES...................18

8.4 SUSPENSION AND CANCELLATION OF LICENCES..........................................21

9 FOOD SAFETY PROGRAMS ......................................................................21

9.1 APPLICATIONS FOR ACCREDITATION OF FOOD SAFETY PROGRAMS.............26

9.2 COMPLIANCE AUDITS ..................................................................................26

9.3 AMENDMENTS OF FOOD SAFETY PROGRAMS .............................................. 28

9.4 CANCELLATION OF VOLUNTARY FOOD SAFETY PROGRAMS ....................... 28

10 MONITORING AND ENFORCEMENT ................................................. 28

10.1 ROLE OF STATE AND LOCAL GOVERNMENTS ........................................... 29

10.2 AUTHORISED PERSONS............................................................................. 29

10.3 IMPROVEMENT NOTICES .......................................................................... 30

10.4 INJUNCTIONS............................................................................................ 31

10.5 CHIEF EXECUTIVE’S EMERGENCY POWERS.............................................. 31

10.6 PROCEEDINGS FOR OFFENCES .................................................................. 32

11 OTHER MATTERS.................................................................................... 32

12 REVIEWS AND APPEALS........................................................................ 32

13 FOOD LAWS IN OTHER JURISDICTIONS.......................................... 32

APPENDIX – A MINISTERIAL MEDIA STATEMENT................................. 35

RECENT QPL PUBLICATIONS 2006............................................................... 39

Food Bill 2005 (Qld)

EXECUTIVE SUMMARY





While the impact of food-borne illnesses (or ‘food poisoning’) on the majority of the population is often little more than a day or two of an upset stomach and/or vomiting and diarrhoea, for some groups of people such as pregnant women and the elderly, the consequences can be extremely serious. Some food-borne illnesses are life threatening, such as Botulism and Listeriosis. Listeriosis may cause intra-uterine infection in pregnant women that can lead to a spontaneous abortion in the second or third trimester, stillbirth or neonatal infection. Between January and December 2004 in Queensland, there were 7,127 cases of food-borne illness notified to Queensland Health. Food-borne illnesses have consequences for the Queensland economy. Thus, efforts to increase food safety will have a positive effect on these matters and result in economic growth benefits for the State: pages 1-4. In Queensland, food hygiene and safety in the manufacturing, food service and food retail sectors is regulated primarily by the Food Act 1981 (Qld), the Food Standards Regulation 1994 (Qld) (covering sampling and analysis), and the Food Hygiene Regulation 1989 (Qld) (dealing with licensing and registration of premises and places connected with food). At the 1991 Premier’s Conference it was agreed that all states and territories would adopt the Food Standards Code developed by the federal Australia New Zealand Food Authority as part of their food laws: page 5. A further major step was taken with the development of a joint Australia and New Zealand Food Standards Code which includes Food Safety Standards (discussed on pages 5-7), and the signing of an Intergovernmental Agreement on Food Regulation on 3 November 2000, which required each State and Territory Government to adopt core provisions (Annex A) of a national Model Food Bill (discussed on page 7). Effective from 1 January 2002, the Food Act 1981 (Qld) was amended to incorporate the Annex A provisions of the Model Food Bill and to provide a mechanism through which the Food Standards Code (which includes the Food Safety Standards) is adopted at the food manufacturing, service and retail level in Queensland. In August 2002, Queensland Health published the ‘Review of the Food Act 1981’ Discussion Paper concerning what provisions of Annex B should


be included in a new Food Act for Queensland and what other amendments were needed. The Queensland Health Public Benefit Test Report, released in 2004, concluded that other alternatives considered by it were less effective in reducing food-borne illness incidents than the approach taken by the new Bill: pages 7-9. An overview of the objects of the Food Bill 2005, its application, exemptions and crucial definitions are set out on pages 9-12. Chapter 2 of the Bill deals with offences relating to food and many of the provisions replicate the amendments to the Food Act 1981 made in 2002 regarding food offences. All food businesses that ‘sell’ food, including charitable organisations and community bodies, will be bound by the offence provisions of the Bill and must comply with the Food Standards Code: pages 13-15. Chapter 3 of the Bill sets out the requirements for licensing of certain food businesses. The licensable food businesses are essentially –

▪ food businesses that manufacture food; ▪ ‘for profit’ organisations selling unpackaged food; and ▪ non-profit organisations that sell meals on at least 12 days each financial

year: pages 15-21. Under Chapter 4 of the Bill, certain high-risk food businesses, identified in cl 99, will need to develop and implement food safety programs, compliance with which will be periodically audited by approved food safety auditors. Other food businesses that are not in the high-risk category can voluntarily elect to have a food safety program for their business. The Bill does not adopt Standard 3.2.1 - Food Safety Programs because Chapter 4 effectively ‘covers the field’ on the issue: pages 21-28. Various monitoring and enforcement provisions in the Bill are considered on pages 28-31 and the process for seeking review is provided on page 32. A number of other states and territories have enacted food laws comprising various adaptations of the Annex B provisions and this is briefly examined on pages 32-33.

Food Bill 2005 (Qld) Page 1

1 INTRODUCTION





The background to the development of the Food Standards Code, including the Food Safety Standards, and to the reforms that have occurred to food laws in Queensland can be found in the Queensland Parliamentary Library publications, ‘Paddock to the Plate’: Food Production (Safety) Bill 2000, LB No 8/00, and ‘Paddock to the Plate’ (Part 2) – Amendment of the Food Act 1981 (Qld) by the Health Legislation Amendment Bill 2001 (Qld), RBR No 2001/24.1

2 THE NEED FOR REGULATION OF FOOD BUSINESSES

Most people have a friend or relative who has suffered the effects of a food-borne illness (commonly known as ‘food poisoning’) caused by bacteria and viruses infecting food. While the impact on the majority of the population is often little more than a day or two of an upset stomach and/or vomiting and diarrhoea, for some groups of people, such as pregnant women and the elderly, the consequences can be extremely serious. There are also some food-borne illnesses, such as Botulism and Listeriosis, that are life threatening. Listeriosis has a fatality rate of around 51% in hospitalised immuno-compromised patients.2 It can also have

1 See the Queensland Parliament’s Publications – Research Publications webpage at

www.parliament.qld.gov.au/view/publications/publications.asp?area=research&LIndex=4&SubArea=research.

2 Queensland Health, ‘Review of the Food Act 1981’, Public Benefit Test Report, 2005, p 8, www.health.qld.gov.au/legislation/reviews/food_discussion_paper/pbt_foodactreview_oct2004.pdf, citing other sources including D E Dwyer, et al, ‘Listeriosis: Review of eighty four cases’, Medical Journal of Australia, 160, 18 April 1994, pp 489-493.


dreadful consequences for pregnant women as it may cause intra-uterine infection that can lead to a spontaneous abortion in the second or third trimester, stillbirth or neonatal infection.3

Some infections have secondary consequences such as post-infectious arthritis, Haemolytic-Uraemic Syndrome that causes kidney failure, and motor paralysis. Some people develop serious symptoms if the bacteria enter the bloodstream to cause septicaemia or invade the nervous system which can cause meningitis and encephalitis.4

There is evidence that viruses, such as hepatitis A, cause around 30-40% of food-borne illnesses in Australia.5 It appears that food-borne illnesses are becoming more prevalent, as highlighted by well-publicised outbreaks over the past decade. Of particular note was the 1995 ‘Garibaldi’ incident in South Australia, where smallgoods infected by E.coli killed a child and hospitalised many. Sixteen people, several of them children, were left with Haemolytic-Uraemic Syndrome. In 1997, oysters at Wallis Lake in New South Wales became contaminated by sewage, resulting in over 700 cases of hepatitis A. In 1996, peanuts infected with traces of Salmonella were found after 60 people in Victoria became ill. A massive recall of most brands of peanut butter followed.

Each year in Queensland, it is estimated that a person has a 22% chance of contracting a food-borne illness.6

Between January and December 2004 in Queensland –7

• there were 7,127 cases of food-borne illness, due to the 9 food-borne pathogens or conditions under surveillance, notified to Queensland Health. This is compared with 6,320 cases during 2003;

• Campylobacter and Salmonella were the two most frequently notified food-borne pathogens, contributing to around 97.2% of the total food-borne illness

3 Queensland Health, Public Benefit Test Report, p 7.


5 Food Science Australia and Minter Ellison Consulting, National Risk Validation Project, Commonwealth Department of Health and Ageing, 2002, p 18.

6 Queensland Health, Public Benefit Test Report, p 6, extrapolating from data in ANZFA’s Food Safety Standards – Costs and Benefits, 1999.

7 Queensland Department of Health, OzFoodNet Site, Annual Report 2004 Queensland, April 2005, pp 2-3, 6, 21ff, www.health.qld.gov.au/phs/documents/cdu/28676.pdf. Queensland OzFoodNet is one of the eight food-borne disease surveillance sites around Australia comprising OzFoodNet established in 2001 by the Commonwealth Government.


notifications received by Queensland Health for the 9 pathogens under surveillance;

• children aged 0-4 years represented 41.6% of the Salmonella notifications received during 2004;

• there were 557 hospitalisations recorded in the Queensland Hospital Admitted Patient Data Collection for the 9 pathogens or conditions under surveillance during the 2003-2004 financial year;

• there were 107 outbreaks of gastrointestinal illnesses during 2004 reported to Queensland OzFoodNet, affecting at least 3,219 people. 77 people were hospitalised as a result. There were 56 outbreaks in aged-care facilities affecting 2,734 persons and 11 of those elderly people died;

• 29 of the 107 gastrointestinal outbreaks during 2004 were confirmed, or suspected, to be caused by food-borne or water-borne transmission with 11 of them having a bacterial aetiology (Salmonella being identified in 7 of the outbreaks);

• Of the 29 reported food-borne gastrointestinal outbreaks, 8 were related to restaurant meals, 4 to fast food outlets, and 3 to commercial caterers. There were 6 outbreaks associated with meals served at private residences but 4 of those 6 cases were due to ciguatera poisoning from fish cooked at one home.

It was also reported that there have been 16 deaths attributed to food-borne pathogens between 1999 and 2003. Listeriosis accounted for 6 deaths, Salmonella infections for 8 deaths and there was 1 death each for Haemolytic-Uraemic Syndrome and Shigella. 15 of the deaths were adult persons but 1 child under 4 also died.

It has been considered that the following factors have contributed to the increased frequency of food poisoning incidents over the last few years –

• different food consumption patterns due to the diversity of foods now available and the increased consumer demand for food prepared outside the home;

• changes in the way in which food businesses manufacture, retail, distribute and store food;

• emerging pathogens that have only recently come to light; and


• an increase in the number of susceptible consumers, particularly the elderly, because of Australia’s ageing population. It has been reported that the fatality rate for the elderly is up to 10 times higher than the general population.8

It has been estimated that there are 5.4 million incidents of gastroenteritis in Australia each year caused by contaminated food.9 This has the consequence of 6.5 million lost work days at a cost to Australia of $3.75 billion each year.10 The impacts on Government include having to make Medicare benefit payouts and, more seriously, social welfare payments to people who incur long-term secondary conditions that prevent them from continuing work. In terms of other sectors of the economy, the food industry stands to suffer due to loss of consumer confidence, even for products that were not the subject of the outbreak. For example, for some time after the ‘Garibaldi’ mettwurst contamination, sales in all smallgoods fell and around 400 smallgoods manufacturers went out of business. The food industry also bears the cost of food recall and destruction of potentially contaminated food. There may also be consequential adverse effects on the economies of small communities that derive income from the industry concerned.11

Food-borne illnesses also cost the Queensland economy. This is due to reduced productivity through loss of work days, and damage to consumer confidence, to the export market and to the tourism industry. Indeed, Queensland’s and, ultimately, Australia’s reputation as a clean, green export of safe food may be harmed. An example of this was in November 1996 when wide media publicity reached Japan regarding 488 airline passengers from Cairns to Japan suffering food poisoning. It could therefore be argued that efforts to increase food safety will have a positive effect on these matters and result in economic growth benefits for the State.12

8 Queensland Health, Public Benefit Test Report, p 9, citing Food-borne Disease Working Party,

‘Towards reducing food-borne illness in Australia’, Technical Report Series No 2, Communicable Disease Network Australia and New Zealand, December 1997. See also, Public Benefit Test Report, p 28.

9 OzFoodNet, ‘Food-borne disease in Australia: incidence, notifications and outbreaks’, Annual Report of the OzFoodNet Network 2002, Vol 27(2), June 2003.

10 Queensland Health, Public Benefit Test Report, citing some ANZFA analysis.

11 Queensland Health, Public Benefit Test Report, p 7, citing other sources.

12 Queensland Government, Queensland Health, ‘Review of the Food Act 1981’, Discussion Paper, August 2002, p 8.


3 BACKGROUND TO CURRENT FOOD SAFETY LAWS

In Queensland, food hygiene and safety in the food manufacturing, service and retail sectors is regulated primarily by the Food Act 1981 (Qld), the Food Standards Regulation 1994 (Qld) (covering sampling and analysis), and the Food Hygiene Regulation 1989 (Qld) (dealing with licensing and registration of premises and places connected with food). The laws are administered and enforced by local government and Queensland Health. The Food Production (Safety) Act 2000 (Qld) deals with food safety issues at the primary production stage to the point of manufacture or retail, and is briefly discussed later.

Attempts were made over many decades to develop a National Model Food Act for the uniform implementation of food standards in all states and territories but it was not until 1991 that some progress was made. At the 1991 Premier’s Conference it was agreed that all states and territories would adopt the Food Standards Code developed by the federal Australia New Zealand Food Authority (ANZFA)13 as part of their food laws. Once adopted by legislation, the Code is enforceable in each state and territory and non-compliance with the Code is an offence.

Further impetus for reform was provided by the 1998 Food Regulation Review Committee Report, Food: A Growth Industry (the Blair Report) recommendation for the implementation of an integrated and coordinated national food regulatory system covering the food chain from the ‘paddock to the plate’.

A further major step was taken in 2000 with the development of a joint Australia and New Zealand Food Standards Code which includes Food Safety Standards (discussed below), and the signing of an Intergovernmental Agreement (IGA) on Food Regulation by State, Territory and Commonwealth Governments on 3 November 2000. The IGA required each State and Territory Government to adopt core provisions (Annex A) of a national Model Food Bill (discussed below).

3.1 JOINT AUSTRALIA NEW ZEALAND FOOD STANDARDS CODE AND FOOD SAFETY STANDARDS

The Food Standards Code for Australia and New Zealand is discussed in considerable detail in RBR No 2001/24, and will only be briefly considered here.

13 Established by the Australia New Zealand Food Authority Act 1991 (Cth). ANZFA’s main

function is the development, review and amendment of standards for inclusion in the Food Standards Code. ANZFA is now known as Food Standards Australia New Zealand (FSANZ).


The joint Food Standards Code replaced the previous code in January 2003, after a two-year phasing in period, during which food businesses could comply with either the existing Code or the new joint Code.

ANZFA’s (now FSANZ’s) objective in developing the joint Food Standards Code was to remove the numerous prescriptive and outdated requirements for individual foods and replace them with more generic standards. The Code has three parts –

• General Food Standards (Chapter 1) concerning matters such as labelling information requirements, substances added to foods, and standard analysis methods to be used to determine compliance with the Code;

• Minimum Product Standards for Particular Foods (Chapter 2);

• Food Safety Standards (Chapter 3) – specific food safety and hygiene standards – the main focus of the Model Food Bill and of this Brief.

The Food Safety Standards (Chapter 3) impose a basic requirement that food must be safe for consumption and it is then for the particular food business to ensure that this occurs. The Standards reflect international best practice and must be implemented by legislation in each state and territory to be enforceable and effective. The four Food Safety Standards (discussed further later) are –

• Standard 3.1.1 – Interpretation and Application

An introductory and interpretative Standard which explains who the other Standards apply to.

• Standard 3.2.1 – Food Safety Programs

This Standard requires food businesses to identify potential food safety hazards and to implement measures to control them. Auditing must occur to ensure compliance. Food safety programs are considered extensively later in this Research Brief.

• Standard 3.2.2 – Food Safety Practices and General Requirements

This Standard sets out specific food handling controls (such as temperature controls, processing steps, disposal of unsafe food, cleaning of surfaces and equipment). It attempts, among other things, to prevent contamination of food by food handlers and to ensure the adoption of hygienic practices in food businesses, including training staff about health and hygiene requirements (e.g. hand washing, not smoking near food, reporting staff illnesses).


Standard 3.2.3 – Food Premises and Equipment

This Standard sets out measures that assist food businesses to comply with Standard 3.2.2 – Food Safety Practices and General Requirements and attempts to ensure that the layout of the premises, vehicles, fixtures, fittings and equipment are such as to minimise the risk of opportunity for food contamination. It is outcomes-based rather than prescriptive, providing food businesses with the ability to implement measures that are cost-effective but meet the required standard.

The Commonwealth Government gazetted three of the above Standards on 24 August 2000 but deferred adoption of Standard 3.2.1 – Food Safety Programs pending further consideration of the costs and benefits of its adoption. The Food Safety Standards (apart from Standard 3.2.1) became law in Queensland on 1 July 2001 after their adoption through amendments to the Food Act 1981 by the Health Legislation Amendment Act 2001 (Qld).14

3.2 MODEL FOOD BILL

The Model Food Bill has two separate parts. Annex A contains ‘core’ provisions that the IGA requires each jurisdiction to adopt in legislation ‘as is’, or as similarly as possible. The Annex A provisions relate to issues such as important definitions, for example, ‘food business’ and ‘sell’, major food safety offences and defences, and emergency provisions. The Annex B ‘non-core’ provisions do not need to be uniform across jurisdictions and each state or territory can adopt or leave out whatever provisions they choose. These provisions concern matters such as registration of food businesses, food safety programs, auditing, and the powers of enforcement authorities.

4 PREVIOUS IMPLEMENATION OF NEW FOOD LAWS IN QUEENSLAND

In 2001, the Queensland Government endorsed a framework for a food safety management system in the food manufacturing, services and retail sectors which included a risk-based approach to regulation.

Effective from 1 January 2002, the Food Act 1981 (Qld) was amended to incorporate the Annex A provisions and to provide a mechanism through which the

14 Apart from the ‘skills and knowledge’ component in clause 3 of Food Safety Standard 3.2.2

which commenced on 1 July 2002.


Food Standards Code (which includes the Food Safety Standards) was adopted at the food manufacturing, service and retail level in Queensland. These amendments are essentially retained under the new Food Bill.

The amendments to the Food Act 1981 related to food safety objectives (which remain the same in the Bill under cl 8), definitions (some of which have undergone refinement in cl 12), and obligations and offences (now in Part 2) regarding non-compliance with the Food Safety Standards (FSS). Research Brief No 2001/24 covers these matters in detail and they will only be dealt with briefly in the headings below, with any modifications highlighted accordingly.

The Food Production (Safety) Act 2000 (Qld) covers Queensland’s primary industry sector food production up to the point of manufacture and is not considered in this Research Brief. The regulatory body, within the Primary Industries portfolio – Safe Food Production Queensland (SFQ) – is responsible for controlling food safety and hygiene associated with the production of primary produce. Since its inception in 2000, SFQ has established food safety schemes for Queensland’s meat and dairy industries and eggs, with seafood to follow soon. These food safety schemes conform to the FSS. Once produce reaches the point of manufacture, the responsibilities for safety and hygiene pass to Queensland Health and local government which have control over the food service and retail (apart from meat) sectors.15 Under the new Bill, a Regulation can be made to deem a food safety program under the Food Production (Safety) Act for a type of food business to be an accredited food safety program under the Bill for a similar type of food business: cl 278.

In 2002, the Queensland Government began assessing which Annex B provisions should be adopted into a new Food Act and what other amendments to Queensland food legislation were required so that food businesses sell safe and suitable food to consumers. This assessment included a review of the Food Hygiene Regulation 1989 (existing licensing and registration requirements) and the Food Standards Regulation 1994 (prescription and reporting of pathogens). In August 2002, Queensland Health published the ‘Review of the Food Act 1981’ Discussion Paper regarding these issues.16 In addition, Queensland Health undertook various projects to find out which food businesses posed the greatest potential food safety risks.

Information sessions took place during the consultation period on the Discussion Paper to encourage stakeholder involvement. The majority of submissions supported the licensing of all food businesses, other than those regarded as low-

15 For further information see ‘Paddock to the Plate’: Food Production (Safety) Bill 2000, LB

No 8/00, QPL, July 2000.

16 ‘Review of the Food Act 1981’, Discussion Paper, August 2002, p 6.


risk, and the proposal for high-risk businesses to have food safety programs.17 The Minister for Health’s Food Safety Stakeholders’ Forum, comprising stakeholder representatives, also supported these proposals.

The Queensland Health Public Benefit Test Report, released in 2004, considered alternative options to implementing the Food Bill for achieving food safety in Queensland. These were –

(a) retain the existing regulatory regime which, as will be explained, has a number of deficiencies; or

(b) impose new notification and registration requirements, the problem with this option being that the registration of premises focuses only on the suitability of the premises, which is just one factor to take into account. Food handling practices and the skills and knowledge of the owner of the business are also crucial ingredients; or

(c) no licensing or registration requirements, the disadvantage with this option being that it relies upon a reactive approach to prosecute the offending business after the food-borne illness incident has occurred. This means that many risks go unchecked.18

Those alternatives were considered to be less effective in reducing food-borne illness incidents than the approach taken by the new Bill. It was considered that the licensing model under the Bill provided the most cost-effective method of achieving the policy objectives of the legislation and any costs involved in mandating food safety programs for high-risk food businesses were outweighed by the tangible benefits of such programs.19 It was considered that, as most food businesses are currently required to have a licence, there should be no additional costs for those businesses.

5 OVERVIEW OF THE FOOD BILL 2005

The Food Bill 2005 (Qld) (the Bill) will repeal the Food Act 1981 which has the consequence of also repealing the Food Hygiene Regulation 1989 and the Food Standards Regulation 1994. In any event, following the adoption of the Food Safety Standards on 1 July 2001, much of the Food Hygiene Regulation 1989 was repealed, leaving only the licensing and registration provisions.


18 Queensland Health, Public Benefit Test Report, pp 25-27.



The Bill retains the effect of the amendments made in 2002 to the Food Act 1981 to implement the ‘core’ Annex A provisions of the Model Food Act and also implements ‘non-core’ Annex B measures. It replaces the dual system of registration of premises and licensing of persons with a single licensing system for food businesses; requires the implementation and maintenance of food safety programs by high-risk businesses; and leaves the administration and enforcement of certain parts of the Bill with local government.

In essence, there are three tiers to the framework of the legislation –

• all food businesses – whether high-risk or low-risk and whether ‘for profit’ or ‘non-profit’ bodies – will have to comply with the requirements of the Food Safety Standards;

• specified food businesses, primarily ‘for profit’ businesses handling and selling unpackaged food, will have to be licensed; and

• higher-risk food businesses, such as catering, residential aged care facilities and hospital facilities, will be required to have an accredited food safety program which must be audited regularly by a qualified food safety auditor.

6 APPLICATION OF THE FOOD BILL 2005

The Bill retains, with some refinements, the ‘core’ Annex A provisions of the Model Food Act that were included in the 2002 amendments to the Food Act 1981.

6.1 EXEMPTIONS

Certain exemptions are set out in cl 4. The Bill does not apply to food sold by State school tuckshops operated by a parents and citizens’ association or to the handling of food intended to be given to a non-profit organisation (which includes bodies such as charities, sporting bodies, educational organisations – see Sch 3) for sale. Thus, a cake baked at a person’s own home and given to a football club committee for sale at a fete will not be subject to the Bill.20

The Bill does not bind the State or Government Owned Corporations (GOCs): cl 3. There are a number of State facilities and GOCs that provide food. Those include public hospitals, residential aged care facilities, correctional centres, Queensland Rail food services, and school tuckshops. The State cannot prosecute itself so it would not be practicable to subject State facilities and services to the offence

20 Note cl 5 regarding the application of the Bill to ships in Queensland waters or travelling

between places in Queensland.


provisions of the Bill. However, the Government currently has administrative requirements in place for a number of these State facilities which are similar to those operating for private sector businesses that are subject to the Food Act 1981. For example, Queensland Health presently conducts annual inspections and audits of public hospitals and residential aged care facilities. In addition, many public facilities have food safety programs in place.21 Examples include Queensland Rail’s on-board catering services and public hospitals. There are also a number of Commonwealth and State Government initiatives seeking to improve food safety in school tuckshops.22 It has been proposed that existing administrative arrangements will be strengthened so that State facilities will be required to meet similar standards to those applying to their private counterparts, with the requirements varying in accordance with the level of risk associated with the business.23

The Food Production (Safety) Act 2000 (Qld) (outlined above) does not limit the Bill but is additional to it: cl 7.

6.2 DEFINITIONS

Many of the definitions contained in Schedule 3 and cls 12-21 of the Bill accord with the Intergovernmental Agreement to adopt the Food Safety Standard 3.1.1– Interpretation and Application definitions of certain terms such as ‘food’ and ‘food business’ in the national Model Food Bill. Other terms, such as ‘unsuitable food’ are optional.

‘Food’ is given a broad meaning under cl 12 to include ingredients, additives, raw substances and processing aids in making food but excludes a therapeutic good within the meaning of the Therapeutic Goods Act 1989 (Cth) (e.g. a nutritional supplement). It also makes ‘water’ intended for human consumption a food in certain circumstances (e.g. if it is water for sale by retail; or water carried by a vehicle in bulk, such as to fill a consumer’s rainwater tank). Currently, it is unclear whether ‘water’, other than ‘packaged water’, is covered by the Food Act 1981.

A key provision in the legislation is the term ‘food business.’ Clause 13 defines it to encompass a business, enterprise or activity that involves the handling of food intended for sale, or the sale of food, regardless of whether it is of a commercial, charitable or community nature and regardless of whether it is a ‘once-off’ sale or

21 Queensland Health, Discussion Paper, p 14.

22 An example being the ‘Smart Choices – Healthy Food and Drink Supply Strategy’ currently being introduced into Queensland schools: see Queensland Health, Food Safety Update Newsletter, August 2005.



handling of food. ‘Handling of food’ is defined in cl 15 to cover the entire process from manufacture to serving and displaying of food.

The very wide definition of ‘sell’ is intended, as well as the usual sorts of ‘selling’, to include supplying meals to an employee as a term of employment; bartering or displaying food; offering food as a prize or reward; giving food away for the purpose of advertisement or in the furtherance of trade or business; or giving the food away to a person (such as charitable bodies serving food as soup kitchens to the homeless and the needy); cl 19. However, to ‘sell’ will not include preparing and supplying food at a private residence for a fee such as to a boarder nor will it include preparing and supplying food at a private residence for a person employed at the residence (e.g. providing meals for a live-in nanny at a private home). However, the term will still embrace commercial type premises such as farmstays, B&Bs, residential care premises under the Commonwealth Aged Care Act 1997, or premises under the Residential Services (Accreditation) Act 2002 (Qld).

‘Unsafe’ is given meaning by cl 20 as it applies to food. Food is ‘unsafe’ at a particular time if it would be likely to cause physical harm to a person. However, the definition assumes that after the food has left the control of the food business, and before consumption, it was properly subjected to all processes relevant to its reasonable intended use; that nothing happened to it before being consumed that would prevent it being so used; and that it was consumed according to its reasonable intended use. For example, a person may purchase some takeaway chicken and leave it sitting at room temperature for several hours before eating it. This may well cause the chicken to become physically harmful to that person, but it will not be ‘unsafe’ within the meaning of the legislation because it was not unsafe when it was sold and it was not intended that it be left at room temperature for extended periods. Further, food will not be ‘unsafe’ because it causes an allergic reaction not common to the majority of persons. For example peanuts and pine-nuts are safe for most people but the fact some people are allergic to them will not make them ‘unsafe’ for the purposes of the Bill.

Food will be ‘unsuitable’ if it is, or contains a substance that is, damaged, deteriorated or perished to an extent that affects its reasonable intended use; is the product of a diseased animal or one that has not been killed for food; or contains a foreign matter such as glass or metal fragments:

Other definitions covered by cls 16-18 are ‘manufacture’; ‘off-site catering’ and ‘on-site catering’. Persons conducting off-site and on-site catering must develop and implement a food safety program (discussed later in this Brief).


7 COMPLIANCE WITH FOOD SAFETY STANDARDS AND OFFENCES RELATING TO FOOD

Chapter 2 of the Bill deals with offences relating to food and is consistent with the Annex A provisions of the Model Food Bill. Many food offences replicate the amendments to the Food Act 1981 made in 2002.

All food businesses that ‘sell’ food will be bound by the offence provisions of the Bill, including charitable organisations and community bodies. These organisations are currently subject to the Food Act 1981 offence provisions, including licensing and registration requirements. Under the Bill, as will be seen later, only those non-profit organisations that sell meals on at least 12 occasions in a financial year will have to be licensed. However, some food activities of charitable organisations are ‘high-risk’. This will be particularly the case where meals are cooked and served in a mobile or institutional setting or in venues such as a soup kitchen. This is because there are risks of food contamination occurring during handling (such as temperature control), and because of the types of food sold in those settings and the nature of the consumers. In the case of the consumers, many of them are people who are destitute, frail, or homeless people who have, or are, susceptible to health problems, and would be particularly vulnerable in the case of a food-borne illness. There are, of course, other activities carried on by charitable and community bodies that pose quite a low risk such as a fete selling cakes and biscuits or a sausage sizzle. Giving away of food parcels that are packaged or tinned would also be fairly low risk.24

7.1 FOOD OFFENCES

Chapter 2, Part 1 covers Serious Offences Relating to Food. The maximum penalties are fines of up to 1350 penalty units. This will equate to $101,250 for a person (up to $506,250 for a corporation) or two years imprisonment.25 A serious offence relating to food is committed where a person knows, or reasonably ought to know, that their actions will make food unsafe for consumption. The actions are–

• handling food in an unsafe way;

• selling unsafe food;


25 The Penalties and Sentences Act 1992 (Qld), s 5 states that, generally, a ‘penalty unit’ means $75. Note that s 181B provides that the maximum fine for a corporation, if not expressly provided, is 5 times that for a person.


• falsely describing food in such a way that a consumer relying on the description will, or is likely to, suffer physical harm, or

• selling falsely described food.

Chapter 2, Part 2 deals with Other Offences Relating to Food. Those offences will carry fines of up to $52,500 for a person and up to $262,500 for a corporation. The lesser penalty reflects there being no requirement that the person knows, or reasonably ought to know about the consequences of his or her actions. The offences provided for are –

• handling food in a way that will make, or is likely to make, the food unsafe or unsuitable, or selling food that is unsafe or unsuitable;

• in the course of carrying on a food business, engaging in misleading or deceptive conduct in relation to advertising, packaging or labelling of food intended for sale;

• for the purpose of effecting or promoting the sale of food in the course of carrying on a food business, causing the food to be advertised, packaged or labelled in a way that falsely describes the food, or selling food that is so falsely described. Clause 40 comprehensively states what to ‘falsely describe’ entails. For example, the food is advertised as being of a particular nature or substance for which there is a prescribed standard under the Food Standards Code and the food does not comply with it;

• selling equipment (eg a utensil, machinery, appliance etc.26), or packaging, or labelling material that would make, or be likely to make, food unsafe or put other equipment at such risk;

• non-compliance with a requirement imposed on the person by the Food Standards Code in relation to the conduct of a food business or to food intended for sale or food for sale. A person must not sell food that does not comply with the Code requirement relating to that food nor package or label it in a way that contravenes the Code.

A number of defences to prosecution for a food offence are established under Part 3. Again, the defence provisions are virtually unchanged from the existing provisions of the Food Act 1981. One defence that should be highlighted is that the person exercised all due diligence (which includes the taking of all reasonable precautions) to prevent the commission of the offence by the person or by another person under their control. For example, a person may have sold food having relied on checks carried out by the supplier and it was reasonable in all the

26 See Sch 3 Dictionary definition of ‘equipment’.


circumstances to do so. A person may be able to satisfy the due diligence requirement by proving compliance with an accredited food safety program or industry code of practice designed to manage food safety hazards based on national or international standards.

The defence provisions in the Criminal Code regarding intention and motive will not apply to the above offences and the ‘mistake of fact’ defence will not apply to the Part 2 ‘other offence’ provisions: cl 45.

7.2 PRESCRIBED CONTAMINANTS

Under Chapter 11, Part 3 a Regulation may make an antibiotic, a pathogen, or another contaminant a ‘prescribed contaminant’.27 The consequences of this are that if a food prescribed by a Regulation is tested and a prescribed contaminant is isolated, the chief executive of Queensland Health must be notified within 24 hours or an offence is committed unless the person has a reasonable excuse for not reporting the matter. The chief executive can then give the food business a reasonable direction about identifying the source of, and preventing or minimising the risk to public health or safety caused by, the prescribed contaminant: cl 271(2). For example, the direction may be to dispose of the food. It is an offence attracting a fine of up to $7,500 (up to $37,500 for a corporation) not to comply with the direction.

8 LICENSING OF PARTICULAR FOOD BUSINESSES

The licensing and registration of certain food businesses and premises is currently regulated by the Food Hygiene Regulation 1989. The new licensing arrangements under the Bill are expected to commence on 1 July 2006. A licence issued under the Food Hygiene Regulation will continue under the Bill, as will any suspension of a licence under the repealed provision. In addition, licences issued under the Regulation for food businesses that do not need to be licensed under the Bill will lapse. Pending applications for licences under the repealed provisions will be assessed under the requirements of the Bill. Existing registrations and transfers of registration of premises under the Regulation will also lapse when the Bill commences because registration will no longer be required.

The current Food Hygiene Regulation requirements for licensing of persons conducting a food business and the registration of premises and vehicles and places involved with the food business necessitates two annual renewal processes. This

27 The provisions are similar to those currently contained in the Food Standards Regulation 1994

(Qld), Part 4.


creates a fair degree of ‘red tape’ and cost to businesses and administrative costs for local government involved in granting the licences and registrations.28 It has been suggested that the Regulation has a number of other limitations. For instance, there is no link between the food business required to be licensed and the risks involved in the business so licensing or registration is no guarantee that a business is producing safe food. The list of businesses requiring a licence or registration is not comprehensive so many local governments adopt their own approaches to how businesses are assessed for licensing or registration, resulting in inconsistencies throughout the State. Food businesses operating in more than one local government area have difficulties complying with varying local government requirements. In addition, the enforcement process is inconsistent between local governments and inspections are not risk-based.29

Under the new regime, the licensing provisions, but not the registration provisions, have been retained but placed in the Bill rather than in a Regulation.

The requirement for food businesses to have a licence increases public confidence in the Government’s ability to protect consumers from food poisoning resulting from the incompetencies of poor food businesses. It also ensures that those businesses that pose a health risk are prevented from operating.30

Chapter 3 sets out the requirements for licensing of certain food businesses. The licensable food businesses are essentially –

• food businesses that manufacture food;

• ‘for profit’ organisations selling unpackaged food such as a restaurant or delicatessen, catering businesses, takeaway food outlets, pie vans, or motels supplying meals with accommodation: cl 48. It has been recognised that businesses handling unpackaged food have a higher risk of the food becoming contaminated than those which handle food already packaged before it reaches the business;31 and

• non-profit organisations that sell meals on at least 12 days each financial year at a particular place (as discussed below). Other non-profit organisations not selling meals on 12 or more occasions per year will not be covered by the licensing requirements. Thus, most fund-raising activities by non-profit






organisations such as cake stalls, sausage sizzles, fetes, and lamington drives would not require a licence.

Some food businesses will not be required to be licensed under this legislation even though they are prima facie ‘licensable food businesses’ and those are set out in cl 48(2). These excluded food businesses cover four categories. The first group comprises a business involved in the sale of ‘low risk’ foods such as unpackaged snack food, ice, seeds and similar items, coffee beans or whole fruit or vegetables or drinks other than fruit or vegetable juices. For example, a newsagent or entertainment venue selling packets of chips would not require a licence. The second category covers food businesses that are regulated or licensed under other legislation such as Part 5 of the Food Production (Safety) Act 2000 or the Fisheries Regulation 1995. The third type of food businesses to be excluded are those prescribed under a regulation. The aforementioned food businesses will, of course, be required to comply with the Food Safety Standards in accordance with Chapter 2 of the Bill.

8.1 NON-PROFIT ORGANISATIONS

Non-profit organisations will only be required to be licensed if they sell meals on at least 12 days each financial year at a particular place: see cl 48. An example would be a body which prepares and sells meals to homeless persons at a hostel or a sporting club which operates a restaurant. Meals on Wheels will also fit this description but only if that organisation itself prepares the meals rather than obtaining them from another body such as a restaurant.

Even if a non-profit organisation is, by virtue of the above definition, a ‘licensable food business’, it will not be covered by the licensing requirements if it sells ‘low risk’ food such as cereal or toast or if the consumer of the meal helps to prepare it (as may occur in community residential homes for people with a disability who may assist in meal preparation). An organisation will be excluded from needing a licence if the meals it sells are pre-prepared by another entity and prepared according to the manufacturer’s instructions (e.g. a school tuckshop heating up a frozen lasagne in accordance with the microwave instructions on the package).32 The licensing provisions will not apply to such an organisation that sells meals as part of an educational or training activity conducted by the organisation involving food preparation, hospitality or catering.

32 Food Bill 2005 (Qld), Explanatory Notes, p 22.


The provisions attempt to strike a balance between increasing food safety outcomes and minimising compliance costs for non-profit organisations.33

The organisations that are exempt from needing to be licensed will, of course, have to comply with the general food safety requirements in Chapter 2.

8.2 OFFENCES

Chapter 3, Part 2 creates offences about carrying on a licensable food business. A person must not carry on a licensable food business (as defined above) without a licence and will be subject to a fine of up to $75,000 for doing so (and up to $375,000 if the offender is a corporation). Penalties also apply if the licensee contravenes a licence condition and if they carry on a licensable food business from other premises. Special provisions are made for off-site catering businesses.

8.3 APPLICATIONS FOR, AND CRITERIA FOR ISSUING OF, LICENCES

Chapter 3, Part 3 establishes how a person applies for a licence to carry on a licensable food business to the relevant local government and what it must contain. A licence fee is also payable by the applicant to the local government which is intended to off-set various administration and enforcement costs. Those businesses that are required by the Bill to have an accredited food safety program must include that with the application while other businesses not so required may do so if they wish. The local government may grant the application only if it is satisfied about the matters in cl 5634 –

• the suitability of the applicant – the assessment of which allows the local government to have regard to factors set out in cl 57 such as the applicant’s skills and knowledge about selling safe and suitable food. Under this criterion, the local government must consider the skills and knowledge of the applicant and consider whether the applicant is able to obtain the services of a person who has the relevant skills and knowledge. The applicant will also need to make sure that supervisors and food handlers have the necessary skills and knowledge and that training programs are available.35 Food Safety Standard


34 Clause 59 enables the local government to make inquiries regarding suitability of the applicant and the relevant premises. These criteria also apply to applications for renewal, and for deciding if a ground for suspension or cancellation exists under Part 6.



3.2.2: Food Safety Practices and General Requirements states that persons undertaking/supervising food handling activities must have levels of skills and knowledge relevant to the particular activity. Food businesses selling higher-risk food may need persons with different levels of skills, knowledge and training. Another relevant factor to applicant suitability is the applicant’s history – whether the applicant previously held a licence of this type and duly complied with it. Any previous convictions for offences against other food safety legislation would be relevant;

• the suitability of the premises – the decision about which enables the local government to consider whether the premises complies with Food Safety Standard 3.2.3: Food Safety Premises and Equipment, a Standard which seeks to ensure that the layout of a food business premises, vehicles, fittings, fixtures and equipment are such as to minimise the risk of opportunity for food to become unsafe and are able to be cleaned and sanitised. It also states that a food business must provide facilities such as water, waste disposal, storage and access to toilets.36 The Standard does recognise that the type of premises can influence the safety of the food produced. For instance, a bakery may pose a lower risk than a premises used to cook poultry. The local government must, in making its decision, obtain written advice from an authorised person (i.e. a person appointed under Chapter 7 to enforce the Bill and enforce compliance by inspections of food businesses) about whether or not the premises are suitable;

• whether the food safety program (if accompanying the application) complies with the requirements for such programs under cl 98 and its implementation is reasonably likely to effectively control food safety hazards of the business. The local government has to obtain written advice from an auditor (appointed under Chapter 5 to, inter alia, conduct audits of accredited food safety programs) about whether or not the auditor considers the food safety program complies with cl 98.

Currently, the Food Hygiene Regulation does not have detailed licensing criteria but does oblige the local government to carry out investigations, inquiries and inspections and other measures to ensure the fitness of the applicant to hold the licence and to ensure public health.

If the decision is to refuse the licence or impose conditions on it, the local government must provide the applicant with an information notice which sets out the applicant’s rights of review (unless it is for a provisional licence): cl 60. If the

36 Standards Australia has Standard 4674 concerning the design and fitout of food premises

which is based on Food Safety Standard 3.2.3 with the aim of producing clarity in the requirements and achieving consistency across states and territories. Standard 4674 can be used as a guide to the Food Safety Standard 3.2.3 requirements.


applicant has also submitted a food safety program, a decision to grant the licence is also taken to be a decision to accredit the food safety program: cl 63.

A licence, other than a provisional licence, remains in force for a maximum of three years unless sooner cancelled or suspended. A provisional licence remains in force for a maximum of three months.37 Chapter 3, Part 5 enables the licence to be renewed (subject to payment of a licence fee) in accordance with the same criteria applying to an initial application for a licence and provided that the licensee has complied with any applicable food safety program and with the legislation in general.

Provisional licences are dealt with under Chapter 3, Part 3, Division 3 which are issued in circumstances where the local government is not fully satisfied about the applicant’s fulfilment of the criteria for grant of the application.

Conditions to which licences are subject are set out in cl 69. Currently, the Food Hygiene Regulation allows local government to impose discretionary conditions. It appears that the conditions are imposed in a manner commensurate with the circumstances of a particular business or local conditions, while still ensuring that public health is protected.38 However, compliance with the Food Safety Standards is a minimum condition on licences. Under the Bill, the standard conditions will require compliance with the Bill and, if the licensee is required to have an accredited food safety program, it must comply with that program and allow an auditor reasonable access to the premises. The licensee must display the licence or details as stated in cl 69. The premises must comply with Food Safety Standard 3.2.3 – Food Premises and Equipment (as described earlier). The licensee must also allow an authorised person to have reasonable access to the premises during business hours for inspections and other compliance activities. In addition, the local government can impose other reasonable conditions it considers appropriate for the food business, provided the licensee is notified and informed of their review rights.

Within 30 days after issue of the licence, the licensee must have obtained a food safety supervisor for the food business: Chapter 3, Part 7, Division 2. A food safety supervisor is someone (who can also be the licensee) who can spot, prevent and alleviate food safety hazards of the food business and has skills and knowledge in the relevant food safety matters, as well as authority to supervise and give directions about such matters to persons handling the food. These persons will train staff to handle food safely. The skills and experience of food safety

37 Chapter 3, Part 5 deals with renewing, restoring and amendment of licences other than a

provisional licence.



supervisors will vary according to the type of food business. The licensee must continue to have such a food safety supervisor and must ensure that the supervisor can be readily contacted by the local government regarding relevant regulatory matters, and by persons who handle the food in the business. Non-compliance with the foregoing requirements will be an offence carrying a maximum penalty of a $3,750 for an individual and $18,750 for a corporation.39 The foregoing measures appear to be drawn from the approach taken in the Victorian Food Act 1984 where a similar food safety supervisor is required for food businesses. It also accords with clause 3 of the Food Safety Standard 3.2.2 - Food Safety Practices and General Requirements that obliges food businesses to ensure that a person undertaking or supervising food handling operations has the appropriate level of skills and knowledge in food safety and hygiene, subject to certain exemptions (e.g. charitable and community events).

8.4 SUSPENSION AND CANCELLATION OF LICENCES

The grounds for, and the process through which a licence can be suspended or cancelled are set out in Chapter 3, Part 6. The affected licensee will have review rights. The Food Hygiene Regulation currently enables local government to suspend or cancel a licence on various grounds. The Queensland Health Discussion Paper suggested that the existing grounds could be updated to conform to contemporary legislation with the substance of the current grounds retained.40

The instances in which a licence can be suspended or cancelled are that the licensee is no longer a suitable person to hold the licence; non-compliance with the business’s food safety program such as to pose a significant risk to public health or safety; contravention of a licence condition; or that the licence was issued due to a materially false or misleading representation or declaration: cl 78.

9 FOOD SAFETY PROGRAMS

A food safety program is a documented program that identifies and controls food safety hazards in the handling of food in a food business: Schedule 3. One of the Food Safety Standards in the Food Standards Code is Standard 3.2.1 - Food Safety Programs. This Standard is based on world best practice about controlling food hazards that can occur during the manufacturing and handling of food. It requires food businesses to consider their production, manufacturing and handling

39 Food Bill 2005 (Qld), Explanatory Notes, p 30.



operations to identify potential food safety hazards and to prepare programs that set out ways to control them. It was envisaged by ANZFA41 that food safety programs will incorporate requirements for identifying and controlling particular hazards based on Hazard Analysis Critical Control Point (HACCP) principles. HACCP is a scientific process designed to prevent potential food hazards through determining critical points of control and establishing procedures for monitoring and controlling identified hazards there as opposed to reliance on end-point testing. Periodic auditing ensures compliance with such a program. These measures currently apply to the primary production sector under the Food Production (Safety) Act 2000 (Qld).

It has been recognised that there are elements pertaining to a food business that can make it of higher risk than other food businesses. The type of food handled by the business, such as foods containing eggs or cream, may pose a higher risk of being affected by contamination. Another factor is the intended customer use (e.g. ready to eat food posing a greater risk). Other elements are the activity of the business so that the greater the amount of food handling in the production process, the higher the risk of contamination; the method of processing; and the customer base. In terms of the customer base, risks are increased if potential consumers are more vulnerable such as the elderly, pregnant women and children under the age of five.42 However, other factors can contribute to possibility of unsafe food reaching the consumer, including the attitude of the food business to producing and selling safe food and complying with relevant food laws.

Examples of lower-risk food businesses are hotels that sell only packet chips and nuts; petrol stations and newsagents that sell only packaged lollies and drinks; and greengrocers that sell only whole or uncut fruit and vegetables.43

As noted earlier, the Australia New Zealand Food Standards Council decided that Standard 3.2.1 - Food Safety Programs not be mandatory but could be adopted on a voluntary basis by each jurisdiction. It was later determined that Standard 3.2.1 would be a model Standard so that it would not apply to any jurisdiction unless and until that jurisdiction imposes food safety program requirements under its food legislation. In addition, State and Territory Health Ministers agreed that further research was needed about the costs and benefits of food safety programs and this research was then commissioned by the Commonwealth Government’s Department of Health and Ageing. As a result of the work undertaken through this project, the

41 Now FSANZ.

42 Queensland Health, Discussion Paper, p 12, citing ANZFA’s The Priority Classification System for Food Businesses, 2000.

43 Queensland Health, Discussion Paper, p 13, citing the Commonwealth Department of Health and Ageing’s National Food Safety Risk Validation Project, 2002.


Australia and New Zealand Food Regulation Ministerial Council agreed, in December 2003,44 that food safety programs would only be mandated for high-risk food businesses (such as food services for vulnerable people residing in places such as nursing homes and hospitals; catering operations; producers of fermented meats) and where the benefits of imposing them outweighed the costs.45

The Victorian Food Act 1984 currently requires all, apart from low-risk, food businesses to have a food safety program consistent with Food Safety Standard 3.2.1. It has been reported that these programs have assisted in improving food safety and knowledge.46

The Queensland Food Act 1981 has no express provisions regarding the use of food safety programs but the implementation of such a program may be used to satisfy a due diligence defence to a food safety offence under that Act. Indeed, some Queensland food businesses (particularly higher-risk businesses such as hospital facilities) have introduced food safety programs as part of their quality assurance and risk management program. Some businesses have introduced food safety programs as a result of industry driven food safety requirements where, for example, food manufacturers that supply large supermarket chains, have adopted them. Such programs are then subject to audits on a regular basis.

The Queensland Health Discussion Paper indicated that Queensland food laws should adopt food safety programs that would be audited on a regular basis by an approved food safety auditor who would have to report the results of the audit to the appropriate enforcement agency. It then outlined three options for consideration regarding how the food safety program requirements should be implemented. It appears that the Bill has ultimately chosen Option 3 which was for prescribed high-risk food businesses to implement, maintain and monitor food safety programs with the ability for other food businesses to voluntarily opt into having such programs. It was considered that regular audits of the programs of food businesses would reduce duplication in compliance mechanisms. This because it would not be necessary for authorised persons to inspect businesses for compliance purposes as frequently because compliance with the program would demonstrate compliance with the Food Bill.47

44 Ministerial Policy Guidelines on Food Safety Management in Australia: Food Safety

Programs, December 2003.

45 Food Standards Australia and New Zealand, Food Safety Fact Sheets, Standard 3.2.1 - Food Safety Programs, www.foodstandards.gov.au/_srcfiles/Standard321_v63.doc.

46 Food Standards Australia and New Zealand, ‘Food Safety Programs for Food Service to Vulnerable Populations’, Draft Assessment Report, 25 May 2005, p 10.



A project prepared for the Commonwealth Department of Health and Ageing found that there was epidemiological evidence to suggest that food-borne illnesses have continued to increase despite the adoption of Food Safety Standards 3.2.2 and 3.2.3 as these Standards do not address the issues of monitoring potential hazards and remedial measures that can be implemented. It also found that of approximately 250 food-borne illness outbreaks, 156 of them could have been avoided if a food safety program had been implemented.48

The Queensland Health Public Benefit Test Report commented that the benefit to the public in requiring food businesses to have food safety programs is a reduction in the incidence of food-borne illness. These programs hone in on identifying and eliminating/reducing food safety risks and necessitate a proactive approach by business to providing safe food for consumers. It was estimated that, based on a figure of approximately 5.4 million cases of food poisoning each year, a reduction in food-borne illness of just 15% through the introduction of food safety programs for high-risk food businesses would result in $450 million per annum benefit to Australia.49 It is also envisaged that mandating such programs will raise the level of compliance with Food Safety Standard 3.2.2 – Food Safety Practices and General Requirements by high-risk businesses.

It has been reported that there is some wariness among some stakeholders about these programs with Restaurant and Catering Queensland’s chief executive considering that while the industry was very supportive of the move to introduce food safety officers, it did not support food safety program requirements for some smaller operators.50

Under Chapter 4 of the Bill, certain high-risk food business identified in cl 99 will need to develop and implement food safety programs, compliance with which will be periodically audited by approved food safety auditors. Other food businesses that are not in the high-risk category can voluntarily elect to have a food safety program for their business, the advantage of this being that such a business could use the fact of adopting a food safety program as a means of showing due diligence in prevention of a food offence.51 The Bill does not adopt Standard 3.2.1 - Food Safety Programs because Chapter 4 effectively ‘covers the field’ on the issue of

48 Food Science Australia and Minter Ellison Consulting, National Risk Validation Project, p 60.

49 Queensland Health, Public Benefit Test Report, pp 29-30, citing the Food Regulation Standing Committee (of the Australia and New Zealand Food Regulation Ministerial Council), Risk Profiling and Food Safety Programs Policy Guidelines, Attachment 1, p 12.

50 Emma Chalmers, ‘Laws to cut food risks’, Courier Mail, 9 November 2005, p 2.

51 Food Bill 2005 (Qld), cl 100; Explanatory Notes, p 32.


food safety programs.52 It is intended that the measures regarding food safety programs will not commence until 1 July 2007 to allow enough time for Queensland Health to produce guidelines, templates, information and training to food businesses and to local governments.53

If a food business has made an application for a licence and it is accompanied by a proposed food safety program, this is taken as being an application for accreditation of the program and a separate accreditation application need not be made: cl 101.

The higher-risk food businesses that must have a food safety program are identified in cl 99 as follows –

• those which conduct off-site catering (defined in cl 17 as businesses which serve potentially hazardous food at a place other than the principal place of business);54

• those which are primarily involved in on-site catering (defined in cl 18 as businesses which prepare and serve potentially hazardous food to all consumers at the food business premises under an agreement with the consumers regarding type of food, number of people, time and cost);

• those which are primarily involved in on-site catering at part of the premises stated in the licence (but see also cl 99(2));

• those carried on as part of the operations of a private hospital; or

• those prescribed under a regulation.

The penalty for non-compliance with cl 99 is a fine of up to $75,000 for an individual and up to $375,000 for a corporation.

52 Food Bill 2005 (Qld), cl 14; Explanatory Notes, p 14.

53 Hon S Robertson MP, Minister for Health, ‘Beattie Government to Toughen up on Food Safety’, Media Statement, 8 November 2005; Food Bill 2005 (Qld), Second Reading Speech, Queensland Parliamentary Debates, 8 November 2005, pp 3742-3744, p 3744.

54 Subject to a number of exceptions such as businesses which deliver on an order made by a customer such as a pizza delivery; ice-cream vans.


9.1 APPLICATIONS FOR ACCREDITATION OF FOOD SAFETY PROGRAMS

Chapter 4, Part 2 provides for the way in which an application for accreditation of a food safety program is made and how it is assessed before a decision is made by the relevant local government about whether or not to grant the accreditation.

The criteria for accrediting a food safety program are (see cl 104), firstly, whether it complies with cl 98 which sets out what the program must contain and reflects the requirement of Standard 3.2.1 - Food Safety Programs. Essentially, it must systematically identify food safety hazards likely to occur in the food handling operations of the food business; the point at which, and how, each hazard can be controlled; and make provision for systematic monitoring of the means of control. It must also provide for corrective action to be taken if the hazard is not under control. Provision for regular review of the program and record keeping must be made. The second criterion is that the local government must be satisfied that implementation of the program is reasonably likely to effectively control food safety hazards of the relevant business. The local government must obtain the advice of an auditor about whether the auditor believes that the program complies with the cl 104 criteria.

If the application for accreditation is refused, the local government must give the applicant an information notice about their right of review.

Once accredited, the licensee, who must have a program pursuant to cl 99, must comply with the program or an offence is committed. The maximum penalty is $37,500 for an individual and $187,500 for a corporation: cl 123.

It appears that Queensland Health has developed a food safety program template for commercial food services which can be used by caterers. Similar templates for other industries will help to reduce the initial implementation cost of such programs for food businesses.55

9.2 COMPLIANCE AUDITS

A robust auditing system of food safety programs was regarded as essential to the operation of a successful food safety program and for ensuring that food businesses comply with it. Accordingly, ANZFA developed an audit system comprising of approvals of food safety auditors to ensure relevant competencies are held by persons who audit the programs; the audit process outlining the role and



responsibilities of the auditors, the methods used and the frequency thereof; and an audit management system to ensure the integrity of audits.56

If the local government decides to accredit the food safety program it must then determine the frequency of compliance audits of the program (which occur pursuant to Chapter 6) having regard to the nature of the food handled by the business and the nature and extent of the food handling carried on by the business: cl 109. However, the first audit must occur within six months after accreditation: cl 157. A compliance audit is an audit of the program to ensure that the carrying on of the food business complies with the program and Food Safety Standard 3.2.2 – Food Safety Practices and General Requirements and Food Safety Standard 3.2.3 – Food Premises and Equipment. A failure to have compliance audits will attract a fine of up to $7,500 for an individual and up to $37,500 for a corporation: cl 158.

Note that the chief executive may, under cl 159, conduct a ‘check audit’ of a program if considered appropriate, the purpose of which is to ensure that the other auditor is conducting compliance audits properly.

If a local government receives at least three audit reports (the requirement for which reports are contained in cl 161) within a 12 month period that show that the holder of an accredited program has not remedied a particular non-compliance with the program or with Food Safety Standard 3.2.2 – Food Safety Practices and General Requirements and Food Safety Standard 3.2.3 – Food Premises and Equipment, the local government may conduct a non-conformance audit to check that the problem has been remedied: cl 160.

If, during a compliance or non-conformance audit, the auditor forms a reasonable belief that a person has, or is, contravening the Bill or Food Safety Standard 3.2.2 – Food Safety Practices and General Requirements and Food Safety Standard 3.2.3 – Food Premises and Equipment and this poses an imminent and serious risk to the safety of the food intended for sale, the auditor must inform the local government that accredited the food safety program within 24 hours.

The compliance audits are conducted by auditors who are persons with relevant expertise and experience and approved by the chief executive of Queensland Health in accordance with the requirements of Chapter 5. Their functions include advising local governments about accreditation of food safety programs (see above) and conducting audits of programs.57

56 ANZFA, ‘Food Safety: An audit system’, Information Paper, 2001.

57 Chapter 5 also deals with term and condition of auditors’ approvals; renewal of approvals; amendments of conditions of approvals; suspension and cancellation; and other matters.


9.3 AMENDMENTS OF FOOD SAFETY PROGRAMS

Food safety programs can be amended by the holder, subject to approval of the local government, if there is a proposal to change the way the food is handled that makes the program inappropriate to control the relevant food safety hazards involved. The program can also be amended by the local government exercising its imitative to direct the holder to make an amendment because it considers it necessary or desirable to do so. This will occur in situations where the local government considers that the program no longer effectively controls the food hazards of the business or the program is no longer complying with cl 98. It will be an offence if the holder does not make the directed amendment within the time stated in the direction: Part 4.

9.4 CANCELLATION OF VOLUNTARY FOOD SAFETY PROGRAMS

Food businesses can apply for accreditation of a food safety program even if they are not a cl 99 food business. Chapter 4, Part 5 sets out the grounds for cancelling such accreditation for these voluntary programs. The grounds include non-compliance with the program posing a risk to public health and safety, and failure to have compliance audits.58

10 MONITORING AND ENFORCEMENT

At present, s 26 of the Food Act 1981 provides that the duties of local government relate to ensuring that food businesses handle and sell food in accordance with the Food Safety Standards; enforcing hygiene requirements in relation to food stores, vehicles and equipment; and undertaking licensing and registration of food businesses. Queensland Health performs those duties not allocated to local government, such as enforcement of the Food Standards Regulation and other parts of the Food Standards Code, apart from the Food Safety Standards, and auditing State Government facilities handling or selling food that are required to have a food safety program. Section 26 has been considered to be unclear and unspecific in its division of responsibilities between the State and local governments.

58 The ’show cause’ process for cancellation is also provided. Part 5 also deals with surrender of

the food safety program.


10.1 ROLE OF STATE AND LOCAL GOVERNMENTS

Chapter 1, Part 4 sets out (among other related matters) the division of responsibility for administration and enforcement of the Bill between State and local governments; the provisions to be administered and enforced by both; and when a partnership arrangement can be formed.

For instance, local governments will administer and enforce provisions regarding licensing and food safety programs; auditing; and certain non-compliances with the Food Standards Code. Queensland Health has responsibilities regarding non-compliances with the Food Standards Code in relation to the conduct of the food business, or food intended for sale, or food for sale; auditors; check audits; and the chief executive’s emergency powers.

Both State and local governments can enforce most of the food safety offence provisions which overcomes the previous problem where a local government could not prosecute a person for knowingly selling food that is unsafe but only for the lesser offence of non-compliance with the Food Standards Code.

It is made clear that local governments will be able to charge fees for providing a service such as issuing licences or carrying out inspections but such a fee must be commensurate with the cost of the service: cl 31.

10.2 AUTHORISED PERSONS

Pursuant to s 28 of the Food Act 1981, food safety inspectors have a number of powers but these need updating to ensure consistency with modern health legislation.59

Pursuant to Chapter 7, Part 1 ‘authorised persons’ (replacing the term of ‘inspectors’ under the Food Act 1981) will be responsible for enforcing and monitoring compliance with the Bill by inspecting places where food businesses are carried on. These authorised persons will be public servants; health service employees; or persons prescribed by regulation appointed by the chief executive of Queensland Health. They can also be local government employees or persons under contract to a local government appointed by the chief executive officer of a local government for the relevant area. Provision is made to enable smaller local governments to share the one authorised person. Their powers and limitations on those powers (entry of places, searches, seizure, obtaining information etc.) are also provided for in Part 2 and are similar to those in other recent consumer protection and public health and safety legislation.



Authorised persons will also have e

The Food Bill 2005 (Qld)Food Bill 2005 (Qld) EXECUTIVE SUMMARY The Food Bill 2005 (Qld) was...

Documents

Transcript of The Food Bill 2005 (Qld)Food Bill 2005 (Qld) EXECUTIVE SUMMARY The Food Bill 2005 (Qld) was...