The Food Act 1984 (Vic) ('The Act') sets out its three main objects under section 3:
to ensure food for sale is both safe and unsuitable for human consumption;
to prevent misleading conduct in connect with the sale of food;
to provide for application in Victoria of the Food Standards Code.
The Act sets out the obligations for businesses engaged in the preparation, handling and sale of food, and Section 16 of the Act provides for various offences arising out of non-compliance with the Food Standards Code.
In this article, we discuss the offence of Handling and selling unsuitable food under section 12 of the Act.
What the Prosecution Must Prove
Section 12 of the Food Act 1984 (Vic) provides that a person must not handle food intended for sale in a manner that will render, or is likely to render the food unsuitable.
Key Terms Defined
'Person' includes a body or association (corporate or unincorporated) and a partnership.
'Food' is defined under section 4A to include:
(a) any substance or thing of a kind used, or represented as being ofr use, for human consumption (whether it is live, raw, prepared or partly prepared)
(b) any substance or thing of a kind used, or represented as being for use, as an ingredient or addictive in a substance or thing referred to in paragraph (a);
(c) any substance used in preparing a substance or thing referred to in paragraph (a) other than a substance used in preparing a living thing) if it comes in direct contact with the substance or thing referred to in that paragraph, such as a processing aid;
(d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum;
(e) any substance or thing declared to be a food under a declaration in force under section 3B of the Australian New Zealand Food Authority Act 1991 of the Commonwealth.
'Unsuitable food' is defined under section 4E as food that is:
(a) is damaged, deteriorated or perished to an extent that affects its reasonable intended use;
(b) contains any damaged, deteriorated or perished substance that affects is reasonable intended use;
(c) is the product of a diseased animal, or an animal that has died otherwise than by slaughter, and has not been declared by or under another Act to be safe for human consumption;
(d) contains a biological or chemical agent, or other matter or substance, that is foreign to the nature of the food.
However, section 4E(2) provides that food is not unsuitable for the purposes of the Act merely because:
(a) at any particular time before it is sold for human consumption it contains an agricultural or veterinary chemical;
(b) when it is sold for human consumption it contains an agricultural or veterinary chemical, so long as it does not contain the chemical in an amount that contravenes the Food Standards Code
(c) it contains a metal or non-metal contaminant (within the meaning of the Food Standards Code) in an amount that does not contravene the permitted level for the contaminant as specified in the Food Standards Code
(d) it contains any matter or substance that is permitted by the Food Standards Code.
The Maximum Penalties for Handling or Selling Unsuitable Food
The maximum penalties for an offence under section 12 are severe. In the case of an individual the maximum penalty is $40,000, and in the case of a corporation, $200,000.
"person" includes a body or association (corporate or unincorporated) and a partnership;
Statutory Defences
Division 3 of the Act sets out a number of statutory defences. In the context of defending an allegation of handling and or selling unsuitable food, the defence of due diligence may be argued.
Due Diligence Defence
Under section 17E sets an individual or corporation raising the defence of due diligence must adduce evidence that establishes on the balance of probabilities that all reasonable precautions were taken and that the person (including corporation) exercised all due diligence to prevent the commission of the offence by the person or another person under the person's control.
To read the statutory defence in full under the Act click here.
Sentencing Principles
The steep maximum penalties provided for under the Act reflect the legislature's intention that deterrence and denunciation are dominant sentencing purposes (Pannacchione v. City of Rockingham [2014] WASC 221 & Hungry Jacks Pty Ltd v. City of Bayswater [2013] WASC 199).
The Court does however retain the discretion under section 8 of the Sentencing Act or to record or not record a conviction. Section 8 provides that a court must have regard to all the circumstances of the case including:
(a) the nature of the offence; and
(b) the character and past history of the offender; and
(c) the impact of the recording of a conviction onthe offender's economic or social well-being or on his or her employment prospects.
Why Early Advice and Court Representation Critical
If an individual is prosecuted under the Act significant penalties outlined above apply. If convicted, an individual will have a disclosable court outcome for that offence.
Where a proprietor's business is business is prosecuted, a conviction may result in the business being listed for business, a conviction may result in reputational damage as a consequence of a listing under the Food Safety Register of Convictions (a public online document, listed under the Department of Health Victoria website).
A prosecution for a Food Act offence is usually prosecuted by the relevant local council. Our office has defended prosecutions under the Food Act. A recent outcome involved a without conviction outcome for various offences under the Act (sections 12, 16).
If you or your business is facing prosecution under the Food Act 1984 (Vic), the consequences can be significant. To protect your interests and receive expert legal representation, contact Pascoe Criminal Law today for prompt and experienced advice.
To learn more about our successful outcomes, read our Case Study: Without Conviction Outcome for Food Act 1984 (Vic) Offences.
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