In this practice area
Acting for food businesses and their officers in NSW Food Authority and council investigations, notices, penalty notices, licence action and prosecutions under the Food Act 2003 (NSW).
What these matters involve
The Food Act 2003 (NSW) regulates the handling and sale of food in New South Wales, and incorporates the Australia New Zealand Food Standards Code. The NSW Food Authority administers the Act and sits within the Biosecurity and Food Safety division of the NSW Department of Primary Industries and Regional Development. Local councils act as enforcement agencies for most retail food businesses, such as cafes, restaurants and takeaway shops.
Investigations follow routine inspections, customer complaints, foodborne illness outbreaks, product recalls, labelling concerns or licensing issues in regulated sectors such as meat, dairy, seafood and manufacturing.
The legal framework
The Act creates offences of escalating seriousness, from handling or selling food in a manner that is likely to render it unsafe, through to knowingly or recklessly doing so in a way likely to cause harm. It also prohibits false descriptions of food and breaches of the Food Standards Code. Authorised officers may enter premises, inspect, take samples, seize food and equipment, and require information.
Enforcement tools include improvement notices, prohibition orders that can close premises, penalty notices, licence suspension or cancellation for licensed businesses, and prosecution in the Local Court. Penalty notices and convictions for many offences are published on the NSW Food Authority's public registers, which can have a significant commercial effect. The Act provides defences, including a due diligence defence, where a business took all reasonable precautions.
How these matters run
Most matters begin with an inspection. The officer may issue a notice on the spot or later, and follow-up inspections are common. A prohibition order can take effect immediately, so an urgent response may be needed to get the business trading again, usually by fixing the problem and requesting a re-inspection.
Where an outbreak or serious labelling issue is involved, the investigation may include sampling, supplier tracing and interviews, and a recall may be needed. Decisions about whether to contest a penalty notice, respond to a proposed publication or defend a prosecution need to be made within fixed time limits.
How GopherWood Lawyers acts
We advise food businesses and their directors on notices, orders and investigations, prepare responses and attend interviews. We consider whether a penalty notice should be paid or elected to be dealt with by a court, taking account of public register consequences.
We defend prosecutions, including by reference to the due diligence defence, and act in licence suspension and cancellation matters. We also advise on supplier and insurance claims arising from recalls and contamination.