The laboratory result is positive. The batch records do not line up. A customer has reported an undeclared allergen. Each can lead to a food safety prosecution, but each raises a different question of proof. The defence starts with the offence charged, not a general argument that the business is well run.
01 Identify the precise offence before debating the facts
The Food Act 2003 (NSW) distinguishes unsafe food from unsuitable food and creates several different offences. Sections 13 to 15 include knowledge-based offences, with section 15 also addressing physical harm following reliance on a false description. Sections 16 to 21 address matters including unsafe handling or sale, unsuitable food, misleading conduct, unfit equipment or packaging material and Food Standards Code compliance. Sections 22 and 23 explain false descriptions and the treatment of food destined outside NSW; they are not standalone offences. Read the actual charge before assuming what the prosecution must prove.
For a criminal prosecution, the prosecution must prove the offence beyond reasonable doubt. Identify the alleged conduct, date, food or batch, defendant and provision. Then work through each element against the evidence. A defendant relying on a statutory defence may bear a separate burden for that defence; that does not remove the prosecution’s obligation to prove the offence.
Different defendants may have different positions. A manufacturer, importer, distributor, retailer and individual manager may have had different roles, information and control. A company’s supply-chain involvement does not automatically resolve every question of legal responsibility. The pleaded or charged case must be examined against the statute and the evidence.
02 Contamination and the limits of a positive test
Microbiological evidence can be powerful, but it must be interpreted correctly. The significance of a positive result depends on the organism or parameter tested, the applicable legal standard, the product type, the sampling method, the sample’s integrity, the laboratory’s methods and the time between production, collection and analysis. A result should not be treated as self-explanatory.
Key questions may include who selected and collected the sample; whether the sample was representative; whether the chain of custody is documented; how it was stored and transported; whether seals and identifiers match; which analytical method was used; whether the laboratory was appropriately approved or accredited for the relevant test; whether the method’s limitations are understood; and whether the result was interpreted against the correct standard. These are not technical objections for their own sake. They determine what the result can reliably establish.
A single positive sample may establish the presence of an organism in that sample, but it does not necessarily answer every question about the entire production run, the source of contamination, the time contamination occurred or which entity was responsible. Conversely, an absence of symptoms or complaints does not prove the food was safe. The legal analysis must stay close to the statutory elements and the actual scientific evidence.
Where the issue is material, instruct an independent food microbiologist or other appropriate expert early. The expert should receive the relevant records, including sampling documentation, laboratory reports, production data and the applicable standard. The questions should be neutral and focused: what does the evidence establish, what are its limitations, and which competing explanations are scientifically plausible?
03 Sampling, laboratory evidence and disclosure
Sampling disputes may turn on procedure as well as science. The defence should seek the available sampling record, identification of the sampled item, collection and transport details, laboratory worksheets, quality-control information, relevant correspondence and any retained sample information. The precise disclosure entitlement depends on the procedural posture and applicable rules; the request should be framed to identify material relevant to the alleged offence and any expert opinion.
An apparent discrepancy in batch numbers, dates, sample seals or descriptions should be investigated rather than assumed to be fatal. Some differences may be clerical and capable of explanation; others may undermine the connection between the sample and the alleged product. The significance depends on the whole evidentiary picture.
Expert evidence must comply with the applicable court rules and duties. An expert is not an advocate for the business. A defensible expert analysis identifies assumptions, methodology, limitations and alternative explanations. If the business’s own internal testing conflicts with the prosecution sample, the discrepancy should be examined rigorously, including whether the tests sampled the same batch, at comparable times and under comparable conditions.
A discrepancy does not automatically make a sample inadmissible or defeat the charge. Some Food Act evidence provisions give certificates or analysis results a particular evidentiary effect. Check those provisions and the applicable criminal procedure before assuming the defence can demand every underlying document on the same terms.
04 Traceability: reconstructing the product journey
Traceability can be decisive where the alleged risk relates to a particular ingredient, batch, supplier, processing stage or distribution route. Relevant records may include purchase orders, supplier approvals, certificates of analysis, batch sheets, ingredient lot records, production schedules, temperature logs, cleaning records, packaging runs, dispatch records, customer invoices, warehouse movements and recall documentation.
A robust chronology can test whether the prosecution’s proposed pathway is plausible. For example, if a product was allegedly contaminated at a particular stage, records may show that the relevant ingredient was not used in the batch, that a line was cleaned and validated before production, or that the product identified in a complaint was manufactured at a different facility. Those records must be authenticated and their reliability assessed; a spreadsheet created after the event is not equivalent to a contemporaneous production record.
Traceability gaps can also be damaging. If a business cannot identify which customers received a batch, it may struggle to demonstrate the scope of the incident or conduct a targeted recall. In a prosecution, missing records may support an inference adverse to the business depending on the legal context, but the prosecution must still prove the elements of the offence. A recordkeeping weakness and proof of a separate unsafe-food offence are not necessarily the same thing.
Preservation should extend beyond documents. Consider production system logs, electronic access records, temperature-monitoring data, CCTV, laboratory information systems and communications with suppliers. Suspend routine deletion where relevant. Keep an auditable record of any corrective entries and do not overwrite source data.
05 Labelling, descriptions and consumer representations
Food regulatory disputes are not confined to microbiological contamination. A prosecution may concern allergen declarations, ingredient lists, date marking, country-of-origin statements, nutrition information, claims about a product’s composition or the way a food is described. The applicable legal source may be the Food Standards Code, the Food Act or another regulatory regime, depending on the allegation.
The first question is which representation or omission is alleged to contravene which provision. Preserve every relevant version of the label, packaging artwork, online product page, advertising copy, specification, supplier declaration and approval record. Establish when each version was used, on which products and batches, and which entity controlled the content.
Complex issues can arise where a manufacturer relies on information from a supplier, a brand owner approves the artwork, and a contract packer prints or applies the label. Commercial allocation of responsibilities may be relevant to the factual history and any contribution claim, but it does not necessarily determine statutory liability. Each participant’s conduct and the applicable legal obligations must be analysed separately.
Correcting a label may be necessary, but the correction does not automatically resolve liability for products already supplied. A proportionate response may involve identifying affected stock, stopping further distribution, assessing recall or customer-notification obligations, preserving the label history and documenting the basis for the corrected version.
06 Food safety schemes, licences and sector-specific obligations
Some sectors are subject to additional requirements under the Food Regulation 2025 and relevant food safety schemes. The framework covers identified higher-risk sectors, including meat, dairy, seafood, shellfish, plant products, eggs and food provided to vulnerable populations. Licensing categories and conditions can depend on the particular activity rather than simply the general label attached to a business.
The Food Regulation 2025 commenced generally on 1 September 2025. Requirements for specified berry, leafy vegetable and melon activities commenced on 12 February 2026. The Authority’s implementation guidance distinguishes relevant primary processors and growers cultivating at least two hectares, who must apply for licensing, from smaller growers who must notify and comply with applicable national standards. The published fee waiver until 12 February 2027 does not postpone the licensing requirements. Egg-producer controls and specified failed-analysis reporting obligations also require attention to the particular scheme and activity.
A licensing or scheme allegation may turn on whether the business carried out a prescribed activity, whether a licence was required, the scope of the licence, whether a condition applied, and whether the alleged act or omission falls within the relevant offence. Businesses should not assume that a licence covering one activity authorises every adjacent activity, nor that a technical classification question is necessarily straightforward.
07 Due diligence and reasonable systems
Section 26 provides a due diligence defence to offences under Part 2 of the Act, not automatically to every offence under the Act or Regulation. The defendant must prove, on the balance of probabilities, that it took all reasonable precautions and exercised all due diligence to prevent the offence by itself or another person under its control. A food safety plan sitting on a shelf is not enough.
Section 26(4) recognises compliance with a qualifying food safety program or documented hazard-management scheme as a way of establishing the defence. The evidence must show compliance in practice: risk assessments, supplier controls, training, monitoring, verification, corrective action and management review. Section 26(2) also provides a specific third-party route with cumulative conditions. Its restrictions include importation and reasonable checks or reliance; its reference to another person excludes employees, agents and, for a company, directors. Do not confuse that route with the general defence in section 26(1).
Individual exposure requires a separate statutory analysis. Section 122 applies to listed executive liability offences and requires proof of the corporation’s offence, a qualifying directorial or management role, knowledge or constructive knowledge, and failure to take all reasonable steps to prevent or stop the offence. Section 122A separately addresses accessorial involvement. Neither makes a director liable merely because of their title. A mistaken but reasonable belief is not itself a defence to the Division 2 offences: section 27 must be distinguished from the due diligence defence.
Where a failure occurred despite a documented system, investigate why. Was the risk not identified? Was the control poorly designed? Was training inadequate? Was a deviation ignored? Did production pressure displace a safety control? A credible root-cause analysis is often more useful than a blanket assertion that the business had procedures.
08 Causation, source attribution and alternative explanations
In a contamination case, the prosecution may seek to connect an illness, complaint or test result to a product or business. The required elements depend on the offence charged. Some offences focus on the handling or sale of food in a specified condition and may not require proof that a consumer became ill; other allegations may involve a different causal question. The charge must be read before deciding what causation the prosecution must prove.
Alternative sources of contamination, handling after sale, cross-contamination, sampling limitations and timing may be relevant. They should be advanced only where supported by evidence. A speculative alternative can damage credibility. A disciplined analysis distinguishes between an alternative that is merely imaginable and one supported by records, expert opinion or a plausible sequence of events.
Illness reports should be treated seriously and respectfully. The legal response should not minimise a consumer’s experience. It should test the evidence fairly: product identification, purchase and consumption history, onset timing, laboratory results, other exposures and any epidemiological information. The fact that several consumers report symptoms may be significant, but the legal meaning depends on the available evidence and charge.
09 How a prosecution should be prepared
Once a prosecution is commenced or clearly contemplated, the business should establish a litigation hold, identify the charged provisions, calendar procedural dates and retain relevant legal and expert assistance. Internal investigation should be coordinated with disclosure obligations and the risk that employees may be witnesses. Interview notes, incident reports and privileged legal advice require careful handling.
Develop a case theory early. That does not mean deciding the answer before reviewing the evidence. It means identifying the factual propositions that must be established, the documents and witnesses relevant to each proposition, and the issues that genuinely require expert evidence. Separate undisputed facts from disputed ones and identify what further material could change the assessment.
Consider resolution options only after understanding the evidence, the consequences of a plea or finding, and any collateral effects. A negotiated outcome may sometimes be appropriate, but it should be informed by the strength of the case and the business’s commercial position. Where liability is contested, the defence should be prepared to test the prosecution case in court.
10 Commercial consequences and regulator communications
A food safety prosecution may affect supply agreements, customer audits, tender eligibility, financing, insurance, licences and the public reputation of a brand. The NSW Food Authority may publish certain information about penalty notices and convictions relating to the handling or sale of food. The potential publication consequences should be considered alongside the immediate penalty, but not confused with the legal test for guilt.
Businesses should review contractual notice clauses, indemnities, product recall provisions and insurance notification requirements. Avoid making broad admissions to customers before the facts and legal position are understood. At the same time, commercial confidentiality cannot justify withholding a report that the law requires or failing to take steps needed to protect public health.
An integrated approach addresses both the court case and the business’s ability to continue operating. That may require parallel work on corrective controls, customer communication, evidence preservation, insurance, contractual allocation and litigation. Each workstream should be consistent, but each must be assessed against its own legal obligations.
11 Frequently asked questions
Does a positive laboratory result prove a food safety offence?
Not necessarily by itself. Its significance depends on the offence, applicable standard, sampling integrity, test method and evidence connecting the sample to the product and defendant.
Can a food business rely on its food safety plan as a defence?
A plan may be relevant, but it is not an automatic defence. The applicable statute and offence must be examined, along with whether the system was appropriate and implemented in practice.
Can directors be personally prosecuted?
Potentially, depending on the statutory provisions and evidence. Individual liability should be analysed separately from the company’s position rather than assumed.
What records should be preserved after a contamination allegation?
Preserve batch and supplier records, laboratory results, production and cleaning logs, temperature records, labels, dispatch records, complaints, recall documents, emails and relevant electronic system data.
12 Further reading and legal assistance
For the wider framework, see our Regulatory Disputes & Investigations practice and guide to Food Act compliance for hospitality businesses.
- When the NSW Food Authority Arrives: Investigations, Orders and Your Right to Respond
- A Food Authority Fine Is Not Just a Fine: Court Proceedings and Publication Risks
If your business has received a notice or faces enforcement action, contact GopherWood Lawyers about NSW Food Authority enforcement or call 02 9160 2157.
This article is general information, not legal advice. The operative legislation, notice, facts and deadlines must be checked for each matter.