A penalty notice can be paid in minutes. Its consequences can remain visible for much longer. Before a food business pays, elects to go to court or responds to a prosecution, it needs to understand both the allegation and the consequences of its choice.

01 First, distinguish a penalty notice from court proceedings

The expression “civil penalty proceedings” should be used carefully in this field. Under the Food Act 2003 (NSW), many formal enforcement matters are criminal proceedings for statutory offences, while a penalty notice is a separate mechanism for dealing with a prescribed alleged offence. Whether a particular matter is civil or criminal depends on the statutory source and the actual proceeding. Businesses should not assume that every financial sanction imposed by a regulator is a civil penalty.

A penalty notice deals with a prescribed alleged offence without requiring a contested prosecution. Section 120 of the Food Act applies the Fines Act 1996. Under section 22A of the Fines Act, full payment in accordance with the notice prevents further proceedings for the alleged offence. Payment is not an admission of liability for related civil claims, actions or proceedings. It is distinct from a court conviction, but does not prevent register publication. Review, payment and court-election options should be checked against the notice and applicable deadlines.

Do not ignore a notice because the business disputes it. Nor should it be paid automatically without considering whether the allegation is factually or legally contestable and what other consequences may follow. Obtain advice promptly so that any decision is made with an understanding of deadlines, the merits and the commercial context.

02 The legal and reputational consequences of publication

The Food Act permits publication of certain information concerning penalty notices and convictions for offences relating to the handling or sale of food. The NSW Food Authority maintains registers that can be accessed by consumers and other stakeholders. Publication can affect search results, customer confidence, procurement decisions and due diligence by business partners.

Publication is not the same thing as a finding of guilt. A register may identify an alleged offence associated with a penalty notice, while a prosecution register concerns convictions. That distinction should be preserved in communications with customers and the public. Businesses should check the applicable publication criteria, the information proposed to be published and any statutory mechanism for seeking correction or change to register information.

Under section 133A, penalty notice information may be published following full or partial payment, an enforcement order, or at least 70 days after service while the notice remains unresolved. Waiting without deciding how to respond is therefore not a reliable way to avoid publication.

Conviction publication has different rules. Section 133 requires the appeal period to expire or, if an appeal is made, a final order affirming the conviction. Importantly, for these publication provisions a section 10 order under the Crimes (Sentencing Procedure) Act 1999 counts as a conviction, even though no conviction is recorded in the ordinary sentencing sense. A non-conviction sentencing outcome does not necessarily avoid publication.

Section 133D contains mandatory removal rules. Penalty notice information must be removed in specified circumstances, including court election and expiry of 12 months from when publication was first authorised. That date is not necessarily the date of service or the date the entry appeared online. Conviction information is subject to separate removal rules, including an appeal being made and a statutory two-year period measured by reference to the appeal timetable or final affirming order.

Interested persons can apply under section 133F for correction, addition or removal. A refusal can be administratively reviewed by NCAT, with an application required within 28 days after receipt of notice of the decision. Section 133C requires errors to be corrected as soon as practicable. An inaccurate entry and an accurate but damaging entry raise different issues; identify the actual statutory ground.

03 Understanding the charge and the forum

Section 118 allows offences against the Act or Regulation to be dealt with summarily in the Local Court or before the Supreme Court in its summary jurisdiction. The Local Court’s maximum monetary penalty is $10,000 for an offence, notwithstanding a higher maximum in the Act. That is a per-offence limit, not a cap on a multi-count case or the business’s total exposure to costs and other losses.

The charge should be analysed element by element. What act or omission is alleged? What food, premises, label, activity or date is involved? Is a particular state of knowledge alleged or required? Is the defendant the company, an individual or both? Does the alleged conduct fall within the statutory definition? These are basic questions, but answering them carefully can reveal whether the real dispute is factual, technical, jurisdictional or interpretive.

Section 119 permits offence proceedings to be instituted within two years after the alleged offence, and permits the court to extend that period. Check the alleged dates and any extension issue before treating a limitation argument as conclusive.

04 Disclosure and testing the prosecution case

A defence cannot be built from the charge sheet alone. The relevant prosecution material may include officer notes, inspection reports, photographs, video, samples, laboratory records, correspondence, witness statements, internal agency records and technical reports. The scope and timing of disclosure depend on the applicable procedural framework. A focused request should identify material needed to understand and test the allegation.

Review the chronology for inconsistencies. Did the officer record the same product identifier as the laboratory? Do photographs establish the location and time alleged? Are the observations direct or based on what another person said? Was a relevant condition measured or merely inferred? Does the record distinguish between a temporary issue and a continuing condition? These questions are not attempts to elevate trivial discrepancies. They test whether the evidence proves the offence beyond reasonable doubt where that is the applicable standard.

Do not assume that an inconsistency automatically defeats a prosecution. Courts assess evidence as a whole, and a witness may be able to explain an apparent discrepancy. The defence should identify material contradictions, seek clarification where appropriate and assess how each issue affects the proof of an element.

Expert evidence may be required where the case involves microbiology, food processing, shelf life, temperature control, packaging, allergen risk, labelling or the interpretation of a technical standard. Experts should be instructed early enough to review the underlying material and identify any further tests or records needed. The expert’s role is to assist the court independently, not to provide a conclusion chosen to support a desired outcome.

05 Pleading guilty, contesting liability or resolving the case

The decision whether to contest a charge or enter a plea is among the most consequential decisions in a regulatory prosecution. It should be based on the admissible evidence, the legal elements, available defences, prospects of success, penalty exposure, costs and collateral consequences. A business should not plead guilty solely because the matter is embarrassing or because corrective work has already been completed.

Equally, a contested hearing should not be pursued as a matter of principle without a realistic assessment. Litigation carries costs, management distraction and uncertainty. A sound response identifies the genuine issues and considers whether they can be narrowed. In an appropriate case, discussions with the prosecution may address the wording of the charge, the factual basis, the number of counts, agreed facts or the proposed penalty position, subject to the governing law and the prosecution’s obligations.

If a plea is entered, the agreed facts require close scrutiny. The factual basis should accurately describe the conduct and should not include unsupported assertions that may aggravate the penalty or create unnecessary collateral consequences. Any proposed admissions should be checked against the evidence and the business’s position in related civil, contractual or insurance matters.

Where liability is contested, prepare a coherent case theory and trial plan. Identify witnesses, expert issues, objections and the documents needed to establish the defence. Consider whether the defence depends on a positive alternative explanation, a failure of proof, a statutory defence or a legal construction point. Different theories require different evidence.

06 Penalty submissions: what matters after liability is established

Penalty is a separate question from liability. If a conviction is entered or a plea is made, the court must determine the appropriate outcome under the applicable statute and sentencing principles. The maximum penalty is a ceiling, not a prediction. The actual outcome depends on the offence, the facts, the applicable law and the material placed before the court.

Potentially relevant matters may include the objective seriousness of the conduct, the risk to public health, the scale and duration of the contravention, whether consumers were exposed or misled, the number of affected products or batches, prior history, whether warnings were ignored, the defendant’s role, cooperation, early plea where applicable, remediation and prospects of recurrence. The weight of each factor is case-specific. A submission should connect each point to reliable evidence rather than recite a generic list of mitigating circumstances.

Corrective action can be important, particularly where it demonstrates that the risk has been addressed and systems have changed. But remediation after detection does not erase the earlier conduct. The submission should explain what happened, why it happened, what the business did immediately, what it changed structurally and how the effectiveness of those changes is verified.

Financial material may be relevant where the law permits it to be considered. If the business contends that a proposed penalty would have a disproportionate effect, that contention should be supported by reliable financial evidence rather than broad assertions. Financial difficulty does not automatically excuse a contravention, and a penalty must be approached consistently with the statutory purpose and applicable sentencing principles.

A well-prepared penalty submission is evidence-led. It should address the regulator’s strongest points candidly, distinguish the seriousness of the conduct from unsupported aggravating claims, identify genuine mitigation and propose an outcome grounded in the legal framework. Where the prosecution seeks orders beyond a fine, each proposed order should be examined for statutory basis, necessity, scope and practical effect.

07 Corporate and individual exposure

Section 122 creates executive liability only for listed offences. The prosecution must prove the corporate offence, the individual’s qualifying role, knowledge or constructive knowledge that the offence or one of the same type would be or was being committed, and failure to take all reasonable steps to prevent or stop it. Section 122A separately concerns accessorial involvement in corporate offences under the Act or Regulation. The prosecution bears the legal burden under both provisions; neither imposes liability solely by office. A corporate conviction is not a prerequisite to proceedings against an individual.

A company and a director may need separate representation. The company might attribute a failure to a local operational decision; the individual might dispute knowledge or control, or point to information supplied to management. The evidence and any conflict should be assessed before interviews or a shared response are prepared.

Internal investigations should be designed with care. Preserve records and avoid coaching witnesses or creating a retrospective narrative. Interview accounts should be recorded accurately and consistently with legal obligations. Where a person may be a witness or potential defendant, advice should be obtained about the appropriate process and any conflict between their interests and those of the company.

08 Costs, insurance and collateral disputes

The financial exposure of a prosecution is not limited to the fine. Legal costs, expert fees, management time, product disposal, recall costs, customer claims and business interruption may all matter. Depending on the policy wording and circumstances, insurance notification may be appropriate. Cover for fines, penalties, defence costs and related losses varies significantly and should never be assumed.

Review customer contracts and supply agreements for regulatory notification, audit, recall, indemnity and termination provisions. A regulatory finding may be relied on in a later contractual or negligence dispute, although the legal effect depends on the issue and applicable rules. Avoid making unnecessary admissions in customer correspondence or insurance notifications, but provide accurate information where disclosure is required.

Where a recall or customer claim is running in parallel, the legal team should coordinate timelines and factual positions. The goal is not to conceal relevant information, but to avoid inconsistent explanations and protect legitimate legal rights while meeting regulatory and public safety obligations.

09 A practical checklist when a notice or prosecution arrives

Immediately preserve the notice, envelope or electronic transmission, all attachments and the records relevant to the alleged incident. Record when the document was received and calculate all response dates. Identify the issuing agency and the person or entity named as the recipient.

Do not destroy or amend relevant records. Preserve source data and maintain an audit trail for any corrections. Tell relevant staff not to speculate publicly or communicate with the regulator outside the agreed response channel, while ensuring lawful requests are dealt with appropriately.

Obtain the charge, statutory provision and available evidence. Map the allegation to each legal element, identify disputed facts and obtain expert input where necessary. Assess the publication consequences, licence or operational risks, contractual obligations and insurance position.

Finally, decide on an approach based on evidence and law. That may involve disputing the notice, making an application concerning register information, seeking a review where available, contesting a prosecution, negotiating the scope of the issues or preparing penalty submissions. The approach should reflect the real objective: protect public health, preserve the business’s lawful ability to operate and resolve the legal exposure on a properly informed basis.

11 Frequently asked questions

Are NSW Food Authority proceedings civil or criminal?

Many proceedings under the Food Act 2003 (NSW) are criminal prosecutions for statutory offences. A penalty notice is a distinct mechanism. The classification must be confirmed from the particular statute and proceeding.

Should a business pay a Food Authority penalty notice?

Not automatically. The business should promptly assess the allegation, the statutory options, deadlines and publication consequences before deciding how to respond.

Can a penalty notice appear online even without a court conviction?

The Food Act allows publication of certain penalty notice information concerning alleged offences relating to food handling or sale. Publication criteria and available correction mechanisms should be checked.

What affects the penalty after a food safety conviction?

The court applies the governing law to the offence and facts. Objective seriousness, risk, prior history, remediation, cooperation and other relevant circumstances may matter, but no single factor determines the outcome.

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.

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.

13 Sources and further reading

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