If an authorised officer identifies something that needs to be rectified, they have a variety of enforcement tools to help achieve compliance.
Where there is evidence that minor breaches of the Food Act 2003 have occurred, warning letters may be issued at the discretion of the Authorised Officer. Warning letters will detail the exact nature of the offence, required remedial action, cite relevant clauses of legislation, specify the maximum penalty for the offence and the intention of Council to enforce the legislation.
Authorised Officers may serve Improvement Notices under Section 57 of the Food Act 2003. An Improvement Notice is an order that may require, in relation to premises, food transport vehicles or equipment, cleaning, repair, replacement, and relating to the handling of food, or implementation of the Food Safety Standards. The orders may also require food to be handled in a specific way or for a specific purpose.
An Improvement Notice must specify the specific legislative provision to which it relates and may specify the particular action to be taken by a person. The Improvement Notice must specify the date by which compliance must be achieved.
Improvement Notices are differentiated from warning letters in that they are a statutory notice that may lead to the issue of a Prohibition Order under Section 60 of the Food Act 2003.
The issue of an Improvement Notice does not preclude the issue of a Penalty Infringement Notice nor the start of court proceedings in circumstances where these types of actions may be warranted.
Improvement Notices come with a $330 fee which is raised under the Food Act 2003. The fee is designed to cover the cost of preparing and serving the Improvement Notice on the owner of the food business and the cost of one re-inspection.
Prohibition Orders may be issued where an Improvement Notice has been issued and there has been a failure to comply with the Improvement Notice by the date of completion or where the issue of a Prohibition Order is necessary to prevent or mitigate a serious danger to public health.
A Prohibition Order will prohibit the handling of food on specified food premises, vehicle or equipment, or that food is not to be handled in a specified way or for a specific purpose. Breach of a Prohibition Order will normally result in prosecution.
A Prohibition Order will remain in place until a Certificate of Clearance is issued following a written request for an inspection.
Authorised Officers have power under Section 38 of the Food Act 2003 to seize food, vehicles, equipment, labelling and advertising materials which the Authorised Officer reasonably believes do not comply with a provision of the Act or Regulations or where there is evidence that an offence has been committed.
Persons from whom items are seized must be provided with a statement that describes the items seized, states the reasons for the seizure and the address at which the items will be held.
A Penalty Infringement Notice is a notice to the effect that the person to whom it is directed has committed a specified offence and that, if the person does not wish to have the matter dealt with by a court, the person may pay the specified amount for the offence within a specified time.
Payment of a penalty notice is not an admission of liability and the person is not liable to any further proceedings for the alleged offence.
Penalty notices issued since 3 May 2008 may be eligible for publication on theNSW Food Authority’s “Name and Shame” website. The decision as to whether the details of a business that has been issued with a penalty notice are published on that list rests entirely with the NSW Food Authority.
The details that are provided on the list include:
Trade name of the business and name of the person on whom the notice was served;
The suburb and Council area where the alleged offence occurred;
The penalty notice number;
The details of the alleged offence; and
The date of the offence.
The details remain on the website for a period of 12 months.
Prosecution will normally be reserved for more serious breaches of the Food Act. Matters may be heard in the Local or Supreme Court. Penalties up to $275,000 may be given during prosecution.