Enforcement and penalties
The promotion of food safety, including by assisting food premises to handle food safely, remains a key priority under the Food Act.
To complement this educative approach, councils have a range of enforcement options, including the ability to issue infringement notices for certain food safety or hygiene offences.
The infringement notices make it easier for councils to administer, investigate and enforce the Food Act. Councils also have the authority to focus enforcement efforts on food premises which pose a greater risk to public health because of non-compliance with the Food Act.
Councils are able to issue infringement notices for certain food safety or hygiene offences. This includes a range of offences regarding:
- failure to store, process, display and transport food;
- lack of cleanliness and adequacy of food premises;
- failure to clean and sanitise food equipment;
- operating food premises without registration or notification;
- failure to keep the required records on site.
This only applies to certain offences. The complete list of offences for which infringement notices may be issued is listed in Schedule 1 of the Food Act. See the complete list of offences below.
When faced with an alleged breach of the legislation, council officers must consider what would be a proportionate response to the case at hand. The spectrum of enforcement options ranges from simply providing advice or guidance to educating a proprietor of a food premises about how to comply, issuing a warning, issuing an infringement notice, taking other statutory action, or commencing a prosecution.
Council officers have discretion as to whether an infringement notice ought to be issued, and may do so when it is considered appropriate in the given circumstances. The new infringement notice gives councils another way to redress what in practice are less severe food safety or hygiene problems, in those cases where a warning or education are not considered sufficient.
The standard framework for issuing and enforcing infringement notices across Victoria is underpinned by the Infringements Act 2006 and guidelines issued under that Act by the Attorney-General. Infringement notices are often referred to as ‘on-the-spot’ fines, however this can be misleading. Whilst an infringement notice may be issued ‘on-the-spot’, a person who receives a notice has the right to request that the council review this where that person has special or exceptional circumstances or considers the notice contrary to law. Nor does the fine have to be paid 'on the spot'.
See the Infringement System page on the Victorian Department of Justice website for general information about infringement notices.
The penalties for infringements are expressed in terms of penalty units, which are used to describe a fine. Penalty units are set and calculated according to the Monetary Units Act 2004.
For the 2014/15 financial year (1 July 2014 to 30 June 2015), one penalty unit is $147.61. The rate for penalty units is indexed annually, so that it is raised in line with inflation. Any change to the value of a penalty unit will happen on 1 July each year.
The penalty (for an individual) for an offence against section 16(1) of the Food Act (ie. failure to comply with one of the listed requirements of the Food Standards Code relating to food safety practices) is 5 penalty units.
This equates to 5 x $147.61= $738.05 (rounded down to $738.00).
This flyer reproduces the offences for which infringement notices may be issued. Infringement offences under the Food Act 1984 - July 2011
These offences are found in chapter 3 of the Food Standards Code and are known as the Food Safety Standards. For further information about these offences go to Safe Food Australia on the Food Standards Australia New Zealand site.
Councils will continue to provide advice to proprietors and community groups about how to handle food safely. However, to enable a prompt response to serious problems, council Chief Executive Officers may temporarily close premises or stop particular food handling activities where this is necessary to protect public health. In such serious cases the business may only resume operations once the problems have been fixed.
This power is similar to councils' existing power to order that premises be cleaned, or other steps be taken, in order to ensure safe food handling conditions.
The Chief Health Officer of the Department of Health & Human Services is available to advise councils when required, and also has these powers to address serious breaches.