Food fights: responding to contraventions of the Queensland Food Act
There has been a recent spate of highly-publicised contraventions of the Food Act 2006 (Qld) (the Act), which have been prosecuted by the Brisbane City Council (BCC).
Restaurants and cafes in and around Brisbane’s CBD have been hit with fines amounting to tens of thousands of dollars for contravening the Act and have had their licences publicly suspended.
It was recently reported that three fast food outlets in the Queens Plaza Food Court received fines totalling $50,000.00 after cockroaches were found at their premises.
The publicity surrounding prosecutions and suspensions such as these can have a catastrophic impact on a business. Even a temporary suspension of a licence can have a devastating effect on a business’ reputation, its customers and its employees.
In Queensland, unlike in other Australian states, each council administers and enforces the Act as it sees fit and has wide discretion to determine both the seriousness of a contravention and the appropriate enforcement action.
In May 2019, the Queensland Audit Office published a report on the effective management of food safety in Queensland. The report was highly critical of the lack of consistency in the way the Act was enforced by different local governments.
Local councils have a range of enforcement powers at their disposal, all of which have the potential to cause serious damage to the reputation and customer base of a business:
If a council believes there are grounds for suspension or cancellation of a licence, it will issue a Show Cause Notice to the licensee, outlining the action it intends to take. After a Show Cause Notice has been issued, the licensee will be invited to make written submissions to the local council before making a final decision.
Councils also have the power to immediately suspend a licence pending a licensee’s response to a Show Cause Notice, if they believe there is an immediate and serious risk to public health.
The temporary suspension will remain in effect until:
whichever is earliest.
A swift and thorough response is required to ensure trading is not suspended for any longer than need be. Any closure can and will have a damaging effect on the reputation of a business.
For low-end contraventions, a council may decide to provide a restauranteur with an opportunity to remedy the matter before taking further action. Improvement Notices detail the contravention and the period in which the contravention must be remedied.
These notices also require a considered response. A failure to comply with an Improvement Notice without a reasonable excuse is an offence under the Act.
The Act creates a number of offences which a council may prosecute in the Magistrates Court.
These offences attract substantial fines.
If a licence is held in the name of a corporation, directors of the company can be held personally responsible for contraventions committed by that corporation and be fined in addition to the company.
Whatever action is taken by a council in response to an alleged contravention, it is essential that businesses take alleged contraventions seriously and respond promptly.
When determining an appropriate penalty, a magistrate will always have regard to the steps that a business has taken to remedy the contravention.
As a preventative measure, it is also important to obtain regular pest treatments and to immediately implement any recommendations made by pest controllers. This will not only minimise the risk of a contravention, but will be viewed favourably by a court if a contravention occurs and submissions are made in mitigation of penalty. It will also go a long way in ensuring that no conviction is recorded.
HopgoodGanim advises and represents clients in relation to all aspects of prosecutions and enforcement action under the Act. We strive not only to obtain the best legal outcome for our clients, but to deal with the matter as swiftly and discreetly as possible.
For more information or discussion, please contact HopgoodGanim Lawyers’ Leisure, Sport and Entertainment team.