The Accused was charged with five breaches of the Food Act namely:
- breach of section 11(1) x 2 - handle food intended for sale in a manner that will render or is likely to render, the food unsafe
- breach of section 16(1) x 2 - did fail to comply with a requirement imposed on you by a provision of the Food Standards Code in relation to the conduct of a food business or to food intended for sale or food for sale
- breach of section 16(3) x 1 - did sell food that is packaged or labelled in a manner that contravenes a provision of the Food Standards Code.
The maximum penalty for each charge is $40,000 in the case of an individual.
The Accused individual is the proprietor of a food business namely retail grocery store including products which are classified under the Australia New Zealand Food Standards Code (Food Standards Code) as being potentially hazardous foods. The grocery store is registered with the relevant Council under the provisions of the Food Act.
In March 2022 it was observed in numerous inspections that potentially hazardous food was being stored at room temperature and not under temperature control. A verbal warning was given to the Accused on these occasions.
During an inspection on 7 April 2022, despite the explanations and warning that had been given in March 2022, potentially hazardous food was again observed, namely ‘Banh Gio’ Vietnamese Pyramid Dumplings presented on display for sale at room temperature and not under temperature control. The temperature of the food was measured to be 27.5 degrees Celsius, when according to the manufacturer’s label, the storage condition was stated to be “Keep refrigerated at 4 degrees Celsius”. Handling potentially hazardous food in this manner will render or is likely to render the food unsafe, which is a contravention of section 11(1) of the Food Act.
The display of the Vietnamese Pyramid Dumplings at room temperature and not under temperature control contravened clause 8(5) of Standard 3.2.2 of the Food Standards Code, which is an offence under section 16(1) of the Food Act. The Vietnamese Pyramid Dumplings were disposed of due to the public health risk.
On 29 June 2022, a further compliance inspection was carried out. During the inspection, it was observed that potentially hazardous food on a display counter for sale at room temperature and not under temperature control. The following packages of potentially hazardous foods, each of which had manufacturer’s labels stating storage conditions to be kept refrigerated at either 4/5 degrees Celsius were observed:
- Chi Lanh fried fish cake x 2 – temperature of one recorded to be 21.1 degrees Celsius and the other 19.2 degrees Celsius;
- Xinh Xinh pork loaf x 2 – temperature of one recorded to be 16.3 degrees Celsius and the other 15.7 degrees Celsius;
- Xinh Xinh pepper pork loaf – temperature recorded to be 16.1 degrees Celsius;
- Chi Lanh pepper pork load – temperature recorded to be 17.1 degrees Celsius;
- Chi Lanh pork loaf – temperature recorded to be 17.4 degrees Celsius.
Accused was questioned about the potentially hazardous food being displayed for sale at room temperature. The Accused stated – “we forgot to put them in the fridge”. The Accused was unable to answer how long the food had not been kept under temperature control. The Officer again explained the requirements for the storage of potentially hazardous food to the Accused. The offending products were disposed of due to the public health risk.
It was also observed that packaged food displayed for sale which did not have a label on it, as required by clause 1.2.1-6(1) of Standard 1.2.1 of the Food Standards Code, which requires food for retail sale that is sold in a package to bear a label on the package with the information referred to in subsection 1.2.1-8(1) unless any of the exemptions listed apply. In this instance, none of the exemptions applied. When questioned the Accused about the unlabelled packaged food and where it came from. The Accused said she “bought it from the temple to sell in the shop”.
The display of the unlabelled packaged food for sale contravened section 16(3) of the Food Act.
Magistrates’ Court Decision
In July 2023, the Accused appeared in the Sunshine Magistrates’ Court and entered a plea of guilty to the charges.
The matter was heard before Her Honour Magistrate Robertson who found the charges proven. The Accused had no prior matters.
Russell Kennedy Lawyers submitted to the Court the following amongst other things in relation to the charge:
- the offending was serious and could have had potentially fatal and or serious health consequences; and
- a strong message of general deterrence needed to be sent having regard to the purpose of the Act to ensure that food for sale is safe and suitable for consumption.
The Accused submitted that since the incident they had taken a number of steps to bring in further refrigeration equipment and Council has not detected any further breaches since. The Accused also submitted they were remorseful for the incident.
Her Honour imposed a without conviction fine and costs order totalling $11,000.