Food Act 2003

The Act casts a wide net. Its foundational definition of “food business” (s 6) includes any business, enterprise, or activity involving the handling or sale of food, “regardless of whether the business, enterprise or activity concerned is of a commercial, charitable or community nature or whether it involves the handling or sale of food on one occasion only.” Thus, a charity sausage sizzle, a school canteen, and a multinational manufacturer are all captured.

“Proprietor of a food business” is defined expansively in s 4(1) to mean the person carrying on the business or, if unidentifiable, the person in charge. This creates personal liability even where day-to-day operations are delegated. Directors and managers of corporate proprietors face executive liability under s 122 for the most serious offences.

Primary producers are partially insulated. “Primary food production” (s 7) covers growing, harvesting, on-farm packing, and transport from the farm, but excludes substantial transformation (e.g. canning) and direct sale to the public. Food safety schemes may, however, bring primary production within the net (s 7(1)(e) and (2)(c)).

Retailers, wholesalers, caterers, restaurants, and takeaway outlets are fully subject to the Act. Since 2009, most businesses that process and sell ready-to-eat potentially hazardous food must appoint a food safety supervisor who holds a current certificate (ss 106B–106D). From 1 February 2012, “standard food outlets” (chain outlets with standardised servings) of prescribed classes must display nutritional information (ss 106N–106O).

Enforcement agencies—principally local councils but also the Food Authority itself and, in limited areas, the Secretary responsible for national parks—exercise inspection, audit, and prosecution functions (ss 110–113A). Authorised officers appointed by these agencies (s 114) wield the entry, sampling, and seizure powers in Part 4. Food safety auditors (Part 7) perform third-party audits of food safety programs.

Consumers are indirect but central beneficiaries. The Act’s misleading conduct provisions (ss 15, 18, 22) and the new nutritional display rules protect their ability to make informed choices. The public registers in Part 10A allow consumers and competitors to check compliance history.

Commonwealth and interstate operators are affected when they sell into NSW. Section 23 provides that it is immaterial that food was sold or intended for sale outside the State; only the export defence in s 25 is available. Importers must ensure compliance with the Food Standards Code (s 21).

Finally, the Act binds the Crown (s 138), so NSW Government agencies operating canteens, prisons, or hospitals must comply when they supply food.

In practice, the heaviest compliance burden falls on medium-to-large retail and food-service businesses that must maintain food safety programs, appoint supervisors, keep records for audit, and (for chains) generate and display nutritional data. Small one-off community events face lower but not zero obligations.

Duties of food businesses and proprietors

• Safety and suitability: Proprietors must not handle food in a manner that renders or is likely to render it unsafe (ss 13, 16(1)) or unsuitable (s 17(1)). They must not sell unsafe or unsuitable food (ss 14, 16(2), 17(2)).
• Compliance with the Food Standards Code: Section 21 requires compliance with all applicable Code provisions relating to the conduct of the business, food for sale, packaging, labelling, and advertising. Primary producers are exempt unless a food safety scheme applies.
• Food safety programs: Where required by regulation under a food safety scheme, a proprietor must prepare, implement, maintain, monitor, and have audited a compliant program (s 104(4)–(5)).
• Notification: Proprietors must notify the appropriate enforcement agency before commencing a food business (s 100), supplying prescribed information from the Food Standards Code.
• Food safety supervisors: Since 2009, most retail and catering businesses processing ready-to-eat potentially hazardous food must appoint at least one certified food safety supervisor at all times the business operates (ss 106C–106D). The supervisor must hold a certificate issued within the previous five years by an approved training organisation (s 106B).
• Nutritional information: Prescribed standard food outlets must display kilojoule, saturated fat, sugar, and sodium content for standard food items in the form, size, and location required by regulation (s 106N). Voluntary display must also meet those standards (s 106O).
• Beef labelling: Businesses using AUS-MEAT language or prescribed descriptors must do so consistently and accurately (ss 23B–23C). Restaurants and takeaway outlets are generally exempt (s 23D).
• Record keeping and traceability: Food safety schemes and the Food Standards Code impose detailed record-keeping obligations; these are enforceable under s 21 or scheme-specific regulations.
• Recall and emergency cooperation: Businesses must comply with recall orders (s 31(d)) and bear the Authority’s costs (s 32(3)).

Duties of enforcement agencies and the Food Authority

• The Food Authority must determine priority classifications and audit frequencies (s 93), maintain lists of approved auditors, analysts, and laboratories (ss 80, 86, 98, 106H), and keep public registers (Part 10A).
• Enforcement agencies must report to the Authority (s 113) and exercise delegated or conferred functions in accordance with guidelines and protocols.
• Authorised officers must produce certificates of authority (s 115) and act reasonably.

Rights and defences

• Due diligence: A comprehensive defence is available under s 26. It requires proof that the defendant took all reasonable precautions and exercised all due diligence. Section 26(2) sets out a non-exhaustive checklist including supplier warranties, own checks, and (where applicable) compliance with a certified food safety program.
• Mistake of fact is unavailable for the strict-liability offences in Division 2 (s 27), but the narrower “immediately destroyed the food” defence applies to handling offences (s 28).
• Publication of advertisements: Media publishers have a limited defence (s 24).
• Export: Compliance with the destination country’s laws is a defence where the Food Standards Code is breached (s 25), provided the food was not diverted to the domestic market.
• Compensation: Persons affected by emergency orders or prohibition orders may claim compensation if the order lacked sufficient grounds (ss 34, 66).
• Review rights: Decisions on approvals, improvement notices, prohibition orders, and compensation are reviewable by the Civil and Administrative Tribunal (ss 65, 79, 85, 91, 133F).

The interplay between these duties and rights is mediated by the principle of proportionality: higher-risk businesses face stricter obligations and more frequent auditing, while low-risk primary producers are largely left to industry codes unless a scheme intervenes.

Penalties are graduated. The most serious offences (ss 13–15) attract 1,000 penalty units or two years’ imprisonment (individuals) or 5,000 penalty units (corporations). A penalty unit is currently $110, so corporate maxima exceed $550,000. Lower-tier offences (ss 16–21, 35, 64, 104) carry 500 penalty units (individuals) or 2,500 penalty units (corporations). Executive liability under s 122 can expose directors to the full individual maximum where they knew or ought reasonably to have known of the contravention.

Food safety supervisor and nutritional display offences are lower still: 50–100 penalty units. Obstruction of officers (s 43) is 500 penalty units flat.

Enforcement tools are layered. Authorised officers issue improvement notices (Part 5) giving 24 hours (or longer) to remedy unclean premises or non-compliant programs. Persistent failure or imminent serious risk triggers prohibition orders that close premises or prohibit use of equipment until a certificate of clearance is issued (s 60). Non-compliance with a prohibition order is itself an offence (s 64).

Emergency powers (Part 3) allow immediate statewide or localised bans, recalls, or destruction orders. These are not subject to interlocutory stay (s 36).

Sampling and analysis follow strict statutory procedures (Part 6). Certificates of analysis are prima facie evidence (s 128). Seizure and forfeiture rules (ss 38, 48) permit destruction of putrid food without court order (s 46).

The Food Authority and local councils may issue penalty notices (s 120). Convictions and unpaid penalty notices are published on public registers (Part 10A), creating reputational as well as financial sanctions. The Authority may also accept enforceable undertakings or pursue civil compensation for recall costs.

Prosecutions must generally be commenced within two years (s 119), although the court may extend. Proceedings are typically summary but may be brought in the Supreme Court. Evidentiary aids—presumptions that food is for human consumption (s 127), analyst certificates (s 128), and the onus on defendants to prove the correctness of labelling claims (s 126)—tilt the field toward regulators.

Administrative sanctions include licence suspension or cancellation under food safety schemes, variation of audit frequency, and public naming. The combination of criminal, civil, administrative, and reputational tools gives enforcement agencies a powerful suite of responses calibrated to risk and culpability.

The Act is expressly paramount. Section 12(1) provides that where another Act (whether passed before or after the Food Act 2003) contains an inconsistent provision relating to food for sale, the Food Act and its regulations prevail to the extent of the inconsistency. Statutory rules on wholesomeness, composition, or cleanliness must be submitted to the Minister and approved (s 12(2)–(5)).

The Food Standards Code is given direct force by s 21. Regulations under ss 140 and 141 can modify the Code on public health grounds or, with Premier’s approval, for other reasons. The Australia New Zealand Food Standards Code is therefore not merely guidance; breach is a strict offence.

The Act sits alongside sector-specific primary production legislation. The Meat Industry Act 1978, Dairy Industry Act 2000, and Fisheries Management Act 1994 continue to operate, but food safety aspects are increasingly subsumed by food safety schemes made under this Act. The Public Health Act 2010 (NSW) overlaps on notifiable foodborne disease; s 136A expressly authorises information sharing between enforcement agencies and NSW Health.

Commonwealth legislation is engaged at several points. The Food Standards Australia New Zealand Act 1991 (Cth) supplies the Food Standards Code and the definition of “food” (s 5(1)(e)). The Therapeutic Goods Act 1989 (Cth) excludes therapeutic goods from the definition of food (s 5(2)). The Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) overlaps on misleading conduct, but the Food Act creates specific criminal offences with higher penalties and evidentiary aids.

Work health and safety legislation (Work Health and Safety Act 2011 (NSW)) intersects where poor food handling creates risks to workers. Environmental planning laws affect the siting of food premises, while local government regulations on waste and water supply are preserved except to the extent they are inconsistent.

The Fines Act 1996 governs penalty notices (s 120). Civil and Administrative Tribunal review is available for numerous administrative decisions (ss 34, 51, 65, 79, 85, 91, 133F). The Interpretation Act 1987 supplies default rules on service (s 137) and statutory interpretation.

In practice, the Food Authority maintains memoranda of understanding with NSW Health, the Department of Primary Industries, and local government peak bodies to coordinate enforcement and avoid duplication. The Food Regulation Forum (s 115B) is the statutory mechanism for ongoing alignment.

The Act has been amended on more than a dozen occasions since 2003. Three tranches are particularly significant.

The Food Legislation Amendment Act 2004 (No 16) replaced the Food Production (Safety) Act 1998, merged Safe Food Production NSW into the new NSW Food Authority, and introduced the modern food safety scheme framework (Part 8). It also aligned the Act with the then-new Food Standards Code Chapter 3 (Food Safety Standards). The changes were driven by the need for a single, risk-based statute after the 1990s food safety crises and the adoption of the national Food Standards Australia New Zealand system.

The Food Amendment Act 2007 (No 47) strengthened executive liability (new s 122 notes), introduced the Food Regulation Forum (new Division 3A of Part 9), clarified appointment of enforcement agencies (ss 110–111D), and added fee recovery and cost-recovery provisions. These amendments responded to the 2006–07 national food safety review and the need for better coordination between the Authority and 152 local councils.

The Food Amendment (Food Safety Supervisors) Act 2009 (No 85) inserted Division 3 of Part 8. It requires certified food safety supervisors in most retail and catering businesses that handle ready-to-eat potentially hazardous food. The reform was a direct response to repeated outbreaks linked to poor temperature control and hygiene in the hospitality sector. Training organisations must be approved (s 106H); certificates last five years. The measure is performance-based: the supervisor must have authority to oversee staff and ensure safe practices.

The Food Amendment Act 2010 (No 108) added Division 4 of Part 8 (nutritional information display). Large chains must display kilojoule and other nutrient information on menus and tags. The reform followed national obesity strategies and evidence that point-of-sale information influences consumer choice. A 2012 review (s 106R) considered whether salt and fat information should also be mandated.

The Food Amendment (Public Information on Offences) Act 2008 (No 5) created the public registers in Part 10A. The policy intent was transparency: consumers and competitors should know which businesses have been convicted or paid penalties for food safety breaches. The registers are updated regularly and published on the Authority’s website.

Minor amendments have refined beef labelling (2009), adjusted penalty levels to align with the Crimes (Sentencing Procedure) Act 1999, updated references to the Government Sector Employment Act 2013, and expanded sampling powers (2024 amendments to s 37).

Each change has been justified by reference to improving public health outcomes, reducing regulatory burden on low-risk businesses, or implementing national agreements. The cumulative effect is an Act that has moved from pure command-and-control to a more sophisticated mix of mandatory training, public disclosure, and risk-proportionate obligations.

Case law under the Act is relatively sparse but instructive. In NSW Food Authority v Nutricia Australia Pty Ltd [2012] NSWDC 133, the District Court considered whether a nutritional product fell within the therapeutic goods exclusion (s 5(2)). The court held that the product’s primary purpose determined its status; because it was represented as a food for special medical purposes, the Food Act applied. The decision underscores the importance of the “represented as being for use” limb of the food definition (s 5(1)(a)).

Food Authority v T & M Pty Ltd [2011] NSWDC 4 tested the due diligence defence (s 26). The defendant importer relied on supplier certificates but failed to conduct its own verification tests. The court held that “all reasonable precautions” required independent sampling where the supplier’s history or the nature of the product warranted it. The case is frequently cited in Authority training materials.

Controversies have centred on cost recovery and regulatory burden. The introduction of industry levies under s 117C for dairy and meat schemes was challenged by some processors as cross-subsidisation, leading to the explicit “no cross-subsidy” obligation now in s 117C(3). Local councils have complained about unfunded compliance costs; the 2007 amendments and the Food Regulation Forum were partly designed to address this by improving protocol clarity and cost-sharing.

The public registers in Part 10A generated debate about “naming and shaming”. Critics argued that publication of penalty notices before a court determination could damage businesses that later successfully elect to defend the matter. The 12-month sunset on penalty-notice entries (s 133D(5)(f)) and the removal triggers in s 133D(5) were inserted to mitigate that risk.

Nutritional labelling requirements (ss 106K–106R) were criticised by small independent cafés as overly burdensome. The exemption for non-chain outlets and the “standard food item” definition (s 106L) were drafted to confine the obligation to large operators with the capacity to generate accurate data. A 2012 statutory review (s 106R) recommended retaining the scheme without immediate expansion to salt and fat, citing compliance costs and modest behavioural change.

Emergency powers have been used sparingly but controversially. The 2011 hepatitis A outbreak linked to frozen berries triggered a statewide recall order under s 31. Litigation did not ensue, but media commentary questioned whether the Authority acted too slowly. Conversely, businesses affected by broad prohibition orders have argued that the 90-day limit (s 33(6)) is insufficient where remediation takes longer; the Authority’s practice is to issue further orders only on fresh evidence.

The executive liability provisions (s 122) have not yet produced reported appellate decisions, but they remain a source of anxiety for directors of food manufacturing companies. The “knew or ought reasonably to have known” test imports an objective element that aligns with the due diligence defence but still requires robust compliance systems.

Overall, courts have interpreted the Act purposively, emphasising consumer protection while respecting the statutory defences. The paucity of high-level case law may reflect the effectiveness of the administrative and auditing regime in resolving most issues before they reach the courtroom.

Most practitioners assume that compliance with an accredited third-party audit satisfies all obligations. It does not. Section 95 requires auditors to report contraventions that pose an imminent and serious risk within 24 hours; failure to do so can expose the auditor to disciplinary action, but the proprietor remains strictly liable. Conversely, an audit report that notes compliance cannot be used as a due diligence defence unless the food safety program itself meets the regulatory standard (s 26(4)(a)).

Another common misconception is that “primary food production” is wholly exempt. Section 7(2)(a) excludes any “process involving the substantial transformation of food”. Washing, sorting, and packing on-farm are inside the definition; mincing, canning, or fermenting are not. The note to s 7(2)(c) expressly contemplates regulations bringing high-risk primary activities back under the Act once hazards are identified. Several schemes have done exactly that.

The interaction between the Food Act and the Australian Consumer Law is treacherous. A label that complies with the Food Standards Code may still breach ACL s 18 if it creates a misleading impression in the mind of a reasonable consumer (see s 22(1)(e)). Courts have indicated that the more specific Food Act provisions will usually prevail on composition, but not on general advertising claims.

Food safety supervisors must hold a certificate issued within the preceding five years (s 106B(1)(a)). Many businesses discover too late that their supervisor’s certificate has lapsed, triggering the 30-day grace period in the defence to s 106C(2). The defence is unavailable if the business has already used the grace period for a previous lapse.

Section 32(3) makes the cost of an Authority-led recall a debt due to the Authority. The certificate of the Authority as to quantum is conclusive evidence in recovery proceedings (s 32(4)). Businesses that delay notification or fail to cooperate can face six- and seven-figure cost orders with limited rights of review.

The public registers (Part 10A) capture penalty notices once 70 days have elapsed without election or payment (s 133A(3)(c)). A business that pays a penalty notice to avoid court nevertheless appears on the register. The only ways off are successful election to court followed by acquittal, withdrawal by the enforcement agency, or the 12-month sunset. Media monitoring services now routinely scan the register, amplifying reputational risk.

Finally, the “one occasion only” language in s 6 means that a single charitable event can be a food business. While enforcement is rare for genuine one-offs, the Authority has prosecuted community groups after outbreaks where temperature control was inadequate. The lesson is that even volunteers must understand basic food safety.

A robust compliance program begins with a gap analysis against the Food Standards Code Chapter 3 and any applicable food safety scheme. For most retail and food-service businesses, this means:

1. Appoint and train a food safety supervisor (ss 106B–106J). Choose an approved training organisation listed on the Authority’s website. Ensure the supervisor has day-to-day authority and that a copy of the certificate is available for inspection.

2. Develop and implement a food safety program if required by the relevant scheme. The program must be documented, monitored with records, and audited at the frequency set by the enforcement agency (s 93). Many small businesses can use template programs published by the Authority or industry associations.

3. Institute temperature control, cross-contamination prevention, and cleaning schedules. These are the three most common audit failures. Calibrate thermometers, maintain logs, and use colour-coded chopping boards.

4. For chain outlets, generate and display nutritional information (ss 106N–106O). Data must be derived from recognised analytical methods or approved databases. Display must be in the prescribed font size and location—usually adjacent to the price or item name.

5. Maintain traceability and recall readiness. Keep supplier invoices for two years and have a written recall plan. Test the plan annually.

6. Train all staff. Section 26(4)(b) recognises that a documented quality assurance program or industry code can satisfy due diligence. Records of training are essential evidence.

7. Register the business (s 100) and keep the notification up to date. Local councils are the usual enforcement agency for non-licensed premises.

8. Engage an approved auditor for scheduled audits. Provide the auditor with full access; the auditor’s report will be sent to the enforcement agency within 21 days (s 95).

9. Monitor the public registers and respond promptly to any penalty notice. Paying a notice does not prevent publication, but timely payment may influence the enforcement agency’s decision to prosecute for future breaches.

10. Seek legal advice early if an improvement notice or prohibition order is served. The 24-hour compliance period for improvement notices is short; extensions are possible but must be requested before expiry (s 58(2)).

Large manufacturers should also implement HACCP-based systems, supplier approval programs, and periodic verification testing. Directors should ensure that board papers address food safety risks and that the due diligence checklist in s 26(2) is formally considered at least annually.

The Food Authority publishes extensive guidance, templates, and self-assessment tools on its website. Industry associations offer sector-specific codes that, if followed, can assist with the s 26 defence. Regular dialogue with the local environmental health officer reduces surprises at audit time.

Compliance is not a one-off exercise. The Act’s emphasis on monitoring, auditing, and continuous improvement means that systems must be live documents, regularly reviewed, and updated when ingredients, processes, or legislation change. Businesses that treat food safety as an integral part of their quality culture, rather than a regulatory burden, are least likely to appear on the Part 10A registers.