Food Bill

Extract from Hansard

Legislative Council
25 July 2001

Sandra Kanck
Deputy Leader Australian Democrats
Member of the Legislative Council

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The Hon. SANDRA KANCK: This bill has been a long time coming given the Garibaldi food poisoning outbreak in 1995 and the subsequent tragic death of Nikki Robinson from haemolytic uraemic syndrome, or HUS. A catering manager who was working in the aged-care sector during the outbreak has told me that he was less than impressed with the seriousness with which his local council addressed the issue. The environmental health officer fronted up, asked him whether he had any supplies of mettwurst in the kitchen and, when the reply was in the negative, departed. That particular facility has not seen another health inspector in that six years.

It is clear from such an example that it is essential we have new food standards set, albeit six years from the HUS outbreak and the subsequent recommendations from the coronial inquiry. Understandably, it is a complex bill made more complex by the national agreement signed by health ministers to have uniform legislation. I wrote to the Food Safety Program of the Australian New Zealand Food Authority ( ANZFA) in February because I knew that this legislation would be debated at some stage and I noticed that something was missing. Chapter 3 of the January 2001 edition of Safe Food Australia states:

Standard 3.2.1. Food safety programs is a voluntary standard. Where a state or territory decides to implement a requirement for food safety programs it must use this standard.

A guide to the interpretation of the standard 3.2.1 will be developed separately.

I have another ANZFA document which is called Food Safety Standards and which is subtitled `Chapter 3 of the Australian New Zealand Food Standards Codes (Australia Only)'. The document includes standard 3.1. 1, standard 3.2.2 and standard 3.2.3, but it does not have standard 3.2.1. The reply from ANZFA states:

Thank you for your letter of 27 February concerning the development of an interpretive guide for food safety standard 3.2.1 food safety programs. When the Australia New Zealand Food Standards Council agreed in July 2000 that Standard 3.2.1 would be introduced as a model standard, it was also agreed that consideration would be given to the mandatory introduction of the standard once the research into the cost and efficacy of food safety programs is completed.

ANZFA intends to develop a guide to Standard 3.2.1 in the second half of 2001. The timing of development of the guide and further consideration of Standard 3.2.1 by Council will ensure that people who are required to enforce or comply with the standard are fully informed prior to its introduction.

What is concerning for me in this is that we are shortly to pass this bill without standard 3.2.1 of the ANZFA food standards being available effectively, which means that clause 78 of this bill, which deals with food safety programs and auditing, will probably not be able to be enacted. This is really putting the cart before the horse. I have another major complaint about this bill and that is that the real guts of it will be dealt with in regulations. The Democrats have never been happy about leaving things to regulation because we can never tell what it is we are really supporting. The Local Government Association has written to us expressing a similar view, saying:

. . . key intergovernment issues are left to regulation rather than being addressed in the legislation itself. Experience has taught us that this is not a sound way to create trust in intergovernment relationships and our legal advice is that no other legislation effectively details the entire role of local government in regulation as does the Food Bill.

Concerns expressed to me during consultation have been about the implementation of the legislation, cost and staffing of local government, which will no doubt be the enforcement agency, costs to small businesses for the development of food programs and the training of their staff, adequate training of auditors and the definition of high, medium and low priority businesses.

One of my concerns is the need for consistent implementation of the new laws once enacted. Whilst it is admirable that the bill should provide a national uniform standard, it will be the consistent implementation across the councils which will be the test. There is hope that the new law will bring the opportunity for a more collaborative relationship between local and state governments. At the moment, the application of the current law is ad hoc and there is very little consistency across the state. What is in place to ensure that both levels of government will be able to effectively implement the legislation? Is it an arrangement that will be dependent purely on goodwill?

Currently, each council decides how much time and resources will be spent on food safety, and as a result we do not have a uniform approach. There is already competition for the resources of councils, so if the government expects efficient uniform implementation there will need to be uniform funding and resourcing for the enforcement agencies. Uniform funding would give a clear message that the government is serious about this issue and would set a clear responsibility for local councils to efficiently monitor food businesses in their area.

I understand that the matter of funding has been the subject of discussions between the minister and the Local Government Association. According to the LGA, the minister has made a commitment to allow a portion of audit fees, when undertaken by third party auditors, to go to local government. This would mean that somewhere between $38 000 and $200 000 would be delivered and shared between the 68 councils in South Australia. If you take $38 000 and divide it by 68, you will see that it is not much money. I understand that the minister has given an undertaking that he will approve inspection fees to councils where they are investigating critical non-conforming issues identified in an audit, but this will not extend to fees for random or complaint based inspections.

Outside of any usual local government revenue, this will be the first resourcing the state government has allowed for food safety. This is a step forward, but there is a need for further clarification on the matter of resourcing. The minister has indicated that the number of random inspections of food businesses, as carried out by local government at the present time, will be reduced substantially. Presumably, he thinks that this will mean that the cost of auditing would not be an extra burden on local government. However, the LGA has indicated to me that the new scheme will cost it up to $3 million to implement.

I point out that the question of where the responsibility lies is still not clear. Who will be responsible, and who will bear the costs? Unfortunately, the bill does not tell us. It is another aspect of this bill, which, no doubt, will be left to regulations. Funding is clearly an issue and one which is a bone of contention at the present time between state and local government. Although the legislation does not say so, I understand that the minister has in mind that all businesses involved in food handling will be required to notify the relevant local council and that there would be no cost associated with this. The minister prefers this rather than a registration system with a fee, which is the LGA preference.

This appears to be a political decision and one which will have no real impact on the success of the new food safety standards, but we should be aware that, as things stand, the cost will be borne by ratepayers and not the businesses. This legislation is estimated to affect 10 000 businesses in the state. Medium to low priority businesses make up approximately 80 per cent of this number-and to the idle Hansard reader one should explain that the word `priority' has been used instead of `risk', as businesses understandably do not want to be characterised by their risk of food contamination. However, when we are talking medium to low priority, we really mean medium to low risk. It is of concern that nowhere in the bill is there a clear definition of `high', `medium' or `low' priority.

Hospitals, aged care facilities and child-care centres, quite rightly, are considered high priority, but from my understanding a food processing plant is not. Why would an aged care facility be considered high priority and a 250 person turnover restaurant not? Is a correctional service facility considered high priority? If not, why not? Again, because of the lack of detail in the legislation, there is some confusion as to which businesses will be required to have a food safety program. The minister has indicated that all food businesses will be required to have a food safety program, yet information from his department has indicated that only high priority businesses, which make up approximately 20 per cent of all businesses in South Australia, will be required to do so. Which is it?

High priority businesses tend to be the businesses which already have in place some sort of food safety plan, as well as food safety training. It tends to be the low to medium priority businesses which do not have sufficient training in place. So who are we targeting and why? I have been told that in Victoria, where all businesses had to have food plans in place, small businesses with fewer than 20 employees are grappling with 100 page food plans, which is similar to the plans used for big food processing plants. This is onerous and unreasonable for such businesses, and I certainly hope that we will not be going down to the same path in South Australia.

What would seem to be a far more effective means of monitoring standards of smaller businesses would be auditing using a well designed, uniform questionnaire across all councils. Industry has voiced concerns about training. Who will meet the costs? The minister has indicated that $900 000 has been put aside in the budget to help implement the legislation, but will this be enough for training, education, implementing food safety programs and auditing? We need an explanation as to how this money will be allocated.

The State Retailers Association says that a majority of food retailers has a good working knowledge of hygiene and food safety issues, but very little documented or recognised training. It says that it is `disappointed that the bill in itself sets no specific or minimum standards of knowledge'. I agree. It is again another of the defects in this bill. Training is needed when there is a management of risk. There is a need for a minimum standard to be set, which I believe should include the appointment of a designated responsible person for each food business, and for medium to large food businesses one designated responsible person for every 10 staff members. This person should be required to have some form of accredited training.

The question of who bears the cost of training needs to be clarified. I know that current TAFE college courses in food handling are very reasonable. The State Retailers Association has expressed concern at this cost and has stated that some medium sized retailers now consider that this Food Bill, plus GST compliance, will add one person to their staff for no monetary or service gain. The association has predicted that the new food laws will put some retailers out of business and will increase the cost of food by 5 to 7 per cent. This would indeed be cause for concern if the prediction is proved correct, but I believe that the quality and safety of food is a significant service gain, which, in time, will add value to business. Far greater costs would be incurred by businesses if the risk was not managed and an outbreak of food contamination occurred.

The issue of training also affects the environmental health officers. Many of these officers have a degree qualification but are expected to have knowledge in many other areas, including water quality, soil degradation, air quality and noise pollution. Is their generalised knowledge enough for the new food safety standards? I have been contacted by an independent auditor who says that, with his qualification, he is unable to audit certain types of businesses, for example, a fishmonger, yet an environmental health officer from local government who may be less qualified is able to inspect the premises. That independent auditor said that an environmental health officer is trained in inspecting the physical environment but not in auditing records monitoring temperature levels, for example.

What will happen under the new legislation? Will EHOs undergo further training to increase their audit qualifications to meet the needs of the food businesses in their area, or will the third party auditors be required to audit these businesses? I have been informed of a case where a trainer in food safety refused to continue training at a food business because of what he believed to be substandard hygiene conditions, yet a local government EHO subsequently inspected the premises and gave it the all clear. What happens in circumstances such as those? Whose opinion prevails?

Although some concern has been expressed with regard to the application of the legislation to community and charitable groups, I believe that there is no good reason that these groups cannot comply with some basic essential requirements. All food consumption should be subject to food safety standards, but I support the opportunity for ministerial exemptions to allow for individual cases to be judged on their merits.

The LGA has also stated that the bill does not specifically require the enforcement agency to respond to a complaint. There is a duty of care, but the wording of the bill does not oblige the enforcement agency to act if, for example, a food business premises is deemed unclean or unfit. Clause 43 provides:

(a) any premises used by a food business in connection with the handling of food intended for sale. . . is in an unclean or insanitary condition. . .

the authorised officer may serve an improvement notice on the proprietor of the food business. . .

I emphasis the `may'. Similar wording is used in clause 46, which deals with the issuing of prohibition orders. Clause 46 uses the word `may' for enforcement agency powers to act in serious cases. If grounds have been established that a food business is in breach of the act, then there is an obligation for the enforcement agency to act. I therefore believe that these clauses need to be amended.

I believe there is also a need for educating the public in notifying the correct authorities of any cases of food poisoning or complaints of poor food handling practices. All too often people may have had a bad reaction to food but do not think of informing their local councils, yet there may have been others who also have been affected. This can assist the tracking time of any future outbreaks.

One issue that is pertinent to the bill is the continued funding and maintenance of the Environmental Health Branch within the Department of Human Services. The department will preside in the unincorporated areas apparently because it will be less onerous in those areas. Does that mean that DHS does not have the resources to do what the minister expects local government to do? In 1985, there were 42 people in the Environmental Health Branch of the Health Commission; now there are only eight. Given the importance of this bill, it is essential that any restructuring of the department will not see any reduction in those services.

The Democrats recognise the need to improve food safety standards in the community but have concerns that considerable unknowns remain in this legislation due to the reliance on regulations. We support the second reading but we would not be at all upset if for some reason the bill did not proceed. We are not going to vote against it at the third reading, but we maintain our concerns. The devil is in the detail, and perhaps it might have been better for the government to wait a while to get it right before pursuing legislation which is only a shell.