Food is essentially a primary need of all life to remain alive. Faults or carelessness of human beings renders foods unsafe, which may cause disease and death. This article examines selected food safety offenses of New South Wales aimed at assessing their definitional clarity and penal rationality looking through the lens of an offender's culpability. It carries out a critical analysis based on archival materials and concludes that the present offense provisions hold significant merits to regulate food safety; however, further clarity of their inherent complexities could enhance their efficacy.
Benefits of any law spring from its effective enforcement that entails clarity in its definition of prohibitions and adequacy of remedies against their breaches. A lack of either of these 2 critical attributes in the law is likely to render its objective futile. Food safety is now a serious concern worldwide, particularly in developing countries where unscrupulous businesspersons randomly produce unsafe foods that are consumed by people who have little choice but to eat them owing to either their poverty or unavailability of alternatives. Laws have gradually emerged to criminalize conduct concerning food safety around the world. New South Wales (NSW) is the oldest and most populous state of Australia, and its food regulation has been highly acclaimed both at home and abroad as one of the most successful regulatory set-ups.1 Nonetheless, the legal provisions defining food safety offenses (FSOs) in NSW do not seem to be flawless. This article intends to reflect on the definitions of offenses regarding unsafe and unsuitable foods and their penalties in NSW under its key legislation, the Foods Act 2003 (FA 2003). There are significant niceties in it; however, some complexities seem to have weakened its intensity to some extent, at least in respect of its smooth enforcement and creating deterrence.
FSOs and Their Elements
Part 2 of the FA 2003, containing sections 13 to 29, deals with FSOs. The FA 2003 divides these sections into 4 divisions. Division 1 elucidates “serious offenses,” while division 2 describes “other offenses.” Division 3 provides for the defenses to the offenses incorporated in this part.2 To keep this piece within a limit, the following discussion will focus on only selective offenses under the FA 2003 chosen based on their prominence and different fault elements. It will also highlight the penalties aiming at showing their relation with fault elements. To explain the meanings of the constituent elements of an offense in general terms, actus reus refers to the physical or external component of an offense, while mens rea denotes its fault or mental element.
Definitions of the FSOs and Their Penalties
The FA 2003 contains FSOs embracing a 3-tier model of mens rea, and penalties are prescribed commensurate with the degree of culpability of offenders.3 Among these 3 categories of offenses, the highest penalty is set for a tier 1 offense, followed by an offense of tier 2 that attracts a penalty higher than that of a tier 3 offense. Thus, the penalties are gradually decreased apparently based on mens rea that is correspondingly downgraded from tier 1 to tier 3. So, there are offenses in this legislation where their conduct components are the same, but they are primarily distinguished from one another respecting fault elements. Hence, the offenses at hand are divided below based on their mens rea elements. Figure 1 represents a 3-tier mens rea model of the selected offenses.
Tier 1 offenses
Tier 1 offenses apply to the conduct affecting food safety with subjective fault elements. These offenses require the prosecution to prove specific mens rea of the accused as stipulated in the relevant sections of the legislation. Proscribing the conduct constituting tier 1 offenses, the FA 2003 states in s13(1) that “[a] person must not handle food intended for sale in a manner that the person knows will render, or is likely to render, the food unsafe.” Section 14(1) further asserts that “[a] person must not sell food that the person knows is unsafe.” Section 13(1) requires proof of the accused's “knowledge” of rendering the food unsafe as mens rea, where the food was intended to be sold, while conviction under s14(1) requires the prosecution to prove as mens rea that the accused knew that the sold food was unsafe. The knowledge of the accused has to be proved subjectively. Giving emphasis to this higher degree of fault element,4 the legislation itself has categorized these offenses as “serious” ones.5 The prosecution bears the onus of proving that the defendant's handling of food had the potential to render it unsafe, or he/she sold the unsafe food with the requisite knowledge in each instance. Once both actus reus and mens rea are proved beyond reasonable doubt, the defendant can be punished with a maximum fine of 1000 penalty units or imprisonment for 2 y, or both as applicable to individuals, while a maximum fine of 5000 penalty units applies to a corporation.6 However, the conviction can be avoided if a designated defense can be established.7
The complexity in s13(1) lies in mainly the element of overarching “ulterior intent” without which this offense cannot be committed. It prohibits handing of food “intended for sale in a manner that the person knows will render, or is likely to render, the food unsafe.” This is an offense that specifies an additional mental element that has no actus reus equivalent. It means, mens rea goes beyond the actus reus. Usually, this type of offense attracts a greater penalty than that of one having no such additional requirement.8 The prosecution is required to prove this extra element in addition to its usual actus reus and mens rea. The way it has been added does not provide any certainty as to whose intention is required to be proved. This is relevant because where a company is a manufacturer of unsafe foods, employees practically handle foods for their employer. As it is generally understood, this intention has to be the intention of the actor, meaning who commits the actus reus. A question may emerge as to who will be held liable then—the company or its controlling officers or handling staff or all of them. A Local Court of NSW in New South Wales Food Authority v Van Thuong Nguyen9 (Bankstown case) fined a director of a company under, among other sections, s16(1) that contains almost identical expression, that is, “[a] person must not handle food intended for sale in a manner that will render, or is likely to render, the food unsafe.” The company was the 2nd defendant, whereas the convicted director was the 1st defendant. He was charged as a director under the deeming provision of s122(1) of the FA 2003. Section 122(1) makes the corporate executives liable for the offenses committed by their corporations under certain sections. The charges against the company were dismissed as it had been deregistered, therefore was incapable of being brought before the court as a defendant. It was a “small family business”10 and the convicted director and his wife were in its day-to-day control, and they handled the food together with their employees.11 Nonetheless, she (director's wife) remained completely out of the hook. When it was proved that wife “did handle the food intended for sale,” it is unclear how she remained blameless. Similarly, the employees who handled the food were also not included as defendants. This should raise a question regarding the person whose intention to sell is relevant to s16(1). Clearly, employees had helped the errant company and its director to commit the offense. Assisting someone with committing an offense constitutes an offense in itself under the complicity rules as applicable in NSW.12 Moreover, a failure to inform the police of any material information about the commission of an indictable offense is an offense by itself under s316 of the Crimes Act 1900 (NSW). Section 316 provides that
If a person has committed a serious indictable offense and another person who knows or believes that the offense has been committed and that he or she has information that might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 y.
A person who solicits, accepts, or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offense under subsection (1) is liable to imprisonment for 5 y.
Quite clearly, the offense under s13(1) is not indictable; therefore, s316 does not apply literally; however, its spirit seems still relevant. If s316(2) is given a fair thought, at least morally, one should ask oneself a question whether someone should go unpunished if he/she knowingly helps someone else to commit an offense that is punishable with 2 y imprisonment (the maximum punishment under s13). Perhaps, due to the effectiveness of regulation in place and resultant scarcity of cases, the questions raised here remain unanswered. Clarity of the ambiguities of relevant intention and the responsibility of persons handling the food other than director(s) may make the law even more effective by creating greater general deterrence.
Part of the abovementioned complexities may also be relevant to s14(1) that provides that “[a] person must not sell food that the person knows is unsafe.” In the case of a corporate seller, different persons, such as the entity, its officers, and employees who all may have the requisite knowledge and get involved in selling the unsafe food. In such a situation, who is to be hooked up needs to be clarified. Apart from this, tier 1 offenses look nice.
Tier 2 offenses
Tier 2 incorporates the midrange offenses that require the commission of an actus reus with objective mens rea. These offenses are defined in s13(2) and s 14(2) of the FA 2003. Section 13(2) provides that “[a] person must not handle food intended for sale in a manner that the person ought reasonably to know is likely to render the food unsafe,” while s 14(2) stipulates that “[a] person must not sell food that the person ought reasonably to know is unsafe.”
Clearly, s13(2) can be differentiated from s13(1) by referring to only the mental elements of these 2 offenses, as their physical components are exactly the same. Unlike s13(1), s13(2) does not impose any burden on the prosecution to prove any subjective mens rea; instead, it should be sufficient if the knowledge can be proved objectively by applying a reasonable person test (objective test) that the accused had the knowledge that the handling of food in question would or was likely to render the substance unsafe. However, the prosecution must also prove that the food was intended to be sold. That is, there is no need to prove that defendant actually knew that his/her/its handling of food intended to be sold was at least likely to render the food unsafe, rather it would suffice to prove that a reasonable person would have realized this consequence of the accused's conduct. Notably, no actual consequence of the offense is necessary. The same distinction exists between ss14(1) and 14(2) with respect to fault elements, though the conduct is again exactly the same in both subsections. The sufficiency of knowledge as mens rea proven objectively was confirmed in the following case.
The Chief Industrial Magistrate's Court of NSW applied ss13(2) and 14(2) of the FA 2003 in NSW Food Authority v Terry Allan Harding (Harding case) in 2008.13 The Court convicted defendant Harding of contravention of these 2 subsections. He was charged with handling and selling unsafe oysters that he harvested from a river. He harvested them at a time when all the harvest zones on the river were closed due to rainfall.14 While other oystermen refrained from harvesting oysters in the river as they were aware of the unsafety of the food and closure of the river, the defendant harvested and sold them to the Sydney Fish Market. Fortunately, officers from the Food Authority seized the batch of oysters before they reached consumers. Harding claimed that he did not know that the river was closed at that time. So, he virtually denied any knowledge of closure and rendering the harvested oysters unsafe. The Court mentioned that his actual knowledge was not necessary, because he failed to act as a reasonable person as he could have easily known about the prohibition by giving a call to the authority or by sending an SMS.15 Therefore, the Court ignored his denial and relied on the objective test in punishing him with a record penalty of AU$42,000 as he ought to have reasonably known about the unsafety of the oysters.16 It is worth mentioning that s27 of the FA 2003 excludes a defendant from being able to rely on the defense to the offenses under ss 13(2) and 14(2) on the basis of a person having “a mistaken but reasonable belief as to the facts that constituted the offense,” so he could not raise this defense.
The maximum penalties for the tier 2 offenses are 750 penalty units for individuals and 3750 penalty units for corporations.17 These penalties are lower than those for tier 1 offenses, and this distinction is a reflection of the difference in the required fault elements of these 2 tiers. Nonetheless, the tier 2 offenses are not trivial as the legislators have deliberately prescribed significant penalties that can be imposed on serious offenders.18
The complexities discussed above in relation to tier 1 offenses equally apply to tier 2 offenses. Similarly, the niceties of tier 1 are also echoed in tier 2.
Tier 3 offenses
Tier 3 offenses appear to be completely reliant on physical elements, requiring no mens rea whatsoever. So, proving the actus reus beyond reasonable doubt alone should be sufficient for a conviction. These offenses are mentioned in ss16(2), s17(2), and s21 of the FA 2003. Section 16(2) simply prohibits a person from selling “food that is unsafe,” while s17(2) lays down a similar restriction by asserting that “[a] person must not sell food that is unsuitable.” Each of these 2 subsections deals with a single offense, that is, selling of “unsafe” or “unsuitable” food, respectively. Hence, the difference between these 2 offenses relates to the quality of the food sold within NSW. However, s21 involves multiple offenses referring to contraventions of the Australia New Zealand Food Standards Code (ANZFSC)19 instead of the FA 2003, as it reads:
(2) A person must not sell any food that does not comply with a requirement of the Food Standards Code that relates to the food. (3) A person must not sell or advertise for sale any food that is packaged or labeled in a manner that contravenes a provision of the Food Standards Code. (4) A person must not sell or advertise for sale any food in a manner that contravenes a provision of the Food Standards Code.
All the 3 offenses proscribe sale or advertising for sale of foodstuffs in contravention of the ANZFSC. Hence, s21 aims to ensure the standard of food to be sold by requiring the sellers or advertisers to strictly abide by the ANZFSC. First, s21(2) prohibits selling of any food by any person if the product does not conform to the relevant standards enshrined in the ANZFSC. Second, s21(3) imposes restrictions on both selling of, and advertising for sale of, any foodstuff that flouts the packaging or labeling requirements set forth in the ANZFSC. Third, s 21(4) contains a general prohibition intending to prevent selling of, or advertising for sale of, any food in violation of any provision of the ANZFSC. Plainly, it would be an offense to sell or advertise for sale of any foodstuff that does not comply with the standards prescribed in the ANZFSC regarding contents, packaging and labeling or any other aspects of food mentioned therein. In other words, considering the entire s21 of the FA 2003, it can be plausibly said that the actus reus components of the offenses integrated in this section are quite broad, and a defendant may violate the prohibitions simply by failure to comply with the requirements of the ANZFSC.
Noticeably, none of the offenses is explicit about the fault element. However, it may not readily mean that no mens rea is required. The High Court of Australia in He Kaw Teh v The Queen20 interpreted a statutory provision21 that was silent about mens rea. The Court held that the statutory silence about the mens rea requirement does not necessarily negate its need. Where the legislation is silent and there is no exclusion, either expressly or by necessary implication, of mens rea in the section creating the offense, there is still a common law presumption that mens rea is required. However, the presumption is rebuttable. It can be displaced if it is successfully rebutted. Such a rebuttal would actually mean that the legislators intended to displace the fault element of the offense. The High Court set out the ways in which the presumption of mens rea can be rebutted. It stipulated 3 matters to be taken into account in determining whether the presumption has been displaced by the relevant section, and whether the Parliament intended the provision creating the offense should have no mental element.22 The factors are: the language of the section creating the offense, the subject matter of the statute, and the efficacy of law.
First, regard must be had to the words of the statute creating the offense,23 as the statutory expressions might suggest the intention of the Parliament. Sections 16(2), 17(2), and 21 of the FA 2003 lack any clear indication of legislative intention about a blameworthy state of mind, and there is no mention of even “reasonable excuse” either. Such a lack may provide an indication that the Parliament intended to displace the presumption. Further, the words used in creating the offenses in all 3 sections24 emphasize the conduct part by inserting the words “must not” preceding the prohibited conduct in the absence of any indication for mental element. Admittedly, the same emphasis has been given to the tier 1 and tier 2 offenses; but unlike tier 3, they overtly mention the requisite mens rea. Therefore, the same words are especially important for tier 3 to highlight the physical elements.
Second, the subject matter of the statute is to be taken into account.25 It refers to the nature of the offense, whether or not the offense is truly criminal. Generally, the more serious the offense, the more likely is that a fault element was intended. The offenses of tier 3 are not truly criminal as it can be argued in the following way.
Of course, the offenses under tier 3 deal with a social evil, but not as grave as the importation of a large quantity of heroin as it was found in He Kaw Teh, tending to substantiate the argument that the legislators naturally wanted to rigorously suppress the conduct.26 The High Court in He Kaw Teh stated that if the prohibited acts “are not criminal in any real sense, but are acts that in the public interest are prohibited under a penalty,” then it is likely that the presumption of subjective fault element will be displaced.27 The offenses under tier 3 are of a regulatory nature, and FSOs are treated as public interest offenses.28 It is judicially recognized that the statutory offenses created to protect public interest are generally deemed to have displaced fault elements.29
The offenses are concerned with not only “unsafe,” but “unsuitable” foodstuffs, whereas tier 1 and tier 2 deal exclusively with unsafe foods. The adjective “unsuitable” is arguably less dangerous than “unsafe” when it comes to foodstuff as it attracts lower penalty than the penalties for the similar offense concerning “unsafe” food (discussed below). This somehow dilutes the seriousness of the offenses in question. On the other hand, the offenses under s21 involve breach of the ANZFSC rather than the food legislation. These offenses are generally regarded as less serious “on the spot offenses” under the FA 2003.30 In practice, if an infringement of the ANZFSC is found, the regulator as an enforcement measure directly issues a penalty notice requiring payment of a penalty by the offender. Criminal prosecutions for committing a crime belonging to tier 3 are unlikely to be initiated as the penalty notices issued by regulators are not typically dealt with by courts unless the accused person wishes to bring the issue to a court for a final decision.31
The less serious nature of tier 3 offenses is also reflected in their penalties. As discussed previously, all the tier 3 offenses prohibit sale, or advertisement for sale of, foodstuffs in breach of the ANZFSC. Advertising for sale of food is an offense that is absent in tier 1 and tier 2. Seemingly, it has been regarded as less serious by the Parliament as it is not included in the legislation. The other conduct being selling of unsafe foods has been proscribed in the preceding 2 tiers. However, the penalties for tier 3 offenses are lower than those for tier 1 and tier 2. The maximum tier 3 penalties are 500 penalty units for individuals under ss 16(2) and 21, whereas it is 400 penalty units for offenses against s17(2) that deals with unsuitable foods. Similar to the other tiers, the penalties of corporations are higher than those of individuals in tier 3, but yet lower than the corporate penalties in the other 2 tiers. Corporate penalties are 2500 units for offenses against ss16(2) and 21, while it is 2000 units under s17(2). Evidently, the maximum penalties for tier 3 offenses are lower than even that of tier 2 offenses that require objective mens rea.
Therefore, it can be inferred, based on the above arguments, that the subject matter of tier 3 offenses is not truly criminal and their subject matter does not uphold the common law presumption of a mens rea requirement.
Third, the efficacy or utility of the law should be given due consideration regarding the impact of the law, whether the imposition of strict/absolute liability would be a good deterrent. Also, it is to be considered, if a strict/absolute liability provision “will assist in the enforcement of the regulations” and “will promote the observance of the regulations,” then the presumption is likely to be displaced.32 A strict liability offense in NSW does not require any mens rea element as such; it allows the defense of honest and reasonable mistake of fact. But s27 of the FA 2003 has displaced that defense and thereby has negated the possibility of their being offenses of strict liability.33
Arguably, if mens rea is attached to the tier 3 offenses, the society may experience less legal efficiency with respect to its enforcement by regulators due to the inherent complexity of proving the fault element that may affect the prevention of harm in a quick and cost-effective manner. This may have a negative impact on public confidence in the legal system. A threat of prompt action by regulators would reasonably work as a deterrent even though the offenses carry low penalties. Therefore, it is unlikely to unjustly penalize anyone in an excessive manner for committing a tier 3 offense; therefore, it may not be unreasonably harsh on offenders.
As the above discussions suggest, it is unlikely that the Parliament intended to attach any subjective mens rea as an element to tier 3 offenses. The lawmakers did not intend to add an objective fault element either, because tier 2 offenses require such an element with a higher penalty. In such a situation, the presumption of mens rea can be successfully displaced. Therefore, it can be concluded that the offenses of tier 3 are of absolute liability.
The above conclusion cannot be verified by judicial decisions due to the paucity of court cases. However, as referred to earlier, a Local Court decision of conviction in the Bankstown case has been found, but the Court did not interpret the mens rea requirement simply because of the defendant pleading guilty.34 Its facts state that on January 5, 2011, the NSW Dept. of Health notified the NSW Food Authority (NSWFA) that a salmonella outbreak had occurred, which resulted in 83 people becoming ill (20 of them hospitalized) in Western Sydney. The NSWFA's authorized officers discovered that a food manufacturer, “Bankstown Bakehouse,” had been handling and selling unsafe food, thereby violating both s16(1) and s16(2) of the FA 2003. Moreover, the bakery was alleged to have also violated the ANZFSC under s21 of the FA 2003. Considering the seriousness of the incident, a criminal prosecution for contravention of several sections of the FA 2003 was lodged. Examining the actus reus, the court found that due to the inappropriate temperature used in a manufacturing unit, and inadequate unclean handling of the foods, salmonella had spread in all foods and contaminated other foods available in its entire bakery. The defendant director was held guilty. He was fined and ordered to pay the Prosecutor's costs in addition. This case thus generates more questions than answers to the aforementioned complexities.
A simple phrase of “absolute liability” could be added to the sections cited above under tier 3 offenses in order to make the nature of liability succinct. This precision could increase its deterrent effect further. Besides, sections listed under tier 3 are concerned with sale and/or advertisement, and they prohibit everyone from selling and/or advertising for sale of unsafe and/or unsuitable foods. Again, the concerns about person(s) who should take the ultimate responsibility are valid here too, especially where a business entity is involved in a breach. The provisions defining the offenses and prescribing penalties in tier 3 sound fine otherwise.
As demonstrated above, there are differences among the statutory offenses grouped under the 3-tier model in terms of fault elements. The following section presents the reflection of the varying degrees of mens rea in the penalties of those offenses.
The 3-tier penalty model (Figure 2) shows changes in punitive sanctions escalating to higher punishments from lower penalties in correspondence with the degrees of culpability measured in terms of mens rea attached to the offenses. The changes are quite logical. Tier 3 offenses are the easiest of all to prove as they do not leave much room for the offenders to argue lack of guilt. Hence, when a food seller or advertiser is caught contravening the FA 2003 offenses, a regulator can prompt to impose the tier 3 penalties. However, tier 1 offenses are harder to prove compared to those of tier 2 that require proving objective mens rea. Prosecution may find tier 1 offenses hardest to establish since they involve subjective mens rea. It appears that the 3-tier system of mens rea and penalties prescribed in the FA 2003 has been useful in introducing a check and balance-type regulation where both the regulators and regulatees are offered space. Courts cannot impose higher penalties if the regulators (as the prosecution) fail to establish the fault element of the accused for tier 1 and tier 2 offenses. Conversely, an accused can hardly escape liability for tier 3 offenses because fines can be imposed perhaps ignoring mens rea.
The preceding discussions reveal that legislators had been thoughtful about penalizing an entity and persons behind it. The foremost emphasis has been placed on the criminality of wrongdoers, while wrongful conduct has also been given due consideration. The gradual escalation of punishments commensurate with the fault elements does promote legal efficacy and encourages lawful business conduct. Moreover, setting penalties based on culpability to be proved by the prosecution is justified. However, the enforcement of the FA 2003 to effectively regulate food safety can be facilitated further, if the complexities explained above are properly addressed.
For example, see generally Szabo EA, Porter WR and Sahlin CL. 2008. Outcome Based Regulations and Innovative Food Processes: An Australian Perspective. Innov. Food Sci. Emerg. Technol 9(2): 250; Martin T and others. 2003. A New Era for Food Safety Regulation in Australia Food Control 14(6): 429; MacKay S. 2011. Legislative Solutions to Unhealthy Eating and Obesity in Australia Public Health 125(12): 896, 898, 900–1.
Division 2A is concerned with beef labeling that is unrelated to this article.
Similar to the FA 2003, NSW Environmental regulations also follow a 3-tier system of offenses. See Kidd M. 2002. The Use of Strict Liability in the Prosecution of Environmental Crimes. SACJ 15: 23, 35.
Fault elements are typically ordered from the highest to lowest degree in the following way: intent, knowledge, recklessness, and negligence.
As mentioned in the heading of Div 1–Part 2 of the FA 2003.
FA 2003, ss 13(1), 14(1).
Relevant defenses can be found in Division 3 of Part 2 of the FA 2003 and a detailed discussion of defenses fall beyond the scope of this article.
For example, the maximum penalty for wounding someone with intent to cause grievous bodily harm is 25 y of imprisonment, whereas the maximum penalty for recklessly wounding a person in a company that is in itself an aggravating factor is only 10 y: Crimes Act 1900 (NSW) ss33(1), 35(3).
 HCA 43; (1985) 157 CLR 523 (He Kaw Teh Case). The case involved importation of a large amount of heroin.
Customs Act 1901 (Cth) s 233B.
See He Kaw Teh Case –.
He Kaw Teh Case .
FA 2003 ss16(2), 17(2) and 21(2)–(4).
He Kaw Teh Case .
Above, quoting from Sherras v De Rutzen (1895) 1 QB 918, 922.
O'Rourke R.2000. Food Safety and Product Liability (Palladian Law Publication, 2000) 13.
See Gibbs CJ in He Kaw Teh Case quoting from Sherra v De Rutzen  1 QB 918.
See generally Z Lipman Z.1996. Old Wine in New Bottles: Difficulties in the Application of General Principles of Criminal Law to Environmental Law in Neil Gunningham, Jennifer Norberry and Sandra McKillop (eds). Environmental Crime: Proceedings of a Conference held 1 to 3 September 1993, Hobart pp 31, 35.
FA 2003 s120(2).
Lim Chin Aik v The Queen, 174 as quoted in He Kaw Teh .
The defense of “mistake of reasonable belief” to the offenses against pt 2, div 2 of the FA 2003 is not available: FA 2003 s27.