Due Diligence and Food Safety

Food Safety SupervisorFood businesses and Food Safety Supervisors are able to apply the defence of due diligence, in proceedings relating to certain offences under the Food Act 2006 (the Act).

What is the defence of due diligence?

The defence of due diligence is a method of defence a person can use in prosecution proceedings to demonstrate that they, or a person under their control (not including an employee, agent or director of the defendant), took all reasonable steps to prevent the offence from occurring. There are a number of ways this can be proved.

When can the defence of due diligence be used?

The defence of due diligence can be used only for offences outlined in Chapter 2 of the Act. These include:

  • Handling of food in an unsafe way

  • Sale of unsafe food

  • False description of food

  • Handling and sale of unsafe food

  • Handling and sale of unsuitable food

  • Misleading conduct relating to sale of food

  • Sale of unfit equipment or packaging or labelling material compliance with the Food Standards Code

Demonstrating due diligence

For a person to demonstrate due diligence, they must prove that they exercised all reasonable care to prevent the offence being committed, by themselves or another person under their control.

These requirements are satisfied if it is proved that:

  • The offence was committed by an act or default of another person, or because the person relied on information supplied by another person,

  • The person carried out all checks of the food concerned, that were reasonable in all the circumstances, or it was reasonable in all the circumstances to rely on checks carried out by the person who supplied the food concerned to the person,

  • The person did not import the food into the State from another country, and

  • If the offence involves the sale of food that the person sold the food in the same condition as when the person purchased it, or the person sold the food in a different condition to that in which the person purchased it, but that the difference did not result in a contravention of the Act.

A person may satisfy the requirements of due diligence by proving that the person complied with:

  • An accredited food safety program, or

  • A scheme (e.g. quality assurance program or industry code of practice) that was designed to manage food safety hazards and is based on national or international standards, codes or guidelines provided for that purpose and documented in some way.  

Note: “another person” does not include a person who was:

(a) An employee or agent of the defendant, or  (b) In the case of a defendant that is a body corporate, a director, employee or agent of the defendant, it should be noted that it is the role of the Courts, not food businesses or Food Safety Supervisors, to determine if the defence of due diligence has been satisfied.