Posted on December 10, 2025 by Nathan Sloan and Liam Mulligan 4

Prosecution powers of the Food Authority resolved

A recent decision of the NSW Supreme Court, in which LTL were pleased to act for the prosecutor, resolved a longstanding question about the ability of the NSW Food Authority to commence criminal proceedings in its own name for breaches of the Food Act 2003.

The matter concerned the prosecution of a corporation and its director for offences contrary to s 21(3) of the Food Act, being the sale of food that was labelled in a manner that contravened a provision of the Food Standards Code (Code). The charges against the director were brought on the basis of statutory executive liability, pursuant to s 122 of the Act.

The Director filed a Notice of Motion seeking orders that the charges against him be dismissed, on the basis that the Authority did not have power to commence a prosecution for an executive liability offence under s122(2) of the Act. The Defendant contended that the Food Authority was not a “person who can bring a prosecution for an executive liability offence”, as required by s122(4) of the Food Act.

The Defendant’s ultimate submission on the Motion was that the Act did not expressly or impliedly identify the Food Authority as a person with power to prosecute an executive liability offence under s122(4). By contrast, the Food Authority argued that, while the Act did not expressly confer a power on the Food Authority to prosecute such offences, that power was apparent on a proper construction of the Act.

After considering the subject matter, scope and purpose of the Food Act, the Court accepted the Prosecutor’s construction. The Court concluded that, while the Food Authority was not expressly identified in the Food Act as having the power to prosecute any offence, including an executive liability offence, on the proper construction of the Food Act, the power to do so was “necessary for, and incidental to” the exercise of the core functions of the Food Authority. These functions relevantly included making decisions whether to institute criminal proceedings under s109(c) of the Food Act and ensuring food for sale is both safe and suitable for human consumption.

The Court identified a number of indicators which tended strongly in favour of the conclusion that the Food Authority had an implied power to prosecute all offences:

1. The Food Authority is an “enforcement agency” by s4 of the Food Act and the “principal actor” charged with ensuring food for sale is both safe and suitable for human consumption;
2. There were a number of other, more “peripheral”, offences in the Food Act, in respect of which it would be a “surprising conclusion” if the Food Authority was not the body charged with prosecuting those offences. These included offences for failing to comply with an emergency or prohibition order (issued by the Food Authority) under ss 35 and 64. The Defendant accepted that the Food Authority had an implied power to prosecute these offences and the Court found that the Act should not be construed as providing an implied power to commence a prosecution of “peripheral offences”, but not offences which the Court identified as being at the “core” of effecting the objects of the Food Act, such as s21(3);
3. Under s109E, the Food Authority cannot delegate any function under Part 3 (including its power to commence a prosecution). The Court took this as being a “further demonstration of the intention of the legislature” that the Food Authority’s responsibility as the principal enforcement agency extends to the prosecution of offences under the Food Act;
4. The fact that the Food Authority was expressly empowered to maintain a record of prosecutions conducted by or on its behalf under s133 strongly supported a construction of the Food Act as empowering the Food Authority to conduct a prosecution of recordable offences, which included executive liability offences.

The Court also distinguished the Food Act from similar statutory regimes where courts had found that prosecutorial power was not to be implied, such as in Gamage v Riashi [2025] NSWCA 85. In that case, Basten AJA (with whom Leeming JA and Griffiths AJA agreed) found that the Independent Commission Against Corruption did not have a power to prosecute criminal offences under legislation other than the Independent Commission Against Corruption 1998.    

Importantly, the Court considered – and distinguished – passage from the judgment of James J in Authorised Officer Christine Tumney (NSW Food Authority) v Nutricia Australia Pty Limited [2007] NSWSC 1215. In that passage, His Honour remarked in passing that no power to prosecute offences under the Act was implied by s109(c) of the Food Act. Payne JA found that this passage was obiter and, in any event, James J’s remarks were not inconsistent with a finding that an implied power existed under the Food Act to prosecute for offences, including executive liability offences.

For those reasons, the Court dismissed the Defendant’s notice of motion with costs.

You can read the judgment of Payne JA here: NSW Food Authority v David Tri Chau-Ngoc [2025] NSWSC 1333. Please feel free to contact Nathan Sloan or Liam Mulligan, who acted for the Authority in the proceedings, to discuss.