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Tuesday, August 30, 2011

The public interest in knowing what happens in the kitchen

Transparency and food safety and hygiene standards are in the news in Queensland and the ACT.

Wikimedia Commons-Takeaway
Queensland Right to Information Commissioner Mead decided it would not be contrary to the public interest to release a 2007 Improvement Notice and an accompanying assessment report with photographs relating to a food  business that had failed an audit under the Food Act, despite objections by the business concerned. In the ACT consultations are underway about a ‘scores on doors' system, and a proposal (that doesn't sound such a big deal) to list names of food businesses convicted of an offence against the Food Act on a publicly available register.

 Commissioner Mead in Seven Network Operations and Redland City Council; Third Party (310227) attached significant weight to the public interest in disclosure to promote Council’s accountability and public discussion about the way in which Council performs its role under the Food Act 2006 (Qld), and the public interest in safe, informed and competitive marketplaces, but relatively low weight to the public interest in revealing health risks due to the age of the information. The commissioner rejected submissions on behalf of the food business that the public interest in safe, informed and competitive marketplaces was an irrelevant factor, as the RTI act made no mention of this consideration, and that the issue of a competitive marketplace is a matter for organisations such as the Australian Competition and Consumer Commission (ACCC), not the RTI Act.
35. I have explained at paragraph 14 above how the public interest balancing test must be applied. Schedule 4 of the RTI Act sets out the factors that Parliament has decided are irrelevant factors, relevant factors favouring disclosure and relevant factors favouring nondisclosure. These are not exhaustive lists. This is evident from the wording of section 49, which requires a decision-maker, for example, to ‘identify any factor favouring disclosure that applies in relation to the information, including any factor mentioned in schedule 4, part 2. This is consistent with Australian and international case law and decisions on determining public interest. For example, it has been observed that: 
[t]he categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop
 the authorities approach the issue by identifying particular issues that lie inside or outside the public interest while never drawing the boundary between the two. That approach reflects the changing qualities of the issues that arise in the community
 36. That the ACCC has significant responsibilities in relation to promoting competition and fair trade in markets and ensuring compliance with relevant competition and consumer legislation does not alleviate me of my responsibility under the RTI Act to determine whether the applicant has a legal entitlement to access the information in issue by identifying and considering relevant factors when applying the public interest test. 
 Commissioner Mead acknowledged some prejudice to the food business’ commercial and business affairs could be expected to result from disclosure but did not consider this outweighed the disclosure factors.

In Canberra,the ACT Government announced consultations this week on a range of transparency initiatives to enhance food safety regulation. This includes a ‘scores on doors' system, and a proposal that the names of food businesses convicted of an offence against the Food Act be placed on a publicly available register. A conviction should be a matter of public record in any event. Disclosure of information about regulatory inspections should be part of the mix. Earlier in the year the government refused to release such information to the Canberra Times.


  1. Andrew3:01 pm


    Some examples from the UK:

    From the USA:

  2. Thanks Andrew, we are a long way behind on this. The reasons given in Commissioner Mead's decision state the case for the public interest in disclosure including scores on doors type systems. I didn't mention NSW is proposing a voluntary SOD system, not quite what's needed.

  3. NSW is probably the furthest ahead on this, as mentioned in the Commissioner's reasons:

  4. Discussion is back on in the ACT.

    This time it looks like the transparency the ACT government refer to is only for businesses, smokescreening their way past concerns and auditors reports about their own ACT health departments lack of procedures and standards. Transparency should to be both ways, but the ACT Government is proving their own Health protection service is failing the public by not having any procedures themselves.

    If the ACT government were even nearly as competent as say the Singapore government or other jurisdictions I would trust them to implement a scores on doors type system, however they have proven to be less than competent according to their own ACT Auditor General and would shudder to think how such an agency could even manage such a large undertaking.