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Australia well insulated from food shocks

Supply chain issues continue to plague nations against the ongoing backdrop of the age of coronavirus, including and especially for those in the food sector. How well placed is Australia to manage such concerns, particularly in the FMCG space?
   BY SIMON LEVETT

M ore and more lawyers are involved in the practice of food law, and for diverse reasons. Dr Janine Curll – who undertook her doctorate in food fraud at Monash University – told Lawyers Weekly: “I’m a non-practising food lawyer with a background in microbiology.”

She said: “I have always enjoyed working at the intersection of law and science and first applied those skills and knowledge in the food sector as an enforcement office for the NSW Food Authority nearly 15 years ago.”

She continued: “Through investigating and prosecuting serious food safety and labelling non-compliance, I developed a keen interest in understanding food fraud; a poorly articulated risk to consumer health and safety and brand reputations, within Australia’s control system.”

Australia is a rewarding place to practice because of our reputation as a breadbasket exporting food around the world whilst ensuring a rich supply of food to domestic markets.

Food insecurity – or the absence of stable supply chains of food – is an ever-present concern for the global community, with many countries affected by the current crisis in the food-rich Ukraine. Russian forces have come under criticism for their ongoing blockade of Ukraine’s Black Sea ports in June, interfering in the export of 22 million tonnes of grain.

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Countries such as Singapore are questioning the long-term viability of their dependency on imports of food from other countries.

The Economist recently stated that “the war is battering a global food system weakened by COVID-19, climate change and an energy shock”.

It is likely that fragile states experiencing protracted conflict will suffer the most. The United Nations Secretary-General Antonio Guterres recently briefed the United Nations Security Council on the fact that 49 million people in 43 countries are at emergency levels of hunger. These countries include poverty-stricken Ethiopia, South Sudan, Yemen and Madagascar.

A United Nations report agreed that fragile countries such as Somalia in the horn of Africa are at immediate risk of famine. The report stated that “with decades of conflict, recurrent climate shocks and disease outbreaks, including the impacts of the COVID-19 pandemic, the humanitarian situation in Somalia was already grave. Even before the current drought, an estimated 7.7 million Somalis were in need of humanitarian assistance and protection this year – up 30 per cent in one year.”

Now, global analysts, the report noted, have stated that “the situation has deteriorated, with the current drought wiping out crop harvests and livestock dying due to a lack of water and pasture, depriving many pastoral communities of their only source of income”.

The right to adequate food is a universal human right under international law. Article 11 of the International Covenant on Economic, Social and Cultural Rights – which Australia has signed – states that “the state parties to the present covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing and to the continuous improvement of living conditions”.

The danger is that other human rights such as the right to housing or health will be jeopardised if adequate food is not provided. How is it possible to put a roof over one’s head if one lacks a stable diet?


“Australia is a rewarding place to practice because of our reputation as a breadbasket exporting food around the world whilst ensuring a rich supply of food to domestic markets.”

This right includes a continued commitment by state parties such as Australia to measures of international co-operation to alleviate the impacts of worldwide famine, providing food aid through international aid agencies. For Australia, this is particularly in the context of regional dialogue with south Pacific countries.

Global markets are driving food prices up in Australia even though we are insulated from the worst of the food shocks. This is being felt especially in rural and remote areas. A report by the ABC stated that “few Australians are immune from the rising cost of living but in remote communities, the price of some staple items means they are fast becoming a luxury”.

ABC stated that “while the average household spent up to a third of their total income to purchase a healthy diet – up to about 7 per cent from last year – that jumped to 40 per cent for those living in regional and remote areas”.

Lawyers Weekly asked Dr Curll whether she felt that the current surge in domestic prices was a result of weaknesses in Australia’s food infrastructure. She, in fact, believes Australia – as an agricultural powerhouse – is in a good position to ride out the current shocks to global food chains. She said that “Australia ranks highly in food security, meaning a large proportion of Australia’s population can access safe, nutritious and affordable food.”

The benefit is that “we are a net exporter, importing only around 10 per cent of the food consumed here; significantly less than the exported 70 per cent of the foods we produce. Exporting Australian food businesses have contributed to the food security of other countries by providing economically accessible food internationally.”

Dr Curll believed that “Australia can be considered ‘food secure’ on the whole, although climate, market settings and policies may influence some food sectors in the manufacture and sale of certain food categories at different times and places.”

It is especially difficult to guarantee the quality of many of the raw ingredients and additives that Australians eat in the food chain. Dr Curll cited sunflower oils and vegetable oils being replaced by lower quality oils or substituted with other vegetables, potentially allergenic.

Similarly, there have been disruptions to supply, which have created some bottlenecks and blockages in the processing of foods at ports and manufacturing hubs significantly impacted by lockdowns, such as in China, because of COVID-19.

In a globalised economy, it is almost impossible for Australians to be completely insulated from the increases in global food prices. This is mindful of the fact that food for Australia has been a geopolitical weapon, certain diplomatic tensions with China affecting trade in essential crops.

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What does a food lawyer do in their daily activities?

Food lawyers raise awareness of violations of the right to adequate food. They hold industry leaders accountable for high standards of food hygiene and distribution in order to carry on their business.

An opportunity that food lawyers are increasingly tackling is food fraud. Businesses must not mislead consumers about the quality of food as part of their activities. A high-profile example of food fraud occurred in the European Union, during a scandal in 2013, where foods advertised as beef were found to contain undeclared or improperly declared horse meat. At least four people went on trial for food fraud in Paris.

A recent report by the United Nations Food and Agricultural Organisation stated that “the harms caused by food fraud are manifold and far-reaching. These harms include: economic harms to consumers, to honest purveyors of food and to the food industry in general; direct and indirect potential public health harms and systemic harms that undermine the confidence in the government’s ability to regulate food.”

In a past career, Dr Curll prosecuted food fraud for the NSW Food Authority. She suggested that “food fraud is the deliberate and intentional substitution, addition, tampering, or misrepresentation of food, food ingredients, or false or misleading statements about a product, for an economic benefit. The most common is substitution and dilution of food and ingredients within supply chains.”

She continued that “although profit is an obvious motivation, the drivers of food fraud include a range of benefits and advantages such as fulfilling supply contracts (with inauthentic or substandard food ingredients) to ensure business continuity when demand for those ingredients is high, and supply is low (for example)”.

The vulnerability of supply chains makes food fraud more likely. The risk of food fraud is heightened considering that the global food supply network is littered with points that are vulnerable from COVID-19, climate change, and the war in Ukraine.

Dr Curll stated that inauthentic food ingredients could be traded and used in manufacturing, leading to falsely described foods, sometimes with undeclared allergens or other agents potentially impacting the risk to public health and safety.

Ultimately, Dr Curll praised the resilience of Australian legal frameworks with regard to food. She said that when food fraud is unchecked and uncontrolled, further risk-taking in the food trade occurs. Ultimately, despite food safety systems, including Australia’s, getting better and better at controlling foodborne agents of harm.

There are examples of Australian regulators prosecuting food businesses for misleading or deceptive conduct or falsely describing food for sale to consumers at the retail end of the supply chain. Significant penalties have been awarded where food businesses have been found to mislead consumers. This is a big shift away from a system that has been based on assumptions about honest behaviour in the past.


“Australia can be considered ‘food secure’ on the whole, although climate, market settings and policies may influence some food sectors in the manufacture and sale of certain food categories at different times and places.”
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The courts are, increasingly, a forum for food lawyers

Large food corporations can also bring actions where they are concerned with their reputation. Consumers have used the courts to agitate for higher standards of food production. In the past, consumers have demanded better products from multinational food giants such as Bayer-Monsanto. Oversight by the courts is deemed for experimental and unproven genetically altered food with a lack of corresponding labelling. Thus, food corporations can be both the victim and the perpetrator of harms in legal proceedings.

Michael Guilday, general counsel at the Sydney Fish Market, is another legal practitioner who has thrived within the food setting for a number of years. He said: “I’ve been an in-house counsel for around 10 years and prior to that I worked for a major law firm in Sydney, London and Hong Kong.

“I was motivated to join Sydney Fish Market (SFM) as its inaugural GC and head of property because of the opportunity to embrace a wide variety of legal and commercial challenges.”

He added: “I am very fortunate to work with an amazing team, for meaningful relationships and engage with a wide of stakeholders – all whilst helping to ensure the ongoing success and sustainability of NSW’s commercial fishing industry ecosystem.”

Mr Guilday enjoys the variety of legal challenges in the workplace. He said: “One of the most rewarding aspects of my involvement with the Sydney Fish Market is exposure to such a wide variety of complex and challenging legal situations.

“Examples of the types of issues I am observing include the need to provide and procure legal support for contract formations, interpretation and termination, including by exploring potential benefits which may be generated by onboarding contract and matter management software.

“Other common issues include workplace health and safety, food handling requirements, competition law, IT contracts and digital transformation, intellectual property, product liability, corporate governance, employment law, engagement with independent contractors, environmental law, investigations, leasing, new business establishments, and representations to government.”

Mr Guilday suggested that “in responding to these matters, I rely heavily on specialist services provided by an informal panel of expert private practice lawyers and law firms”.

“These lawyers are genuine experts in their field and are also able to provide value added services such as briefing on current awareness of new and emerging changes to the law, and facilitating introductions to other lawyers and non-lawyers which complement their particular skills and are a good fit for our business,” he explained.

The growing environmental consciousness and the threat posed by climate change and the need to adapt may make the role of the food lawyer in Australia more significant. Mr Guilday posited that “whilst environmental sustainability and climate change impact on everyone, these issues are particularly acute in the context of the agricultural industry”.


“There is a natural tension between the need to harvest produce from land and ocean, while at the same time ensuring the ongoing sustainability of food supply chains and managing the impact on the environment more generally.”

“There is a natural tension between the need to harvest produce from land and ocean, while at the same time ensuring the ongoing sustainability of food supply chains and managing the impact on the environment more generally,” he said.

Ultimately, the current regulatory environment is growing in complexity, said Mr Guilday. He said: “Similar to the industry itself, regulation which impacts on food harvesting and production, transport and storage is often complex and fragmented.

“There are numerous lengthy pieces of legislation at federal, state and local level, which combine with an ever-growing proliferation of standards and codes of practice. Even in circumstances in which the legislation and standards are fit for purpose, the sheer volume of regulatory obligations can make compliance difficult, especially for SME operators.”

It is difficult for legislation to keep up with reforms particularly in the context of technology, such as in relation to biosecurity threats. There is also a possibility of efficiency and technology-led innovations.

In particular, Mr Guilday praised the development of a new digital platform called SFMblue, to rethink the way in which fishing is undertaken in Australia. He said that SFMblue is “an exciting new digital platform, the purpose of which is to revolutionise the fishing industry and benefit all participants. The system is designed to be accessible to seafood producers and buyers across Australia, providing an open and transparent national marketplace with the possibility of disrupting existing logistics supply chains and potentially provide more efficient and cost-effective solutions.”

The beneficiaries of the digital platform will be “far greater control for suppliers and vastly increased options for the marketing of their product. Correspondingly, buyers will be provided with access to broader supply which should increase the overall resilience of the supply chain.”

“The benefits are expected to transform the way that seafood is marketed, not only in the short term but also underpinning faster economic recovery and productivity growth in the seafood industry in the longer term,” he said.

Mr Guilday foresees a bright future for the Sydney Fish Market, with Sydney-siders able to purchase excellent quality seafood for decades to come. He added that the “Sydney Fish Market is excited by construction now being underway on the new Sydney Fish Market site, which will be located adjacent to the Sydney Fish Market’s existing site at the head of Blackwattle Bay”.

NSW Premier Dominic Perrottet recently said that the renovation would make it “the most iconic fish market anywhere in the world”. The refurbishment is being undertaken by Danish firm 3XN in collaboration with local architectural firms BVN, GXN Innovation and landscape architect Aspect Studios. A particularly distinguishing feature is the roof which will float above the heads of the marketeers.

Ultimately, it appears that the future of the right to adequate food is in safe hands in Australia, much to the satisfaction of a growing school of food lawyers.

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