Page 1779 - Week 07 - Tuesday, 18 August 1992
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This amendment is minor, but important. The offence under clause 15 is entitled, "Sale not complying with purchaser's demand". Subclause (3) says:
A person shall not sell food that is not of the nature, quality or substance demanded by the purchaser.
It is very possible that this wording could be abused. We certainly would not want to see a situation where a restaurant owner is liable for a $5,000 fine or six months' imprisonment for a trivial breach of subclause (3), such as substituting raspberries for strawberries, or bream for trevally, or even when food of a better quality is provided. This regularly happens in restaurants. In Victoria the equivalent provision says:
A person must not, to the prejudice of the purchaser, sell any food that is not of the nature, substance or quality of the food that is demanded by the purchaser.
This wording provides some protection to the vendor as long as he or she does not act to the detriment of the purchaser. Therefore, some damage has to be done. More importantly, it makes it clear that we are not after trivial incidents. I suggest, therefore, that we amend the Bill in line with the Victorian wording. This is substantially more important. I would hope that any legislation we bring down here is designed to help somebody who has been hurt or disadvantaged. If we are just doing it as a revenue raising exercise, that would seem to be very inappropriate.
MR BERRY (Minister for Health, Minister for Industrial Relations and Minister for Sport) (8.44): The Liberals are here striking at the very heart of this legislation. This clause is about consumers getting exactly what they demand when they purchase food. Consumers are entitled to get exactly what they demand and pay for. There is no question about that.
Mr Humphries: Up to a point.
MR BERRY: Mr Humphries says, "Up to a point". They are entitled to get exactly what they pay for.
Mrs Carnell: What happens if there is no damage, if they get something better?
MR BERRY: Mrs Carnell says, "What if they get something better?". That is not the issue. It is about customers demanding and receiving what they want and what they pay for, not what some seller might decide is better for them. A seller might decide that a particular type of food is better for that customer, and might pursue an argument later on, if it were to go to the courts, that what he actually sold the customer was better than what had been asked for.
Mr Humphries: Why not? Why should he not be able to do that?
MR BERRY: There are very good reasons, and I will come to those. The current wording of subclause 15(3) of the tabled Bill is the same as in the National Food Act and in the New South Wales Food Act. It is important, from my point of view, where practicable, to maintain the standard of the National Food Act.
Mrs Carnell: That does not mean that there cannot be better wording.
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