Report - Inquiry into the closure of I Cook Foods Pty Ltd

Australia / Victoria / Committees

Thursday, 14 October, 2021

ii Legislative Council Legal and Social Issues Committee

Participating members

Dr Matthew Bach, Eastern Metropolitan Mr Rodney Barton, Eastern Metropolitan Ms Melina Bath, Eastern Victoria Ms Georgie Crozier, Southern Metropolitan Dr Catherine Cumming, Western Metropolitan Mr Enver Erdogan, Southern Metropolitan Mr Stuart Grimley, Western Victoria

Committee membership

Hon Jane Garrett Eastern Victoria

Ms Fiona Patten Northern Metropolitan

CHAIR

Dr Tien Kieu South Eastern Metropolitan

DEPUTY CHAIR

Ms Kaushaliya Vaghela Western Metropolitan

Ms Sheena Watt Northern Metropolitan (substitute for Hon Jane Garrett)

Hon Wendy Lovell Northern Victoria

Ms Tania Maxwell Northern Victoria

Mr Craig Ondarchie Northern Metropolitan

Mr David Limbrick, South Eastern Metropolitan Hon Edward O’Donohue, Eastern Victoria Mr Tim Quilty, Northern Victoria Dr Samantha Ratnam, Northern Metropolitan Ms Harriet Shing, Eastern Victoria Mr Lee Tarlamis OAM, South Eastern Metropolitan Ms Sheena Watt, Northern Metropolitan

Ms Georgie Crozier Southern Metropolitan (substitute for Mr Craig Ondarchie)

iiiInquiry into the closure of I Cook Foods Pty Ltd: Second report

About the Committee

Functions

The functions of the Legal and Social Issues Committee are to inquire into and report on any proposal, matter or thing concerned with community services, education, gaming, health, and law and justice.

The Legal and Social Issues Committee may inquire into, hold public hearings, consider and report on any matter, including on any Bills or draft Bills, annual reports, estimates of expenditure or other documents laid before the Legislative Council in accordance with an Act, provided these are relevant to its functions.

Government Departments allocated for oversight:

• Department of Families, Fairness and Housing

• Department of Health

• Department of Justice and Community Safety.

iv Legislative Council Legal and Social Issues Committee

About the Committee

Secretariat

Matt Newington, Committee Manager Caitlin Connally, Inquiry Officer Samantha Leahy, Research Assistant Anique Owen, Research Assistant Sylvette Bassy, Administrative Officer Justine Donohue, Administrative Officer

Contact details

Address Legislative Council Legal and Social Issues Committee Parliament of Victoria Spring Street EAST MELBOURNE VIC 3002

Phone 61 3 8682 2869

Email lsic.council@parliament.vic.gov.au

Web www.parliament.vic.gov.au/lsic-lc

This report is available on the Committee’s website.

vInquiry into the closure of I Cook Foods Pty Ltd: Second report

Contents

Preliminaries Committee membership ii About the Committee iii Terms of reference vii Chair’s foreword ix Findings and recommendations xi What happens next? xiv

1 Scope of the Inquiry 1 1.1 Introduction 1

1.2 Background of the Inquiry 1

1.3 New evidence and allegations published in the media 2 1.3.1 The Knox Report 3

1.3.2 Allegations published in the media 4

1.3.3 Victoria Police investigation into corruption claims 4

1.4 Focus of the Committee’s first report 5 1.4.1 Findings and recommendations in the first report 5

1.5 Focus of this report 7

2 Listeriosis investigation and outbreak management process 11 2.1 Introduction 11

2.2 Timeline of events 12

2.3 Victoria’s food regulation framework 14 2.3.1 Food Act 1984 (Vic) 14

2.3.2 Public Health and Wellbeing Act 2008 (Vic) 15

2.3.3 Australia New Zealand Food Standards Code 15

2.3.4 Victorian food regulators’ Memorandum of Understanding 16

2.4 Overview of the process for investigating cases of Listeriosis 17

2.5 Notification and immediate assessment 19

2.6 The Department of Health’s decision to focus the investigation on I Cook Foods 19 2.6.1 Knox City Council’s inspection at Knox Private Hospital 23

2.7 Investigation 27 2.7.1 Role of the Department of Health in Listeriosis investigations 27

2.7.2 Role of local councils and environmental health officers 28

vi Legislative Council Legal and Social Issues Committee

Contents

2.8 Investigation into the source of Listeria monocytogenes 30 2.8.1 Treatment of I Cook Foods 31

2.8.2 The inspection at Knox Private Hospital 32

2.8.3 City of Greater Dandenong’s handling of its investigation into I Cook Foods 36

2.8.4 Managing conflicts of interest 42

2.9 Closure of I Cook Foods 44 2.9.1 Delegated authority to issue a closure order 46

2.9.2 Evidence relating to the closure order 49

3 Contradictions in evidence provided to the Committee 55 3.1 Overview 55

3.2 Key matters examined 56 3.2.1 Omission of findings of the ‘Knox Report’ 56

3.2.2 Ms Painter’s diet during her time at Knox Private Hospital 58

3.2.3 Assertions that I Cook Foods was the ‘sole caterer’ of Knox Private Hospital 59

3.2.4 The extent of Listeria testing for all potential sources 61

3.3 Contempt of Parliament 63 3.3.1 Parliamentary Privilege 63

3.3.2 Dealing with false or misleading evidence and contempt 64

Appendices A About the Inquiry 65 B Transcripts of evidence 67 C Timeline of events 177 D Food Act 1984 (Vic): Secretary’s Instrument of Delegation under

section 19 of the Public Health and Wellbeing Act 2008 (Vic) 189 E Emails received from Knox City Council (‘Knox Report’) 221 F Emails received from the Department of Health 237 G Department of Health’s protocol for the investigation of cases of

Listeriosis 263 H Results of food sampling and environmental swabbing requested

by the Department of Health as part of Listeriosis investigation 287

Extracts of proceedings 303

Minority report 305

viiInquiry into the closure of I Cook Foods Pty Ltd: Second report

Terms of reference

Inquiry into I Cook Foods Pty Ltd

Second Terms of Reference

Self-referenced by the Committee on 24 June 2021

That due to:

(a) the new evidence that was made public in relation to the inappropriate closure of I Cook Foods; and

(b) that this new evidence contradicts the testimony provided by senior officials in the Victorian Government and City of Greater Dandenong;

the Legal and Social Issues Committee re-open the Inquiry into the closure of I Cook Foods Pty Ltd and report by 14 October 2021.

Initial Terms of Reference

Self-referenced by the Committee on 3 June 2020

That the Legal and Social Issues Standing Committee Inquire into, consider and report, by 30 July 2020, on the forced closure in February 2019 of I Cook Foods Pty Ltd, including —

(1) actions undertaken by Department of Health and Human Services and the City of Greater Dandenong, its Chief Executive Officer and Council officers, for decisions made which led to the forced closure of I Cook Foods Pty Ltd;

(2) whether any breaches of law and regulation by, or shortcomings of, government officials led to the forced closure of I Cook Foods Pty Ltd;

(3) whether any conflict of interest arose during the City of Greater Dandenong’s investigation, reporting and subsequent closure of I Cook Foods Pty Ltd;

(4) the administration and management of Community Chef since January 2015, including the plans for the City of Greater Dandenong to sell its share of Community Chef and the plans for the Victorian Department of Health and Human Services to purchase a greater share of Community Chef; and

(5) any other matters relating to the forced closure of I Cook Foods Pty Ltd.

ixInquiry into the closure of I Cook Foods Pty Ltd: Second report

Chair’s foreword

This is the second report tabled for the Committee’s Inquiry into the closure of I Cook Foods Pty Ltd. The Committee resolved to re-open the Inquiry when new allegations were published in the media which conflicted with the evidence received during the Inquiry’s initial investigations.

The media reports related to findings of inspections at Knox Private Hospital conducted by Mr Ray Christy, who at the time was an environmental health officer at Knox City Council. The findings of the inspections, namely that Ms Jean Painter was on a ‘soft diet’ during her admission at Knox Private Hospital, conflicted with evidence that was provided to the Committee by senior officers of the Department of Health. This was of great concern and the Committee felt it necessary to re-examine evidence and witnesses.

Other media reports included allegations by Ms Kim Rogerson about the conduct of officers at the City of Greater Dandenong and the organisational culture of the council more broadly.

The purpose of re-opening the Inquiry was to hear from new witnesses as well as from previous witnesses who gave evidence used in the first report. This was important to hear all parties’ information relating to the new evidence and determine why there were contradictions in the evidence previously provided.

The Committee also heard from Ms Painter’s daughters, Mrs Jo Woodstock and Ms Fiona Wharry, who clarified some events that occurred in the lead up to their mother’s death. I sincerely thank them for their contribution to the Inquiry and offer our sincere condolences for their loss.

In examining the new evidence presented, the Committee also considered whether this directly conflicted with the findings and recommendations made in the previous report. After considering all the information provided, it is clear the previous findings and recommendations have not been invalidated or otherwise compromised.

However, the new evidence did raise further issues with the processes used by the Department of Health during its investigation into the Listeriosis case at Knox Private Hospital. This report has made further recommendations to improve those processes and the Committee has reiterated the importance for the Victorian Government to implement a number of key recommendations from the first report.

Providing misleading evidence to a parliamentary committee is a considerable offence and may constitute a contempt of Parliament. The Committee’s investigations found that there was no reason to believe that evidence from Department of Health officials deliberately intended to obstruct the Inquiry. However, their omissions of evidence that was later published in the media led to considerable confusion and instigated the re-opening of this Inquiry.

x Legislative Council Legal and Social Issues Committee

Chair’s foreword

This Inquiry is a timely reminder that witnesses—particularly officers of government departments—should be properly prepared when giving evidence to a parliamentary inquiry and to ensure that committees are made aware as soon as possible when new information comes to light.

There has been considerable media coverage surrounding the closure of I Cook Foods and serious allegations made by key Inquiry stakeholders that amount to tampering with evidence and allegations of systemic workplace culture issues. Examining these allegations is outside the Committee’s remit as a parliamentary inquiry is not the appropriate forum for their consideration. Victoria Police and other relevant corruption and oversight agencies are better placed to conduct investigations in allegations of this nature.

I thank my colleagues on the Committee for their contributions to this Inquiry in a short timeframe. I also thank the secretariat, and in particular the research team of Samantha Leahy and Anique Owen led by Caitlin Connally, with administrative support from Sylvette Bassy and Justine Donohue and managed by Matt Newington. Their hard work on this Inquiry in addition to the ongoing work of the Standing Committees has helped us prepare this comprehensive report in such a short timeframe.

I commend this report to the House.

Ms Fiona Patten MLC Chair

xiInquiry into the closure of I Cook Foods Pty Ltd: Second report

Findings and recommendations

2 Listeriosis investigation and outbreak management process

FINDING 1: The Department of Health did not immediately undertake any inspections, food sampling or environmental swabbing at Knox Private Hospital following the notification of a positive case of Listeria. These should have been requested as part of the initial assessment into the source of Listeria. 27

FINDING 2: The lack of written instructions provided by the Department of Health meant that Knox City Council was not sufficiently clear on the scope and focus of the investigation. This led to some confusion about the appropriate investigation process. 27

RECOMMENDATION 1: That the Department of Health modifies its request protocols for food safety investigations so that all investigating agencies are provided written instructions clearly outlining the scope, focus and process for investigating a food safety issue. 27

RECOMMENDATION 2: That the Victorian Auditor-General’s Office undertakes the proposed audit of food safety regulation in local councils as part of its 2023–24 forward work plan. This audit should examine:

• the guidance resources, training and advice provided by the Department of Health to councils to promote the consistent administration of the Food Act 1984 (Vic)

• whether the investigation of food safety incidents by local councils and the Department of Health is consistent, provides procedural fairness to food businesses and protects public safety and wellbeing

• whether local councils are consistently complying with their legislative responsibilities to support good food safety and public health outcomes. 30

FINDING 3: Ms Painter was on a full ward diet between 13 and 23 January 2019 during the suspected incubation period and a soft diet after 25 January 2019. The Committee notes that prior to 25 January 2019, Ms Painter underwent some medical procedures which required fasting. 36

FINDING 4: I Cook Foods was not the sole food caterer to Knox Private Hospital as was asserted by Department of Health officials at a public hearing on 24 June 2020. 36

xii Legislative Council Legal and Social Issues Committee

Findings and recommendations

RECOMMENDATION 3: That the Department of Health amends its Protocol for the investigation of cases of Listeriosis so that food and environmental testing is automatically undertaken at the location where a case of Listeria has been detected in a healthcare setting or in other settings dealing with vulnerable cohorts. 36

FINDING 5: Inquiry stakeholders raised a number of serious allegations that could constitute criminal conduct or corruption. For allegations of this nature, Victoria Police are better placed to conduct an investigation. 40

FINDING 6: There is no specific guidance for environmental health officers on the use of body-worn cameras during inspections or guidelines for the use and retention of material captured. 40

RECOMMENDATION 4: That the Department of Health establishes a uniform protocol for relevant authorities for the use of body-worn cameras during food safety inspections, including provisions on how captured material is to be retained. 40

FINDING 7: Under the instrument of delegation signed by the Secretary of the Department of Health and Human Services in 2017, the Acting Chief Health Officer had the appropriate delegated authority to issue a closure order to I Cook Foods. The instrument authorised the Chief Health Officer to exercise powers under section 19 of the Food Act 1984 (Vic). 49

FINDING 8: The findings of Knox City Council’s investigation into the Listeria infection and food safety processes and procedures at Knox Private Hospital did not affect the Department of Health’s decision to close I Cook Foods because:

• the findings were not received until after the closure order was issued to I Cook Foods

• the decision to close I Cook Foods was not solely based on the Listeria infection at Knox Private Hospital. 54

FINDING 9: A relevant authority with powers under the Food Act 1984 (Vic) to close a food business is required to follow the ‘precautionary principle’ when a serious public health risk has been identified. Whilst the principle prescribes that scientific certainty is not necessary, a relevant authority should take every step practicable to ensure the evidence shows clear indication of serious risk before a closure order is issued. 54

xiiiInquiry into the closure of I Cook Foods Pty Ltd: Second report

Findings and recommendations

FINDING 10: The Department of Health’s decision to not request that Knox City Council investigate the Listeria infection at Knox Private Hospital until 21 February 2019 meant the Council’s findings could not support the broader investigation or inform the decision on whether closing I Cook Foods was necessary. 54

RECOMMENDATION 5: That the Victorian Government introduces amendments to the Food Act 1984 (Vic) to require a relevant authority to provide an evidence report to a food business when it issues a closure order. The preparation of any evidence report should keep in mind the need to respond quickly to any potential public health risks. 54

3 Contradictions in evidence provided to the Committee

FINDING 11: The Department of Health’s omission of providing emails from Knox City Council regarding Ms Painter’s diet during her time at Knox Private Hospital led to contradictions and confusion which instigated the re-opening of the Inquiry. 58

FINDING 12: Evidence provided to the Committee indicates that officers of the Department of Health did not adequately communicate key evidence in relation to the investigation into the source of Listeria to Dr Angie Bone. 61

FINDING 13: The assertion by representatives of the Department of Health that I Cook Foods was the ‘sole caterer’ of Knox Private Hospital was wrong. Representatives of the Department of Health provided an explanation to correct the misleading information. 61

FINDING 14: In evidence initially provided to the Inquiry, Chief Health Officer Professor Brett Sutton and Deputy Chief Health Officer Dr Angie Bone failed to provide complete information that explained why only some suppliers were investigated as a part of the Listeriosis investigation. The Committee does not have sufficient reason to find this information was omitted for the purpose of deliberately misleading the Committee and takes no further action. 62

xiv Legislative Council Legal and Social Issues Committee

What happens next?

There are several stages to a parliamentary inquiry.

The Committee conducts the Inquiry

This second report on the Inquiry into closure of I Cook Foods Pty Ltd is the result of extensive research and stakeholder consultation by the Legislative Council Legal and Social Issues Committee at the Parliament of Victoria.

We spoke with people at public hearings, reviewed research evidence, summonsed key evidence and deliberated over a number of meetings.

A parliamentary committee is not part of the Government. Our Committee is a group of members of different political parties. Parliament has asked us to look closely at an issue and report back. This process helps Parliament do its work by encouraging public debate and involvement on issues. We also examine government policies and the actions of the public service.

This report is presented to Parliament

This report was presented to Parliament and can be found on the Committee’s website: https://parliament.vic.gov.au/lsic-lc/inquiries/article/4516.

A response from the Government

The Government has 6 months to respond in writing to any recommendations we have made. Other agencies are also required to respond to any recommendations directed towards them. The response is public and put on the inquiry page of Parliament’s website when it is received: https://parliament.vic.gov.au/lsic-lc/inquiries/article/4517.

In its response, the Government indicates whether it supports the Committee’s recommendations. It can also outline actions it may take.

1Inquiry into the closure of I Cook Foods Pty Ltd: Second report

11 Scope of the Inquiry

1.1 Introduction

On 4 August 2020, the Committee tabled its first report on the Inquiry into the closure of I Cook Foods. Nearly 12 months later, the Committee resolved to reopen the Inquiry following new information and key documents becoming available which called into question the accuracy of the evidence provided during the Committee’s initial investigation.

There has been ongoing public and media interest in the events surrounding the closure of I Cook Foods in 2019. Serious allegations and counter-allegations have been levelled against various stakeholders involved in the events, including senior officials in the Department of Health and the City of Greater Dandenong.

Mr Ian Cook, Director of I Cook Foods, has maintained his allegations that he was denied a fair and proper process throughout the Listeriosis investigation into his business. Ms Kim Rogerson, a former Environmental Health Officer for the City of Greater Dandenong, has also continued to raise concerns about the conduct and culture at the City of Greater Dandenong.

It is these key documents and allegations which were the impetus for the Committee’s resolution to reopen the Inquiry. This is discussed further in Section 1.3.

1.2 Background of the Inquiry

In February 2019, Ms Jean Painter, an 86-year-old patient at Knox Private Hospital, died with Listeria recorded as a contributing factor to her death.

Ms Painter was initially admitted on 13 January 2019 with gastritis and colitis. She was briefly discharged from the hospital on 23 January 2019. However, was readmitted the same day as her condition deteriorated. It was suspected that she may have contracted Listeriosis, which was confirmed following a blood culture test.

Following the statutory notification1 of Ms Painter’s Listeriosis infection on 25 January 2019, the Department of Health2 undertook an immediate investigation into the source of the infection. This investigation indicated that food supplied by I Cook Foods was the likely source of the infection. Following this the Department of Health, with the assistance of the City of Greater Dandenong, directed its investigations

1 Listeriosis is an urgent notifiable condition under the Public Health and Wellbeing Act 2008.

2 In February 2021, the Department of Health and Human Services was split into two separate departments, the Department of Health and the Department of Families, Fairness and Housing. This report will refer to the department as the Department of Health throughout for clarity.

2 Legislative Council Legal and Social Issues Committee

Chapter 1 Scope of the Inquiry

1 towards I Cook Foods. No other suppliers to Knox Private Hospital were investigated at the time.

On 4 February 2019, Ms Painter died of acute pulmonary oedema, ischaemic heart disease and Listeria meningoencephalitis listed as contributing factors to her death.

The subsequent investigation into I Cook Foods resulted in the temporary closure of I Cook Foods.

A timeline of key events is provided in Chapter 2 and a comprehensive description of events relating to the investigation and closure of I Cook Foods is detailed in Appendix C.

The Committee sincerely thanks Mrs Jo Woodstock and Ms Fiona Wharry, the daughters of Jean Painter, for reaching out to the Committee and volunteering to contribute to this Inquiry. It acknowledges that this Inquiry, as well as the broader public interest, is extremely difficult for the family and friends of Ms Painter. By speaking to the Committee, Mrs Woodstock and Ms Wharry have not only given their mother a voice but offered insight into the days leading up to her passing. The Committee offers its condolences and appreciation to them.

The Committee also thanks all of other witnesses who gave evidence to this Inquiry— Mr Ray Christy, Ms Kim Rogerson, Mr Ian Cook, Mr Paul Brady, Ms Jenny Mikakos and representatives from the Department of Health and City of Greater Dandenong.

1.3 New evidence and allegations published in the media

The events surrounding the closure of I Cook Foods, particularly the alleged conduct of the Department of Health and City of Greater Dandenong officials involved, has attracted considerable public interest. Following the tabling of the first report, the closure of I Cook Foods has remained the subject of extensive media interest and reporting. This includes podcasts, social media and a series of articles published by several media outlets.3

The Committee was made aware of new evidence and allegations that were not considered in the first report, specifically:

• media reports that a report from Knox City Council showed that Ms Painter was on a soft diet and did not eat a sandwich from I Cook Foods

3 For example: Richard Willingham and Tim Callanan, ‘Victoria police to probe corruption claims over slug saga that closed catering company’, ABC News, 23 April 2021, <https://www.abc.net.au/news/2021-04-23/victoria-police-probe-corruption- claims-over-slug-i-cook-foods/100089548> accessed 17 September 2021; Mark Buttler and Anthony Dowsley, ‘‘No evidence’ sandwich caused woman’s death’, Herald Sun, 11 June 2021, <https://www.heraldsun.com.au/news/victoria/no-evidence- sandwich-caused-womans-death/news-story/c931e70666c2deafb3eae0bad0efa796> accessed 17 September 2021; Mark Buttler and Anthony Dowsley, ‘Report received before iCook Foods shut down clears company of connection to woman’s death’, Herald Sun, 21 June 2021, <https://www.heraldsun.com.au/news/victoria/report-received-before-icook-foods-shut- down-clears-company-of-connection-to-womans-death/news-story/7fea142094e289379414462c4d1b481e> accessed 17 September 2021.

3Inquiry into the closure of I Cook Foods Pty Ltd: Second report

Chapter 1 Scope of the Inquiry

1 • a leaked Victoria Police brief which recommended further police investigation be

taken into alleged corruption by officials involved in the closure of I Cook Foods

• Ms Rogerson publicly accusing the City of Greater Dandenong of falsifying evidence, corruption and bullying.

Due to the Committee’s concerns that evidence had been omitted during its initial investigations, it resolved to reopen the Inquiry to examine these matters.

1.3.1 The Knox Report

In June 2021, a series of emails described as a ‘report’ by Mr Ray Christy, who is a former Environmental Health Officer with Knox City Council, was reported by several media outlets. The report detailed Mr Christy’s findings from inspections he undertook at Knox Private Hospital in relation to Ms Painter’s Listeriosis and the I Cook Foods investigation.

On 21 February 2019, the Department of Health requested Knox City Council to inspect Knox Private Hospital. Mr Christy undertook the inspection, and he emailed the findings of his inspection on 22 February 2019 after I Cook Foods had been served a closure order. Chapter 2 and Appendix C provide further information on Knox City Council’s inspection at the hospital. Throughout this report, the Committee has referred to the inspection report and related emails as the ‘Knox Report’.

The Knox Report stated that:

• Ms Painter was on a ‘soft diet’ during her stay at Knox Private Hospital

• soft diet sandwiches were made in-house by hospital catering staff rather than by an external food caterer, such as I Cook Foods.

It was also reported in the media that the Department of Health received a copy of the report hours before the closure order was issued to I Cook Foods.

The Knox Report was a key reason the Committee decided to reopen its Inquiry and was a focus throughout the Committee’s evidence gathering process. In reopening the Inquiry, the Committee sought to understand:

• why Knox City Council’s Listeriosis investigation at Knox Private Hospital and the subsequent Knox Report was not raised with the Committee

• whether the Knox Report, as well as other new evidence, contradicted evidence provided by the Department of Health and City of Greater Dandenong

• what impact did, or should have, the Knox Report had on the decision to close I Cook Foods.

The Committee summonsed a copy of the Knox Report from Knox City Council. This is provided in Appendix E.

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Chapter 1 Scope of the Inquiry

1 1.3.2 Allegations published in the media

Media coverage has continued to focus on accusations that evidence used to justify the closure of I Cook Foods was planted, tampered with or falsified. These claims have been made alongside, or to support, allegations that the decision to close I Cook Foods was made unfairly and to ultimately serve commercial interests in rival food catering company Community Chef. The Committee’s first report considers this allegation in greater detail. This report has sought to further understand how the Department’s and Dandenong council’s conflict of interests were managed.

Further allegations of corruption and bullying at the City of Greater Dandenong were made by Ms Kim Rogerson.

Ms Rogerson also made assertions that she witnessed Dandenong council officials tamper with evidence related to the I Cook Foods investigation. This included allegedly editing photos and body-worn camera footage captured during site visits at the I Cook Foods premises.4

1.3.3 Victoria Police investigation into corruption claims

As well as renewed allegations about the conduct of officials involved in the closure of I Cook Foods, leaked documents related to the events of a police investigation were reported on by the media. In April 2021, a police brief from June 2020 which investigated corruption claims linked to the investigation of I Cook Foods was published online. The brief noted significant corruption concerns with the conduct of officials from the City of Greater Dandenong and the Department of Health involved in investigating I Cook Foods. It recommended further investigation by Victoria Police to ‘identify any alleged corruption or misuse of office’.5 However, at the time of the brief, Victoria Police did not pursue the investigation further.

The concerns probed in the police brief are serious allegations which should be fully investigated. As stated in the first report, allegations of this nature call into question the integrity of Victoria’s food safety framework and the processes undertaken by regulatory authorities.

At the time of writing, Victoria Police had reopened its investigations into the claims outlined in the brief. The Committee notes that the police brief was only briefly considered during this Inquiry, largely due to the fact that a Victoria Police investigation has been reopened and at the time of writing was still in progress. In the Committee’s view, Victoria Police is the appropriate authority to investigate these claims and that an investigation on these matters is out of the remit and capability of this Committee.

4 Ms Kim Rogerson, Public hearing, Melbourne, 25 August 2021, Transcript of evidence, p. 17.

5 Victoria Police, Briefing note: alleged corruption by Greater Dandenong Council and DHHS, 22 June 2020, <https://parliament.vic.gov.au/images/stories/committees/SCLSI/Closure_of_I_Cook_Foods/Other_ documents/20200622_-_Victoria_Police_briefing_note.pdf>.

5Inquiry into the closure of I Cook Foods Pty Ltd: Second report

Chapter 1 Scope of the Inquiry

1 1.4 Focus of the Committee’s first report

On 4 August 2020, the Committee tabled its first report for this Inquiry. The focus of the first report was to determine whether I Cook Foods was subject to proper process and fair treatment in the handling of the food safety investigation and subsequent closure order.

The initial Terms of Reference for the Inquiry directed the Committee to consider:

• the actions and decisions taken by the Department of Health6 and City of Greater Dandenong in closing I Cook Foods

• whether there was any improper conduct related to the closure of I Cook Foods which was related to:

– the City of Greater Dandenong’s conflict of interest due to its commercial interest in rival company Community Chef

– the then pending sale of Community Chef to the Victorian Government

• whether any breaches of law or regulations by officials in the City of Greater Dandenong or the Department of Health led to the closure of I Cook Foods.

The Committee’s first report specifically considered the frameworks and processes that were in place and followed during the investigation and closure of I Cook Foods. The report did not focus on specific food safety issues informing the closure order or whether I Cook Foods complied with food safety requirements.

The Committee ultimately determined that ‘I Cook Foods was neither served well by the City of Greater Dandenong nor the food safety regulatory framework’.7 However, it also found that the closure order made by the Department of Health on behalf of the City of Greater Dandenong was legally valid.

The Committee’s first report for the Inquiry into the closure of I Cook Foods is available on the Committee’s website at: https://parliament.vic.gov.au/lsic-lc/article/4516.

Where appropriate, the Committee has incorporated evidence and conclusions from the first report to support the findings and recommendations made in this report.

1.4.1 Findings and recommendations in the first report

In its first report for this Inquiry, the Committee made 16 findings and 13 recommendations. As stated above, these focused on determining whether I Cook Foods was subject to fair and proper treatment and to identify any issues or gaps in the investigation process which may have contributed to any unfair treatment.

6 Then Department of Health and Human Services.

7 Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods Pty Ltd, August 2020, p. 4.

6 Legislative Council Legal and Social Issues Committee

Chapter 1 Scope of the Inquiry

1 Broadly, the Committee made findings on:

• the validity of the closure order issued to I Cook Foods

• the processes and practices of the City of Greater Dandenong in its role as a food safety regulator

• issues arising from the City of Greater Dandenong’s conflict of interest stemming from its commercial interest in Community Chef.

The Committee’s recommendations focused on improvements to Victoria’s food regulatory framework. These included:

• establishing a uniform process for identifying, reporting and managing non-compliance issues

• expanding the oversight and regulatory powers of the Department of Health in overseeing food safety investigations

• the need to review Victoria’s food safety regulatory framework

• corrective actions that should be taken by the City of Greater Dandenong or more broadly by local councils to improve their approach to food safety regulation

• the need to amend the Food Safety Act 1984 (Vic) to modernise it and better align the Act with developments in food safety regulation.

On 4 February 2021, the Victorian Government tabled its response to the Committee’s first report for the Inquiry. The Government’s response acknowledged that the findings and recommendations of the first report:

provides an ideal platform for a review of Victoria’s food regulatory framework for food safety management. The Committee’s Report and Recommendations provides a valuable and timely opportunity to make some immediate changes but then to focus efforts on a more substantial systemwide review of food safety management in Victoria including exploring whether the assigned roles prescribed in the Food Act 1984 for the Department of Health and Victoria’s 79 local councils remain fit for purpose.8

The response indicated that a Terms of Reference for a review into the food regulatory framework would be made public in the first half of 2021. However, at the time of writing this has not occurred.

Of the 11 recommendations relevant to the Victorian Government, 5 were supported in full and 6 were supported in principle. The Victorian Government’s response to the first report is available on the Committee’s website: https://parliament.vic.gov.au/lsic-lc/ article/4517.

In the first report, two recommendations were directed to the City of Greater Dandenong. At a public hearing Mr John Bennie, Chief Executive Officer at the City of

8 Government of Victoria, Response to the Parliament of Victoria, Legislative Council Legal and Social Issues Committee: Inquiry into the closure of I Cook Foods, 4 February 2021, p. 2.

7Inquiry into the closure of I Cook Foods Pty Ltd: Second report

Chapter 1 Scope of the Inquiry

1 Greater Dandenong noted that the Council had implemented all recommendations from the report:

All of those have been implemented. Two of them have an ongoing role, and they relate to the ongoing training in record keeping and the rotation of officers. So all of those that were determined by your committee have been implemented and are implemented in an ongoing way. You will also recall that council conducted its own internal audit. That in itself identified 27 outcomes: 17 of those have been completed and 10 continue and continue primarily because they are rolling and ongoing and work in progress.9

Some of the relevant findings and recommendations from the first report are discussed in this report where appropriate.

1.5 Focus of this report

As stated in Section 1.3, the impetus for reopening the Inquiry was based on new allegations and documents published in the media that were not raised in the Inquiry’s initial evidence. The second Terms of Reference directed the Committee to reopen its Inquiry to consider:

• new evidence that was made public in the media following the conclusion of the first Inquiry in August 2020

• whether the new evidence contradicted evidence provided by officials from the Department of Health and City of Greater Dandenong.

Like the first report, it is outside the scope of this report to determine whether food safety or related issues identified during the Listeriosis investigation undertaken into I Cook Foods was sufficient to warrant issuing a closure order. It is the Committee’s view, that this is out of the remit of the Inquiry as well as the expertise of the Committee.

The focus of this report is to determine whether the framework and process followed during the investigation into the source of the Listeria infection was sufficient.

The first report focused on the validity and handling of the closure order issued to I Cook Foods following food safety investigations. The Committee further considered the validity of the closure order in the context of new evidence, in particular whether the Acting Chief Health Officer had the appropriate authority to sign the closure order. The Committee received a copy of a signed instrument of delegation from the Secretary of the Department of Health, which indicated the Acting Chief Health Officer did have the appropriate authority. The instrument of delegation was provided under s 19 of the Public Health and Wellbeing Act 2008 (Vic) and gave the Acting Chief Health Officer authority to issue a closure order under s 19 of the Food Act 1984 (Vic). A copy of the instrument of delegation is provided in Appendix D.

9 Mr John Bennie, Chief Executive Officer, City of Greater Dandenong, Public hearing, Melbourne, 1 September 2021, Transcript of evidence, p. 6.

8 Legislative Council Legal and Social Issues Committee

Chapter 1 Scope of the Inquiry

1 In reopening the Inquiry, the Committee has also examined:

• the notification and immediate assessment of the Listeriosis infection at Knox Private Hospital, including preliminary investigations (or lack thereof) into other potential sources of the infection

• the listeriosis investigation undertaken by the Department of Health and the City of Greater Dandenong, which led to the closure of I Cook Foods.

The Committee found that there were several significant shortcomings in the Department’s handling of the Listeriosis investigation which led to the closure of I Cook Foods, including:

• the lack of written instructions provided to Knox City Council regarding its inspection at Knox Private Hospital which led to some confusion and meant the Council was not sufficiently briefed

• the time elapsed between the notification of Listeria at Knox Private Hospital and the Department’s request to Knox City Council to inspect the hospital meant important evidence was no longer available

– the findings of the Knox Report also could not be factored into the decision to close I Cook Foods.

The Committee also examined whether the initial evidence provided to the Committee had been contradicted or indicated that the Committee was misled. The Committee questioned the accuracy of evidence provided by previous witnesses to determine the extent and implications of any contradictions.

The Committee found that:

• The Department of Health’s omission in providing the Committee a copy of the Knox Report led to confusion around Ms Painter’s diet and why the investigation focused on I Cook Foods.

• The Department of Health’s assertion that I Cook Foods was the ‘sole caterer’ to Knox Private Hospital during their initial evidence was not the case.

– Senior departmental officials acknowledged that the contents of the Knox Report contradicted the evidence they provided to the Committee on 24 June 2020.

• During their initial evidence, Chief Health Officer Professor Brett Sutton and Deputy Chief Health Officer Dr Angie Bone did not provide sufficient information to explain why only some suppliers were investigated as part of the Department’s investigation into the source of Listeria.

The Committee also considered whether any of the evidence provided or omitted from its initial investigations constituted a possible contempt of Parliament. However, after examining the new evidence provided during this report and explanations by representatives from the Department of Health, the Committee does not consider any actions meet the threshold of contempt and takes no further action at this stage.

9Inquiry into the closure of I Cook Foods Pty Ltd: Second report

Chapter 1 Scope of the Inquiry

1 Chapter 3 discusses the contradictory evidence in detail.

The Committee notes that contradictory or misleading evidence undermines the integrity of a parliamentary inquiry and its determinations and may be considered a contempt of Parliament warranting further action by the Legislative Council. Parliamentary committees rely on accurate evidence to make their findings and recommendations, and any misunderstandings in evidence provided by witnesses needs to be corrected in a timely matter.

11Inquiry into the closure of I Cook Foods Pty Ltd: Second report

2 Listeriosis investigation and outbreak management process

2.1 Introduction

In reopening the Inquiry, the Committee has re-examined the processes undertaken by the Department of Health and the City of Greater Dandenong which led to the closure of I Cook Foods. It has examined the investigation into the source of Listeriosis led by the Department in the context of new evidence which became available after the Committee tabled its first report in August 2020. The new evidence included:

• findings from food safety inspections conducted by Knox City Council at Knox Private Hospital between 21–22 February 2019

• further allegations that the City of Greater Dandenong had falsified evidence used to justify the closure of I Cook Foods.

The Committee found that the closure order issued to I Cook Foods on 22 February 2019 was issued validly by then Acting Chief Health Officer Professor Brett Sutton. In 2017, the Secretary of the Department signed an instrument of delegation which allowed the Chief Health Officer to exercise powers under s 19 of the Food Act 1984 (Vic), among other powers. This was provided under s 19 of the Public Health and Wellbeing Act 2008 (Vic) which prescribes that the Secretary can delegate any powers under any Act where the Secretary has powers or responsibilities. A copy of the instrument of delegation is provided in Appendix D.

However, there were several significant shortcomings in the process used by the Department to investigate the source of Listeria at Knox Private Hospital and I Cook Foods. The Committee’s findings and recommendations aim to improve the process for food safety investigations, particularly Listeriosis investigations. The Committee found shortcomings in:

• the communication protocols used by the Department of Health

• the thoroughness of the investigation undertaken by the Department.

In particular, the Committee believes that the decision to not request an inspection of Knox Private Hospital immediately following the notification of Listeria was a shortcoming of the Department’s process. The time elapsed between the Listeria notification and the first inspection on 21 February 2019 meant that important evidence was no longer available and that the findings of the inspection could not be factored in before the closure order was issued to I Cook Foods.

12 Legislative Council Legal and Social Issues Committee

Chapter 2 Listeriosis investigation and outbreak management process

The Committee also found that some of the evidence initially provided by the Department of Health was contradicted by new evidence made available after the first report was tabled. Contradictions in the evidence provided to the Committee are addressed in Chapter 3.

2.2 Timeline of events

Like the first report, the Committee has provided an overview of key events related to the closure of I Cook Foods based on evidence provided by witnesses. Figure 2.1 below is a timeline of events related to the investigation and closure of I Cook Foods. The Committee has identified three key stages to the investigation—the notification and immediate assessment, the investigation and the closure—which are outlined in the timeline and has informed the structure of this Chapter.

A more detailed timeline of events is also provided in Appendix C and includes information about events which occurred after the closure of I Cook Foods, including the Committee’s Inquiry.

13Inquiry into the closure of I Cook Foods Pty Ltd: Second report

Chapter 2 Listeriosis investigation and outbreak management process

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14 Legislative Council Legal and Social Issues Committee

Chapter 2 Listeriosis investigation and outbreak management process

2.3 Victoria’s food regulation framework

In Australia, food regulation is managed through a bi-national regulatory system where Australia and New Zealand have co-designed a framework to ensure that there are consistent standards and regulations across both countries.1 As part of this system, Victoria has developed its own regulatory approach to managing and enforcing food safety.

Victoria’s food safety framework is managed by a variety of regulators, including government departments and local councils, and several legislative instruments. Key elements of the framework are discussed in detail in the sections below and include:

• Food Act 1984 (Vic)

• Public Health and Wellbeing Act 2008 (Vic)

• Australia New Zealand Food Standards Code

• Victorian food regulators’ Memorandum of Understanding.

2.3.1 Food Act 1984 (Vic)

The Food Act 1984 (Vic) is the primary legislation regulating the sale of food in Victoria. It requires individuals and organisations who own food businesses to ensure that the food that they prepare and/or sell to customers is safe and suitable for human consumption. The Food Act achieves this by:

• establishing offences, penalties and defences for breaches of food law

• providing the means through which the Australia New Zealand Food Standards Code is applied as the law in Victoria

• establishing a food premises classification system and enforcement powers, including emergency powers, to deal with immediate threats to public health

• empowering local councils and other regulators to register and monitor food businesses as defined by the Act.2

1 Department of Health, Food regulation: A bi-national food regulatory system, <https://www2.health.vic.gov.au/public-health/ food-safety/food-safety-laws-local-government-and-auditors/food-safety-laws-and-regulations/victorian-food-agencies> accessed 20 September 2021.

2 Department of Health, The Food Act 1984, <https://www2.health.vic.gov.au/public-health/food-safety/food-safety-laws-local- government-and-auditors/food-safety-laws-and-regulations/food-act-1984> accessed 2 September 2021.

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2.3.2 Public Health and Wellbeing Act 2008 (Vic)

The operation of the Food Act is complemented by the Public Health and Wellbeing Act 2008 (Vic). The Public Health and Wellbeing Act aims to promote and protect public health and wellbeing in Victoria by providing a role for the state in:

• promoting healthy conditions

• protecting the public

• reducing inequalities

• responding to public health concerns.3

Part 8, div 3 of the Public Health and Wellbeing Act enables the Governor in Council to declare infectious diseases and microorganisms in Victoria to be notifiable. Under this division, medical practitioners must notify the Department of Health if they suspect or have confirmed that a patient has, or has died with, a notifiable condition. Pathology services and laboratory services are under the same obligation if they detect a notifiable disease or microorganism in a sample.

2.3.3 Australia New Zealand Food Standards Code

The Australia New Zealand Food Standards Code was developed by Australian state and territory governments in conjunction with the Government of New Zealand. It came into effect in 2000 and established legal requirements or standards for the ‘labelling, composition, safety, handling, and primary production and processing of food’. The standards seek to:

• ensure that food is safe and suitable for human consumption

• prevent misleading conduct associated with the sale of food

• provide adequate information to enable consumers to make an informed choice

• provide an effective regulatory framework within which the food industry can efficiently operate.4

The Code applies to any business or activity that incorporates the preparation of food for sale or the sale of food in Victoria. It is a criminal offence under the Food Act to prepare or sell food that fails to comply with the standards established by the Code.

3 Public Health and Wellbeing Act 2008 (Vic) pt 1 s 1, pt 2.

4 Department of Health, Australia New Zealand Food Standards Code, <https://www2.health.vic.gov.au/public-health/food- safety/food-businesses/food-standards-code> accessed 2 September 2021.

16 Legislative Council Legal and Social Issues Committee

Chapter 2 Listeriosis investigation and outbreak management process

Section 4I of the Food Act allows the Minister to specify declared authorities to enforce the Code. This is primarily the responsibility of local councils which register food businesses operating within their municipal district. However, statewide organisations such as the Department of Health, PrimeSafe and Dairy Food Safety Victoria also have enforcement powers.5

2.3.4 Victorian food regulators’ Memorandum of Understanding

The Victorian food regulators’ Memorandum of Understanding6 aims to manage food safety risks by food businesses using ‘relevant legislation, standards, licensing or registration, compliance monitoring and enforcement’.7 The objectives of the memorandum of understanding specifically include:

• protecting public health and safety through integrated administration of food safety regulation

• providing clarity on the roles and responsibilities across the food regulatory system, including during a food safety incident

• supporting consistent application of the Australia New Zealand Food Standards Code

• facilitating clear and accurate communication between regulators.8

Schedule 1 of the memorandum broadly outlines the food safety investigation process the parties to the agreement need to follow, including for single or outbreak incidents of foodborne illnesses. The memorandum outlines in which circumstances a relevant authority has jurisdiction (and to what extent) over a food safety investigation. Local councils have jurisdiction over an investigation:

• where there has been a single incident of a foodborne illness, unless a business identified is the responsibility of a food regulator (e.g. PrimeSafe)

• where an outbreak of foodborne illness has occurred within their local government area, although outbreaks that cross multiple local government areas are the responsibility of the Department of Health

• where a food complaint has been made about a food premises or food manufactured, sold or imported by a premise where the local council is the registering authority.9

5 Ibid.

6 The following organisations are parties to the Memorandum of Understanding: Dairy Food Safety Victoria, the Department of Jobs, Precincts and Regions, the Department of Health, the Municipal Association of Victoria and PrimeSafe.

7 Agriculture Victoria, Victorian food regulators’ Memorandum of Understanding, <https://agriculture.vic.gov.au/biosecurity/ food-safety/victorian-food-regulators-forum/victorian-food-regulators-memorandum-of-understanding> accessed 3 September 2021.

8 Ibid.

9 Ibid.

17Inquiry into the closure of I Cook Foods Pty Ltd: Second report

Chapter 2 Listeriosis investigation and outbreak management process

Section 1.6 of the memorandum notes that it is not legally binding but describes a commitment by each party to ‘administer food regulation in Victoria in accordance with the agreed schedules attached’.10

2.4 Overview of the process for investigating cases of Listeriosis

The Department of Health provided a copy of its internal Protocol for the investigation of cases of Listeriosis which outlines its approach to Listeriosis investigations. A copy of the Protocol can be found in Appendix G.

A key focus of this report is establishing the investigation process undertaken by the Department of Health into I Cook Foods and the case of Listeria at Knox Private Hospital. The Committee has broken down the process into three key stages which broadly follow the process for investigating Listeriosis:

• notification and immediate assessment

• investigation

• closure (or outcome).

Figure 2.2 below taken from the Protocol shows the Listeriosis investigation process.

10 Ibid.

18 Legislative Council Legal and Social Issues Committee

Chapter 2 Listeriosis investigation and outbreak management process

Figure 2.2 Listeriosis investigation flowchart

Notification received

Notification checked by Epidemiologist

Complete questionnaire with treating doctor

Complete questionnaire with case

Information Ocer: Notification entered on NIDS (urgent data entry)

Referred to Investigation & Response section Team leader →

Public Health Ocer

Contact notifying laboratory and request

that Lm isolate be forwarded to MDU

for typing

Arrange sampling and/or environmental swabs with Local

Government and MDU

Involve Food Safety & Regulatory Activities Unit investigation

Implement intervention Update NIDS File

Is there a laboratory notification?

Request copy of result

Does testing implicate a specific source of infection?

Are high risk foods implicated as source

of infection?

Communication/escalation criteria

• If the notified case is suspected to have acquired their illness in a healthcare facility

• If the notified case has died from the notifiable disease and is linked to a healthcare facility

• A food source is suspected to be the cause of illness in two or more cases

• If an outbreak is detected

• If the notified case is likely to attract media attention

• At the discretion of the manager and/or team leader Investigation and Response Section.

Initial investigation into Listeria source

Closure of I Cook Foods

Focusing investigation on I Cook Foods

Source: Department of Health, Protocol for the investigation of cases of Listeriosis, 2017, p. 4.

19Inquiry into the closure of I Cook Foods Pty Ltd: Second report

Chapter 2 Listeriosis investigation and outbreak management process

2.5 Notification and immediate assessment

The Victorian food regulators’ Memorandum of Understanding defines a food incident as ‘any event related to the supply of food where an actual or suspected threat to the safety of food requires investigation to protect public health’.11 Food safety incident investigations can be triggered by the notification of a foodborne illness or complaints against a food business.

The Public Health and Wellbeing Act provides for the declaration of notifiable infectious diseases and microorganisms in Victoria. The declaration of a disease or microorganism under this division compels medical practitioners to notify the Department of Health within the specified time period if they suspect or have confirmed that a patient has, or has died, with a notifiable condition.12

Likewise, if a pathology service identifies a notifiable disease or microorganism in a sample from a Victorian individual, or a laboratory service identifies a notifiable microorganism in a food sample, they must notify the Department.13

Listeriosis is an ‘urgent notifiable condition’. Medical practitioners, pathology services and laboratory services which detect Listeriosis (either suspected or confirmed) must notify the Department of Health immediately by phone upon initial diagnosis. Pathology services must follow up with written notification within 5 days.14

Two or more related cases of foodborne illness are also notifiable, regardless of the disease or microorganism, which is usually unknown at the time of the first notification.15

Local councils may receive and investigate general food-related complaints made by members of the public against a food business in their municipal district. Local councils may work with or refer an investigation to PrimeSafe or Dairy Food Safety Victoria if a food incident involves food businesses regulated by these bodies.16

2.6 The Department of Health’s decision to focus the investigation on I Cook Foods

The purpose of the Committee re-opening the Inquiry was to re-examine the investigation process undertaken by the Department of Health which led to the closure of I Cook Foods. This was in light of new evidence raised in the media after the first report was tabled.

11 Ibid.

12 Public Health and Wellbeing Act 2008 (Vic) s 127.

13 Ibid., s 128 and s 130.

14 Department of Health, Listeriosis, <https://www2.health.vic.gov.au/public-health/infectious-diseases/disease-information- advice/listeriosis> accessed 6 September 2021.

15 Department of Health and Human Services, Guidelines for the investigation of gastroenteritis, 2010.

16 Agriculture Victoria, Victorian food regulators’ Memorandum of Understanding.

20 Legislative Council Legal and Social Issues Committee

Chapter 2 Listeriosis investigation and outbreak management process

The Committee found that there was inconsistent understanding amongst Inquiry stakeholders on the proper process for immediately investigating and focusing an investigation into Listeria. In the Committee’s view, this is a consequence of inadequate guidelines and processes which has resulted in relevant authorities having misunderstandings of how to undertake food safety investigations.

At a public hearing on 24 June 2020, Professor Brett Sutton, Chief Health Officer at the Department of Health explained the factors which led the Department to focus its investigation on I Cook Foods. These factors were:

• information provided by Knox Private Hospital that I Cook Foods was the ‘sole’ food supplier

• food history provided by Ms Painter’s treating doctor at Knox Private Hospital and her next of kin which indicated that as an inpatient she only consumed food from the hospital

• that several food samples taken from I Cook Foods tested positive for Listeria monocytogenes including:

– four I Cook Foods food samples which tested positive for Listeria monocytogenes and had the same molecular serotype and binary type as the Listeria detected in human isolates from Ms Painter’s blood culture

– other food samples from I Cook Foods that tested that positive for Listeria but were different strains

• that I Cook Foods was the only premises where Listeria was detected

• that the strain of Listeria detected in I Cook Foods’ samples linked to Ms Painter’s Listeria had not been matched to any other isolates in Australia before or after.17

The Committees notes that the initial investigation into Listeria did not include an immediate investigation into Knox Private Hospital and its food safety protocols. The Environmental Health Unit at Knox City Council was not asked to investigate the matter until 21 February 2019, the day before the closure order for I Cook Foods was issued.

Throughout the Inquiry the Committee has sought to understand why this was the case. Moreover, the Committee wanted to understand what evidence the Department used to focus its investigation on I Cook Foods and to determine if this process was sufficient.

In supplementary evidence, Dr Angie Bone, Deputy Chief Health Officer at the Department of Health, described the evidence-gathering process which led the Department to focus its investigation on I Cook Foods. The Committee has summarised the steps taken by the Department in Box 2.1 below.

17 Professor Brett Sutton, Chief Health Officer, Department of Health and Human Services, Public hearing, Melbourne, 24 June 2020, Transcript of evidence, pp. 64–65.

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Chapter 2 Listeriosis investigation and outbreak management process

BOx 2.1: Department of Health’s immediate assessment of Ms Jean Painter’s Listeriosis

The following steps were taken by the Department of Health which led it to focusing its investigation on I Cook Foods:

1. Initial notification from Dorevitch Pathology of a positive Listeria case on 25 January 2019.

2. Dorevitch pathology sent the Microbiological Diagnostic Unit Public Health Laboratory the Listeria isolate detected in a human sample for further typing and genomic sequencing.

3. The Department of Health spoke to Ms Painter’s treating doctor at Knox Private Hospital to get a background history. The Department was informed:

a. Ms Painter entered hospital for abdominal symptoms on 13 January 2019.

b. Gastroenteritis from a foodborne source was excluded through a stool culture.

c. Medical information did not indicate that Ms Painter had Listeriosis on admission on 13 January.

4. The Department sought a four-week food history for Ms Painter. However, the Department was unable to interview Ms Painter personal due to her weakened condition. Instead, the Department obtained details through next-of-kin interviews with her daughter on 29 January 2019. Ms Painter’s daughter provided a food history.

5. The Department contacted the Infection Control Nurse at Knox Private Hospital via phone. During the call, the Department was informed that:

a. Ms Painter was on a full ward diet from 13 to 23 January 2019.

b. There were no formal records of what Ms Painter ordered but that the hospital’s Menu Monitor was personally familiar with her ordering preferences. The Menu Monitor indicated that Ms Painter preferred cooked meals or ham and cheese or assorted sandwiches.

c. The sandwiches were prepared by I Cook Foods.

d. Knox Private Hospital’s kitchen did not do anything with the food received from I Cook Foods other than serve it to patients, except for re-heating on occasion.

Continued

22 Legislative Council Legal and Social Issues Committee

Chapter 2 Listeriosis investigation and outbreak management process

BOx 2.1: Continued

6. Based on its initial assessment at Knox Private Hospital, the Department asked Manningham City Council and the City of Greater Dandenong to take food samples and environmental swabs from several sources in order to find the source of the Listeria. Sources included:

a. I Cook Foods (Dandenong)

b. Aveo Domainé retirement village (Manningham)

c. Coles (Manningham)

d. Woolworths (Manningham)

e. Mirabella Bros grocer (Manningham).

Source: Dr Angie Bone, Deputy Chief Health Officer, Department of Health, Opening Statement to the Committee, supplementary evidence received 2 September 2021, pp. 2–4.

Dr Bone told the Committee that:

Of all of the samples taken by the respective local councils at each of these sites, no listeria was detected in any of the samples taken - except for the food sampling which indicated Listeria monocytogenes in food from I Cook Foods. There had been suggestions that I Cook was unfairly targeted in the Department’s investigation and this is plainly untrue. Several potential sources of listeria were identified from both during and prior to the hospitalisation of the patient. We follow the evidence and each of these sources were investigated. It was only once I Cook returned positive results for listeria that the focus turned to I Cook.18

At a public hearing on 2 September 2021, Professor Brett Sutton19 explained to the Committee why initial testing results led the Department to focus its investigation on I Cook Foods:

The results for food and environmental samples from Coles, Woolworths, Mirabella Bros and Aveo Domaine retirement village were all negative for Listeria. However, at the time of issuing the closure order Listeria species had been detected in seven food samples at I Cook Foods premises. Six of these had grown Listeria monocytogenes, the organism responsible for invasive listeriosis, and four of these had grown Listeria monocytogenes that had the same molecular serotype and the same binary type as that found in the patient. It was later shown that Listeria isolated from these four foods had exactly the same genetic sequence—or fingerprint if you like—as each other and that it was a very close match to the strain found in the patient, providing strong evidence of a link between I Cook Foods and the patient. Indeed this strain of Listeria with this particular genetic sequence has not been matched to any other isolates in Australia before or

18 Dr Angie Bone, Deputy Chief Health Officer, Department of Health, Opening Statement to the Committee, supplementary evidence received 2 September 2021, p. 4.

19 At the time of the investigation and closure of I Cook Foods in February 2019 Professor Sutton was Acting Chief Health Officer.

23Inquiry into the closure of I Cook Foods Pty Ltd: Second report

Chapter 2 Listeriosis investigation and outbreak management process

after this event, so there is really no other reasonable explanation that the source of the patient’s infection was anything other than I Cook Foods.20

2.6.1 Knox City Council’s inspection at Knox Private Hospital

The Committee acknowledges that the decision to focus the investigation on I Cook Foods was based on the results of Listeria testing undertaken at food premises attended by Ms Painter. However, it believes that the decision to not request that an Environmental Health Officer inspect Knox Private Hospital until the end of the investigation period into I Cook Foods was a considerable shortcoming in the process.

Mr Ian Cook, Director of I Cook Foods, queried the decision to not investigate the hospital straight away. He believed that the hospital should have been investigated early on, especially given that it has its own food service and kitchen:

That is a very good question: why did they come directly to us? Why did they never inspect the hospital straightaway? It was known that the hospital had its own food service and produced its own products as well from ingredients it purchased in elsewhere. It seems very strange to me that they would home in on just us.21

Dr Angie Bone from the Department of Health explained that the request for Knox City Council to investigate the hospital on 21 February 2019 was done for ‘completeness’. She told the Committee that:

[The Department] were focusing down on I Cook Foods because we were following the evidence, but we wanted to contact Knox city hospital to just also understand how they were handling I Cook Foods once it had arrived, because we wanted to ensure that they were not mishandling, for example, the food once it had arrived and we wanted to understand more about which patients received what foods. So that was really why we made contact with Knox City Council. We wanted to look at the food safety program and food safety audit as well for completeness there. That was the reason. But it was not something that we needed to do right at the very beginning. I know there was talk about this delay, and I think that was because there was confusion about whether this was a single case of gastroenteritis procedure or a listeriosis procedure.22

Mr Ray Christy, a former Environmental Health Officer for Knox City Council, was the officer responsible for visiting the hospital and conducting a food safety assessment. At a public hearing, he explained the instructions Knox City Council received from the Department. He described the communication and instruction from the Department as follows:

• Mr Christy’s coordinator received a phone call from the Food Safety Unit at the Department of Health.

20 Professor Brett Sutton, Chief Health Officer, Department of Health, Public hearing, Melbourne, 2 September 2021, Transcript of evidence, p. 11.

21 Mr Ian Cook, Director, I Cook Foods, Public hearing, Melbourne, 25 August 2021, Transcript of evidence, p. 32.

22 Dr Angie Bone, Deputy Chief Health Officer, Department of Health, Public hearing, Melbourne, 2 September 2021, Transcript of evidence, p. 23.

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• The coordinator was provided verbal instructions to:

– inspect Knox Private Hospital’s kitchen

– gather information on I Cook Foods

– gather information on the hospital’s food processes and procedures.

• Mr Christy’s coordinator provided him a one-page handwritten document based on the phone conversation with the Department and instructed him to visit the hospital.23

Mr Christy stated that neither he nor his coordinator received formal written instructions from the Department of Health. This meant that he and Knox City Council relied on notes taken from a phone conversation to undertake an inspection of Knox Private Hospital. The Committee has found that this led to considerable confusion about the scope and proper process for the investigation.

Food safety investigations can vary in process depending on the scope and type of issue being investigated. Variations can include which regulatory authority has jurisdiction, the process undertaken, and the information required to make a determination. Food safety issues can cause significant risks to public health, so investigations need to be conducted thoroughly and efficiently to identify the appropriate course of action needed to investigate and mitigate risks.

The Committee is concerned that communication breakdowns and a lack of formalised reporting processes led to confusion amongst officers involved in investigating the source of Listeria detected at Knox Private Hospital. This was reflected in the conflicting evidence the Committee received about what the appropriate investigation process is for Listeriosis.

The evidence provided by Mr Christy discussed the process involved for investigating cases of gastroenteritis which differs slightly from a Listeriosis investigation. Local councils have a responsibility to undertake or assist in investigating foodborne illnesses when it is detected in their jurisdiction. A council is responsible for undertaking investigations for single incidents and outbreaks of gastroenteritis, with the support of the Department of Health and other relevant agencies.24

The Department of Health’s request for Knox City Council to undertake an inspection at Knox Private Hospital was solely related to the investigation into the source of the Listeria infection. Listeriosis investigations are coordinated by the Department of Health which may request assistance from local councils.25

23 Ray Christy, Public hearing, Melbourne, 25 August 2021, Transcript of evidence, p. 2.

24 Department of Health and Human Services, Guidelines for the investigation of gastroenteritis.

25 Ibid., p. 19.

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Mr Christy explained that for single incident gastroenteritis cases the Department of Health usually forwards a referral in writing for investigation to the relevant local council:

This is done on a specific prefilled referral form and is usually sent to the relevant council via email by the regional public health officer—in the case of Knox City Council, from the north-east Hume region based in Box Hill. The referral is usually sent to the council where the case lives, so the person who was diagnosed with the gastro. Communicable diseases prevention and control at the Department of Health will also occasionally contact council directly in relation to outbreaks in single-case gastro incidents.26

Under the Guidelines for the investigation of gastroenteritis developed by the Department of Health, all cases of food or water borne illnesses are referred to the relevant local council for investigation.27 The Committee notes that on 16 January 2019, Ms Jean Painter was diagnosed with gastroenteritis. However, Ms Painter’s case of gastroenteritis was never referred for investigation because a foodborne source was excluded.28

Mr Christy believed that it was insufficient for the Department of Health to request an inspection from Knox City Council until four weeks after the Listeria notification. The time elapsed between the initial notification and the Council inspecting the hospital meant important evidence was no longer available, such as food samples or the patient’s four-day food history. He recommended to the Committee that the referral process could be improved so that local councils are asked to investigate in a more timely fashion after a food safety incident.29

Mr Christy also told the Committee that the lack of detail from the Department was a barrier to his investigation:

I was given the impression at the time that she had died from listeriosis. I was also provided very limited information on the patient. The only information I had was her age and the date of the positive diagnosis for Listeria, being 25 January 2019. I did not have her name, address, treating doctor or any other identifying information that is usually provided if there was a regular formal referral, as I mentioned earlier. At the time I thought this was a bit unusual, knowing that the department of health and councils are permitted to collaborate and cooperate with each other while keeping sensitive information confidential. I found the lack of detail in the request an obstacle for a proper investigation, as this information assists in acquiring the necessary evidence for the preparation of a report to determine a cause of the gastroenteritis.30

At a public hearing, Dr Bone explained that the information provided to local council differs between gastroenteritis and Listeriosis investigations:

26 Ray Christy, Transcript of evidence, p. 2.

27 Department of Health and Human Services, Guidelines for the investigation of gastroenteritis, p. 20.

28 Dr Angie Bone, Transcript of evidence, p. 2.

29 Ray Christy, Transcript of evidence, p. 4.

30 Ibid., p. 2.

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Gastroenteritis cases are about 100 times more common—probably more—than listeriosis, and the investigation of a single gastroenteritis case is usually much more straightforward. There is a shorter incubation period for pathogens, and it is much easier to get a food history in that situation. As such, single cases of gastroenteritis are usually referred by the department to council to interview the patient in question and follow up any risk factors. In order to do that councils are provided with the case’s personal details. However, in cases of listeriosis, such as this one, the patient and their next of kin are interviewed by the department, and it would not be usual for us to pass details on to the council.31

In the Committee’s view, the Department of Health should have requested Knox City Council’s assistance with its investigation earlier in the process. The Council was not asked to inspect Knox Private Hospital until 21 February 2019. At this stage, the closure order was already being drafted and due to be issued the following day. This allowed no time for the findings of the Knox Private Hospital inspection to be properly considered by the Department. The findings of the Knox Report are discussed further in Section 2.8.2 below.

Further, the four-week time lapse between the initial notification of Listeria and the request for an inspection at the hospital meant some evidence was not available to Knox City Council and could not be considered in its findings. In particular, Knox City Council was unable to undertake any food sampling or obtain a four-day food history of Ms Painter. Given the significant public health risk Listeria can pose, it is important that investigations gather as much evidence as possible to allow for proper risk mitigation.

The Committee also found that poor communication protocols led to some confusion about the scope and focus of the investigation. In its first report, the Committee similarly noted a lack of clear processes in the Department of Health’s communications with the City of Greater Dandenong and I Cook Foods. The Committee believes this was also the case with Knox City Council.

The Committee reiterates a relevant Finding and Recommendation it made in the first report:

Finding 9: Robust and uniform communication processes are necessary in the area of food safety given the crucial and sometimes urgent need to protect public safety.

Recommendation 13: That the Food Act 1984 be amended to reflect the modernisation of communication and reporting to support the timely completion of reporting.

Source: Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods, August 2020, pp. 28, 40.

31 Dr Angie Bone, Transcript of evidence, p. 12.

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2.7 Investigation

Cases of notifiable diseases and microorganisms such as Listeriosis are always investigated by the Department of Health, regardless of relevant local council or regulatory authority.32 During the investigation of these diseases and microorganisms, the Department of Health may seek the assistance of the relevant local council’s environmental health officers to:

• conduct food sampling

• conduct environmental site inspections

• undertake risk assessments of food businesses

• supervise cleaning operations.33

2.7.1 Role of the Department of Health in Listeriosis investigations

The investigation of cases or outbreaks of Listeriosis are coordinated by the Department of Health, with assistance from local councils if required. As such there are no publicly available guidance documents describing the investigation process as there are for investigations handled by environmental health officers.34

32 Department of Health and Human Services, Guidelines for the investigation of gastroenteritis, p. 15.

33 Department of Health, Protocol for the investigation of cases of Listeriosis, 2017; Department of Health and Human Services, Guidelines for the investigation of gastroenteritis.

34 As part of its statutory responsibility to promote the consistent application of the Food Act, the Department of Health publishes a range of guidance documents for use by Environmental Health Officers investigating possible breaches of the Food Act. For example, Department of Health, The Guidelines for the investigation of gastroenteritis for Environmental Health Officers, 2018, <https://www2.health.vic.gov.au/about/publications/researchandreports/guidelines-for-investigation- gastroenteritis-for-environmental-health-officers> accessed 5 September 2021.

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However, the Committee received a copy of the Department’s internal Listeriosis Protocol which outlined the process for investigating cases of Listeria. The Protocol provided an overview of investigation measures for Listeriosis. These include:

• interviewing the notifying doctor to obtain a medical history

• interviewing the patient or next of kin to obtain a food history or confirm any other details not provided by the notifying doctor

• if the case is a resident in an aged care facility or inpatient at hospital:

– assessing if other residents or inpatients are showing symptoms of Listeriosis

– reviewing the patient’s food history to identify any high-risk foods for Listeriosis

– if Listeria monocytogenes is detected in food prepared or served at the facility, the local council should supervise discarding of the food and a Listeriosis clean-up

• if high risk foods are identified, testing any available suspected foods from the implicated food premises and/or place of infection

• undertaking further sampling and/or environmental swabbing if Listeria monocytogenes is detected in a food sample

• liaising with environmental health officers from the premises’ local government area to inspect implicated premises, including food businesses, patient’s residence or aged-care facility (however, if the patient contracted Listeria in a healthcare facility the infection control consultant will generally undertake any inspection)

• assessing the possibility of common-source outbreaks if there is a cluster of cases

• if a food product or premises tests positive for Listeria, food may be recalled and/or the premises will be requested to undertake any necessary clean-up.35

2.7.2 Role of local councils and environmental health officers

Under the Food Act, local councils are responsible for the day-to-day regulation of all food businesses that are located in their municipal district. This excludes those licensed by PrimeSafe (which regulates meat, poultry and seafood businesses) or Dairy Food Safety Victoria (which regulates dairy businesses).36 For temporary or mobile food premises37 and food vending machines, the registration authority is the local council of the municipal district where the principal premises of the food business is operating, rather than where the vending machine or mobile premises is located.38

35 Department of Health, Protocol for the investigation of cases of Listeriosis.

36 Agriculture Victoria, Victoria’s Food Safety Regulatory Framework, <https://agriculture.vic.gov.au/biosecurity/food-safety/ victorias-food-safety-regulatory-framework> accessed 3 September 2021; Food Act 1984 (Vic) s 35.

37 For example, a food truck.

38 Food Act 1984 (Vic) s 35(2).

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Under s 58A of the Food Act, local council staff may be delegated the following powers and discretions:

• the power to issue an order39 (other than power to close a business,40 preventing a business from handling food,41 or preventing a business from using specific equipment in relation to food preparation or sale42)

• the power to classify food premises43

• the power to register food businesses44

• the power to cause legal proceedings to commence against an appropriate individual.45

Local councils employ environmental health officers to undertake functions under the Food Act and monitor food safety. They are authorised to:

• enter a food premises at any time without permission

• request evidence that correct food safety training has been performed

• take samples for any area of a food premises

• issue infringement notices and fines.46

Although the Department of Health promotes consistency in food regulation, each local council determines its own processes and resourcing levels for food regulatory activities. As such, approaches to food safety may vary from council to council.

This has led the Victorian Auditor-General’s Office to propose a possible audit of food safety regulation in local government as part of its 2023–24 forward work plan. This audit proposes to examine the Department of Health and a select group of local councils to assess whether local councils are effectively fulfilling their legislated roles as food safety regulators.47

The Committee believes this audit should be undertaken to clarify the roles of relevant authorities in food safety investigations and to analyse whether local councils are fulfilling their duties under the Food Act.

39 Ibid., pt 3.

40 Ibid., s 19 (3).

41 Ibid., s 19AA(4)a.

42 Ibid., s 19AA(4)b.

43 Ibid., pt 3B.

44 Ibid., pt 6.

45 Ibid., s 46(5).

46 Australian Institute of Food Safety, Food Safety Laws & Legislation Victoria,, <https://www.foodsafety.com.au/laws- requirements/location/victoria> accessed 3 September 2021.

47 Victorian Auditor-General’s Office, Food Safety regulation in local government, <https://www.audit.vic.gov.au/report/food- safety-regulation-local-government> accessed 3 September 2021; Victorian Auditor-General’s Office, Annual Plan 2021–22, <https://www.audit.vic.gov.au/report/annual-plan-2021-22> accessed 3 September 2021.

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• the guidance resources, training and advice provided by the Department of Health to councils to promote the consistent administration of the Food Act 1984 (Vic)

• whether local councils are consistently complying with their legislative responsibilities to support good food safety and public health outcomes.

2.8 Investigation into the source of Listeria monocytogenes

As discussed in the first report, the basis for focusing the investigation into I Cook Foods was due to Listeria monocytogenes strains detected in four food samples taken from the caterer which were ‘possibly related’ to the human sample. This is consistent with the requirements of the Public Health and Wellbeing Act, as discussed previously in Section 2.3.2.

Appendix C provides a detailed timeline of events for the entire investigation into I Cook Foods. It includes details about the inspections and actions undertaken by the Department of Health and the City of Greater Dandenong.

In its first report, the Committee found that the investigative process undertaken by the Department and City of Greater Dandenong did not serve I Cook Foods well and identified several areas where the food safety framework should be improved.

Regarding the Department of Health’s handling of the I Cook Foods investigation, the first report found:

• a need for uniform processes for the early identification of health risks, particularly for Listeria

• that the regulatory framework for food safety management needed to be reviewed by the Victorian Government

• shortcomings in the Department of Health’s notification processes which resulted in I Cook Foods clients being notified of the closure order before it was issued to the business

• that the Department of Health needed to update its processes for communication and reporting so that it is modernised and formalised.48

48 Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods Pty Ltd, August 2020.

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The Committee notes that the Department’s investigation into the source of Listeria commenced on 29 January 2019. However, it was not until 18 February 2019 that the Department directed the City of Greater Dandenong to inspect the I Cook Foods premises due to the positive detection of Listeria in environmental swabs taken on 1 February 2019.

At a public hearing, Professor Sutton stated that the Department was informed that I Cook Foods prepared approximately 7,000 meals per week.49 The Committee notes that I Cook Foods continued production up until the closure order was issued on 22 February 2019.

2.8.1 Treatment of I Cook Foods

The Committee heard concerns that the treatment of the I Cook Foods investigation differed from the Department of Health’s handling of other Listeria investigations.

At a public hearing, Mr Ian Cook discussed a Listeria investigation undertaken around July 2021. He noted the Department handled it differently compared to the investigation into I Cook Foods. Mr Cook explained that the business was not issued a closure order despite being linked to the Listeriosis-related death of an elderly man.

At a public hearing on 25 August 2021, he discussed the differences in the Department of Health’s approach to the recent investigation compared to his in 2019:

A total of five swabs tested positive for Listeria mono, with at least two different genome sequences. So what happened? Did Dr Brett Sutton do a press conference naming and destroying this business? Were 96 false charges laid against this business and its owner? Did the state government spend the next two years lying about this business? No, none of these things happened to the second business. Instead, the owner of this second business was recently contacted by their local environmental health officer and told, ‘Case closed. No more investigation’. Now, the business did actually provide a meal to the elderly man that contained Listeria.

…

if you have a look at what happened in this most recent case that I outlined before for you, that is the way it should be handled. As your two other witnesses this morning have both told you: 24 hours, do a Listeria clean-down, everything is fine. You can do it over the weekend; you do not even need to shut someone.50

When questioned about why the 2021 case was handled differently to the I Cook Foods investigation, Deputy Chief Health Officer Dr Angie Bone stated:

There was a different genetic sequence of the Listeria in the case to those isolates from the company, so that means that there was another source. The second thing is that

49 Professor Brett Sutton, Transcript of evidence, p. 11.

50 Mr Ian Cook, Transcript of evidence, pp. 31, 40.

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whilst there were some minor shortcomings in this company, just like there always are, they were nothing to the scale of the shortcomings from I Cook Foods.51

The Committee does not have enough information about the circumstances of the investigation undertaken by the Department into the other case of Listeria to make any determinations. Furthermore, it believes that this issue is outside the scope and remit of this Inquiry. However, the Committee believes that it is incumbent on all relevant authorities to ensure that they are conducting food safety investigations in a fair and consistent manner.

2.8.2 The inspection at Knox Private Hospital

As stated in Section 2.6, the Department of Health requested that Knox City Council conduct an inspection and food safety assessment at Knox Private Hospital on 21 February 2019. This request was made over four weeks after the Department received the Listeria notification from the hospital and commenced its investigations. According to the Department’s instructions, the purpose of the inspection was to:

• inspect Knox Private Hospital’s kitchen and food safety processes

• gather information on the hospital’s processes around receiving and handling food from I Cook Foods.

Mr Christy was the environmental health officer responsible for conducting the inspection on behalf of the Council. He attended Knox Private Hospital at 2.30 pm on 21 February 2019.

The Committee heard that no food sampling or environmental swabbing was taken from Knox Private Hospital in the immediate aftermath of the Listeria notification. Knox City Council’s investigation—four weeks after the initial notification—was the first time the hospital was investigated by the Council in relation to Ms Painter’s Listeriosis.

At a public hearing on 17 June 2020, Mr Cook noted the lack of sampling or swabbing at the hospital, stating:

Knox Private Hospital was not investigated, and there was no sampling or swabbing even though the hospital produces sandwiches for the patients in house with the same ingredients that I Cook Foods uses. Healthscope, who run the hospital, have written a letter to I Cook Foods stating categorically, and I quote:

… there is no evidence of what food products the patient ate at our client’s facility, if any. It is also unclear at what location the patient may have consumed any food products which contained Listeria.52

At a public hearing on 25 August 2021, Mr Cook reiterated he still did not understand the Department’s decision not to inspect the hospital at the beginning of its

51 Dr Angie Bone, Transcript of evidence, p. 19.

52 Mr Ian Cook, Director, I Cook Foods, Public hearing, Melbourne, 17 June 2020, Transcript of evidence, p. 3.

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investigation. In particular he noted that Knox Private Hospital has its own kitchen and food service.53

Ms Sally Atkinson from the Department of Health explained that the Department did not request swabs or samples from Knox Private Hospital because it believed there was minimal risk of contamination. She said:

[the Department] had been indicated that the foods that were brought in from I Cook came in sealed, and so the risk of contamination at Knox Private was pretty minimal because they already came in presealed and ready to serve—things like that. So in a normal investigation where food is already sealed and just served straight to the patient, in this instance we then go straight to the manufacturer of the food because there has been no ability to cross contaminate or anything with that food at that time.54

The Committee notes that on 26 February 2019—4 days after the closure order was issued—environmental samples were taken at Knox Private Hospital.

The Department of Health provided the Committee a table outlining the results of food sampling and environmental swabbing undertaken as part of its Listeriosis investigation. The table indicated that 14 environmental samples were taken from the hospital and results were received on 5 March 2019. No Listeria was detected in any of the environmental samples. Appendix H provides a copy of the table of results of food sampling and environmental swabbing.

At 10.34 am on 22 February 2019, Mr Christy emailed his report and findings to the Department of Health. On the same day, I Cook Foods was served with a closure order under the Food Act by City of Greater Dandenong officers. The closure order was signed by then Acting Chief Health Officer Professor Brett Sutton at 4.00 am on 21 February 2019.

The Knox Report55 found that:

• Ms Jean Painter was on a soft diet during her stay at Knox Private Hospital

• sandwiches for soft diets are prepared in-house at Knox Private Hospital, not supplied by I Cook Foods

• soft diet desserts were prepared by other food providers, not I Cook Foods

• soft diet soups were prepared by I Cook Foods.56

The findings of the Knox Report contradicted other evidence that Ms Painter consumed the ham and corned beef sandwiches supplied by I Cook Foods which were found to contain Listeria monocytogenes. The Committee sought to clarify this and if it compromised the findings of the first report.

53 Mr Ian Cook, Transcript of evidence, p. 32.

54 Ms Sally Atkinson, Department of Health, Public hearing, Melbourne, 2 September 2021, Transcript of evidence, p. 23.

55 Knox City Council, Emails provided by Knox City Council (Knox Report), supplementary evidence received 11 August 2021.

56 Ibid.

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The daughters of Ms Painter, Mrs Jo Woodstock and Ms Fiona Wharry, spoke to the Committee about what they witnessed during their mother’s stay at Knox Private Hospital. Mrs Woodstock told the Committee she had observed her mother eating sandwiches up until her diagnosis with Listeria, after which she was placed on a soft diet:

From her admission date up until her deterioration on or about 24 January, she was conscious and ate normal hospital food, including sandwiches on several occasions, which she both enjoyed and on one occasion did not. As previously stated, her consumption of these sandwiches was witnessed by me, my sister Fiona and my eldest son, and at no stage between these dates was she placed on a soft-food diet. The soft-food diet did not commence until she had been diagnosed with Listeria, which was on or about 25 January. The diet was given because her state of consciousness became a thing of change from that date, and the fear of her choking became the driving force for this diet change.57

The Department of Health acknowledged that the findings of the Knox Report contradicted advice they initially received from Knox Private Hospital. At a public hearing on 2 September 2021, Professor Sutton stated:

The information supplied by Mr Christy that the patient was on a soft diet contradicted the advice obtained by the department directly from a member of the infection control team at Knox Private Hospital with respect to that first admission after conferring with the ward’s menu monitor, who confirmed the patient was on a full ward diet for the period 13 January to 23 January 2019. That is just prior to her being diagnosed with listeriosis. Even if the patient may have been on a soft diet for one or more days in that time, the overwhelming evidence of the presence of Listeria in I Cook Foods samples being so closely related to that from the patient would suggest that she had come into contact with food originating from I Cook Foods regardless of other potential diets during her days in hospital.58

Dr Bone explained that the Department reached out to Knox Private Hospital directly to clarify the contradictions, she explained:

there was a suggestion of a soft diet and that some of the soft diet items were made in the hospital. When we followed that up we were told again that it was a full diet, and I had understood from the team—and that may be my misunderstanding—that it had also been discounted, that not only was she not on a soft diet but that the food was not supplied by the hospital.59

The Committee notes that the Knox Report does confirm that Ms Painter was on a soft diet, however it does not specify any dates or timeframes. In the initial email to the Department sent at 10.34 am, the Report states that ‘the patient in question was more than likely on the hospital’s soft diet’.60 This was confirmed by Mr Christy in an

57 Mrs Jo Woodstock, Public hearing, Melbourne, 2 September 2021, Transcript of evidence, p. 2.

58 Professor Brett Sutton, Transcript of evidence, p. 12.

59 Dr Angie Bone, Transcript of evidence, p. 25.

60 Knox City Council, Emails provided by Knox City Council (Knox Report).

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email sent to the Department at 12.42 pm following a second visit to the hospital at the request of the Department.61 The second visit occurred on 22 February 2019 after the closure order was issued to I Cook Foods.

During the Committee’s initial investigations, it received a copy of an email from Healthcare Infection Control Management Resources, an Australian provider of infection prevention and control services. The email was sent to the Department of Health on 29 January 2019 and based on consultation with Knox Private Hospital indicated that:

• I Cook Foods was the sole food provider for Knox Private Hospital

• Ms Painter ate sandwiches and that I Cook Foods supplied the hospital’s sandwiches

• any food that had a ‘potentially high risk’ for Listeria was provided by I Cook Foods.62

On 31 January 2019, the Department of Health directed the City of Greater Dandenong to undertake environmental swabbing at the I Cook Foods premises. The Committee notes that Manningham City Council was also directed to undertake environmental swabbing at several locations, including:

• Aveo Domainé Retirement Village

• Turnstall Square Coles

• The Pines Woolworths

• Mirabella Bros grocer.

Appendix C provides a timeline of events.

The assertion that I Cook Foods was the sole caterer for Knox Private Hospital was contradicted in the Knox Report. As noted above, the Knox Report noted there were several companies which supplied food to Knox Private Hospital, in addition to I Cook Foods. This contradicted initial evidence from Department of Health officials who stated that I Cook Foods was the sole caterer for the hospital. Chapter 3 considers the implications of this contradiction and whether the Committee was misled.

No other food suppliers to Knox Private Hospital were investigated in relation to the Listeriosis investigation nor were any food samples taken from Knox Private Hospital. In the Committee’s view, the investigation should have included an inspection of Knox Private Hospital by an environmental health officer at the time of the initial notification.

This would have ensured a more thorough approach to the investigation. It also would have allowed for additional precautionary measures—such as more extensive Listeria testing—to be undertaken to better protect public health risks and mitigate them more efficiently.

61 Ibid.

62 Department of Health, Emails provided by the Department of Health, supplementary evidence received 2 September 2021.

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FINDING 4: I Cook Foods was not the sole food caterer to Knox Private Hospital as was asserted by Department of Health officials at a public hearing on 24 June 2020.

2.8.3 City of Greater Dandenong’s handling of its investigation into I Cook Foods

As explained in Section 2.7.2, the Department of Health is ultimately responsible for investigating cases of Listeriosis. Local councils, or other regulatory authorities, can be asked by the Department to assist in its investigation.

During the investigation into I Cook Foods, the Environmental Health Unit at the City of Greater Dandenong undertook several activities on direction of the Department, including:

• collecting food and environmental samples for testing

• conducting inspections at the I Cook Foods premises

• attending the I Cook Foods premises to verify if corrective actions were being taken on the advice as requested

• issuing the closure order to I Cook Foods.

A timeline of events outlining the inspections conducted by the City of Greater Dandenong at I Cook Foods is provided in Appendix C.

The Committee’s first report examined the City of Greater Dandenong’s handling of the I Cook Foods investigation in detail. It made a number of findings and recommendations to address the shortcomings identified.

Regarding the City of Greater Dandenong’s approach to investigating I Cook Foods, the Committee found:

• inconsistent and ad hoc approaches to reporting, monitoring and following up of food safety matters

• inappropriate reporting practices and an absence of formal record keeping for inspections, incidents and findings

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• the Council did not adequately fulfil its role as a responsible food safety regulator in respect to its management of I Cook Foods

• the Council did not ensure that prior food safety issues identified at I Cook Foods were properly addressed in line with food safety management processes and did not adequately communicate issues to the business as they arose

• the abrupt escalation of food safety issues identified at I Cook Foods indicated deficiencies in the process and access to procedural fairness.63

In this report, the Committee does not re-address all the issues raised related to the City of Greater Dandenong’s handling of the I Cook Foods investigation. Instead, it has focused on allegations of planted evidence and allegations of bullying and corruption.

The Committee has also examined the management of the conflict of interest arising from the Council’s and the Department’s commercial interest in rival food caterer Community Chef.

Allegations of planted, falsified and tampered evidence

Throughout the Committee’s Inquiry, it has heard allegations that evidence used to support the closure order was planted, tampered with or falsified. In his initial evidence to the Committee, Mr Ian Cook alleged that a slug found at I Cook Foods during an inspection conducted on 18 February 2019 was planted. He accused Ms Elizabeth Garlick, the Environmental Health Officer from City of Greater Dandenong who found the slug, of planting it. During his first appearance before the Committee, Mr Cook alleged:

The slug was not the worst example of the damaging criminal behaviour which occurred, but it seems to have been the easiest for people to remember—so let us start there. For safety reasons, I Cook Foods has a number of security cameras around our premises. These cameras were filming when City of Greater Dandenong inspector Elizabeth Garlick first came to our business. It seems Inspector Garlick was not aware that these cameras were on or that they were recording. These cameras, including her own body camera, recorded Inspector Garlick repeatedly planting and falsifying evidence. In one part of the recording she can be seen walking into the back left-hand corner of the I Cook Foods premises and spending 17 seconds hunched in that corner. Throughout the day, video shows that that area had been walked through by various staff 64 different times. No-one saw a slug. After 17 seconds crouched in the corner, Inspector Garlick rose to her feet and declared that she had found a slug at I Cook Foods. If this was true, I would have been the first to admit this and apologise. But it was not true.64

Following the tabling of the first report, Ms Kim Rogerson, a former Environmental Health Officer with the City of Greater Dandenong, also publicly accused Ms Garlick and other City of Greater Dandenong officers of planting the slug and tampering with other evidence.

63 Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods Pty Ltd, August 2020.

64 Mr Ian Cook, Transcript of evidence, p. 2.

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Ms Rogerson spoke to the Committee about her allegations and explained events she witnessed which led her to believe that evidence from the I Cook Foods investigation was tampered with. When asked if officers of the City of Greater Dandenong planted the slug at I Cook Foods, she responded ‘Yes’.65

In light of further allegations of planted evidence, the Committee again asked Ms Garlick whether she planted the slug, to which she responded ‘No’.66

Both Mr John Bennie, Chief Executive Officer and Ms Leanne Johnson, Coordinator of Public Health at the City of Greater Dandenong also denied that the slug was planted.67

Ms Rogerson further alleged that Ms Garlick and Ms Johnson edited the photo of the slug so that a small piece of tissue purportedly in Ms Garlick’s pocket was removed. She said:

In approximately mid-March to early April I was standing at my desk. The office is open plan to allow people to look across the entire floor. Garlick’s desk was directly behind mine and only approximately 2 metres away. I heard Garlick and Johnson speaking softly behind me. This was unusual and appeared sneaky. I found this suspicious and began looking over at them. I heard Johnson say something along the lines of, ‘Why is there a hold-up? Why is media and comms taking their time? Would you be able to do this?’. That was a question to Elizabeth Garlick. Garlick responded, ‘Yes, I would’. Johnson said, ‘Well, go and get it’. She was referring to a thumb drive. I saw Garlick’s computer screen, which had the image of a slug on the concrete flooring. In the lower left-hand side of the image were the remains of a white tissue. However, I could clearly distinguish the slug, tissue and floor. The slug would have been approximately 2 centimetres in length and the tissue evidence approximately 4 to 5 millimetres in length. There was only one individual piece of tissue. I know this picture was taken by Garlick on approximately 18 February 2019 from an inspection she undertook of I Cook … I The photo was open on her screen and I saw Garlick with a little red circle on the screen, which I believed to be some kind of cropping tool in the program. The red circle was around the tissue remnant like it was going to be removed from the picture. I asked Garlick and Johnson what they were doing. Johnson said, ‘Just cleaning it up and removing personal conversations’, which was the photos and video. I turned back to my desk and continued working.68

In respect to the allegations that images were edited, both Ms Johnson and Ms Garlick denied this occurred in the manner proposed by Ms Rogerson.

At a public hearing, Mr Bennie also denied that the photo of a slug taken during an inspection at I Cook Foods was doctored. He stated:

65 Ms Kim Rogerson, Public hearing, Melbourne, 25 August 2021, Transcript of evidence, p. 27.

66 Ms Elizabeth Garlick, Environmental Health Officer, City of Greater Dandenong, Public hearing, Melbourne, 1 September 2021, Transcript of evidence, p. 19.

67 Mr John Bennie, Chief Executive Officer, City of Greater Dandenong, Public hearing, Melbourne, 1 September 2021, Transcript of evidence, p. 2; Ms Leanne Johnson, Coordinator, Public Health, City of Greater Dandenong, Public hearing, Melbourne, 1 September 2021, Transcript of evidence, p. 14.

68 Ms Kim Rogerson, Transcript of evidence, p. 26.

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the allegation that a council officer edited tissue out of the photo is wrong. In the prosecution of I Cook council relied on five photos of the slug. Three of those photos clearly show the tissue that is alleged to have been edited out. The other two are taken too far from the slug to see the tissue, and that may be expected. Printed and digital copies of each of these photos were provided by council to I Cook’s former solicitors. Digital copies were also provided to the Magistrates Court in response to the witness summons served by I Cook on council in connection with a proceeding against the state. It is untenable to suggest that council doctored the photos but then provided undoctored photos to I Cook to support the charges against I Cook. Further, I Cook has or should have access to the original copies of photos provided by council to its solicitors that show the tissue. These photos are of a vastly different quality to the copy of the photo that has been bandied about in the media. The allegation that council staff doctored evidence is unfounded and false.69

Ms Rogerson also asserted that statements signed by her relating to the I Cook Foods investigation were actually written and edited by her superiors:

There were things I refused to have included in my statement, like the conversation at the meeting that I had with Ben that never took place. I never had a meeting with Ben Cook after I collected my samples. In the end I did sign a statement that others had contributed to, as I was scared I was going to be sacked and I felt I had no choice. Leanne knew of this, and she asked me to change some of the wording of that statement into my own words because Greg had written it in a different format.

…

So my statement was actually changed. There were four versions of it, and I have, I believe, three versions of it but I do not have the original first one. The Dandenong council would not give that to me after I left, so I only have the last three. As to whether the statements were changed because of influence from the CEO, I cannot answer that because the only people that had influence on my statement were Leanne Johnson and Greg Spicer at that time.70

Mr Bennie denied that any statements were altered or that Ms Rogerson was asked to lie in any statement. He further noted that:

when she first raised this allegation in the media, council self-reported to IBAC. IBAC referred the matter to the Ombudsman. The Ombudsman investigated the matter and found that there was no evidence to support the allegation.71

The allegations levelled against officials at the City of Greater Dandenong are very serious, amounting to claims of criminal conduct. As noted in the first report, the Committee is not in a position or equipped with the appropriate expertise to make any determinations regarding whether evidence has been planted, tampered with or falsified.

69 Mr John Bennie, Transcript of evidence, p. 2.

70 Ms Kim Rogerson, Transcript of evidence, pp. 17, 24.

71 Mr John Bennie, Transcript of evidence, p. 2.

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The Committee believes that for allegations of this nature, Victoria Police or other integrity bodies are better placed to conduct an investigation. At the time of writing, Victoria Police was investigating potential corruption or criminal conduct connected to the events surrounding the closure of I Cook Foods.72

FINDING 6: There is no specific guidance for environmental health officers on the use of body-worn cameras during inspections or guidelines for the use and retention of material captured.

Allegations of corruption and bullying

The Committee has also heard accusations of serious systemic cultural issues at the City of Greater Dandenong, broader than that which occurred in relation to I Cook Foods. At a public hearing on 25 August 2021, Ms Rogerson told the Committee:

I have been away from the City of Greater Dandenong for over two years now, and only now do I feel safe to say that Dandenong council operates under a culture of corruption and bullying.73

In its first report, the Committee noted that allegations of wrongdoing made by Ms Rogerson were referred to the Independent Broad-Based Anti-Corruption Commission (IBAC) on 9 May 2019. IBAC then referred the matter to the Victorian Ombudsman because the allegations did not fall within the meaning of a protected disclosure complaint.74 The referral to the Victorian Ombudsman asked them to consider the following three concerns raised by Ms Rogerson:

• officers from the City of Greater Dandenong pressured Ms Rogerson to falsify statements to ‘frame’ I Cook Foods

• when Ms Rogerson refused to falsify her statements, she was taken off normal duties

72 Richard Willingham and Tim Callanan, ‘Victoria police to probe corruption claims over slug saga that closed catering company’, ABC News, 23 April 2021, <https://www.abc.net.au/news/2021-04-23/victoria-police-probe-corruption-claims- over-slug-i-cook-foods/100089548> accessed 17 September 2021.

73 Ms Kim Rogerson, Transcript of evidence, p. 17.

74 Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods Pty Ltd, August 2020, p. 37.

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• the council’s Chief Executive Officer, Mr John Bennie, had a conflict of interest due to his board position with Community Chef.75

As part of its initial investigations, the Committee was provided correspondence between the Ombudsman and Ms Rogerson. The correspondence stated that the Ombudsman did not proceed with an investigation due to a lack of substantial evidence.76 The Committee found that:

Finding 15: The Ombudsman did not conduct an investigation into Ms Rogerson’s allegations on the basis that there was insufficient evidence to do so. This does not mean the Ombudsman was satisfied there was no wrongdoing by the City of Greater Dandenong.

Source: Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods Pty Ltd, August 2020, p. 38.

In her evidence to the Committee, Ms Rogerson also accused the City of Greater Dandenong of operating under a ‘culture of corruption and bullying’. When describing her relationship with the City of Greater Dandenong, she told the Committee that:

My relationship at the time with Dandenong when this all came out in the open was tenuous, because there was some bullying, some definite gaslighting. There were conversations and things that I was told that were not very nice in nature, to the end of which, after I had completed an investigation they wanted me to do, they then took me off my work.77

To support her accusations, Ms Rogerson accused the council of:

• exerting pressure on her to falsify statements

• in other instances, making other council officers alter statements

• falsifying, tampering and editing evidence.78

In response to Ms Rogerson’s allegations, Mr Bennie denied that there are systemic issues with corruption or bullying at the council. He refuted all the accusations by Ms Rogerson, both those generally and those specific to the I Cook Foods investigation:

according to Ms Rogerson council has a culture of corruption and bullying. This is completely untrue. The reference to ‘culture’ suggests some systematic embedding of corruption and bullying within the organisation. When asked to give examples of this, Ms Rogerson offered up nothing more than what she had previously told the committee and the media. Unsurprisingly, no evidence was given of any corruption or bullying beyond what she alleges she observed or experienced in relation to the closure of I Cook. Pressure to alter a statement—Ms Rogerson again alleged that she had been

75 Ibid., p. 185.

76 Ibid., p. 186.

77 Ms Kim Rogerson, Transcript of evidence, p. 25.

78 Ibid.

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asked to lie in a statement. There is absolutely no evidence that this is true. Nothing beyond a wild assertion has ever been provided by Ms Rogerson.

…

There was no conspiracy or collusion or understanding—call it what you like. The reality is that Ms Johnson and Ms Garlick knew next to nothing about Community Chef at the time that they carried out their functions as environmental health officers. I played no part in any of the things that they did. I gave them no instruction, no direction. No slug was planted. No images were doctored. It has always been council’s position that all of this is a diversion. Council has cooperated with Victoria Police in its investigation. This has included providing it with in excess of 2000 documents. If there is something rotten in Greater Dandenong, I would expect Victoria Police to find it and to take action.79

Mr Bennie also reiterated the outcome of the Ombudsman investigation. However, the Committee reaffirms that the Ombudsman’s decision not to investigate the matter does not mean the Ombudsman was satisfied there was no wrongdoing.

The allegations levelled at the City of Greater Dandenong, both in relation to I Cook Foods and more broadly, are very serious in nature. However, as was the case in the first report, the Committee is not in a position to make any findings of wrongdoing against the Council or specific officers in relation to these allegations.

2.8.4 Managing conflicts of interest

During the Committee’s initial investigations, it considered the issue of Mr Bennie’s conflict of interest in issuing a closure order to I Cook Foods due to his involvement in rival food catering company Community Chef. The Committee was told that Mr Bennie’s conflict of interest prevented him from signing the closure order. As a result, Professor Brett Sutton who was then Acting Chief Health Officer signed the order instead.

The Committee made the following Findings:

Finding 11: It is problematic for the chief executive officer of a local council to have conflicting interests within the same industry they are empowered to regulate.

Finding 12: While Community Chef did gain additional business following the closure of I Cook Foods Pty Ltd, the Committee could not determine if this was directly due to the position held by the Chief Executive Officer (CEO) of the City of Greater Dandenong on the Community Chef Board, or any untoward behaviour by the CEO or the City of Greater Dandenong, Community Chef or the Department of Health and Human Services.

Source: Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods Pty Ltd, August 2020, pp. 33, 35.

79 Ibid., pp. 2–3.

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In reopening the Inquiry, the Committee received further evidence about how the City of Greater Dandenong and its officers handled the conflict of interest more broadly. At a public hearing on 1 September 2021, Mr Bennie told the Committee that Ms Leanne Johnson and Ms Elizabeth Garlick ‘knew next to nothing about Community Chef at the time they carried out their functions as environmental health officers’.80

Mr Bennie also outlined what processes were in place to manage any actual or perceived conflicts of interest:

I guess managing perceived conflicts of interest is always a challenge. I guess the perception can be in the eye of the person who holds that perception, and sometimes that is extremely difficult to manage. We just need to deal with and manage matters to the best of our ability and try and address any perception if and when it arises. The key I believe is managing the conflict directly. As I said at the first inquiry, and I continue to maintain, one needs to be acutely aware of any conflict that they have, and I was, and to manage that to the best of one’s ability, and again, I believe that I consistently was. As I led in my evidence last time, that was about total exclusion from any parts of the process, including the initial part, the key part being the issuance of an order. I was unable to, I guess, issue that order given my conflict of interest. Hence Professor Sutton provided that under the powers that he holds. And from that point on, again, I separated myself from the process as much as possible.81

At the time of the Committee’s initial investigation, the Victorian Government had an in-principle agreement with all local councils with shares in Community Chef to acquire 100 per cent of their shares. The pending acquisition of Community Chef by the Victorian Government could be perceived as a conflict of interest in the closure of I Cook Foods.

At a public hearing on 2 September 2021, the Committee questioned representatives from the Department of Health on how it managed any potential conflicts arising from the Government’s interest in Community Chef throughout its investigation into I Cook Foods. Mr Greg Stenton, Deputy Secretary, Corporate Services at the Department of Health explained that the Department’s organisational structure separated its regulatory and policy and funding functions:

the organisation’s structure itself separates the regulatory functions of the department and the management of those from policy and funding decisions, so we have different divisions. There is a public health division which holds the regulatory functions. Policy decisions, particularly those around funding for Community Chef at the time, were in a separate division—an aged care branch in a separate division. The decision-making of those divisions in a policy sense, if we were taking a decision to provide funding to Community Chef or to acquire Community Chef, that would flow up through the management line to secretary or minister.

80 Mr John Bennie, Transcript of evidence, p. 2.

81 Ibid., p. 3.

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The regulatory functions … are statutory in nature and authorise [the Chief Health Officer] to take certain decisions and/or advise ministers and secretaries of risk-mitigation strategies, and they flow directly from the public health division.

So the two conversations never meet in terms of decision-making. They are separate and kept separate for that very reason—that the department is a funder of many services, some of which have regulatory intersections with public health.82

Mr Stenton was also asked what type of relationship the office of the Chief Health Officer had with Community Chef, he responded:

None, other than in the same way that Community Chef as a commercial provider would be subject to food regulation rules and in the same way that I Cook have inspections from local government and where there is an issue such as this one would be subject to Chief Health Officer directions. Community Chef would be the same.83

The Committee reiterates Recommendation 7 of the first report and calls on the Victorian Government to also review how departments manage any potential conflicts of interest between their regulatory and funding functions.

Recommendation 7: That the Government reviews the management of conflicts of interest where a local council is a shareholder in a business that it is authorised to regulate, and determines whether corresponding amendments to the Food Act 1984 are required.

Source: Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods Pty Ltd, August 2020, p. 33.

2.9 Closure of I Cook Foods

At 4.00 am on 22 February 2019, I Cook Foods was served a closure order signed by then Acting Chief Health Officer Professor Brett Sutton under his delegated authority under s 19 of the Food Act. The order stipulated that I Cook Foods was to immediately and temporarily cease production in order to rectify several food safety issues.

The order stipulated that I Cook Foods was required to meet several conditions before a revocation would be issued, including requirements to:

• destroy all short shelf-life or extended shelf-life food manufactured between 13 January 2019 to 22 February 2019

• provide the Food Safety Unit at the Department of Health with:

– evidence to validate the clean down of the premises and equipment conducted on 20 February 2019 in line with Australian Standard 4.2.3—Guidelines for management of Listeria

82 Mr Greg Stenton, Deputy Secretary, Corporate Services, Department of Health, Public hearing, Melbourne, 2 September 2021, Transcript of evidence, p. 24.

83 Ibid.

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– a sampling plan in line with Australian Standard 4.2.3 and its application to the company’s production processes

– evidence that the company has submitted all samples to an accredited laboratory for testing for the presence of Listeria, including Listeria monocytogenes

– evidence that any positive detections of Listeria monocytogenes isolates are sent to the Microbiological Diagnostic Unit Public Health Laboratory for genotyping

– a copy of an action plan on listeria management, including monitoring and relevant incorporations into the company’s food safety program.

On 23 February 2019, the Acting Chief Health Officer signed a variation to the closure order requiring further steps to be undertaken by I Cook Foods. This sought to assist in enabling food products with a lower risk to recommence production and related to the production of all:

• extended shelf-life food products

• pasteurised food products

• texture modified products

• pasteurised formed food products

• modified atmospheric packaging food products.

The additional steps directed to be undertaken for each food type were to:

• have a food safety auditor conduct an initial gap audit within 72 hours of the variation order and provide written confirmation to the Department of Health’s Food Safety Unit

• have a food safety auditor undertake a full food safety audit (post the initial gap audit) and provide written confirmation to the Food Safety Unit

• provide the Food Safety Unit with written confirmation that all staff and management of the company fully understand the revised production processes

• implement a microbiological test and hold program for each production batch before any product can be released

– if Listeria was detected the product could not be released, an investigation was to be conducted and corrective actions taken

• provide written confirmation from an industrial cleaning service that a satisfactory clean and sanitisation process has occurred for the production line of each food product type.

As noted in the Committee’s first report, the requirements under the closure order were routine measures that should have already been in place at I Cook Foods.84

84 Professor Brett Sutton, Transcript of evidence, p. 80.

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A copy of the closure order and variation order are provided in the Committee’s first report.85

Section 19 of the Food Act provides that the Secretary of the Department of Health or a local council may make written orders relating to food premises. This includes directing that the food premises is cleaned and sanitised, or that specific steps are taken to ensure food handling is safe and sanitary if it is satisfied that:

• a food premises is unclean, unsanitary or in a state of disrepair

• food being prepared at a food premises is unsafe or unsuitable

• food is being handled at a food premises in a manner which makes it likely that the food is unsafe or unsuitable.

The Secretary of the Department of Health and local councils may also order that a food premises not keep, handle, or use food until it is cleaned and sanitised. This may involve the food business remaining closed until it has met the requirements of the order. A closure order may be made as part of a cleaning order or in a separate order, subsequent to an initial cleaning order.86

An order takes effect as soon as it is provided to the proprietor of the food business and must be revoked when the Department or local council is satisfied that it has been complied with.87

Local councils may also issue orders in relation to individual food handlers if they are satisfied that a person is contravening the Act. Part 3 s 19B of the Food Act provides that a local council may, by written order, direct a person employed by a food business to do the following:

• put themselves and their clothing into a clean and sanitary state

• improve their food handling skills

• cease handling food until they have been cleared by a medical practitioner of health conditions which may render their handling of food unsafe.88

Any person aggrieved by an order may appeal to the Magistrates’ Court within 21 days of an order having been made.89

2.9.1 Delegated authority to issue a closure order

An ongoing point of contention amongst stakeholders was whether the Acting Chief Health Officer had the authority to issue a closure order under s 19 of the Food Act.

85 Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods Pty Ltd, August 2020, p. 49.

86 Food Act 1984 (Vic) s 19(3).

87 Ibid., s 19(5)–(6).

88 Ibid., s 19B.

89 Ibid., s 19BA.

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According to s 19 of the Food Act only a ‘relevant authority’ can issue a closure order to a food business. Prescribed relevant authorities under s 19 are:

• the Secretary of the Department of Health

• the local council which is the registration authority for the food business (the chief executive officer of the local council is listed specifically in s 19(9)(d))

• Dairy Food Safety Victoria and PrimeSafe for any premises where they are the licensing authority.90

The lack of explicit authority for a Chief Health Officer under s 19(9) of the Food Act has led to some confusion about whether it was within the powers of the Acting Chief Health Officer to sign the closure order for I Cook Foods. At a public hearing on 17 June 2020, Mr Paul Brady, a former Detective Sergeant with Victoria Police who appeared alongside Mr Cook, believed that the:

[CHO] is also not a relevant authority. He has no power. He has acted without power. Under section 19(9) the only one that can close Mr Cook’s food place down is the CEO of Dandenong, the secretary of DHHS and the Dandenong council—only those three. It is a means definition; it is exhaustive. Mr Sutton has no authority to close down that premise.91

However, at the time the closure order was made the Acting Chief Health Officer had been authorised by the Secretary to issue orders under s 19 of the Food Act through delegation of powers under s 19 of the Public Health and Wellbeing Act.

Under the Public Health and Wellbeing Act, the Secretary of the Department of Health can delegate ‘any power, duty or function’ under any Act held by the Secretary to any person employed under the Public Administration Act 2004 (Vic), including the Chief Health Officer. This includes delegation of powers under the Food Act, including to make closure orders under s 19.

Section 19 of the Public Health and Wellbeing Act prescribes that the Secretary may delegate ‘any power, duty or function of the Secretary under this or any other Act or under regulations … other than this power of delegation’ to:

• any employee or class of employees employed subject to pt 3 of the Public Administration Act

• any public authority or chief executive officer of a public authority

• any council or officer of a council.92

90 Ibid., s 19(9).

91 Mr Paul Brady, former detective sergeant, Victoria Police, Public hearing, Melbourne, 17 June 2020, Transcript of evidence, p. 9.

92 Public Health and Wellbeing Act 2008 (Vic), s 19.

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This power enables the Secretary to delegate the power to ‘order’ a food business to undertake cleaning or close its operations under s 19 of the Food Act to the Chief Health Officer.93

The Committee was provided a copy of the instrument of delegation signed by the Secretary which delegated s 19 powers under the Food Act to the Chief Health Officer. The instrument was signed on 6 May 2017 by then Department of Health and Human Services Secretary Kym Peake. It delegated a broad range of powers, functions and duties to the Chief Health Officer, including those prescribed in s 19 of the Food Act:

• the power to direct that premises be cleaned, or steps taken to ensure food is safe

• the power to direct the closure of food premises or restrict the purposes for which premises can be used

• the power to direct that a copy of an order be affixed to a premise, and/or published in a newspaper

• the duty to notify other registration authorities of an order made

• the duty to revoke an order if defects are remedied by the proprietor.94

As noted in the instrument of delegation, these powers have also been delegated to several other persons who are not explicitly prescribed in s 19(9) of the Food Act.

The Chief Health Officer has also been delegated emergency powers under s 44 of the Food Act. However, these powers are rarely used:

The powers and functions of the [Chief Health Officer] CHO, as delegated by the Secretary, are many and varied and include emergency powers under s. 44 of the Act. These emergency powers exist to prevent or reduce the possibility of a serious danger to public health and include the power to issue an order to mandate a food recall.

The CHO’s powers are rarely invoked by the department as local councils, being the regulators of food premises in Victoria, have the regulatory role and powers to enforce the Act, such as premises closure, seizure and the authority to prosecute.95

Under ss 189 and 190 of the Public Health and Wellbeing Act, the Chief Health Officer also has specific responsibilities in relation to risks to public health, which include outbreaks of foodborne illness. These powers include the closure of food businesses, requiring the provision of information and directing food business owners to take any action necessary to reduce the risk to public health.96

The Committee was told that a local council is usually the relevant authority to issue a closure order for a food business. In addition, orders are typically signed by the council’s

93 Kym Peake, Food Act 1984: Instrument of delegation, Department of Health and Human Services, 2017.

94 Ibid.

95 Department of Health, Victorian food regulation system: our statutory role, <https://www2.health.vic.gov.au/public-health/ food-safety/food-safety-laws-local-government-and-auditors/food-safety-laws-and-regulations/victorian-food-agencies/vic- food-regulation-system> accessed 3 September 2021.

96 Agriculture Victoria, Victorian food regulators’ Memorandum of Understanding.

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Chief Executive Officer. However, due to Mr Bennie’s conflict of interest arising from his board position on Community Chef, it was decided that it was more appropriate for the Acting Chief Health Officer to sign the order.

During his initial evidence to the Inquiry, Professor Brett Sutton who was Acting Chief Health Officer at the time explained the circumstances which led him to signing the closure order:

Under normal circumstances a closure order under section 19 of the Food Act would be issued by council as the regulator. On the evening of 21 February 2019 the Chief Executive Officer of the City of Greater Dandenong, Mr John Bennie, disclosed to me that he and council had a conflict of interest that prevented him from issuing the closure order. But in the interests of protecting vulnerable members of the community I therefore issued the order under the powers of the Food Act that have been delegated to me by the Secretary to the Department of Health and Human Services, an action permitted pursuant to section 19(9)(a) of the Food Act.97

The Committee is satisfied that the Acting Chief Health Officer had the appropriate delegated authority to issue the closure order to I Cook Foods. The instrument of delegation signed by the Secretary of the Department of Health and Human Services on 6 May 2017 authorised the Chief Health Officer to exercise powers under s 19 of the Food Act as a relevant authority prescribed for under s 19(9)(a).

2.9.2 Evidence relating to the closure order

As stated previously, a key reason the Committee resolved to reopen the Inquiry was to examine the Knox Report and how the Department of Health had considered that information in its investigations. The Committee sought to understand what relevance the findings of the Knox Report may have had on the closure of I Cook Foods, as well as question witnesses on why it was not raised during the Committee’s initial investigations.

The Committee found that the Knox Report likely would not have affected the closure of I Cook Foods for two key reasons:

• The report, and all related emails, were received after the closure order was issued to I Cook Foods:

– I Cook Foods was issued a closure order at 4.00 am on 22 February 2019; Mr Ray Christy began sending his findings to the Department of Health at

97 Professor Brett Sutton, Transcript of evidence, p. 64.

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around 10.30 am the same day. The Committee notes that the Department’s request for the inspection occurred prior to the issuing of the closure order (see Appendix C for a detailed timeline of events).

• The decision to close I Cook Foods was not based solely on the Listeria infection detected at Knox Private Hospital but several food safety issues identified in the subsequent investigations, such as:

– inadequate food handling and cleaning processes and practices

– concerns about the food safety skills and knowledge of staff

– damaged or deteriorated flooring and equipment

– concerns about potential cross-contamination due to equipment not being cleaned thoroughly and the close proximity of cleaning and food preparation areas

– water pooling on the floor in food preparation areas.

In his initial evidence to the Committee, Professor Sutton explained that he relied on the following four areas of information to determine if I Cook Foods should be issued a closure order:

• the investigation into the food eaten by Ms Jean Painter

• laboratory evidence of Listeria detected from food samples from I Cook Foods

• the condition of I Cook Foods premises and food safety processes

• general vulnerability of the community served by I Cook Foods.98

Professor Sutton told the Committee that these four factors created a ‘collective picture of public health risk’ which led him to the decision to close I Cook Foods:

This information was provided to me by several authorised officers over a number of days and in different formats—verbal, oral, emailed—which led me to consider that the food being prepared, sold or otherwise handled at I Cook Foods was unsafe or unsuitable. No one single piece of information was used in isolation to come to that decision. Rather, it was the collective picture of public health risk that I believed I Cook Foods’ continuing food production represented.99

During his second appearance before the Committee on 2 September 2021, Professor Sutton discussed the Knox Report stating:

With respect to [the Knox report] I would like to address two primary points: firstly, these emails postdate the making of the closure order and were therefore clearly not something that I could have taken into account and obviously did not take into account in the making of the closure order; and secondly, even if these emails had been brought

98 Ibid.

99 Ibid.

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to my attention at the time or shortly thereafter, they would not have changed my decision to issue the closure order.100

The Committee notes that both Professor Sutton and Dr Angie Bone stated they were unaware of the specific contents of the Knox Report until after the Committee’s first report had been tabled. This also contributed to the assertion from both witnesses in their initial evidence to the Inquiry that I Cook Foods was the sole caterer to Knox Private Hospital which contradicted the findings of the Knox Report. This issue is discussed further in Chapter 3.

However, Dr Bone was made aware of the Knox Report and its findings that Ms Painter was on a soft diet at some point during her hospital stay. In evidence to the Committee, she noted she was made aware of the emails on 22 February 2019 during an Incident Management Team meeting. Dr Bone summarised that these discussions led her and the team to believe that the Knox Report was not ‘as credible’ as the other information provided directly from Knox Private Hospital:

We discussed the Christy emails at our incident management team on 22 February, so the day after the very early morning when the closure order was issued. We considered them, but we also compared them with the other information that we had. We saw that he had said that it was more than likely first of all and then it was confirmed, but his information was not specific to the time period and did not say who had given him that information, and we had this whole host of other evidence from our discussions with the infection control nurse and from the discharge summary, all of which stated that the lady was on a full ward diet. And of course we had the information from the City of Greater Dandenong about concerns about food safety programs and practices, and we had the strongest evidence, which was the typing link and the genetic link between the Listeria in the case and the foods at I Cook Foods. So in the end we just decided that the information was not as credible as the other information that we had.101

Another issue raised during the Inquiry was the quality and breadth of evidence used to close I Cook Foods and whether it reached a sufficient standard to justify the closure. Mr Ray Christy, former Environmental Health Officer at Knox City Council, believed that before any serious actions are taken against a food business, an officer needs to prove ‘beyond a reasonable doubt’ that there is a risk. He told the Committee:

I can tell you now that when an environmental health officer investigates these types of matters, we must be absolutely certain and prove beyond a reasonable doubt before taking any serious action against the food business that there is evidence to actually confirm that that risk is present, and an appropriate course of action should be taken. In my experience as an environmental health officer, you would need several criteria and elements to be ticked off before you would be satisfied that you have a reasonable belief or belief beyond a reasonable doubt that that particular food business and that particular food has caused an illness in a person. What I am saying is that you cannot just rely on genome sequencing of the Listeria monocytogenes pathogen. An

100 Professor Brett Sutton, Transcript of evidence, p. 10.

101 Dr Angie Bone, Transcript of evidence, p. 13.

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Chapter 2 Listeriosis investigation and outbreak management process

officer would need to rely on evidence to suggest that the person actually ate the food allegedly given by that particular food company or food supplier. That is why I emphasised in my statement that you need a four-day food history and you need food samples and even environmental swabbing to further build your case of evidence, so you can prove it beyond a reasonable doubt. You cannot just have each individual criterion for obtaining evidence to paint an entire picture.102

However, the Department of Health explained that a closure order does not need to rely on evidence that proves beyond reasonable doubt that a food business or its practices may cause risks to the public. Rather, the Public Health and Wellbeing Act requires that relevant authorities uphold the ‘precautionary principle’ which prescribes that ‘full scientific certainty’ is not a reason to delay public health measures where a risk poses a serious threat. Box 2.2 below outlines the precautionary principle.

BOx 2.2: Precautionary principle

If a public health risk poses a serious threat, lack of full scientific certainty should not be used as a reason for postponing measures to prevent or control the public health risk.

Source: Public Health and Wellbeing Act 2008 (Vic) s 6.

When asked to explain what role the precautionary principle played in the decision to close I Cook Foods, Professor Sutton explained:

Obviously the lack of scientific certainty is one of those considerations against the potential severity of the public health risk. That includes the potential number of people who might be affected and indeed their risk of developing serious illness. And so those two factors were both at play here. There were 7000 meals produced and, as I said earlier, the overwhelming majority of those populations— patients in hospital, Meals on Wheels recipients and those in aged care settings—are particularly vulnerable to severe illness and a higher risk of dying, a higher risk of invasive listeriosis. And so it is the combination of those things that means that you should take action, because if you wait, for example, for a cluster of cases, then there might be several thousand individuals who have already been exposed to Listeria and their incubation period is yet to play out, and you cannot intervene to, for example, prevent them from becoming unwell if they have already consumed that food and if the incubation period is already playing through.103

The Committee acknowledges that if the Department had received findings relating to Ms Painter’s soft diet in the Knox Report before the closure order was issued, it would not have affected the decision to issue the order. This is because the Department of Health relied on several pieces of evidence and information in deciding to issue a closure order to I Cook Foods, not just the evidence related to the Listeria infection at Knox Private Hospital.

102 Ray Christy, Transcript of evidence, p. 7.

103 Professor Brett Sutton, Transcript of evidence, p. 20.

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The Committee heard evidence from Ms Jenny Mikakos, who was the Victorian Minister of Health at the time of the closure of I Cook Foods. She gave her view on the Department’s decision to issue a closure order:

There are essentially two trains of evidence or allegations that have been made. One is about whether the decision was validly made, and then the other issue is around whether it was made for a proper purpose. And I have expressed an opinion around my view that I have no information to suggest that the decision was made for an improper purpose. I do not believe I can express a view around whether it was validly made if these facts are in contention now, and I think that is for the department to respond to those particular questions.104

The Committee believes that the closure order signed by the Acting Chief Health Officer was made for proper purpose and issued validly. It reiterates Finding 1 from the first report:

Finding 1: The Closure Order, signed by the Acting Chief Health Officer, issued pursuant to section 19 of the Food Act 1984 was prepared and served on valid grounds and for a proper purpose.

Source: Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods Pty Ltd, August 2020, p. 14.

However, by not requesting Knox City Council to investigate the Listeria case at the hospital until 21 February 2019 the Department of Health did not give proper opportunity for any findings to be considered in the investigation. The Committee notes that during its initial evidence the Department of Health emphasised the need to make rapid decisions where there is a strong belief that public health is at risk.105 However, given the personal and financial implications of closing a business, even temporarily, it is imperative to ensure a thorough investigation is undertaken.

In the Committee’s view, the Department of Health should have requested that Knox City Council investigate the case of Listeria at Knox Private Hospital during the beginning of the investigation. This would have ensured that the Department had as much evidence as possible to inform its decision. It would also have made the Department aware that there were other food suppliers to Knox Private Hospital.

The Committee acknowledges the Department’s assertion that the findings of the Knox Report would not have changed its decision. However, the Committee believes the findings would have provided a more complete picture for the investigation and better identified potential areas of risk to investigate sooner.

As noted in the first report, I Cook Foods was not provided a copy of the report which outlined the evidence supporting its closure. The first report discussed in detail the lack

104 Ms Jenny Mikakos, individual capacity, public hearing, Melbourne, 2 September 2021, Transcript of evidence, pp. 32–33.

105 Dr Angie Bone, Deputy Chief Health Officer, Department of Health and Human Services, Public hearing, Melbourne, 24 June 2020, Transcript of evidence, p. 87.

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of formalised reporting requirements for investigations that may lead to a closure order. The Committee recommended that:

Recommendation 11: That the Food Act 1984 be amended to consolidate reporting requirements to formalise an investigation that leads to the closure of a premises.

Source: Parliament of Victoria, Legislative Council Legal and Social Issues Committee, Inquiry into the closure of I Cook Foods, August 2020, p. 40.

The Committee reiterates the need for better reporting processes in investigations that may lead to a closure order. Further, it believes that an evidence report should be provided to a food proprietor where a closure order has been issued. This would provide greater transparency around the process used by relevant authorities when issuing food safety orders and provide more context to the closure and related requirements.

• the findings were not received until after the closure order was issued to I Cook Foods

• the decision to close I Cook Foods was not solely based on the Listeria infection at Knox Private Hospital.

55Inquiry into the closure of I Cook Foods Pty Ltd: Second report

3 Contradictions in evidence provided to the Committee

3.1 Overview

The Committee resolved to re-establish the Inquiry after becoming aware of information provided by Mr Ray Christy1 on behalf of Knox City Council to the Department of Health on 22 February 2019. The content of Mr Christy’s emails (referred to as the ‘Knox Report’) concerned the Committee as it contradicted key evidence provided by the Department of Health at public hearings.

Parliamentary committees rely on the integrity of the evidence presented to them. If the validity of the evidence is brought into question, the value of the inquiry process is compromised. Misleading evidence, whether intentional or not, has the potential to undermine the findings and recommendations of the Committee.

During the Committee’s investigation into the contradictory evidence, representatives from the Department of Health made statements to clarify and corrected their initial statements. These are discussed in the Sections below.

The Committee considers that omitted and incomplete evidence provided by representatives of the Department of Health during its initial investigations was misleading and led to confusion about key processes that were investigated. However, the Committee does not have sufficient reason to believe it has been deliberately misled or provided with false evidence.

In addition, the Committee does not consider that the actions of the Departmental representatives constitute a possible contempt of Parliament.

However, the Committee is of the opinion that witnesses should be transparent and forthcoming with information deemed relevant to an inquiry. Further, when a witness has provided evidence to a Committee and later learns they have been incorrect in their understanding, they should undertake to correct the record as a matter of priority.

In investigating potentially misleading evidence, it is for the Committee to decide what matters it considers, whether it has been misled and any further actions it may take or recommend. During the Inquiry there were allegations of misleading statements made by witnesses against other witnesses and in relation to evidence provided to the Committee. In this report, the Committee has only considered matters that it determined may have mislead its investigations. Although the Committee acknowledges these other allegations, it does not consider that a parliamentary inquiry is the appropriate forum for consideration or determination on those matters.

1 At the time the emails were sent, Mr Christy was an Environmental Health Officer at Knox City Council.

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3.2 Key matters examined

The Committee examined four key matters to determine whether representatives of the Department of Health had provided misleading evidence to the Inquiry:

• the omission of the Knox Report during the Inquiry’s initial investigations

• incomplete information relating to Ms Jean Painter’s diet while at Knox Private Hospital

• assertions that I Cook Foods was the ‘sole caterer’ to Knox Private Hospital

• incomplete evidence relating to other suppliers investigated as part of the Listeria investigation.

3.2.1 Omission of findings of the ‘Knox Report’

The Committee resolved to reopen the Inquiry as it was concerned that the findings of the Knox Report as described in the media contradicted evidence provided at public hearings. In particular, the evidence provided by Chief Health Officer Professor Brett Sutton and Deputy Chief Health Officer Dr Angie Bone from the Department of Health.

The Committee was not informed during its initial investigations of information provided to the Department of Health on 22 February 2019 by Mr Christy on behalf of Knox City Council. In August 2021, the Committee summonsed a copy of the information Mr Christy provided to the Department of Health. Knox City Council complied with the summons, and the documents are published in Appendix E.

The Knox Report outlined:

• Ms Painter was on a soft diet whilst at Knox Private Hospital

• all sandwiches provided to patients on a soft food diet were made by hospital staff in the hospital kitchen

• there were six other commercial suppliers that provided food to Knox Private Hospital.2

In his evidence, Mr Christy told the Committee that Knox City Council was directed by the Department of Health to gather additional information relating to:

• Ms Painter’s diet

• the hospital’s food handling practices and processes for receiving meals from I Cook Foods.3

2 Ray Christy, Public hearing, Melbourne, 25 August 2021, Transcript of evidence, p. 2; Knox City Council, Emails provided by Knox City Council (Knox Report), supplementary evidence received 11 August 2021.

3 Ray Christy, Transcript of evidence, p. 2.

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The Committee was aware that Knox City Council was involved in the investigation into the source of Listeria and that environmental sampling was undertaken at Knox Private Hospital.4 However, further information relating to the timing or purpose of its involvement was not sought by the Committee as it was not informed of the issues raised in the Knox Report.

During initial evidence, the Department of Health provided general information about its investigation into the detected case of Listeriosis following the death of Ms Painter. The information noted the involvement of Knox City Council and that environmental testing had taken place at Knox Private Hospital in March 2019.

Professor Sutton told the Committee that Ms Painter’s food history was provided by her treating doctor and next of kin, as Ms Painter was too unwell to be interviewed.5 He also stated that the food she consumed while admitted to Knox Private Hospital was provided by I Cook Foods.6 This led to the Department of Health’s Incident Management Team focusing its investigation on I Cook Foods.7

At this stage of the investigation, the Department did investigate a number of other potential sources of Listeria (as listed in Appendix H). However, environmental swabs of some sandwiches prepared by I Cook Foods returned a positive detection of Listeria monocytogenes that were possibly related8 to the strain detected in Ms Painter’s blood culture test. This led the Department to believe its focus was in the right place.9

Addressing the omission of the Knox Report in evidence provided previously, Professor Sutton stated that at the time Mr Christy’s emails ‘were considered and appropriately addressed by the relevant teams and therefore were never escalated to me’.10 He also stated that he had only become aware of the emails ‘very recently’.11

Dr Angie Bone noted that she was aware of the Knox Report on 22 February 2019, after the closure order was served on I Cook Foods. She stated that at a Departmental Incident Management meeting, the Food Safety Team raised the emails. However, the information provided from Knox Private Hospital was considered more credible as the Infection Control Nurse confirmed that Ms Painter was on a full ward diet.12

4 Professor Brett Sutton, Chief Health Officer, Department of Health and Human Services, Public hearing, Melbourne, 24 June 2020, Transcript of evidence, p. 65.

5 Ibid., p. 64.

6 Ibid.

7 Ibid., p. 65.

8 Professor Ben Howden, Director, Microbiological Diagnostic Unit Public Health Laboratory, Public hearing, Melbourne, 24 June 2020, Transcript of evidence, p. 42.

9 Dr Angie Bone, Deputy Chief Health Officer, Department of Health, Public hearing, Melbourne, 2 September 2021, Transcript of evidence, p. 16.

10 Professor Brett Sutton, Chief Health Officer, Department of Health, Public hearing, Melbourne, 2 September 2021, Transcript of evidence, p. 11.

11 Ibid., p. 13.

12 Dr Angie Bone, Deputy Chief Health Officer, Department of Health, Opening Statement to the Committee, supplementary evidence received 2 September 2021, pp. 4–5.

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As discussed in Chapter 2, the Committee determined that information regarding Ms Painter being placed on a soft diet following her Listeriosis diagnosis had no bearing on the closure order served on I Cook Foods. As such, the Committee does not believe Chief Health Officer Professor Brett Sutton or the Department of Health deliberately obstructed or impeded the Committee’s functions.

However, the Committee believes that the Department of Health should have been more transparent with information relating to the broader investigation into the source of Listeria. The failure to do so required the re-opening of the Inquiry to clarify these matters to maintain the integrity of the Committee’s work.

3.2.2 Ms Painter’s diet during her time at Knox Private Hospital

During the Inquiry’s initial investigations, the Committee was informed that Ms Painter was on a ‘full ward diet’ throughout her admission to Knox Private Hospital. This evidence was provided at a public hearing by Professor Brett Sutton and in email correspondence provided by the Department of Health (see Appendix F).13

As discussed previously, this was contradicted by the findings of the Knox Report which noted Ms Painter was on a soft diet.

In his initial evidence to the Committee, Professor Sutton explained that upon notification of the case of Listeria, a four-week food history was collated through conversations with Ms Painter’s attending doctor, her next of kin and Knox Private Hospital’s diet monitors.14 The timeline of events provided by the Department showed that this information was gathered in January 2019.15 This led to the identification of I Cook Foods as a potential source of further investigation.

At a public hearing, Mr Ray Christy detailed his inspections of Knox Private Hospital on 21 and 22 February 2019. Mr Christy noted that he spoke with three staff members, including a diet monitor who was familiar with Ms Painter’s dietary preferences. He stated that they indicated Ms Painter was ‘likely’ on a soft food diet.16

The discrepancy in evidence was addressed by Ms Painter’s two daughters, Mrs Jo Woodstock and Ms Fiona Wharry, at a public hearing. Mrs Woodstock stated she observed that Ms Painter was on a full ward diet when first admitted to Knox Private Hospital. However, she stated Ms Painter was placed on a soft diet after she was

13 Department of Health, Emails provided by the Department of Health, supplementary evidence received 2 September 2021.

14 Professor Brett Sutton, Transcript of evidence, p. 21.

15 Dr Angie Bone, Opening Statement to the Committee, pp. 2–3.

16 Ray Christy, Transcript of evidence, p. 2.

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Chapter 3 Contradictions in evidence provided to the Committee

diagnosed with Listeria after her readmission to Knox Private Hospital following her condition deteriorating.17

The Committee also raised the contradictory evidence with Department of Health representatives.

Professor Sutton clarified the confusion surrounding the status of Ms Painter’s diet, stating that it stemmed from her readmission to Knox Private Hospital on 23 January 2019. He highlighted that her condition requiring a soft diet was likely due to the beginning of meningoencephalitis:

The soft diet, as you have heard from Mrs Painter’s next of kin, related to a subsequent readmission out of rehab, which was after her illness and was likely related to her confusion because of the beginning of her meningoencephalitis and a risk of aspiration should she be on a normal diet.18

The Department of Health provided evidence to the Committee to support its reasoning for only referring to Ms Painter as being on a full ward diet when first admitted to Knox Private Hospital. Further, the Department of Health clarified the confusion surrounding the status of Ms Painter’s diet at a public hearing and explained its reasons for relying on the evidence it initially provided to the Committee.

3.2.3 Assertions that I Cook Foods was the ‘sole caterer’ of Knox Private Hospital

During the Inquiry’s initial public hearings, I Cook Foods was referred to as the ‘sole caterer’ of foods to Knox Private Hospital. This was contradicted by information contained within the Knox Report sent to the Department of Health after the closure order was served on I Cook Foods.

Information provided in the Knox Report indicated there were six other food suppliers to Knox Private Hospital, not just I Cook Foods. The other suppliers were:

• Bidfood Australia (ham, cheese and margarines)

• S.A.J (vegetables and salad mix)

• Redi Milk (milk, cream and custard)

• Juice & Co (juices)

• GWF Tip Top Bakeries (bread)

• Mr Donut (tiramisu cakes).19

17 Mrs Jo Woodstock, Public hearing, Melbourne, 2 September 2021, Transcript of evidence, p. 2.

18 Professor Brett Sutton, Transcript of evidence, p. 27.

19 Ray Christy, Transcript of evidence, pp. 2–3.

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At a public hearing held on 2 September 2021, Professor Sutton made a statement addressing the contradictory evidence provided to the Committee. He stated that at the time of his initial evidence, it was his understanding that I Cook Foods was the sole caterer, however he had since been corrected:

I would like at this juncture to point out that when I previously addressed the inquiry, I erroneously referred to I Cook being Knox Private Hospital’s sole caterer. This is what was initially understood and had been told to me. I have since been informed that subsequent information provided by Mr Christy indicated that this was incorrect, and I do apologise for any confusion caused. Of relevance, items identified in the food history as being consumed by the patient while in hospital were sandwiches, and it was known that I Cook Foods provided the hospital with sandwiches for those on a full ward diet as well as providing a range of other foods. For the purposes of this investigation, nothing turned on whether I Cook Foods was or was not the sole caterer for the hospital.20

The Committee also asked Deputy Chief Health Officer Dr Angie Bone why she did not correct Professor Sutton at the initial hearing when referring to I Cook Foods as the ‘sole caterer’. Dr Bone informed the Committee that upon the re-opening of this Inquiry and the focus surrounding the Knox Report, she reflected on her notes. She stated and was reminded that the emails in question were raised during an incident management meeting and that she had not been provided a copy of the emails:

It was raised at the IMT, but I did not receive an email that said it was confirmed. That was sent to the staff, not me. I did not see that email. What was raised at the incident management team was that there was a suggestion. The incident management team was at 1.00 pm. The confirmatory email arrived at 12.41 pm. I am not even sure it had been read at that point, but regardless, what was raised was that there was a suggestion of a soft diet and that some of the soft diet items were made in the hospital. When we followed that up we were told again that it was a full diet, and I had understood from the team—and that may be my misunderstanding—that it had also been discounted, that not only was she not on a soft diet but that the food was not supplied by the hospital. So when we came to prepare statements last time, my own understanding had been that it had been concluded that they were the sole caterer. So when all of these emails were raised, having gone through back through all of the records and my own notes, I was reminded of this situation, and that is all that that situation was.21

In the Committee’s view, the initial evidence provided by Professor Sutton and Dr Bone was misleading, regardless of whether it was done inadvertently or not. However, there is insufficient basis to believe that Professor Sutton or Dr Bone deliberately misled the Committee.

In addition, when placed in context to the broader Listeriosis investigation undertaken by the Department of Health the Committee believes that the incorrect reference did not materially affect the key findings and recommendations in the first report. Accordingly, the Committee does not seek to take further action.

20 Professor Brett Sutton, Transcript of evidence, p. 11.

21 Dr Angie Bone, Transcript of evidence, p. 25.

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The Committee emphasises that when a witness is made aware that information they have provided to an inquiry is incorrect, it is imperative they inform the committee as a matter of priority. Delays in providing clarifications or corrections to information has the potential to undermine the integrity of an inquiry and the work of parliamentary committees.

3.2.4 The extent of Listeria testing for all potential sources

The Committee held concerns about a statement Professor Sutton made during his initial evidence that indicated that all potential sources of food were investigated for the presence of Listeria.22 New evidence provided to the Committee made it unclear whether testing was undertaken at the additional six suppliers of Knox Private Hospital to rule out whether they were the source of the Listeria.

The Committee questioned Professor Sutton on why the other suppliers were not investigated, despite them potentially providing food which may have been served to Ms Painter when she was on a soft food diet. He stated that this was due to the fact Ms Painter had already been diagnosed with Listeria and was presenting with symptoms before being provided with food items off the soft food menu:

we were following up a large number of different potential leads—so not only investigating I Cook Foods but also all of the food that the patient had eaten, that we understood they had eaten, and their suppliers. So the swabs were taken on 1 February.23

Dr Bone provided the Committee with an overview of how the Department of Health undertakes Listeriosis investigations. She explained that the Department only investigates suppliers of high-risk foods for Listeria. Further, Dr Bone highlighted that the Department of Health was directly informed by Knox Private Hospital that any high-risk foods for Listeria were supplied by I Cook Foods:

I think it is important to know that we only investigate suppliers of high-risk foods for Listeria, just to try and focus our investigations. So the information that we were being provided by Knox Private Hospital through their infection control team, which is our normal procedure, was that any high-risk foods for Listeria were provided by I Cook

22 Professor Brett Sutton, Transcript of evidence, p. 82.

23 Ibid., p. 70.

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[Foods], so that is why our attention went to I Cook [Foods]. It does not mean that that was our exclusive focus. As you have heard, we were investigating other areas. But we followed the evidence, and eventually the focus became clearer and clearer that I Cook [Foods] had to be the focus of our investigation because of everything that we were finding. I hope that answers your question.24

While this explained the initial omission of suppliers being investigated, the Committee sought further clarification on why other high-risk suppliers were not investigated by the Department of Health. Dr Bone acknowledged there were other high-risk suppliers the Department were not initially aware of. However, she noted that by the time the Department had identified the suppliers, I Cook Foods had received positive test results for a type of Listeria that was considered to be genetically related.25 As a result, the Department did not undertake testing of the other external suppliers to Knox Private Hospital. Dr Bone explained the Department’s reasoning for this at a public hearing, she said:

Yes, it is correct that there were some other high-risk suppliers, but we only heard about those on 22 February after the closure order, and by then we had such a clear focus on concerns about an ongoing risk to public health that we focused on that as opposed to looking at those other suppliers. I think it is worth also noting that there were no further cases of Listeria after that point and there have been no further cases ever since with that particular genetic type. I think our focus was in the right place in I Cook.26

In the Committee’s view, the Department of Health did not clearly convey in its initial evidence the scope of testing undertaken as part of its Listeriosis investigation. This failure led to confusion as to why I Cook Foods was the only external supplier investigated.

This misinformation undermined the integrity of the Inquiry and required the Committee to re-open the matter in order to clarify the evidence provided. The Committee understands that the information the Department provided on 2 September 2021 was factually correct, however it is only clear when placed in context with the process of Listeriosis outbreak investigations.

Nonetheless, the Committee does not have sufficient reason to believe the initial evidence was omitted for the purpose of misleading or impeding the core functions of the Committee.

24 Dr Angie Bone, Transcript of evidence, pp. 15–16.

25 Ibid.

26 Ibid.

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3.3 Contempt of Parliament

Appearing before a Committee and deliberately providing inaccurate information is a serious matter. It not only impedes the ability of the Committee to carry out its core function but is also discourteous to the institution of Parliament as an open and transparent forum for public debate.

In reopening the Inquiry, the Committee sought to determine whether the initial evidence provided obstructed or impeded the Committee’s core functions. Such a determination may be considered a contempt of Parliament.

In doing so, the Committee was guided by key principles, including:

• the powers and privileges afforded by the Constitution Act 1975 (Vic)

• precedent set by previous examinations into matters of contempt by the Privileges Committees of the Legislative Council and Legislative Assembly

• the Australian Senate’s criteria for dealing with witnesses providing false or misleading evidence in accordance with the Parliamentary privilege resolutions agreed to by the Senate on 25 February 1988.27

It is not the role of this Committee to make findings of contempt—this is the role of the House upon investigation and consideration by the Privileges Committee. However, the Committee is empowered to make recommendations on these matters and report possible instances of contempt where it believes the threshold has been met.

3.3.1 Parliamentary Privilege

In Victoria, s 19 of the Constitution Act 1975 (Vic) details the inherent powers and immunities held by both Houses of Parliament and their Committees, this is more commonly referred to as ‘Parliamentary Privilege’. Specifically, s 19 provides for powers and immunities ‘held[,] enjoyed and exercised by the House of Commons … and by committees and members thereof’ as at 21 July 1855,28 including:

• the absolute right to freedom of speech which is entrenched through Article 9 of the Bill of Rights 1689

• the power to conduct inquiries, call witnesses and order documents.

Section 43 of the Constitution Act also empowers each House of Parliament to make rules and regulate its own proceedings free from interference or persecution.

If an action obstructs or impedes either House of Parliament or any Committee in the performance of its core functions, or any Member or officer of such House in the discharge of their duty, the action may constitute a contempt of Parliament.29

27 Parliament of Australia, Odger’s Australian Senate Practice: Appendix 2, <https://www.aph.gov.au/About_Parliament/Senate/ Powers_practice_n_procedures/Odgers_Australian_Senate_Practice/Appendices/Appendix_2> accessed 24 September 2021.

28 Constitution Act 1975 (Vic) Section 19(1).

29 Malcolm Jack (ed.), Erskine May: Parliamentary practice, LexisNexis, United Kingdom, 2011, p. 251.

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3.3.2 Dealing with false or misleading evidence and contempt

In establishing a contempt, the Legislative Council’s Privileges Committee upholds the view that a person or persons must have acted deliberately to obstruct or impede the House or a Committee in the performance of its core functions. In considering this, a high civil standard of proof must be applied. This is assessed on the balance of probabilities and requires proof of a very high order.30

Broadly speaking, the core functions of the Parliament are:

• for Members to fulfil their role as elected representatives free of interference or persecution

• to carry out the Parliament’s role of holding government to account for its administration.31

In considering if the actions of representatives from the Department of Health constituted a contempt, the Committee has drawn on Legislative Council Standing Order 17.11(c). It prescribes that ‘if it appears that any person has given evidence which they know to be false or misleading in any case before the Council or any Committee, such person may be declared guilty of contempt’.

As determined in the Findings in this Chapter, the Committee considers that some of the initial evidence provided or omitted by the Department of Health was misleading and caused confusion. However, the Committee’s view is that the further evidence provided in the second stage of the Inquiry does not alter the findings of the first report, particularly that the closure order served on I Cook Foods was valid.

In the Committee’s view, based on the evidence received none of the conduct of the officers of the Department of Health (or other witnesses) amounted to a possible contempt of Parliament. As such, the Committee seeks to take no further action at this stage.

The Committee notes that actions that do not amount to a contempt does not mean that an individual’s actions were not wrong nor absolve them from any wrongdoing.

Adopted by the Legislative Council Legal and Social Issues Committee Parliament of Victoria, East Melbourne 6 October 2021

30 Parliament of Victoria, Legislative Council Privileges Committee, Inquiry into matters relating to the misuse of electorate office staffing entitlements, August 2018, p. 15.

31 Ibid., p. 21.

65Inquiry into the closure of I Cook Foods Pty Ltd: Second report

AAppendix A About the Inquiry

A.1 Public Hearings

Wednesday, 25 August 2021

Via Zoom

Name Title Organisation

Ray Christy

Kim Rogerson

Ian Cook Director I Cook Foods

Paul Brady Former Victoria Police Detective Sergeant

Wednesday, 1 September 2021

Via Zoom

Name Title Organisation

John Bennie Chief Executive Officer City of Greater Dandenong

Leanne Johnson Coordinator, Public Health City of Greater Dandenong

Elizabeth Garlick Environmental Health Officer City of Greater Dandenong

Thursday, 2 September 2021

Via Zoom

Name Title Organisation

Jo Woodstock

Fiona Wharry

Professor Brett Sutton Chief Health Officer Department of Health

Dr Angie Bone Deputy Chief Health Officer Department of Health

Greg Stenton Deputy Secretary, Corporate Services Department of Health

Paul Goldsmith Department of Health

Pauline Maloney Department of Health

Sally Atkinson Department of Health

Jenny Mikakos

67Inquiry into the closure of I Cook Foods Pty Ltd: Second report

Appendix B Transcripts of evidence

T R A N S C R I P T

LEGISLATIVE COUNCIL LEGAL AND SOCIAL ISSUES COMMITTEE

Inquiry into the Closure of I Cook Foods Pty Limited

Melbourne—Wednesday, 25 August 2021

MEMBERS

Ms Fiona Patten—Chair Ms Tania Maxwell

Dr Tien Kieu—Deputy Chair Mr Craig Ondarchie

Ms Jane Garrett Ms Kaushaliya Vaghela

Ms Wendy Lovell

PARTICIPATING MEMBERS

Dr Matthew Bach Mr David Limbrick

Ms Melina Bath Mr Edward O’Donohue

Mr Rodney Barton Mr Tim Quilty

Ms Georgie Crozier Dr Samantha Ratnam

Dr Catherine Cumming Ms Harriet Shing

Mr Enver Erdogan Mr Lee Tarlamis

Mr Stuart Grimley Ms Sheena Watt

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 1

WITNESS (via videoconference)

Mr Ray Christy.

The CHAIR: Good morning, everyone. I declare open the Legislative Council’s Legal and Social Issues Committee’s public hearing for the Inquiry into the Closure of I Cook Foods.

May I first begin this hearing by respectfully acknowledging the Aboriginal peoples, the traditional custodians of the many and various lands that we are meeting on today, and pay my respects to their ancestors, elders and families. Obviously I particularly want to welcome any elders or community members who are joining us today online.

Ray Christy, welcome. Thank you for attending today.

My name is Fiona Patten, the Chair. I am joined by Mr Craig Ondarchie; Ms Sheena Watt; Ms Kaushaliya Vaghela; Ms Tania Maxwell; Dr Tien Kieu, the Deputy Chair of this committee; Mr David Limbrick; Ms Wendy Lovell; and Dr Matthew Bach.

If I could just let you know that all evidence that you give today is protected by parliamentary privilege, and that is delegated by our Constitution Act but also by the standing orders of the Legislative Council. Therefore any information that you provide during this hearing is protected by law and you are protected against any action for what you say during this hearing, but if you were to go elsewhere and repeat the same things, those comments may not be protected by this privilege. Any deliberately false evidence or misleading of the committee may be considered a contempt of Parliament.

This hearing is being recorded by our Hansard team. A few days after today you will receive a copy of that transcript, and I would encourage you to have a look at that and make sure that we did not mishear you or misrepresent you in any way. Ultimately it will form part of our report.

Again, I appreciate you making the time for us today. If you would like to make some opening remarks, we will then open it up for committee discussion. Thank you.

Mr CHRISTY: Thank you, Madam Chair. I would like to start. I have a 5- to 10-minute presentation that I would like to give first.

The CHAIR: Terrific. Thank you.

Mr CHRISTY: I will go through this as quickly as possible so we can get onto the question time. Thank you, Madam Chair. I wish to confirm that my name is Ray Christy. I am a qualified environmental health officer with over 30 years experience. I have always worked in local government as an EHO, or environmental health officer. I have a bachelor degree in applied science from Swinburne University. Just to clarify, I was employed by Knox City Council from July 2015 until April 2021. My main role as an environmental health officer was to conduct food safety surveillance by enacting specific powers of an authorised officer under the Food Act. I was allocated a geographical area for the purpose of conducting food safety surveillance duties. In February 2019 the Knox Private Hospital was located in my allocated geographical area. Knox Private Hospital and in particular the food services provided by the operator of the hospital, which is Healthscope, were assessed by me on an annual basis. Food safety assessments are conducted on the food business provided by Healthscope to ensure they comply with the food standards code and the Food Act. The kitchen and food services at Knox Private Hospital are registered as class 1 food premises in accordance with the Victorian government’s risk classification system, which means that class 1 food premises are defined as any business that provides food to vulnerable clients. One of the purposes of the food safety surveillance system is that all regulatory bodies in Victoria that have vested powers under the Food Act must collaborate with each other and cooperate with each other to ensure the objectives of the Food Act are met. This includes local councils cooperating with the Department of Health and councils cooperating with each other, so councils and the department are able to freely share information with each other, including sensitive information which relates to food safety or public health matters.

Now, I would like to point out that another role of an environmental health officer such as me is to investigate single-case gastroenteritis incidents, as well as gastro outbreaks, and there is a specific procedure for single-

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 1

WITNESS (via videoconference)

Mr Ray Christy.

The CHAIR: Good morning, everyone. I declare open the Legislative Council’s Legal and Social Issues Committee’s public hearing for the Inquiry into the Closure of I Cook Foods.

Ray Christy, welcome. Thank you for attending today.

Again, I appreciate you making the time for us today. If you would like to make some opening remarks, we will then open it up for committee discussion. Thank you.

Mr CHRISTY: Thank you, Madam Chair. I would like to start. I have a 5- to 10-minute presentation that I would like to give first.

The CHAIR: Terrific. Thank you.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 2

case gastro outbreak events. Without going into too much detail, the Department of Health, once receiving notification of a single-case gastro case, will forward a formal gastroenteritis referral in writing for investigation to the local council. This is done on a specific prefilled referral form and is usually sent to the relevant council via email by the regional public health officer—in the case of Knox City Council, from the north-east Hume region based in Box Hill. The referral is usually sent to the council where the case lives, so the person who was diagnosed with the gastro. Communicable diseases prevention and control at the Department of Health will also occasionally contact council directly in relation to outbreaks in single-case gastro incidents.

Now I will just talk about my involvement with the I Cook Foods closure matter—so, how I became involved, which is part of today’s inquiry. I will now outline my part in the investigation and action to the best of my recollection and knowledge to provide you with a picture of what happened. Apart from my inspection and investigation at Knox Private Hospital, which included the discussions with Healthscope, management and key personnel, there are also two reports I sent to the food safety unit at the department of health just hours before the I Cook Foods closure, email and telephone conversations with key food safety unit staff and conversations and meeting with the staff at Healthscope. As a result of my investigation, from what I can recall there were about 120 documents—mainly emails—that were generated, which were all saved in an electronic management system at Knox. There were emails and written contemporaneous notes saved electronically, including emails sent to and from the department of health and Knox Private Hospital. Every piece of information I collated in relation to my inspection was made available to the department of health to assist them in the investigation.

Now, my involvement in this case started on 21 February 2019. My coordinator at the time, Mr David Clarkson, received a telephone call from the food safety unit of the department of health. Mr Clarkson received an instruction from Ms Mira Antoniou of the food safety unit to inspect the Knox Private Hospital’s kitchen and to gather information on the food supplier I Cook Foods and the hospital’s food processes and procedures for handling food product. The instruction also required Knox City Council to report back to Mr Paul Goldsmith, who I knew as Ms Antoniou’s colleague, with our findings. The request was received verbally; a formal written document or direction from the department was never made. I was handed a one-page handwritten document from Mr Clarkson with telephone instructions from the department of health and was asked to visit the hospital kitchen with the instructions in mind. The instructions from the department were as follows: I was to conduct a food safety assessment of the kitchen at Knox Private Hospital; obtain details of food supplied by Knox Private Hospital to its patients; obtain information on the food process workflow from the delivery receival of food supplies, including the frequency, to storage conditions, stock rotation, reheating, plating and serving. I was also asked to confirm if I Cook Foods supplied ready-to-eat meal components to Knox Private Hospital and whether pre-made sandwiches were also supplied.

I was also advised by Mr Clarkson that the patient that was the subject of the investigation had contracted listeriosis and had passed away at Knox Private Hospital. I was given the impression at the time that she had died from listeriosis. I was also provided very limited information on the patient. The only information I had was her age and the date of the positive diagnosis for Listeria, being 25 January 2019. I did not have her name, address, treating doctor or any other identifying information that is usually provided if there was a regular formal referral, as I mentioned earlier. At the time I thought this was a bit unusual, knowing that the department of health and councils are permitted to collaborate and cooperate with each other while keeping sensitive information confidential. I found the lack of detail in the request an obstacle for a proper investigation, as this information assists in acquiring the necessary evidence for the preparation of a report to determine a cause of the gastroenteritis.

On the same day of receiving the instructions from the department, I visited Knox Private Hospital in the afternoon of 21 February. From my memory this was around 1.00 to 2.00 pm. Upon arriving at Knox Private Hospital, I met with the catering manager, Mr Bernard ’Ofamo’oni, and commenced a food safety assessment of the kitchen. I also reviewed the hospital’s food safety records and their food processing procedures. I also obtained a list of the food suppliers who supplied food to Knox Private Hospital, and details of the menu were obtained for patients who were placed on a soft diet, or a modified diet. When I queried the supply of sandwiches with Mr ’Ofamo’oni, he advised the patient subject to this inquiry was likely to have been placed on a soft diet. Such food prepared for patients on a soft diet are prepared in the hospital’s own kitchen. I was provided information on the food suppliers other than I Cook Foods by Mr ’Ofamo’oni. I made note of the suppliers being Bidfood Australia for the supply of ham, cheese and margarine; S.A.J. for the supply of vegetables and salad mix; Redi Milk for the supply of milk, cream and custard; Juice & Co for the supply of

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 3

juices; GWF Tip Top Bakeries for the supply of bread; and Mr Donut for the supply of tiramisu cakes. That I Cook Foods supplied ready-to-eat food and food components to hospital is what I confirmed. And I also confirmed I Cook Foods also provided the soups and desserts and cakes for the patients on a soft diet. Mr ’Ofamo’oni seemed certain in that—that the subject patient had eaten sandwiches prepared in the Knox Private Hospital kitchen and not sandwiches from I Cook Foods. During the inspection I also took photos of the kitchen while I conducted inspection—this was to assist in the assessment—and uploaded them to the records management system at Knox.

Okay, so the next morning, on 22 February, I prepared my report and findings for the department of health. You have all seen the email report that I prepared, and I sent that report via email to Mr Paul Goldsmith at 10.34 am. My coordinator, Mr Clarkson, and Mr Goldsmith’s colleague Ms Antoniou were carbon copied into this email. As you can already see—you have a copy of the first report sent to the department—that email outlines the body of my report. The report was actually the body of the email. That is how I produced that to Mr Goldsmith.

Within a few minutes of sending the report I received a phone call from Ms Antoniou. Ms Antoniou gave me further instructions to go back to Knox Private Hospital and get further information. She instructed me to confirm that the patient who had passed away was on a soft diet, to obtain food temperature records for cold storage and reheating temperatures for the time period that the patient was in the hospital and to instruct the hospital staff to do a precautionary Listeria clean-up. She further asked me to clarify the suppliers of the food received by Knox Private Hospital. She wanted to know the supplier of the desserts, dairy products and soups.

So as requested, I returned to Knox Private Hospital unannounced and had an onsite meeting with three of the Healthscope staff on 22 February at around about 11.00. The staff members present were Mr John Sweeney, who is the support services manager; Mr Bernard ’Ofamo’oni, who I mentioned earlier, the catering manager, who I believe is no longer there; and a staff member from the infection control team, Ms Lauren Cullen. In an interview with the three staff members at the time of my visit I obtained the following information and gave further instructions. Ms Cullen confirmed that on the hospital’s records the patient in question only ate sandwiches made in the hospital’s kitchen. I am unequivocally certain that the subject patient did not eat sandwiches prepared by I Cook Foods.

The patient or the patient’s family complete a daily menu choice each day. The hospital confirmed that the slip of green paper—you would have had a copy of this sent to you; it is in black and white, but it is actually a green document—with the patient’s menu choices is discarded once the food is served. So no record of food consumed is kept by the hospital. And I must note that in relation to any gastro investigations it is imperative to obtain a four-day food history of the patient. In this matter it was impossible for me to obtain that four-day food history since the records of what that patient ate was destroyed.

I requested and reviewed cold storage and reheating temperatures for the period of 13 January to 23 January 2019 on Mr ’Ofamo’oni’s computer screen. I asked for a copy and he requested that I put my request in writing, which I did later that morning. When I received that information—that is the temperature records—I immediately forwarded the information to the department of health. I requested that a precautionary Listeria clean-up be performed, which they undertook. They reported back to me several days later to verify its effectiveness as being completed. I do not recall the date I was informed because I do not have that information.

I confirmed that the desserts were supplied by a firm called Bidfood, the dairy was supplied by Redi Milk and the soup was supplied by I Cook Foods. I also later ascertained that both Knox Private Hospital and I Cook Foods received their ham and cheese supplies from Bidfood. I also noted that Knox did not have the last third- party audit report from the auditor named Victoria Bowen, and I requested as such to receive that third-party audit. I reviewed a copy of the report in Mr ’Ofamo’oni’s office and noted there were still three non- conformances that had not been closed off. I cannot recall what they were as I do not have access to that document.

So when I returned to the office I prepared a second email report to Mr Goldsmith at 12.42 pm on 22 February 2019. That email was carbon copied to Ms Antoniou and Mr Clarkson. The copy of the second email has already been provided to the committee, so you can see in your copy of my emails there is a second report back to Mr Goldsmith with all that information I had obtained from Knox Private Hospital on my second visit.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 3

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 4

So I must also note that during the inspections at Knox Private Hospital I was not given the opportunity to take any food samples or obtain a four-day food history of the patient, which I think I mentioned earlier. And I must say that it is imperative that during a gastro investigation food samples are obtained to confirm the presence of an alleged foodborne pathogen—or have a food history—to ascertain the probable cause of illness. Without these, it is impossible to reach a conclusion as to the cause of the gastro. In this particular case, even though the patient’s pathology result was positive for Listeria, because key evidence was not available to confirm the cause of the infection, there is no way to prove beyond a reasonable doubt that the food consumed caused the illness.

So, Madam Chair, that concludes my presentation in relation to my involvement with the I Cook Foods matter investigation. So I would like to finish my presentation. Thank you very much.

The CHAIR: Thank you, Mr Christy, and I just realised I had not got a full screen in front of me. We also have Ms Georgie Crozier joining us, so I had missed one person.

To the committee members: question timing will be about 6 minutes. The committee will circulate the order, but the initial order will be me, the Deputy Chair, Ms Crozier, Ms Maxwell, Ms Vaghela, Ms Lovell, Ms Watt and then we will go on to the proportionality, and that will be texted to you shortly.

If I could start, I suppose in listening to you and talking about this, we know that the death of the patient occurred on 4 February. Why wasn’t the council doing those inspections at that time? Obviously it became aware that Listeria was found. I just would have thought that the first place that we would have gone for an investigation would have been straight to the hospital kitchen.

Mr CHRISTY: Yes, Madam Chair. That is very good question. Look, the case with most gastro referral investigations is there is a time delay. From the time that the department is notified by the treating doctor to the time that the local council receives the referral sometimes can be four weeks, and in this case I believe it was probably about four weeks before Knox council was asked to be involved. So you did raise a very good question there. In my opinion this is one of the problems, or the issue, with the system of referral to local government. If one of the things that comes out of this inquiry is to make an improvement to that referral process so there is actually no delay—so if you get a notification of, say, in this case Listeria, local government should be informed practically straightaway so we can get onto it. And that is vital, because we need to obtain evidence. As time goes past, that evidence fades away; it does not become available.

The CHAIR: Yes. I mean, for you to go and inspect for Listeria in the hospital kitchen three to four weeks, three weeks, after the person had passed away—so to you that was unusual. In your experience, the normal course of events should have been, when that incident occurred, when that person was found to have had listeriosis in their system, that immediately it should have been referred to council—your council, not Dandenong—and you would have then investigated.

Mr CHRISTY: Yes, that is correct. And in most cases where the incident occurs, technically if there is a breach of the Food Act the jurisdiction would be the council where that incident occurred.

The CHAIR: Yes, precisely. Okay. I will pass on. Thank you very much for that. Dr Kieu.

Dr KIEU: Thank you, Chair. Thank you, Mr Christy, for appearing here today. One of the reasons for reopening the inquiry is due to the evidence you have been providing, which was also picked up by the media. I would like to ask first of all: the patient, the unfortunate lady, was first admitted to the hospital on 13 January and then discharged and then came back on the 23rd in that unfortunate incident. Are you sure that for the whole time that she was in and out of hospital she was entirely on a soft diet?

Mr CHRISTY: Thank you for that question, Dr Kieu. As you referred back to my presentation before, I was certain that she was on a soft diet for the entire time because I was actually told by the infection control team head Mrs Cullen. She was certain that in the hospital records she was on that diet that entire time she was admitted to hospital.

Dr KIEU: Yes. And you also mentioned that some of the desserts and the soup may be provided by I Cook, apart from other things provided by different providers. For a lay person like me, could a person get Listeria from soup and dessert?

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 5

Mr CHRISTY: Not normally, no; it would not happen. To put it into context, Listeria is generally found in salad items, vegetables, soft cheese and delicatessen or ham items. This particular pathogen can grow in refrigerated temperatures. In relation to products like soups, where they are reheated and cooked to a core temperature of over 75 degrees, all the pathogens are actually killed, so it is unlikely that you would find Listeria in soup or desserts.

Dr KIEU: So how do you explain that? Because of that death there was an investigation and a swab taken at I Cook, and they found four strains, one of which is, according to the technical term, a close match in the database, and it is a rare strain. So how do you explain that connection between the strain found and the one found in her body at death?

Mr CHRISTY: I appreciate you actually putting that question to me. To be honest, I actually do not know the circumstances behind the Listeria that was picked up at I Cook Foods and in the patient. I was not made privy to that information nor was I part of that investigation. So that information was never given to me. I am pretty sure there would be an explanation, but I do not believe I am the person who could give you that answer.

Dr KIEU: Yes. Okay. The other question is: as a professional, as the environmental health officer, do you think that it is a reasonable step to be taken when something like that happens to have some of the production shut down, investigated and perhaps reopened later, because according to the Act, even the lack of full emphasis on full scientific evidence is not a reason not to take action? In this case the consequence could be very devastating and horrendous.

Mr CHRISTY: Sure. Look, thank you for that question. I think I just need to draw on my own experience and knowledge of the food safety surveillance system here in Victoria. You may appreciate that all environmental health officers and health departments in local governments operate from processes and procedures. And they are fairly strict, because that just prevents you going willy-nilly closing a food business because of unsubstantiated evidence or findings. So in this case here the department of health and the Victorian government had given local government guidelines how to assist a food business in doing a Listeria clean-up. So there are Listeria clean-up guidelines that are available to Victorian food businesses and Victorian councils. Nowhere in those guidelines suggests that you do a forced closure under a section 19 notice. You work closely with that business to do a short-term closure to do a 24-hour clean-up with chlorine-based cleaners to remove the Listeria contamination. So that is how I would understand is how the process would be undertaken if Listeria was discovered in a food production factory or premises.

The CHAIR: Tien, thank you. That is your time allocation. I move to Georgie Crozier.

Ms CROZIER: Thank you very much, Chair, and thank you, Mr Christy, for appearing before us and for your evidence, which is extremely relevant to the reopening of the inquiry. Could I ask: you spoke to the various people within the Knox hospital—you said Mrs Cullen and others. Mrs Painter was admitted, I am of the understanding, with gastro symptoms. Is that correct?

Mr CHRISTY: That is my understanding. I mean, obviously at the time I did not have her details. I was not given specific information about the patient and her circumstances, but from my recollection she had been admitted to Knox with gastroenteritis symptoms.

Ms CROZIER: Thank you. And you raised in your presentation to us I think some queries around the protocol that was undertaken. Do you believe that the correct protocols were actually followed in this particular investigation by the department?

Mr CHRISTY: No, I do not believe they were. So you can recall from my presentation that that is the usual process that is undertaken—to request local government to investigate a gastro incident—so in this case that procedure was not followed.

Ms CROZIER: The Chair mentioned Dandenong council. Did you have any involvement with anyone from Dandenong council in relation to this matter?

Mr CHRISTY: Yes, I did. So I can confirm that—look, and I must stress that I do not have any documentation or notes referring to any meetings that I had with Greater Dandenong council, but I think it was

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 5

The CHAIR: Tien, thank you. That is your time allocation. I move to Georgie Crozier.

Ms CROZIER: The Chair mentioned Dandenong council. Did you have any involvement with anyone from Dandenong council in relation to this matter?

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around about March, probably about four weeks after I visited Knox Private Hospital. We had a request from officers at Greater Dandenong council to meet with me and Mr Clarkson.

Ms CROZIER: Who were those officers, Mr Christy, if I may ask you?

Mr CHRISTY: Sure. So there was Ms Leanne Johnson, who is the coordinator of environmental health, and a Mr Greg Spicer who, from recollection, is the planning enforcement coordinator. So they were the two officers that came to visit us at Knox.

Ms CROZIER: They requested that meeting with you, did they?

Mr CHRISTY: That is correct, yes.

Ms CROZIER: And can you recall what that meeting was about?

Mr CHRISTY: Yes. So they were seeking some assistance and information to assist them with the preparation of the prosecution brief for the prosecution of I Cook Foods, and, as I mentioned in my presentation, there is always an expectation that each council coordinate and cooperate with each other. So they came seeking specific information about my investigation of Knox Private Hospital, and they requested copies of my reports. After obtaining the permission from my coordinator, Mr Clarkson, all that information was passed on to Ms Leanne Johnson at Greater Dandenong council.

Ms CROZIER: Thank you for that clarification. So in that, you would have been passing on that information and saying, ‘I provided this to the department. It’s clear that Mrs Painter didn’t have a sandwich from I Cook. If she did eat a sandwich, it would have been prepared in the kitchen’? Was there a discussion of that nature, or did you discuss the fact that you had concerns that this prosecution was going forward and that your email had not been—or the information you had provided was not part of that?

Mr CHRISTY: Look, from what I can recall I do not remember specifically talking about the food that Mrs Painter ate and whether she ate an I Cook sandwich. We had never gone onto that topic of conversation. It was all about they wanted to—

And I forgot to mention another thing, I am sorry. They wanted me to hand over my investigation notes with my inspection of Knox Private Hospital kitchen, and furthermore, they also requested that I ask Healthscope if they were prepared to be interviewed by Greater Dandenong council. So further to that I put a request to Mr ’Ofamo’oni and Mr Sweeney of Healthscope if they were willing to be interviewed by Greater Dandenong council. So I put that request in writing and from recollection it was about a week later I received a response and that request was denied. So the hospital had stated that they had received legal advice not to be interviewed by Greater Dandenong City Council.

Ms CROZIER: Did you ever see that or were you just informed by the belief that that had been denied?

Mr CHRISTY: Look, as I said, I do not have all the notes and documents. I think it was given to Knox in writing.

Ms CROZIER: That is okay. I have FOIed documents relating to your matter from Knox council and had 452 pages returned to me, but about 400 of them have been redacted. I am sure it is partly in those documents, Mr Christy, so I can understand your difficulty in recalling. I think my time is out, is it, Chair? You are looking at me.

The CHAIR: Yes.

Ms CROZIER: Thank you so much, Mr Christy. I really appreciate it.

The CHAIR: Thank you. Tania—Ms Maxwell.

Ms MAXWELL: Thank you, Chair. Thank you, Mr Christy, for attending today. I just want to take you back to talking about the soft foods that the now deceased patient was on. Is there any information provided as to why she was on that soft diet, as in why was she not able to eat normal food?

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Mr CHRISTY: At the time I was investigating at Knox Private Hospital they would not or they did not give that information to me. So, look, in all fairness to Knox Private Hospital, it is probably best for them to give that explanation, but I do not know the answer to that, I am sorry.

Ms MAXWELL: Okay. I am just trying to establish that to see if she was physically capable of eating ham or corned beef. Was there ever an autopsy done to determine what food the deceased patient had eaten?

Mr CHRISTY: I do not know the answer to that question, I am sorry.

Ms MAXWELL: Okay. That is all I have got at the moment, Mr Christy. Thank you.

The CHAIR: Thank you. Ms Vaghela, Kaushaliya.

Ms VAGHELA: Thanks, Chair. Thanks, Mr Christy, for appearing today. In your role as an EHO I am sure you are well aware of the Public Health and Wellbeing Act 2008, and it states that:

If a public health risk poses a serious threat, lack of full scientific certainty should not be used as a reason for postponing measures to prevent or control the public health risk.

Can you please explain how this principle applies to food safety investigations as conducted by environmental health officers and the issuing of closure orders?

Mr CHRISTY: Okay. Thank you for that question, and it is a very relevant and good question to ask. I must emphasise that environmental health officers and local councils are enacted to enforce certain powers under certain acts, so you have got the Food Act 1984 and the Public Health and Wellbeing Act 2008, which you have mentioned. In regard to this investigation, you have got to be very clear about what Act of Parliament you have got to act within when you go and visit a premises. So in this case here, because the matter related to a food business and food services, I have gone to that premises using the powers of the Food Act, so never at any time was I acting under the Public Health and Wellbeing Act. For the investigation, from my understanding and recollection, I have acted as an authorised officer under the Food Act, so in this case the Public Health and Wellbeing Act did not apply from my perspective and my part of the investigation. The Public Health and Wellbeing Act might have been used in other parts of the investigation by other agencies or other people, but certainly in my case it was the Food Act that I acted under.

Ms VAGHELA: Yes. In the initial inquiry that we had for I Cook we heard that the food samples produced on the premises of I Cook Foods tested positive for not one but four strains of Listeria, as mentioned by Dr Kieu, and that the deceased patient’s sample contained a strand that was highly related, based on genomics and epidemiological data, to these food samples. So again, I go back to the professional training and experience you have: do you think it is an acceptable risk to knowingly allow food to be supplied to vulnerable cohorts in health and aged-care settings that has been manufactured in a kitchen where there is evidence of Listeria contamination?

Mr CHRISTY: Okay, thanks for the question. Look, I cannot give you an answer in relation to the genome matching of the Listeria in this case, because I am not privy to the reports or the findings. I was actually never briefed or given any advice on those findings, so I cannot answer that part of the question. But I can tell you now that when an environmental health officer investigates these types of matters, we must be absolutely certain and prove beyond a reasonable doubt before taking any serious action against the food business that there is evidence to actually confirm that that risk is present, and an appropriate course of action should be taken. In my experience as an environmental health officer, you would need several criteria and elements to be ticked off before you would be satisfied that you have a reasonable belief or belief beyond a reasonable doubt that that particular food business and that particular food has caused an illness in a person. What I am saying is that you cannot just rely on genome sequencing of the Listeria monocytogenes pathogen. An officer would need to rely on evidence to suggest that the person actually ate the food allegedly given by that particular food company or food supplier. That is why I emphasised in my statement that you need a four-day food history and you need food samples and even environmental swabbing to further build your case of evidence, so you can prove it beyond a reasonable doubt. You cannot just have each individual criterion for obtaining evidence to paint an entire picture. I hope that answers the question for you.

Ms VAGHELA: Yes. I will have a follow-on question, but I will come to that in the second round, Chair.

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Mr CHRISTY: I do not know the answer to that question, I am sorry.

Ms MAXWELL: Okay. That is all I have got at the moment, Mr Christy. Thank you.

The CHAIR: Thank you. Ms Vaghela, Kaushaliya.

Ms VAGHELA: Thanks, Chair. Thanks, Mr Christy, for appearing today. In your role as an EHO I am sure you are well aware of the Public Health and Wellbeing Act 2008, and it states that:

If a public health risk poses a serious threat, lack of full scientific certainty should not be used as a reason for postponing measures to prevent or control the public health risk.

Can you please explain how this principle applies to food safety investigations as conducted by environmental health officers and the issuing of closure orders?

Ms VAGHELA: Yes. I will have a follow-on question, but I will come to that in the second round, Chair.

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The CHAIR: Thank you. Ms Wendy Lovell.

Ms LOVELL: Thanks very much, Chair. Mr Christy, thanks for your evidence. Mr Christy, on 24 June 2020 Dr Sutton told our committee that whilst in hospital the patient only consumed food from the hospital, with all food provided by Knox Private Hospital’s sole caterer, I Cook Foods. Given your report identifies about six different suppliers, is that statement by Dr Sutton correct?

Mr CHRISTY: I do not believe I am in a position to comment on that. All I can say is I have just reported on what I saw—my observations—and what was told to me when I visited the Knox Private Hospital kitchen. I am not in a position to state whether what Dr Sutton said was correct or not.

Ms LOVELL: Thank you. But you were being advised by the hospital that on the soft diet, the sandwiches that the patient would have consumed would have been made in the hospital kitchen, and therefore they would have used the suppliers that they use. Is it possible that the Listeria found in the sandwiches came from the salad and the cheese from providers other than I Cook Foods?

Mr CHRISTY: That is possible, and you raised a very valid point. I mean, I know that there had been a focus on ham as being the cause of the Listeria. As I mentioned in one of the other previous questions, Listeria can be found in soft cheeses, it can be found in salad mix. There are quite a few other possible sources. Listeria monocytogenes is a fairly hardy and difficult pathogen to remove from a food product once it becomes a contaminant, and as I said, it can grow in refrigerated temperatures. But the other thing too is that you have got to remember that there is an acceptable level of Listeria and other pathogens in food products. Under the compendium of the microbiological standards for ready-to-eat food, the acceptable standard of Listeria is 100 colony-forming units per gram. So the problem there is that you can have the Listeria existing in a food product and it is at an allowed level, but if it is poorly stored or poorly handled, especially going past its shelf life, the pathogen will multiply and increase in numbers while it is under refrigeration. We have seen in past years where there have been Listeria outbreaks they have been a problem. We saw the recent one—I think it was in rockmelon. It is possible for any of those other food products supplied by other food suppliers to be the cause of the Listeria.

Ms LOVELL: So were the suppliers of those other products that were used in the sandwiches checked for Listeria in their premises?

Mr CHRISTY: No, they were not. I must refer back to what Ms Crozier asked me in the earlier question, which was that the time frame from when the patient was diagnosed with the Listeria to the time that Knox council was notified through the referral from the department was four weeks. So at that stage there was no possible way to go and sample food products from other suppliers and even do environmental swabbing of food contact surfaces because it was just too long between the time of the incident to the time that you could do an investigation. So to be certain whether a food product or a food supplier is the cause of Listeria, you would need to act upon and do your investigation and your sampling practically immediately on being notified of the diagnosis.

Ms LOVELL: Therefore it is also not possible then to identify that it came from I Cook because it may not have existed in their products four weeks earlier either?

Mr CHRISTY: That is possible because you do not have leftover food product. You do not have food product from the same batch that you could examine and analyse to see if you get a match. So that is why I was getting to one of the other questions I had, which was: to be absolutely 100 per cent certain and prove beyond a reasonable doubt, you have got to match the food product of a particular batch that the patient or the person has eaten to the actual Listeria that was isolated in some other location.

Ms LOVELL: Okay. Were you surprised that no—

The CHAIR: Thank you. Sorry, Ms Lovell. Ms Watt.

Ms WATT: Thank you, Chair, and thank you, Mr Christy, for appearing before us today. I am indeed new to this and was not around for the original inquiry, so I have a couple of questions I just wanted to ask. One was: in reading the thoughts and transcripts on the initial inquiry it was noted that the department asked Manningham City Council, the City of Greater Dandenong and indeed Knox to take food samples and

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environmental swabs for testing from multiple sources in order to cast a really wide net to try to capture all the possible sources of contamination. Listeria, I note here, was only detected in the samples taken by the City of Greater Dandenong from the I Cook Food premises. So my question is: what is the standard practice taken by local governments to enforce the Food Act when Listeria is detected in a food manufacturing facility? You spoke a little bit more about individual cases earlier, but I am wondering more about food manufacturing facilities and particularly, given your comments about acceptable levels of Listeria, what in particular is done when it comes to preparing meals for high-risk cohorts, including the elderly and patients in hospital. I know there is a bit in that.

Mr CHRISTY: Okay, yes. Thanks for the question. Look, I will go to the second part of the question. We know that immunocompromised or elderly patients should steer away and even pregnant women get told, ‘Don’t eat soft cheeses. Don’t eat deli ham’, because the risk is there that there may be some Listeria in a product. My understanding is that Knox Private Hospital would apply their own procedure to only supply food products to vulnerable or elderly clients that is of lower risk. So that would mean avoiding food products—say, for example, with Listeria—being served, so that patients would not consume that product and run the risk of acquiring a gastropathogen like Listeria. That is where that is.

The first part of your question was, ‘What sort of actions would local government take if Listeria was found in a food business?’, and that process is fairly straightforward. There are national guidelines for the clean-up of Listeria in food businesses. Those guidelines assist and guide food businesses and environmental health officers to conduct a clean-up of a food production area which may have the presence of Listeria, especially Listeria monocytogenes, which is the pathogen in question here. So usually the practice is—and mind you, local council health departments would have policies and procedures on how they should go through this process—they would attend the premises, they would do their inspection, they would already have a report from a laboratory or a report from the department or from another council that they have got a food product that has had Listeria detected, and they would instruct the food business to undertake a Listeria clean-up. That involves a process that usually takes about 24 hours, so they would apply the necessary sanitising cleaners, such as chlorine-based sanitiser, to clean and wash down food production areas. Then that clean-up process needs to be verified, so there would be a requirement for either the food business or the local council to do it. Most of the larger food businesses employ their own cleaning companies, like Ecolab for example. They would be the experts that come in and do the environmental swabbing to send back to the lab to verify that the clean-up has been successful.

In these sorts of cases, where you are assisting a food business to do a thorough clean to remove the Listeria pathogen, it is not normal practice to turn around and say to the business, ‘Okay, well, you’ve been negligent in your duties as a food business, we’re going to fine you or prepare a prosecution brief and prosecute you’. That just would not happen, because you have got to remember the circumstances around Listeria are that it can appear and pop up in food products in the food supply chain at any time. Food production companies are bringing in raw ingredients from suppliers from all over the place, and they rely on those suppliers to provide them with safe food that is of good quality and that does not contain any contaminants. They are actually relying on those suppliers to give them that type of food, and then they put the components together when they produce food. If an environmental health officer of another council is doing random or routine food sampling— I will give you an example. So in my—

The CHAIR: I am sorry, Mr Christy. If I can just interrupt, I just have to move on to the next question before you give that example.

Mr CHRISTY: No. Yes, sure.

The CHAIR: It is the Deputy Chair.

Dr KIEU: Thank you, Chair. I would like to come back to the Knox Private Hospital. I am still wondering about the genomic link between the patient death and the strain found at I Cook. When you were at Knox hospital, you talked to the catering services manager about how from the kitchen to the consumption there are a lot of things that could happen in between. Did you talk to the control nurse or the ward staff or the ward manager there, just in case something happened in the transit in between the two places?

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The CHAIR: I am sorry, Mr Christy. If I can just interrupt, I just have to move on to the next question before you give that example.

Mr CHRISTY: No. Yes, sure.

The CHAIR: It is the Deputy Chair.

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Mr CHRISTY: Thank you for that question. No, I did not at all. So the only other staff member, other than the catering staff, that I spoke to was Ms Cullen, the head of the infection control team, which I mentioned in my presentation before. She was the only other non-catering staff member I spoke to in my time at Knox Private Hospital.

Dr KIEU: Okay. Now, you also mentioned just now and also in your police statement that you found no evidence the Listeria was caused by I Cook Food in your investigation, and you just said that it should be established beyond a reasonable doubt before something is acted upon. But in this case, prompted by the death, there was investigation in various councils, and the strain that in technical terms related to the patient death was only found in one place, namely I Cook. So do you think that is a reasonable outcome? And is it acceptable that something that would be doing harm to a vulnerable cohort is a reasonable outcome of this?

Mr CHRISTY: I think it is a good reason to believe that if you do not have all the evidence provided to you—and yes, I do mention the term ‘beyond a reasonable doubt’—a food business would pose a public health risk to the community. If you do not have the full picture and all the evidence that a particular food business is a risk to public health, you do not proceed with the process of shutting it down until you have got the complete picture. And this is one of the problems, where the time delay from the day that the Listeria was isolated to the time that the investigation started was just too long. So you do not have that opportunity to actually find that evidence. So I think it is reasonable to accept that there is no risk to public health unless you have got the full picture.

Dr KIEU: But nevertheless, something was found. In terms of it shutting down, is it a permanent closure order or was it just a shutdown with the possibility of being reopened again once cleaning was done and certain criteria and conditions were met?

Mr CHRISTY: That is correct, yes. So under the Food Act, my understanding is you cannot close a food business forever. So the officer who does the report and issues the closure order would need to be satisfied that the business has met all the directions of the notice before it is allowed to reopen. But in my experience there is never an opportunity—there is not even a power in the Act—that the business can be closed forever. The only power a council has to prevent a business from continuing to operate is to do with its registration and renewal of registration. So at the annual registration or licensing of a business a council can refuse to renew the registration of a food business, which is at 31 December each year. That would be the only power that a council would have to see a business close, if they refused to register or renew the registration of a business.

Dr KIEU: So it is not unreasonable to temporarily shut down something just for investigation and cleaning?

Mr CHRISTY: Yes, sorry. I did not answer that part of the question. That is correct, so if an environmental health officer sees fit that a temporary closure of a food business is warranted to remove an alleged food safety risk—and that is outlined in, for example, the Listeria clean-up guidelines—in most circumstances you would request or ask the business to close temporarily to do a clean-up, and as I said it is usually only a 24-hour process, maybe 48 hours.

The CHAIR: Thank you, Mr Christy. Mr Ondarchie.

Mr ONDARCHIE: Mr Christy, help me out here. You mentioned a few companies, and I might get their names wrong, so excuse me: Bidfood, S.A.J., Redi Milk, Juice & Co, GWF Tip Top and Mr Donut. Were they investigated as well, as a potential source?

Mr CHRISTY: No, they were not.

Mr ONDARCHIE: Okay. My understanding is that you supplied your report to DHS on 22 February, is that correct?

Mr CHRISTY: Yes, that is correct.

Mr ONDARCHIE: Okay. And were you talking to DHS before you formalised your actual report on 22 February—about your ongoing investigation, how it was going and things like that?

Mr CHRISTY: Yes. Look, from what I can recollect, prior to sending my report I would keep in touch with the officers at the food safety unit, so I would ring up and say, ‘I’ve been there, this is what I found. I’m going

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 11

to put my report together, expect to have an email with the report’. That is the usual practice. That is what you would do.

Mr ONDARCHIE: And did they generally know that you could not find any link to I Cook Foods through your investigation before you formalised your report?

Mr CHRISTY: No, they did not indicate that to me at all.

Mr ONDARCHIE: But did you tell them that you could not find a link to I Cook Foods before you formalised your report?

Mr CHRISTY: No, I did not.

Mr ONDARCHIE: Okay. I am just curious that you supplied you report on 22 February, yet the day before the CHO signed a note closing I Cook Foods. He must have some great vision or something. I do not know how that worked. I will come back to that.

Before you supplied your report and you were talking to DHS, did they give you any guidance or instruction on the sort of thing they were looking for in your report?

Mr CHRISTY: Yes. What they were looking for was they wanted me to zone in on the food processes of the facility, and they were interested in the cold storage temperatures and the reheated temperatures for the period of time that the patient was in the hospital. They zoned into having a particular interest in the other suppliers other than I Cook Foods, and as I mentioned in my statement, they also wanted me to go. You see when I went back the second time they wanted me to confirm—was that patient on a soft diet? Because they were advised of that in the first report, and my opinion is they were dissatisfied with that answer, so that was why they sent me back again the next day to confirm whether she was on a soft diet.

Mr ONDARCHIE: Did they ask you to change anything in your report?

Mr CHRISTY: Not at all, no.

Mr ONDARCHIE: Did they give any guidance about, ‘We are looking for this sort of solution’?

Mr CHRISTY: I think that, as I mentioned before, they were very interested and they zoomed in and were looking for very specific answers to the questions about food suppliers, food temperatures, whether she was on a soft diet, and also the second time around I was actually asked to instruct the hospital kitchen to do a Listeria clean-up as well, as a precautionary measure.

Mr ONDARCHIE: Okay, so in your expert opinion do you find it curious that no other patient contracted Listeria between the time of the tragedy of Ms Painter’s passing and when you finalised your report?

Mr CHRISTY: That is a very good question, and I am glad you raised that. From what I understand, and I did observe this at the time, the I Cook Foods sandwiches that I Cook Foods supplied they actually delivered in batches. They are prepared at their factory in Dandenong South, they are cut into quarters and then they are put in packs and they get shrink-wrapped. So you would think that the same batch of ham would be in every sandwich, not just the one, and would be distributed to a lot of patients in the hospital ward. So you are actually right in saying, ‘Well, how come no other person was affected? Why didn’t anyone else come down with listeriosis? It’s only one patient’. That is the difference between a single-case gastro and an outbreak, and in my experience a lot of single-case gastros do turn out to be clusters, or gastro outbreak clusters, which usually do not get identified until later down the track. You posed a very good question there: why wasn’t anyone else affected by Listeria other than Mrs Painter?

Mr ONDARCHIE: Just a couple of quick questions, then: did anybody from DHS once you supplied your report ask you to alter it or change it or anything like that?

Mr CHRISTY: No, they did not.

Mr ONDARCHIE: Okay. And one further question: Paul Goldsmith, who does he report to?

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 11

to put my report together, expect to have an email with the report’. That is the usual practice. That is what you would do.

Mr ONDARCHIE: And did they generally know that you could not find any link to I Cook Foods through your investigation before you formalised your report?

Mr CHRISTY: No, they did not indicate that to me at all.

Mr ONDARCHIE: But did you tell them that you could not find a link to I Cook Foods before you formalised your report?

Mr CHRISTY: No, I did not.

Before you supplied your report and you were talking to DHS, did they give you any guidance or instruction on the sort of thing they were looking for in your report?

Mr ONDARCHIE: Did they ask you to change anything in your report?

Mr CHRISTY: Not at all, no.

Mr ONDARCHIE: Did they give any guidance about, ‘We are looking for this sort of solution’?

Mr ONDARCHIE: Just a couple of quick questions, then: did anybody from DHS once you supplied your report ask you to alter it or change it or anything like that?

Mr CHRISTY: No, they did not.

Mr ONDARCHIE: Okay. And one further question: Paul Goldsmith, who does he report to?

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 12

Mr CHRISTY: To be honest, at the time, I am not entirely certain: a gentleman by the name of Gary Smith maybe at the time. I think he also reported to Brett Sutton as well. From my understanding, most of the department managers or heads in the public health unit can actually report directly to the Chief Health Officer.

Mr ONDARCHIE: Okay, thanks. I have nothing further, Chair.

The CHAIR: Thank you. Mr Limbrick.

Mr LIMBRICK: Thank you, Chair, and thank you, Mr Christy. I would like to follow on from the question around what Mr Ondarchie raised about Listeria—why weren’t other patients affected by this? In your professional opinion would that seem to indicate that the contraction of this disease is not likely to have happened in the hospital?

Mr CHRISTY: Yes. I believe that probably could be the case. Of course Knox council or any other agency has never had the proper opportunity to do a proper investigation. As I was saying earlier, if that listeriosis had been reported practically straightaway, within a reasonable time, you could have cast a wider net to actually determine the real cause of the gastro. My understanding is that the particular products given to Knox Private Hospital and I Cook are nationally distributed products. Your hams, for example, your delicatessen hams—if they are manufactured by some company in another state and they have got a problem with Listeria contamination and that product is distributed to a lot of retail food businesses around Australia, especially in Victoria, that Listeria could pop up in any food business, not just Knox Private Hospital. Delicatessen ham is a very common food product anyone could eat. Everyone enjoys a ham and cheese sandwich or eggs Benedict. So you are right: if we had known a lot earlier of this case and an investigation had started a lot earlier, it would have been possible to actually pick up sooner where the real source was.

Mr LIMBRICK: Thank you. Back to the menu—I have got a copy of the menu in front of me, the soft diet menu—and the high-risk items on that. You talked about high- and low-risk items, because some of them are heat treated so therefore they are at much lower risk of Listeria. Were any of these high-risk items I Cook Foods products?

Mr CHRISTY: Yes, well, I am just looking at it right now. I do not know whether you have got it in front of you.

Mr LIMBRICK: I do.

Mr CHRISTY: Yes, great. If you look at dinner, you have got ‘main course: soup with veggies’. To be really honest, I cannot recall whether those main courses for dinner were actually provided by I Cook Foods, but I would say they were. But I am pretty certain, from what the hospital are telling me, that the hospital make their own sandwiches, because they take the crusts off them. There are no crusts, because it makes it easier for compromised patients to eat them. My understanding is that a lot of those food products on the menu would have been provided by I Cook Foods.

Mr LIMBRICK: But what is the most likely high-risk product that we see there?

Mr CHRISTY: So in all honesty, you would say that all of those food products are high-risk food products. Look, if I zone in to ‘roast chicken and gravy’, roast chicken and gravy is a high-risk menu item. That is why at the hospital, when they receive the food product and then reheat it, the process is to reheat that food product to a core temperature of over 75 degrees, so the heating process would ensure that all the pathogens are killed, and then when it is served it should be considered safe. That is why Healthscope are required to have a fairly comprehensive food safety program, keeping food safety records. They get audited by a third-party auditor to ensure procedures and processes are in place to ensure proper food safety management. That is what you want to see when you do your food safety assessment and to be satisfied that all the records are in place to confirm that roast chicken is safe when it is served—and even safe when it is received. The arrangements or the procedures that the hospital would have with the suppliers are such that Knox Private Hospital would need to be satisfied that the food products they are receiving from their suppliers are also satisfactory in relation to their food safety management programs.

Mr LIMBRICK: But if that handling process broke down, then you would expect that many patients would have been exposed to Listeria—is that correct?—if that process had broken down.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 13

Mr CHRISTY: That is correct, yes. You are absolutely right in saying that.

The CHAIR: Thank you, Mr Limbrick. Kaushaliya Vaghela.

Ms VAGHELA: Thanks, Chair. Mr Christy, during the initial inquiry in June last year the committee heard from Professor Sutton that, in regard to issuing the closure order to I Cook Foods, no one single piece of information was used in isolation to come to that decision, rather it was the collective picture of public health risk that he believed I Cook Foods continuing food production represented. In your understanding, what do you understand of how the source of a notified Listeria infection is determined?

Mr CHRISTY: Okay. Look, I cannot comment on what Dr Brett Sutton would have said because I am not privy to his conclusion, but to be satisfied that the presence of Listeria in a food product is a risk to public health, especially from a wider scope with the wider community being at risk, you would need to be satisfied with the actual food product that is being served, not some secondary evidence of doing a swab on a food contact surface several weeks later after the incident. If you have got the food product of that particular batch that was consumed by the person who had been affected and it came back with Listeria, there is your proof. There is your proof that there is an immediate public health risk. You have got food product out there available to patients or being served by a food provider, so the immediate action would be, ‘Yes, let’s remove that food product from sale or from service’ to remove that risk to the public. That is why we have a food recall system— routine sampling, or problems that a manufacturer would pick up during their production of a product. If they find a problem, Food Standards Australia New Zealand issue a food recall. So in this case, if it is alleged that a batch of sandwiches contains Listeria, you would want to focus your attention on that particular batch of food product. That is your main evidence. If you tested that and you found Listeria of an unacceptable level, over the acceptable level on the compendium of microbiological standards for ready-to-eat food, that is where you would say, ‘Yes, gotta take action’.

Ms VAGHELA: If we go ahead with that, so after the investigation that you did at the hospital, the conclusion was that the patient was on the soft diet. Now let us just assume that I Cook Foods was not closed and at that time when you did the investigation you were not aware that Listeria was found in the food samples from I Cook Foods. What would have happened if I Cook Foods had not been closed and there was further contamination?

Mr CHRISTY: That calls for speculation, really.

Ms VAGHELA: That is what the risk is, though, Ray. If we look at the Public Health and Wellbeing Act, if a public health risk poses a serious threat, that is what we are talking about. This is not just one thing—

The CHAIR: Thank you, Kaushaliya. Mr Christy, please.

Mr CHRISTY: I think that is just speculation. Just to clarify, you would need to use the powers of the Food Act, because this whole matter is all about enacting vested powers that the council has under the Food Act. I think you have got to understand you cannot use the powers in the Public Health and Wellbeing Act. That is for separate scenarios and separate situations. For example, we have the COVID pandemic. That is the reason why we have the Public Health and Wellbeing Act—for removing those public health risks of infectious disease outbreaks. Where you have got possible or alleged public health risks from food safety breaches, you have got to be 100 per cent certain and prove beyond a reasonable doubt that that food business caused that person to be ill, because you have got this evidence, this evidence and this evidence: you have got a food history, you have got a food sample, you have got the pathogen isolated from the patient and you have got exactly the same pathogen isolated from the food sample or the food batch. Bang, there, you have got your evidence: ‘Oh, yes, that business poses a risk’.

Look, if I had gone to the food factory and found it in a disgusting, dirty, unclean, unhygienic condition and there were no food safety records, no trained staff, no pest control and there were cockroaches running everywhere, yes, I would agree that that posed a serious food safety risk to the public and they deserved to be closed. Then in order to reopen they would have to prove to us that they had met all the requirements—to clean up and make the place sanitary or make repairs where possible. That is the difference here. You are talking about a food company that, from what I have seen and heard in the media, has a very high standard of hygiene, has a rigid food safety system and has a management program in place. To me that does not pose a public health risk.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 13

Mr CHRISTY: That is correct, yes. You are absolutely right in saying that.

The CHAIR: Thank you, Mr Limbrick. Kaushaliya Vaghela.

Mr CHRISTY: That calls for speculation, really.

The CHAIR: Thank you, Kaushaliya. Mr Christy, please.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 14

The CHAIR: Thank you, Mr Christy. Dr Bach.

Dr BACH: Many thanks, Chair, and thank you, Mr Christy, for being with us. I might just pick up on a couple of earlier questions, and your responses too, from Mr Limbrick, Mr Ondarchie and also Ms Vaghela just now, in particular about the fact that there was this lag time. If it was the case that Listeria was present in food in the hospital at such levels that it would make a patient very sick, and obviously in this case, incredibly sadly, the patient died, well, then, you would have expected—and I hope I am representing your testimony properly— to see other patients contract Listeria. Given that is the case, is it possible, Mr Christy, that the patient actually came into the hospital already having contracted Listeria?

Mr CHRISTY: Yes, that is correct. From my understanding she actually was presented at the hospital with gastroenteritis. But yes, you are absolutely correct that she could have come into hospital with the infection. Off the top of my head I cannot recall what the incubation period is for Listeria. A lot of gastro infections take several days to several weeks to incubate before they present as a disease, so that is possible, but we will never ever really know because of the huge time frame between the time of diagnosis and the time of investigation. So that window of opportunity was lost, so we will never ever know—in my opinion, we will never ever know—the real reason why she got the infection.

Dr BACH: All right. Thanks, Mr Christy. Mr Christy, I am clearly missing something with the myopic focus, especially of the health department, on sandwiches. You talked about a range of other foods, you talked about potential risks with a range of other foods. You said—I was taking notes as you were talking a little bit earlier—that you are unequivocally certain that the patient did not eat sandwiches from I Cook Foods. And then again I have got some notes that it was, as we have already talked about, on 22 February, in the morning, that you emailed the findings of your investigation at the hospital through to Mr Goldsmith, who reports to Professor Sutton. But then of course later that day I Cook was shut down and Professor Sutton even said in a press conference that there was a direct link, not only to I Cook but to the sandwiches. What am I missing here, considering there were a range of other foods produced by a range of other organisations—and you have spoken about the risks there as well?

Mr CHRISTY: You have posed a very relevant, very interesting question because it does make me wonder why there was a focus on the sandwiches. And yes, there were other foods involved, and yes, if there were other foods involved and that patient ate other foods, other than sandwiches, why wasn’t I asked to focus on those food suppliers? You are absolutely correct. Why was there this zoning in and focusing on a sandwich? You are right. So it is a concern to me why a sandwich, perhaps with ham and salad, would be the focus of this particular investigation. To be honest, I would never know unless somebody from the department would actually ring me and say, ‘Oh, I believe it was a sandwich and you need to investigate whether she ate a sandwich because we’ve got evidence here that she had a sandwich’. I just was not given that information or opportunity.

Dr BACH: But furthermore, the report that you provided to the department actually made it plain that the patient had not eaten an I Cook Foods sandwich. That is not really a question, it is something that we can push other witnesses on at a later time. Just quickly from me Chair, if I still have some time—

The CHAIR: You have.

Dr BACH: Thank you. Earlier on you were asked a very strange question by Dr Kieu about whether or not you went roaming around talking to nurses. I mean, obviously Dr Kieu and other Labor members of this committee have their purposes in asking their questions. Can I just confirm that you carried out your inquiries at the hospital in a proper and normal way, Mr Christy?

Mr CHRISTY: That is correct in saying that, and of course my investigation was and only can be limited to the kitchen and the food services of the kitchen.

Dr BACH: Good. I thought that was important to get on the record. Thank you very much.

The CHAIR: Thank you, Mr Christy, very much for joining us today and thank you for the time that you have given us. I think it has been very illuminating for us all. As I mentioned at the outset, you will receive a transcript of today’s hearing, and I encourage you to have a good look through it and make sure that we have not misheard or misrepresented anything that you have said. Thank you to the committee.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 15

Mr CHRISTY: Thank you, Madam Chair, and thank you to the committee for this opportunity to present today.

Witness withdrew.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 15

Mr CHRISTY: Thank you, Madam Chair, and thank you to the committee for this opportunity to present today.

Witness withdrew.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 16

WITNESS (via videoconference)

Ms Kim Rogerson.

The CHAIR: Good morning, everyone. Welcome back to anyone who is watching at home, and we would like to welcome Ms Kim Rogerson, who is here in a personal capacity to help the committee.

Ms Rogerson, if I can let you know that all evidence taken is protected by parliamentary privilege, and that is provided by the Constitution Act but also under the standing orders of the Legislative Council. Therefore any information you provide during this hearing is protected by law. You are protected against any action for what you say during this hearing, but if you should go elsewhere or outside and repeat those same things you will not have the same protection. Any deliberately false evidence or misleading of the committee may be considered a contempt of Parliament.

With me today we have Ms Georgie Crozier; Ms Wendy Lovell; Dr Tien Kieu, the Deputy Chair; Ms Kaushaliya Vaghela; Dr Matthew Bach; Ms Sheena Watt; and Mr David Limbrick. Did I say Mr Ondarchie? And Mr Ondarchie—my screens were moving around as we spoke.

Thank you very much again for making the time for this committee and for this inquiry. If you would like to make some opening remarks, then I will open it up for committee discussion. Thank you.

Ms ROGERSON: Okay. First off I just want to thank you for allowing me to attend today and give you some more information about what has been going on—2½ years now. But first off I just want to start by clarifying a couple of things that Ray touched on, because I was the one who did the original sample and there was no Listeria. Levels were not found in the factory, but they said they found them in the actual food. So I did samplings, swabbing out at the factories. And the levels of that food were within safe levels by law; they were completely safe. Listeria also has a very long incubation period. It can be from seven to 70 days, so it is a very long, long time.

Now, the lady was ill with symptoms before she went into Knox hospital on the 13th. She did come from a nursing home. As they said, she might have eaten something at Christmas time or something. We do not know. She also had several other comorbidities which would have contributed—maybe to her demise, but also to her illness. I do not know whether anybody had looked at the food from the nursing home when she came in there. We do not know.

Also Greg Spicer, as he said, does not work under the Food Act. He is a planning compliance coordinator, and I am not sure why he was one of the ones that went into the Knox hospital. That just seemed a bit odd to me. There was not an autopsy conducted, just to let you know of that. And there were four strains of Listeria that were listed there that were close to the genome, but they were all below normal levels. And also too, a couple of things: closure orders must be signed by the EHO, the coordinator of public health, the manager, the director and the CEO, so it does go through a lot of different levels in order to be acted upon. As I said, it is ubiquitous, Listeria; we find it everywhere. But Listeria m is particularly toxic to vulnerable people in the community and, as I think Ray said, elderly people with other comorbidities and also pregnant women.

PrimeSafe was the company who had provided the meat to I Cook and 100 other premises. I did ask the question, ‘Why isn’t PrimeSafe and the meat being tested?’, and I was told, ‘Oh, I think they are’. But then I was also told that the packaged ham that was used by I Cook was not listed, as they did not have that batch available, which I find hard to believe because big companies like this always keep batches, the batch codes, on site for future sampling. So that was fairly—

The CHAIR: Yes. Thank you, Ms Rogerson.

Ms ROGERSON: I will try and be fairly quick with my other evidence that I have written. I do want to say I was very, very shocked by some of the falsehoods that you were told during the previous hearings. At the time I was not sure what to do when I heard what I believed were lies after lies being told to you. Some of these lies were designed to smear me, and that was particularly hurtful. To hear from former colleagues, including my superiors at the City of Greater Dandenong, lying about me to cover up their crimes was truly shocking and also pretty destructive. Having already destroyed my career and big parts of my life, they then came into the

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 17

Parliament and did everything they could to destroy my good name. I have been away from the City of Greater Dandenong for over two years now, and only now do I feel safe to say that Dandenong council operates under a culture of corruption and bullying.

When I appeared in front of you last time, I was scared, and honestly, I was concerned for my safety. I also did not know whether I should only answer questions as in court or whether I was meant to tell you the things I believed that you should know. Since my appearance I have been interviewed by Victoria Police and have told them about witnessing Leanne Johnson and Elizabeth Garlick changing and doctoring photos and body-camera video which they knew were to be used in the evidence in the criminal trial against I Cook. I knew that this was wrong and illegal, but I did not realise the importance of it. But I can assure you I was horrified. I am happy to read to you an excerpt from my police statement that makes it clear that Leanne Johnson and Elizabeth Garlick were central to the alleged crimes against I Cook. I use the word ‘alleged’ because, despite numerous police investigation with overwhelming evidence and the passing of more than two and a half years, Victoria Police have not laid a single charge. I ask myself on a daily basis: where are the police, why haven’t they acted and who is stopping them from doing their job and delivering justice, if that is what is going on? In fact the only ones who have faced charges in this scandal are Ian Cook and I Cook Foods, and every single one of those charges was based on a lie and subsequently dropped in court. Let me be clear: I Cook Foods would never have faced criminal charges. This whole saga stank from the start.

Council eventually turned on me when I refused to help illegally frame I Cook Foods. Looking back I now realise my fate was sealed when the supervisor of planning and compliance at council, Greg Spicer, asked me to lie in what was meant to become a sworn statement designed to destroy the Cooks. There were things I refused to have included in my statement, like the conversation at the meeting that I had with Ben that never took place. I never had a meeting with Ben Cook after I collected my samples. In the end I did sign a statement that others had contributed to, as I was scared I was going to be sacked and I felt I had no choice. Leanne knew of this, and she asked me to change some of the wording of that statement into my own words because Greg had written it in a different format.

I thought the public had a right to know the council corruption and corruption within the Department of Health and Human Services. Some of that corruption happened at a level that I was not able to witness. Other things happened in front of my eyes. I knew that Elizabeth Garlick would deliberately take close-up photos and then blow them up and print them in order to misrepresent the condition of the premises. I saw the photo of broken food processing equipment, including knives and whisks. Rather than being honest and acknowledging that these were being thrown out, she pretended they were in use, and a criminal charge was created using this photo. This was standard behaviour that I was exposed to. I could not believe it when the inquiry was told by Elizabeth Garlick that it was hard to see the piece of tissue in the photo of the slug that I had earlier seen her editing. She told this inquiry it was a copy of a copy of a copy, which is a lie. I am happy to talk about any further things and anything you would like to ask me about, but most of all thank you for allowing me to report to you.

The CHAIR: Look, thank you very much, Ms Rogerson. I appreciate that for you this has been quite a roller-coaster, and so we very much appreciate you continuing to give us your time. I will just open up the questions. I still cannot quite understand why Dandenong council was doing the investigation, because it seemed that the event occurred in Knox council. I would have thought that it would have been Knox council that would have been managing this investigation, seeing it was within Knox city.

Ms ROGERSON: That is right. Sometimes that can be a bit of a grey area. The factory that allegedly made the sandwich, or made the product, was in Dandenong South, and up until the end of 2017 it was under my jurisdiction. So that I think is why I was sent to do the samples, and as this patient had entered Knox hospital, they are the ones that should have done the investigation of the nursing home as well.

The CHAIR: Are you surprised that it appears that the hospital and the nursing home were not inspected at that time?

Ms ROGERSON: Absolutely. I am horrified actually, because if this lady went into the hospital with gastroenteritis symptoms on 13 January, why weren’t samples taken right then and food history and also of the nursing home? They would have had those kinds of records available. I was not informed at all about anything

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 17

The CHAIR: Are you surprised that it appears that the hospital and the nursing home were not inspected at that time?

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 18

until 31 January. At the time she had been, I think Ray said, readmitted, and then I did the sampling on the 1st. So no other sampling occurred until later in February.

The CHAIR: Right. Just returning back to some of the comments you made about Ms Garlick’s testimony to us and the photographs that she showed. You obviously witnessed her photoshopping those photos?

Ms ROGERSON: Yes, I did.

The CHAIR: Thank you.

Ms ROGERSON: Yes. I have it in my police report. I am happy to read it to you if you would like.

The CHAIR: Thank you. Ms Garlick and Ms Johnson painted a fairly dire picture of I Cook with the photos of the broken instruments and things like that. So as someone who had been inspecting I Cook for a number of years previously, did these seem quite a stark contrast to what you knew of that business?

Ms ROGERSON: That is correct. So they went in unannounced and walked in, and that was usually how I did my inspections for I Cook. I always asked the questions: ‘Okay, what is this for? What is this?’. And the answers were such as: ‘They’re going to be disposed of’. Whatever questions they were, they answered them clearly and honestly. They did not in any form deserve what they received, and certainly not the—I think it was—7 tonnes of food that were disposed of by Johnson and Garlick.

The CHAIR: Yes. The photos that we saw did seem to show disrepair, did seem to show pooling et cetera. This would not have been what you would have regularly seen during your inspections at I Cook?

Ms ROGERSON: No. I believe at that time they went in while they were doing cleaning. The water on the floor is a fairly normal thing, but it is cleaned every night and it is dried. So it would have been very difficult to bring that up as a charge if they had known the company or if they had even spoken to me and asked these appropriate questions of the Cooks.

The CHAIR: Yes. Thank you, Ms Rogerson. I will hand over to Deputy Chair Tien Kieu.

Dr KIEU: Thank you, Chair. Thank you, Ms Rogerson, for appearing here today again. Just very quickly, you mentioned that there were a cover-up, bullying and also corruption, and you have referred that to IBAC. So what is happening now?

Ms ROGERSON: With IBAC—it is a good question. At this stage I think the last inquiry recommended that an outside force like IBAC start an investigation. As to IBAC and where they are, I am not privy to that information.

Dr KIEU: Okay. The other thing is you have been an EHO at the City of Greater Dandenong for some time. In a statement you said that I Cook has been shown to be professional and clean and safe for food preparation. I am not quite sure whether you are there in 2016 to 2018, but the City of Greater Dandenong raised at least 13 different issues. So how do you reconcile and explain that? Were you there from 2016 to 2018?

Ms ROGERSON: Yes, I was. I Cook is a very large manufacturer, and for any large manufacturer there is always something that could be done or a recommendation. It is very hard for any of these large manufacturers to have 100 per cent compliance. So any of those items would have been written down as suggestions or requests for them to fix, which the Cooks did straightaway.

Dr KIEU: So in terms of those recommendations, have you ever asked I Cook in the capacity of an officer to update food safety or to tend to those concerns?

Ms ROGERSON: If there was anything that was of a concern, yes, I would.

Dr KIEU: So with regard to the 13 issues, did you do anything?

Ms ROGERSON: Well, I am not quite sure what you mean or which report these 13 issues were in, but anything on a list, if there were 13 items to be done, would have been done by the Cooks.

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Dr KIEU: Okay. In terms of the finding, it is still a puzzle to me, because of the scientific link, the genomic link, between the disease and the strain that was found at I Cook. They are not very common. So in your opinion why is there such a unique or closely related strain there?

Ms ROGERSON: I believe Ray actually gave a good pointer as to why. This unusual genome of the Listeria monocytogenes—those levels were in the safe levels of CFUs, which is the colony-forming units. These are levels that are given to us by the Doherty Institute and all of the microbiologists. They are levels that we go by when we say that it has or does not have Listeria or Listeria m, so it can still have it but be under safe levels.

Dr KIEU: Do I still have time, Chair?

The CHAIR: You have 50 seconds.

Dr KIEU: Just very quickly then, in terms of the batches. I did not hear you very clearly, I am sorry—did you mention that I Cook did not keep their batches for later?

Ms ROGERSON: No, no, no. That was PrimeSafe, which is the meat industry. So they are the ones that would send their authorised officers to the meat factories for inspections.

Dr KIEU: Okay. I think my time is up. I will wait for the next one. Thank you.

The CHAIR: Thank you. Ms Crozier.

Ms CROZIER: Thank you very much, Chair, and thank you, Ms Rogerson, for appearing before the inquiry again. We really appreciate your time. I would just like to follow up that issue about PrimeSafe. There are a couple of questions I have got here. You mentioned those who would close a business, who would be involved in that decision, is the environmental health officer; the coordinator of public health, I think you said; the manager, CEO and others. Correct me if I am wrong on that. So with PrimeSafe, if there was a meat product that was of concern, would you expect them to have been brought into the investigation for such a serious decision, to close a business, such as what happened with I Cook?

Ms ROGERSON: Yes, absolutely.

Ms CROZIER: So have you got any understanding why they were not brought into the investigation? Have you got any knowledge of why they would not or was it ever raised? These products were provided to I Cook from secondary suppliers or other suppliers. Why weren’t they investigated as well?

Ms ROGERSON: Yes. I had raised that issue with the coordinator of Dandenong council, Leanne Johnson, and apparently, as I just said, PrimeSafe and where the Cooks got their meat from, their manufacturer, did not have the same batch number. Every food that we eat has a batch code number so you can trace it back. So apparently they did not have a batch of that number.

Ms CROZIER: So when did you raise that with Ms Johnson?

Ms ROGERSON: It would have been—I am not quite sure, but it could have been the middle of February, I would just warrant a guess. Yes.

Ms CROZIER: Okay. Could I just ask, in terms of the closing of the business, when you mentioned all of those individuals, all the people within those positions, could you just explain to the committee a little bit more why you bring people in when you are making this decision? Obviously it is a big thing to do, to close a business. People will lose their jobs, the business will ultimately lose business, and in the case of what we have seen with the Cooks it has destroyed their business. So could you explain to the committee a little bit more about that process?

Ms ROGERSON: Yes. So under the Food Act there is a way that it has to be signed. You cannot close a business with just an EHO, even though we are the person that is inspecting it. We make the recommendations, it goes to the coordinator, who then oversees the photos and everything else or does an inspection with that EHO. It then goes to a manager, who looks over it, and to the director, who signs off on it, and also to the CEO.

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Dr KIEU: Do I still have time, Chair?

The CHAIR: You have 50 seconds.

Dr KIEU: Just very quickly then, in terms of the batches. I did not hear you very clearly, I am sorry—did you mention that I Cook did not keep their batches for later?

Ms ROGERSON: No, no, no. That was PrimeSafe, which is the meat industry. So they are the ones that would send their authorised officers to the meat factories for inspections.

Dr KIEU: Okay. I think my time is up. I will wait for the next one. Thank you.

The CHAIR: Thank you. Ms Crozier.

Ms ROGERSON: Yes, absolutely.

Ms CROZIER: So when did you raise that with Ms Johnson?

Ms ROGERSON: It would have been—I am not quite sure, but it could have been the middle of February, I would just warrant a guess. Yes.

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Ms CROZIER: Sorry, just to interrupt you, who are those people in that chain? You have got the coordinator, being Leanne Johnson. Who are the others?

Ms ROGERSON: Correct. So the manager at the time was Peter Shelton. Then we have that the director, Jody Bosman, and then we have the CEO, John Bennie.

Ms CROZIER: So all of those people would have known what was going to happen about the closure or the impending closure, based on the information that was provided to the council?

Ms ROGERSON: That is correct.

Ms CROZIER: Okay. Ms Rogerson, you have made some big claims in your evidence today about the cover-ups, the lying. You have talked about the doctored photos, but had you witnessed any other occurrences of where this has happened during your time at Dandenong?

Ms ROGERSON: No. This was over the top. It was—

Ms CROZIER: What do you mean by ‘over the top’?

Ms ROGERSON: It was as though—this is just my opinion—they had been given directions to follow it through to I Cook regardless of any of the other reports. As Ray said, he wrote a report earlier. And when I did the sampling of 1 February nobody else—it was not in my area then—had gone in after 1 February until the 22nd, I think it was, of February. They should have gone in beforehand. Yes, so—sorry.

Ms CROZIER: I think I have run out of time.

The CHAIR: You have. I will move to Mr Limbrick, thank you.

Mr LIMBRICK: Thank you, Chair. And thank you, Ms Rogerson, for appearing again. There are some very serious claims that you have made. One of the things I would like to understand, though, is—you talked about doctored photographs, and I think in your last testimony you talked about being influenced to change reports and things like this—what is the motivation here, do you think, to do this? Why would they want you to do that, and why would I Cook Foods be targeted like this?

Ms ROGERSON: For I Cook Foods to be targeted like this was very unfair and, as I said, again, over the top. It was just not right, right from the start. It just did not feel good. And some of the evidence that I had given last time as well—I think I have said that as well in that statement—yes, I am not sure.

Mr LIMBRICK: Okay. And you spoke in your opening remarks about corruption. What do you mean specifically by that?

Ms ROGERSON: There was—literally, as I said, I can read this part from my police report—the doctoring of the evidence and the changing of evidence. Now, one of the things was that when I had done my original sampling, I sent it off to MDU, but I did it under chain of custody. Leanne Johnson did not want me to, but I decided to do it anyway. So I am really glad that I did. So with the corruption of that is my statement, and also my initial statement that I did was shown to IBAC but it did not form part of the brief. And also when I witnessed what Elizabeth Garlick was doing in getting rid of the paper tissue out of the photograph, I knew it was very wrong.

Mr LIMBRICK: And you said that you were glad that you used the chain of custody. What was your fear of not using the chain of custody?

Ms ROGERSON: So Leanne did not say anything. She said, ‘Oh, I don’t know; it’s probably not necessary’, but I had a very strong intuition that I needed to do this. So I had called the department of health— there was a whole other story involved with that—and pretty much they said, ‘Oh, look, it doesn’t really matter’. But I did choose to do it on my own. What it does mean is that two officers are with the food at all times, so you cannot both disappear off to somewhere. It has to be in your custody at all times, which is what it was, and it was signed off as such at MDU. They were not sent to the Doherty Institute or any other place, these samples, because they were relating to a death—even though I did not know that at the time. This was the first. It was signed off at MDU as in the chain of custody.

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Mr LIMBRICK: Did you fear that the samples might be tampered with?

Ms ROGERSON: Could be. You do not know. That is part of the doubt when you send something via courier to one of these departments. You have to be very sure that no-one has opened it and looked at it. We seal it with tape and all of that, but you just do not know what has happened. So I took that upon myself. I felt that it was imperative to follow that chain of custody.

Mr LIMBRICK: Thank you very much.

The CHAIR: Thank you. Ms Vaghela.

Ms VAGHELA: Thanks, Chair. Thanks, Ms Rogerson, for your time today to join us. My question to you is: why are food premises like I Cook Foods that produce meals for consumption by vulnerable clients in hospitals and aged-care services required to have a safety plan that outlines how they control and manage food safety hazards, including Listeria?

Ms ROGERSON: So you are asking why are they? That is mandated by the Department of Health.

Ms VAGHELA: So had you previously requested I Cook Foods review and update their food safety plan to be compliant with these requirements?

Ms ROGERSON: Only once did I ever have to do it, and it was a minimal change. It was more a formatting issue.

Ms VAGHELA: Okay. So they did have a food safety plan?

Ms ROGERSON: Yes, they did.

Ms VAGHELA: Okay.

A member: It was a formatting issue.

Ms ROGERSON: Correct.

Ms VAGHELA: Okay. So if they did have this, what is the usual process undertaken by people like you— EHOs—when notified by the Department of Health about a case of Listeria in the community? What sort of record-keeping and documentation requirements are there for EHOs inspecting local food premises?

Ms ROGERSON: Are you specifically—

Ms VAGHELA: What sort of record keeping do you do?

Ms ROGERSON: Okay. We write a report. At the time that I did my sampling, on 1 February, there was not any time to do an inspection. So an inspection of a large manufacturer takes several hours. I was only there to do the sampling that day. In order to get it under chain of custody and to MDU takes a quite a long time, because you have a lot of forms to fill in and you have to maintain temperature. So that is one of the things that I did. Sometimes you would do an inspection just afterwards. At that time I did not do an inspection, and as I said, these premises were not in my area after 1 January 2019, but they were not inspected even after the death of the lady. The EHO, who was Elizabeth Garlick, did not do any other sampling.

Ms VAGHELA: We had Leanne Johnson from the City of Greater Dandenong, who confirmed that DHHS found that the business did not have a Listeria management plan. Is that correct?

Ms ROGERSON: No, that is not correct. The Listeria management plan—all big manufacturers always have that in their food safety plan, and theirs was for the clean-up. They knew what to do. They are a large manufacturer. They knew what to do, and they did.

Ms VAGHELA: So they knew. But in terms of record keeping, were you able to see whether they did have it? Because that is what our understanding was—that they did not have it.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 21

Mr LIMBRICK: Did you fear that the samples might be tampered with?

Mr LIMBRICK: Thank you very much.

The CHAIR: Thank you. Ms Vaghela.

Ms ROGERSON: So you are asking why are they? That is mandated by the Department of Health.

Ms VAGHELA: So had you previously requested I Cook Foods review and update their food safety plan to be compliant with these requirements?

Ms ROGERSON: Only once did I ever have to do it, and it was a minimal change. It was more a formatting issue.

Ms VAGHELA: Okay. So they did have a food safety plan?

Ms ROGERSON: Yes, they did.

Ms VAGHELA: Okay.

A member: It was a formatting issue.

Ms ROGERSON: Correct.

Ms ROGERSON: Are you specifically—

Ms VAGHELA: What sort of record keeping do you do?

Ms VAGHELA: We had Leanne Johnson from the City of Greater Dandenong, who confirmed that DHHS found that the business did not have a Listeria management plan. Is that correct?

Ms VAGHELA: So they knew. But in terms of record keeping, were you able to see whether they did have it? Because that is what our understanding was—that they did not have it.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 22

Ms ROGERSON: They had a pest report to be done, and the Listeria plan was of the clean-up. So, yes, they would have had that. They did have that actually.

Ms VAGHELA: Because, as Dr Kieu was saying, we have been given a list of a few of the findings. At I Cook Foods there were 13 findings. In the past, particularly in 2017, there was—

Mr ONDARCHIE: These have been asked and answered. They have been asked and answered.

The CHAIR: Excuse me, Mr Ondarchie, you will have your turn. Thank you.

Ms VAGHELA: So, yes, Listeria mono was found in 2017. I just wanted to know, if it was found in the past, whether there was a Listeria management plan and I Cook Foods knew how to handle an outbreak?

Ms ROGERSON: Yes, they did.

Ms VAGHELA: So they did have. So what is the standard practice taken by local government to enforce the Food Act when areas of concern are identified at a food production premise?

Ms ROGERSON: We do an inspection and we write a report and we send it to them, and then, if necessary, we follow up.

Ms VAGHELA: So some of the programs—

The CHAIR: I am sorry, Ms Vaghela.

Ms VAGHELA: I will come back to it.

The CHAIR: Ms Lovell.

Ms LOVELL: Kim, thank you for your presentation. I would just like to go to the point that Dr Kieu raised—and again it was raised by Ms Vaghela—that there had been 13 items that had previously been investigated with I Cook. But weren’t they all investigated and I Cook cleared of any wrongdoing in those 13 items?

Ms ROGERSON: Yes.

Ms LOVELL: Thank you. You explained that any large manufacturer would have a number of issues raised over time. How often in your experience do those sorts of issues occur?

Ms ROGERSON: I inspected these places at least once, sometimes twice a year, because I went in without making an appointment, and they usually had something that had to be done.

Ms LOVELL: Thank you very much. And could we just ask about the photos of the water lying on the floor in I Cook’s factory? Do you know what time these photos were taken and why the water was there?

Ms ROGERSON: I believe they were doing some cleaning, so obviously there would have been water on the floor if they were cleaning. I am not sure of exactly what time. I think what is foremost and should be reiterated is that the editing of legal evidence and the tampering with this evidence is more important than some water on the floor.

Ms LOVELL: Excellent. I would just like to ask—you said earlier that you have been asked to lie in a statement, and basically it sounded as if you had been given a statement that was already written for you by somebody else and then you were asked to put some of it into your own words. Is that standard practice? Has that ever happened to you before?

Ms ROGERSON: Not with the previous coordinator, no. There were some times that the manager—the previous manager, Peter Shelton—would ask us to do that, but normally I would write my own statement. But in this case Greg Spicer, the coordinator of planning compliance, was the one doing my statement, or adding and changing things. I did ask about that, and I was told, ‘Oh, he knows what he’s doing’—Leanne said. And I did question her as to why the planning compliance coordinator was putting together statements under the Food Act.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 23

Ms LOVELL: It seems to me you think there was quite a deal of pressure within the City of Greater Dandenong to have this finding against the Cooks to close them down. How far up the tree in the City of Greater Dandenong do you think that pressure was coming from?

Ms ROGERSON: The CEO, and then perhaps outside sources.

Ms LOVELL: And when you say ‘outside sources’, do you believe those sources were within the government, within the department or in other companies?

Ms ROGERSON: I believe the department of health.

Ms LOVELL: Department of health.

Ms ROGERSON: And there was also another manufacturer—that was Community Chef—as well. There were issues surrounding that too.

Ms LOVELL: And why do you believe that the department of health and Community Chef would have been putting pressure on the city of Dandenong to close down I Cook Foods?

Ms ROGERSON: Look, probably the best person to ask questions of like that would be Ian, who will be on this afternoon. He can give you a more thorough answer to that.

Ms LOVELL: Okay. Do you have an opinion yourself?

Ms ROGERSON: At this stage I do not really want to give my own opinion.

Ms LOVELL: Okay. All right. Thank you.

The CHAIR: Thank you. Ms Watt. Sheena Watt.

Ms WATT: Good afternoon, Ms Rogerson. Thank you so much for appearing before us today. I was not around last time, so I just have a few questions for you. I will start with the first one. You had quite significant experience as an environmental health officer, as you were outlining in your opening remarks. Based on your professional training and your knowledge of the Public Health and Wellbeing Act 2008 and the Food Act, I am just wondering: do you think that it is an acceptable risk to knowingly allow food to be supplied to vulnerable cohorts in healthcare settings, particularly pregnant women, people that are immunocompromised, the elderly and others, particularly if it has been manufactured in a kitchen where there is evidence of Listeria contamination?

Ms ROGERSON: No, it should not be given to them.

Ms WATT: Excellent. Thank you. So what responsibility did the City of Greater Dandenong and furthermore the department have to respond to the findings of the food samples collected at the premises of I Cook that indeed tested positive for not one but four strains of Listeria, noting also that the deceased patient’s sample contained a strain that was highly related?

Ms ROGERSON: I cannot comment to what happened or what was said at different echelons of hierarchy.

Ms WATT: It is more about: what are the responsibilities, in your view, of the City of Greater Dandenong to respond to the findings of the sample?

Ms ROGERSON: All right. So when I got the original samples back, in which all the swabs were fine—all the other samples were within normal levels—I had a conversation at that time to let the Cooks know that they needed to do a Listeria clean-up, which requires chlorine and everything to be washed down and cleaned, which they did do.

Ms WATT: Which they did do. I just had a question: for five years, indeed, you had responsibility for the area that covered I Cook and had particular responsibility for I Cook over those five years. I am just wondering: what steps did you take to ensure you avoided any biases in your reporting and ensure that your inspections were rigorous and objective?

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 23

Ms ROGERSON: The CEO, and then perhaps outside sources.

Ms LOVELL: And when you say ‘outside sources’, do you believe those sources were within the government, within the department or in other companies?

Ms ROGERSON: I believe the department of health.

Ms LOVELL: Department of health.

Ms ROGERSON: And there was also another manufacturer—that was Community Chef—as well. There were issues surrounding that too.

Ms LOVELL: And why do you believe that the department of health and Community Chef would have been putting pressure on the city of Dandenong to close down I Cook Foods?

Ms ROGERSON: Look, probably the best person to ask questions of like that would be Ian, who will be on this afternoon. He can give you a more thorough answer to that.

Ms LOVELL: Okay. Do you have an opinion yourself?

Ms ROGERSON: At this stage I do not really want to give my own opinion.

Ms LOVELL: Okay. All right. Thank you.

The CHAIR: Thank you. Ms Watt. Sheena Watt.

Ms ROGERSON: No, it should not be given to them.

Ms ROGERSON: I cannot comment to what happened or what was said at different echelons of hierarchy.

Ms WATT: It is more about: what are the responsibilities, in your view, of the City of Greater Dandenong to respond to the findings of the sample?

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 24

Ms ROGERSON: Ian will attest to that. He actually said that I was tough but fair.

Ms WATT: Okay. And what about you? What things did you personally take on board to ensure that you were free from any influence of those organisations?

Ms ROGERSON: I did not know them out of work; I had no conversations with them out of work, so I treated them like any other manufacturer.

Ms WATT: Okay. All right. I just was keen to know what steps you had taken as the previous inspector. Thank you for that. I reckon I might be about done, Chair, so thank you.

The CHAIR: Great. Thank you. Deputy Chair.

Dr KIEU: Thank you. In your opinion there were some very serious things that happened up to the CEO level and outside influences, including other manufacturers and perhaps the department of health, which are very serious if proven. So do you think those are the motives for the changing of your statement? So the first question is: do you still have the original statement that you wrote? And secondly, what has been changed and to what effect?

Ms ROGERSON: Okay. So my statement was actually changed. There were four versions of it, and I have, I believe, three versions of it but I do not have the original first one. The Dandenong council would not give that to me after I left, so I only have the last three. As to whether the statements were changed because of influence from the CEO, I cannot answer that because the only people that had influence on my statement were Leanne Johnson and Greg Spicer at that time.

Dr KIEU: Yes. In signing the order for the closure or temporary closure of I Cook, the acting Chief Health Officer at the time did say that, and may I quote:

No one single piece of information was used in isolation to come to that decision. Rather, it was the collective picture of public health risk …

So what do you think about that decision? Because, according to what Professor Sutton said, there were several or collective evidences. Do you think that was the appropriate action?

Ms ROGERSON: I was not there—actually at work—when that happened, so I was not privy to conversations or anything that went on, and again, as I said, I was not the EHO for that area.

Dr KIEU: Okay. This has come back through the genomic evidence. You mentioned that this is at a lower or safe level of Listeria.

Ms ROGERSON: Correct.

Dr KIEU: Is that level mandated or is it just—

Ms ROGERSON: Yes, it is mandated by the state government and all of the registered microbiology units, like Doherty Institute.

Dr KIEU: Do you think that the level is safe even for people that are vulnerable, like pregnant women, like the elderly, like immunocompromised people?

Ms ROGERSON: Well, they should not be given that food to start with.

Dr KIEU: Sorry, what do you mean by that?

Ms ROGERSON: Food that is of high risk to that vulnerable cohort should not be given to those people. So you would have to question the scientists at these various institutes as to why they chose those levels.

Dr KIEU: Even though it may not be set for those people?

Ms ROGERSON: Again, you would have to ask them about their criteria for making those levels.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 25

Dr KIEU: The other thing, quickly, is that you just mentioned that you have made some statement to the police for the investigation.

Ms ROGERSON: Yes, I have.

Dr KIEU: Is it available to the committee?

Ms ROGERSON: Yes, I can read it to you. I will read you the statement—just the paragraph of what was said.

Dr KIEU: It is up to the Chair. We may not have the time.

The CHAIR: Ms Rogerson, I wonder if you would be willing to send a copy of that to the committee secretariat.

Ms ROGERSON: Okay.

The CHAIR: Thank you. Dr Kieu, you have 30 seconds.

Dr KIEU: Thirty seconds—I think I will wait for my next round.

The CHAIR: Okay, thank you. Mr Ondarchie.

Mr ONDARCHIE: Ms Rogerson, thank you for presenting today and being so open and frank with us. I know it must cause you a great deal of stress. I almost feel like paraphrasing Hamlet today: something seems rotten in the state of Dandenong. But I would like to ask you about your relationship with the City of Greater Dandenong as you went through this process and now.

Ms ROGERSON: Okay. Oh, gosh. That is a can of worms. My relationship at the time with Dandenong when this all came out in the open was tenuous, because there was some bullying, some definite gaslighting. There were conversations and things that I was told that were not very nice in nature, to the end of which, after I had completed an investigation they wanted me to do, they then took me off my work.

Mr ONDARCHIE: Okay. And since you have departed, in terms of your support et cetera, how has that been?

Ms ROGERSON: I have had nothing from Dandenong. I had a few emails to begin with, which I found quite stressful, so I requested that they did not contact me.

Mr ONDARCHIE: Okay. Did you have access to employee support, like WorkCover or anything like that?

Ms ROGERSON: Yes, I did. I tried for that, but it was refused not once but twice. But they refused to go to mediation. For the WorkCover, when I applied for it, they would not agree to it. And they also had a letter from a lawyer sent to the self-insurer of Dandenong council asking to deny my request.

Mr ONDARCHIE: Who is the self-insurer?

Ms ROGERSON: At that time it was JLT. JLT then became MAV Care. John Bennie, the CEO at that time, sat on the board of MAV Care.

Mr ONDARCHIE: At the time that your claim was rejected?

Ms ROGERSON: Yes.

Mr ONDARCHIE: I will come back to that. How much time do I have left, Chair?

The CHAIR: Two and a half minutes.

Mr ONDARCHIE: Thank you. Then I would like to take that opportunity, because I am really interested: could you read me that paragraph that you wanted to talk about?

Ms ROGERSON: Yes, sure. Okay.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 25

Dr KIEU: The other thing, quickly, is that you just mentioned that you have made some statement to the police for the investigation.

Ms ROGERSON: Yes, I have.

Dr KIEU: Is it available to the committee?

Ms ROGERSON: Yes, I can read it to you. I will read you the statement—just the paragraph of what was said.

Dr KIEU: It is up to the Chair. We may not have the time.

The CHAIR: Ms Rogerson, I wonder if you would be willing to send a copy of that to the committee secretariat.

Ms ROGERSON: Okay.

The CHAIR: Thank you. Dr Kieu, you have 30 seconds.

Dr KIEU: Thirty seconds—I think I will wait for my next round.

The CHAIR: Okay, thank you. Mr Ondarchie.

Mr ONDARCHIE: Okay. And since you have departed, in terms of your support et cetera, how has that been?

Ms ROGERSON: I have had nothing from Dandenong. I had a few emails to begin with, which I found quite stressful, so I requested that they did not contact me.

Mr ONDARCHIE: Okay. Did you have access to employee support, like WorkCover or anything like that?

Mr ONDARCHIE: Who is the self-insurer?

Ms ROGERSON: At that time it was JLT. JLT then became MAV Care. John Bennie, the CEO at that time, sat on the board of MAV Care.

Mr ONDARCHIE: At the time that your claim was rejected?

Ms ROGERSON: Yes.

Mr ONDARCHIE: I will come back to that. How much time do I have left, Chair?

The CHAIR: Two and a half minutes.

Mr ONDARCHIE: Thank you. Then I would like to take that opportunity, because I am really interested: could you read me that paragraph that you wanted to talk about?

Ms ROGERSON: Yes, sure. Okay.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 26

It was only after CGD dropped all criminal charges that I became aware of the doctored image on the brief of evidence against I Cook. The evidence they produced to support this charge was the photograph taken by Garlick, and I assume her statement. Garlick did not have her camera on that day.

Actually, sorry. I am looking at—sorry, I am reading the wrong thing. Anyway, okay.

In approximately mid-March to early April I was standing at my desk. The office is open plan to allow people to look across the entire floor. Garlick’s desk was directly behind mine and only approximately 2 metres away. I heard Garlick and Johnson speaking softly behind me. This was unusual and appeared sneaky. I found this suspicious and began looking over at them. I heard Johnson say something along the lines of, ‘Why is there a hold-up? Why is media and comms taking their time? Would you be able to do this?’. That was a question to Elizabeth Garlick. Garlick responded, ‘Yes, I would’. Johnson said, ‘Well, go and get it’. She was referring to a thumb drive. I saw Garlick’s computer screen, which had the image of a slug on the concrete flooring. In the lower left-hand side of the image were the remains of a white tissue. However, I could clearly distinguish the slug, tissue and floor. The slug would have been approximately 2 centimetres in length and the tissue evidence approximately 4 to 5 millimetres in length. There was only one individual piece of tissue. I know this picture was taken by Garlick on approximately 18 February 2019 from an inspection she undertook of I Cook. It was alleged that Garlick located this food within the manufacturing area at I Cook. The photo was open on her screen and I saw Garlick with a little red circle on the screen, which I believed to be some kind of cropping tool in the program. The red circle was around the tissue remnant like it was going to be removed from the picture. I asked Garlick and Johnson what they were doing. Johnson said, ‘Just cleaning it up and removing personal conversations’, which was the photos and video. I turned back to my desk and continued working.

The CHAIR: Thank you. We will just have to leave that. Thank you. Ms Vaghela.

Ms VAGHELA: Thanks, Chair. Chair, I would highly appreciate it if Mr Ondarchie does not interject while I am asking the question in my allocated time, because he has done it twice. My questions are not directed to him, they are directed to the witnesses. Thank you.

The CHAIR: Thank you.

Ms VAGHELA: So I would like to ask Ms Rogerson. She has alleged that she was asked by the council staff to add information and the observation of things that never took place during her inspection of the I Cook Foods facilities, and she said that she was instructed to delete words or sentences from her report. What I want to know is: was Ms Rogerson the only EHO who was asked to do this or were other EHOs also asked to amend the reports?

Ms ROGERSON: Again, I do not know whether other officers were asked. I did not read their statements. In the past they have been. And I just want to reiterate again that this was not an inspection that I did. I only went there on 1 February to do samples for MDU.

Ms VAGHELA: Yes, but historically were you the only one asked to change the reports, or were other EHOs also asked by the council staff?

Ms ROGERSON: There were many times in the past, for other premises, that I was asked to change, modify, add words, delete them in my statement, yes.

Ms VAGHELA: Did you raise that issue with anybody?

Ms ROGERSON: Yes.

Ms VAGHELA: And nothing was done?

Ms ROGERSON: Correct.

Ms VAGHELA: The photos that we have seen of the I Cook Foods inspection that was done show off disrepair. If you had gone to do that inspection, would that have been of concern to you?

Ms ROGERSON: It would have, but those photographs were taken—as I have said here and was going to read: Elizabeth Garlick had a camera that would zoom into a very, very small area, whereas I would take a true photograph of that area, which was more honest.

Ms VAGHELA: So Ms Rogerson, have there been other instances in your time working as an environmental health officer for either the City of Greater Dandenong or another employer where you felt it

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 27

was not necessary to act upon reports of food safety concerns, including the presence of Listeria and foreign objects in foods? Have there been any other instances in your time working as an EHO, whether at the Dandenong council or another employer, where you saw a few safety concerns and you did not report? Were there any other instances?

Ms ROGERSON: No, I reported everything in my reports.

Ms VAGHELA: And as the environmental health officer responsible—because you said you were responsible for five years out of seven years that you worked at Dandenong council—what steps did you take to ensure that you were conducting inspections in a very vigorous and objective way?

Ms ROGERSON: Okay. That has been answered already, and I also answered that in, I believe, the last parliamentary inquiry. So I have just answered that.

Ms VAGHELA: So there was no potential bias there?

Ms ROGERSON: No.

Mr ONDARCHIE: Come on.

The CHAIR: Continue, Ms Vaghela. You have 1 minute.

Ms VAGHELA: Thank you very much. Thank you, Chair; I am done.

The CHAIR: Thank you. Dr Bach.

Dr BACH: The previous questioner could have just asked the same question for a third time, to see if she got a different answer. Ms Rogerson, thank you so much for having the courage to present to us again. I want to say at the outset that when you talk about the hardship that you have gone through, and bullying and harassment in particular, I believe you. At the first inquiry I was sat very close to you, and I still have such a strong recollection of how much you shook, if you do not mind me saying, as you were giving your evidence. You were clearly incredibly scared, and I think, given that Labor Party members of this committee saw that the first time around, the way that they have quite shamefully again today gone after you is quite dreadful, Ms Rogerson—

The CHAIR: Dr Bach, please, if you would like to stick to questioning Ms Rogerson, rather than commenting on other members.

Dr BACH: Ms Rogerson, did officials at Dandenong council plant that slug?

Ms ROGERSON: Yes.

Dr BACH: Under questioning from other members, it has consistently been put that, despite what you have said, which I think is very useful for us, about Listeria being ubiquitous—that was the word you used earlier in your evidence—shouldn’t this step, this nuclear step of shutting down I Cook Foods, have been taken based on the evidence that is being presented? If I Cook Foods had represented such a significant public health risk, would you, in your experience and given your expertise, have expected some other people to have become sick?

Ms ROGERSON: Absolutely, yes.

Dr BACH: Okay. Thank you. There were some questions earlier about record keeping and whether or not the record keeping of I Cook Foods was appropriate and adequate. I was taking some notes as you were talking, but I confess my notes are not fulsome. Was the record keeping of I Cook Foods at this time appropriate or not?

Ms ROGERSON: Yes, they were. It was appropriate.

Dr BACH: Okay. And look, without wanting to comment on other members, they have got more front than Myer, Ms Rogerson, for going after record keeping, given the appalling state of the report, if you can call it that—the government report—on which I Cook Foods was shut down. I mean, if Myer was still actually operating, given the government’s COVID bungles, well, then, they have got more front than it.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 27

Ms ROGERSON: No, I reported everything in my reports.

Ms ROGERSON: Okay. That has been answered already, and I also answered that in, I believe, the last parliamentary inquiry. So I have just answered that.

Ms VAGHELA: So there was no potential bias there?

Ms ROGERSON: No.

Mr ONDARCHIE: Come on.

The CHAIR: Continue, Ms Vaghela. You have 1 minute.

Ms VAGHELA: Thank you very much. Thank you, Chair; I am done.

The CHAIR: Thank you. Dr Bach.

The CHAIR: Dr Bach, please, if you would like to stick to questioning Ms Rogerson, rather than commenting on other members.

Dr BACH: Ms Rogerson, did officials at Dandenong council plant that slug?

Ms ROGERSON: Yes.

Ms ROGERSON: Absolutely, yes.

Ms ROGERSON: Yes, they were. It was appropriate.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 28

The sandwiches—that was obviously given as the reason for shutting down I Cook Foods, the fact that this poor lady had consumed sandwiches, and yet earlier on we heard that it was actually impossible that this lady could have consumed sandwiches from I Cook Foods. This may be beyond your remit, but you have not had an opportunity to comment on that quite startling evidence, which really was the key catalyst for reopening this inquiry.

Ms ROGERSON: Yes. Look, as Ray said in his reply before, you could not say unequivocally that this lady ate something or anything—sandwich—from I Cook Foods.

Dr BACH: And yet the Chief Health Officer, even though a report had been provided to his underling before I Cook Foods was shut down, specifically gave I Cook Foods sandwiches—despite what Dr Kieu said earlier about a range of factors, the Chief Health Officer specifically gave the sandwiches from I Cook Foods as the reason to shut down this business?

Ms ROGERSON: That is correct.

Dr BACH: All right. Thank you. Nothing further from me, Chair.

The CHAIR: Thank you, Dr Bach. Ms Watt.

Ms WATT: Thanks, Ms Rogerson, for sticking with us. I might be the last one. I was not around last year for this inquiry, so my apologies if my questions were particularly harsh to you. I was not familiar that there was shaking and other things that Mr Bach spoke of. I do have a question for you. I will be quite quick. Having previously been an inspector, I know just how very challenging this work can be—not in food, I must confess, though. The report from the last inquiry—I will just go to that—states, and the committee found, that the closure order signed by the acting chief officer was prepared and served on valid grounds and for proper purpose. Can you explain to me in your opinion what you believe to be valid grounds and a proper purpose for the issuing of a closure order?

Ms ROGERSON: Okay. Just to save time, I go back to Ray’s testimony just an hour or so ago, when he explained that system to the panel. It was exactly the same kind of pattern that we would do as well at Dandenong council.

Ms WATT: Okay. And if there are in fact vulnerabilities there with the service of that food to vulnerable cohorts, do you believe that the standard in fact should be quite stringently held? I mean, we are talking about people who are immunocompromised and pregnant, so their risk there is incredibly high. And we have seen the unfortunate death that happened. Do you have any commentary on a particular standard difference between those food settings that provide to the general public and those that provide to the high-risk cohorts?

Ms ROGERSON: Not at this time. Again, you would have to ask that of the scientific institute.

Ms WATT: Okay. That is all right. Did you have any thoughts or commentary to be made about conducting those checks and the standards which you apply when they actually are providing food services to vulnerable cohorts such as immunocompromised and sick people?

Ms ROGERSON: Are you talking only about manufacturers or are you talking about—

Ms WATT: Food manufacturing, yes.

Ms ROGERSON: All manufacturing? Yes, there is.

Ms WATT: So is there a different, higher standard when it comes to Listeria plans and other things, or is it essentially the same?

Ms ROGERSON: It is essentially the same.

Ms WATT: Okay. And that includes—what do you call it?—the clean-up and the things that need to happen afterwards?

Ms ROGERSON: Correct.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 29

Ms WATT: All right. So there was just some earlier evidence around the acceptable level, and you will excuse me because it was quite technical—100 grams per something.

Ms ROGERSON: CFUs are colony-forming units, so that is how it is plated. And that is where the scientists or the specialists would count those units, yes.

Ms WATT: Yes. Thank you for explaining that. I just wonder: is there a difference between those acceptable levels when it comes to food manufacturing places that are providing services to vulnerable cohorts versus those that provide services to—

Ms ROGERSON: It is the same level.

Ms WATT: They are the same level, all right. It is not that clear. All right. I believe that is it for me, unless there is more time remaining, Chair.

The CHAIR: Thank you, Ms Watt. Ms Rogerson, thank you very much for your time again today. We appreciate it no end. Thank you for your candour and certainly your stoicism and courage in continuing with us. That concludes this part of the hearing. The committee will take a break and reconvene at 12.45. Thank you, and thank you again, Ms Rogerson.

Ms ROGERSON: Thank you for having me.

Witness withdrew.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 29

Ms WATT: All right. So there was just some earlier evidence around the acceptable level, and you will excuse me because it was quite technical—100 grams per something.

Ms ROGERSON: CFUs are colony-forming units, so that is how it is plated. And that is where the scientists or the specialists would count those units, yes.

Ms ROGERSON: It is the same level.

Ms WATT: They are the same level, all right. It is not that clear. All right. I believe that is it for me, unless there is more time remaining, Chair.

Ms ROGERSON: Thank you for having me.

Witness withdrew.

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 30

WITNESSES (via videoconference)

Mr Ian Cook, Director, I Cook Foods; and

Mr Paul Brady, former Victoria Police detective sergeant.

The CHAIR: Welcome back, everyone. Apologies if I gave you a start with the wrong time when we finished the previous session. This is the Legislative Council Legal and Social Issues Committee’s public hearing for the Inquiry into the Closure of I Cook Foods Pty Ltd.

I am very pleased that we have with us for this hearing Mr Ian Cook, the owner of I Cook Foods, and his colleague, Mr Paul Brady.

Mr Brady and Mr Cook, if I could just let you know that all evidence taken is protected by parliamentary privilege, and this is provided under our Constitution Act but also the standing orders of our Legislative Council. This means that any information you provide during this hearing is protected by law. You are protected against any action for what you say in this hearing, but if you were to go elsewhere and repeat the same thing you may not have the same protection. Any deliberately false evidence or misleading of the committee may be considered a contempt of Parliament.

I am Fiona Patten, the Chair. With me today are Dr Tien Kieu, the Deputy Chair; Ms Georgie Crozier; Ms Kaushaliya Vaghela; Mr David Limbrick; Ms Wendy Lovell; Mr Craig Ondarchie; Ms Sheena Watt; and Dr Matthew Bach.

This is being recorded, and of course you will receive a transcript in due course.

If you would like to make some opening remarks, Mr Cook or Mr Brady, then I will open it up to a committee discussion. But again, thank you for your time.

Just for those at home, just to clarify, you are in a place that has very large density limits, and you and Mr Brady are operating in a very COVID-safe way in that office, just in case anyone was concerned about your personal safety.

But thank you, Mr Cook and Mr Brady, for joining us, and we can start with some opening remarks from you and then we will open up for the committee discussion.

Mr COOK: No problem. Thank you, Ms Patten. Thank you for giving me the opportunity to address the committee today. The reopening of this inquiry happened because new evidence has come to light that clearly shows that this committee was misled and at times, it now appears, deliberately lied to.

On 24 June 2020, I sat and listened in the committee room to what seemed to be provable lies told by John Bennie, Leanne Johnson, Elizabeth Garlick and Jody Bosman, all from the City of Greater Dandenong. Evidence found since that day has only made these more stark and easier to prove. The same is true of things told to this committee by Dr Brett Sutton and Dr Angela Bone.

That day was one of the most difficult days of my life. I had to listen to misrepresentations and what clearly seemed to me to be lies from people in positions of trust that we should be able to rely on and respect. Throughout that day I could not stop thinking about the 41 jobs that were deliberately destroyed along with my business. Those jobs belonged to incredibly good people who did not deserve to have their lives and their families’ lives destroyed by corruption.

I specifically want to address key statements made to the committee by Dr Brett Sutton. Dr Sutton closed I Cook Foods using the Food Act. He did not use Public Health and Wellbeing Act. He told this inquiry that Kym Peake, the former secretary, had delegated this power under section 19. But the law just simply does not allow for this, so even the closure order was made unlawfully.

Now, I did not know Dr Sutton when he closed our business down. Nobody did. He was the newly appointed acting Chief Health Officer. Most Victorians had not heard of him. So when Victoria Police Detective Sergeant Ash Penry carried out the first police investigation into crimes surrounding the destruction of our business, no-

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 31

one at Victoria Police or Spring Street was overly concerned that Detective Sergeant Ash Penry named Dr Brett Sutton as a person of interest in relation to those crimes. But then the pandemic hit us all, and suddenly the Victorian government’s political survival relied on Dr Sutton, on his survival, and so everything changed.

That is when Detective Sergeant Ash Penry was suddenly taken off the investigation. It was reassigned and then reassigned again and then reassigned again. This went on for almost two years. Finally, the investigation was killed off, only to be reopened by the persistence of a small team of volunteers who have helped I Cook Foods fight for justice, as well as inspiring journalism from the Herald Sun; the ABC; 3AW; channels 7, 9 and 10; the Age; and numerous podcasts. Now, thanks to the intervention of Chief Commissioner Shane Patton, the investigation into the crime surrounding the closure of I Cook Foods has reopened, and I try to maintain my faith in Victoria Police. I need to believe that VicPol will now focus on the police work and leave the politics to others. Through all of this I have been forced to watch Dr Brett Sutton, a man who I maintain lied and destroyed my business and who Detective Ash Penry calls a person of interest in serious crimes, being given unfettered powers to lock up 6.4 million Victorians. You can understand how concerned I have been for Victorians during the last 18 months. I strongly believe this government is running a protection racket for Dr Sutton. This needs to stop, regardless of the pandemic. I also understand from media reports that the minister who oversaw the destruction of I Cook Foods is reluctant to appear. I believe this is showing contempt to this inquiry. I hope she appears somehow.

Since the first hearings of this public inquiry more evidence has come to light, which I would like to share with you now. No-one knows this, and I am pretty sure I was not meant to know this either. I am not going to name the company I am about to speak of, but I am happy to provide this evidence to the committee privately with the consent of those involved. You see, good people who were directly involved in what I am about to discuss reached out to me and shared this evidence because they saw the lies being told about I Cook Foods and they could not stand it.

Recently Victoria’s health department opened an investigation into the death of an elderly man who had contracted listeriosis. Now remember, there is now unequivocal proof that I Cook Foods had nothing to do with the death of Ms Painter. We did not kill anyone. The Department of Health and Human Services knew this before they closed us. The City of Greater Dandenong were informed shortly after and still proceeded to charge me. But in this recent case health officials investigated this elderly man’s home and took samples of meals that were produced by a company that produces and makes Meals on Wheels meals. The samples that were taken tested positive for monocytogenes Listeria. The department then contacted the local environmental health officer and asked that officer to investigate the company that provided the meal. The EHO took further samples and swabs of the business’s kitchen. A total of five swabs tested positive for Listeria mono, with at least two different genome sequences.

So what happened? Did Dr Brett Sutton do a press conference naming and destroying this business? Were 96 false charges laid against this business and its owner? Did the state government spend the next two years lying about this business? No, none of these things happened to the second business. Instead, the owner of this second business was recently contacted by their local environmental health officer and told, ‘Case closed. No more investigation’. Now, the business did actually provide a meal to the elderly man that contained Listeria. We never did. My business has never contributed to the death of anyone.

So why the double standard? Why was I Cook Foods treated so differently to the other business? Well, evidence is now before the committee that shows we were treated differently because we were a commercial rival to the business that was run by the very council that was involved in closing us down. How can a council be allowed to regulate a commercial rival? As I said last time, it is like giving Hungry Jack’s the power to close down McDonald’s and take all their customers.

In his media conference on the afternoon of 22 February 2019 Dr Sutton named and destroyed I Cook Foods. He claimed he was acting out of an abundance of caution to protect thousands of elderly people that might be at risk. Well, where were you two weeks ago, Dr Sutton—or were you acting out of malice when you killed off I Cook Foods and not an abundance of caution? Ms Painter did not eat any foods from I Cook Foods.

We never should have ended up here, and yet we are back here going over this again. Why? Well, for one thing, Victoria Police is yet to lay a single charge. They assure me their commitment to the law is pure, and I take them at their word, but this committee has been reopened to investigate a different crime: the crime of

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 31

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 32

lying to Parliament, and as you all know it is a crime. Here is the thing that many people seem to forget: when a witness lies to a parliamentary inquiry they are also lying to every single Victorian whose lives are affected by the decisions made by the Parliament. People need to be able to believe in Parliament. Therefore there must be consequences when witnesses knowingly and deliberately lie to and mislead under oath people like yourselves. If we do not honour the truth and protect it and defend it, and fight for it when we have lost it, how can we ask our kids or ourselves to believe in anything?

I respectfully ask that you bring me back before the inquiry once Dr Sutton and others have given evidence so I can immediately point out if other falsehoods have been made before you all. Thank you for listening and thank you very much for reopening this inquiry.

The CHAIR: Thank you, Mr Cook. As you know, we make it very clear, as I stated to you, any deliberately false evidence or misleading of committee can be considered a contempt of Parliament. So we will let that take its course. Thank you again for appearing before the committee and, yes, certainly, we have reopened in light of new evidence. On the 22nd Mr Christy sent emails to DHHS, which would have been the day after Mr Sutton had signed that closure notice for you.

I just want to go back to the start—and I asked Mr Christy this as well. Given your experience in the food industry, given your experience as a supplier of food for special needs, why weren’t the hospital’s kitchens investigated at the beginning, at the time when there was a concern that the patient may have eaten something that—well, ultimately, that may have been contributing to her death? Why was it that they immediately went to you?

Mr COOK: That is a very good question: why did they come directly to us? Why did they never inspect the hospital straightaway? It was known that the hospital had its own food service and produced its own products as well from ingredients it purchased in elsewhere. It seems very strange to me that they would home in on just us.

The CHAIR: Now, I know this was particularly difficult at the time, but when you saw the photographs that Ms Garlick and Ms Johnson presented to the committee—let us put aside the slug photo for a moment because I think we have all become quite confident that that was doctored. But some of the other photos were presenting your business as a business in disrepair, as a business that there were health concerns about, and they were quite firm in raising that when they gave evidence the last time. Would you explain for the committee how, in your opinion, that misrepresented the inspection that was undertaken.

Mr COOK: Okay, so let us deal with something that came up with previous other witnesses about the water pooling. That was where Dr Angela Bone in the last committee said that the floor had to be completely re-laid before they could open it. Number one, the only person that ever took photos of water pooling at I Cook Foods was Elizabeth Garlick, and she took them while we were in clean-down. I have her on our CCTV footage where when I have an employee who was literally washing the floor down, because we cover it with water and chlorine every afternoon—she was washing it down. Elizabeth Garlick races around her to get a photo of her putting the water on the floor. That photo was used in the charge of allowing water to pool in my factory. If that is the case, you are going to have to close down every manufacturer in the state who washes their floor in an afternoon. It was blatant perjury. So Rogerson was right. She manipulates the camera and she sets stuff up. She takes photos of us—middle of clean down, of wash down. She shows you a sink with a heap of trays in it— they were washing them.

Now, on the issue of the flooring, two things. One: every year at Easter we need to let the floor dry out before we recoat it with paint. That happens every year. They closed us down just prior to what we would do every year, because floors wear. I have to have a surface on it that stops people slipping so that I do not hurt people at work, and I also need to seal it so that it can be cleaned, get washed down—everything done like that. Now, Angela Bone said I could not be reopened until the floor had been completely redone. She actually used the word ‘complete’, as in completely re-laid—what she said. If anyone would like to come down and see it, my floor is exactly the same, exactly the same condition, exactly everything. It was never re-laid, but they reopened me. All that happened was it got its annual painting.

The CHAIR: Right. Prior to this event were there indications that the council or Community Chef were trying to enter into some fairly heavy competition with your company?

Wednesday, 25 August 2021 Legislative Council Legal and Social Issues Committee 33

Mr COOK: Because Community Chef had so many exemptions from tender and other processes, we really did not know what they were doing at the time. We only found out what Community Chef had been up to after we had been closed, when we were able to get all their board papers and their risk assessments. It was only then that we realised the things we were doing were having a serious impact on contracts they thought they would win.

The CHAIR: Okay. Thank you, Mr Cook. I will turn to Deputy Chair, Dr Kieu.

Dr KIEU: Thank you, Chair. Thank you, Mr Cook, for appearing before the committee again. I heard that you mentioned something about the Chief Health Officer, Brett Sutton, his integrity and his authority, and I also note that you mentioned a very recent case about a man dying. I personally do not know much about that, except from the Herald Sun this morning. The only thing that stands out from the Herald Sun about that case is that there was no genomic link. But anyway, this is not the focus of this committee hearing. This is about I Cook and about new evidence. So going back to when I Cook was ordered to close down—I presume that was only temporarily until some so-called problems were fixed—were you given any opportunity by the council or by the Department of Health and Human Services in order to rectify the so-called problems?

Mr COOK: Could you repeat the last parts of that question, please, Dr Kieu?

Dr KIEU: Yes. Were you given any opportunities after I Cook was closed down in order to reopen it again, and what actions have you taken following the closure?

Mr COOK: Okay. So we were kept closed for nearly a month, and that was by collusion between an independent authorised auditor, Pauline Maloney of the Department of Health and Human Services, and Leanne Johnson. They colluded to keep us shut. That is why there is a Supreme Court action against Gavin Buckett, the auditor involved, because I have it in writing.

Dr KIEU: So you were not given an opportunity to rectify or to do anything just to have the business open again?

Mr COOK: Dr Kieu, none of the things that I did or could have done was going to satisfy them. Number two: I was ordered to do a sampling plan, under section 4.2.3, which is in chapter 4 of—I am just going to find it for you—Food Standards Australia. The only person in Victoria who can enforce chapter 4 is the secretary to the department of primary industry, okay? And you were asking about Listeria. Let us clean a couple of things up. There were not four strains of Listeria found in our premises; there were two strains found, on corned beef and ham, end of story. The lab broke up the samples that would have cross-contaminated each other and managed to get a couple of other samples but only two strains. We tried desperately to comply with standard 4.2.3, but that was a completely unlawful thing to force upon us. Our food safety plan covers all pathogens, not just Listeria. That particular standard is for a Listeria management plan. Everybody that mentions it to you people is lying to you. There is no Listeria management plan on its own for people like us. We have to deal with E. coli, salmonella, coliforms—a whole range. They all die with heat, they all die with chlorine and they can all poison people, which is why our food safety plan covers the whole lot. So we need to get some facts straight here. In fact, the problem with—when I was listening before—some of the questions you people have been forced to ask is you are relying on what you were told at the last hearing. Well, I have got news for you: at the last hearing people lied to you.

Dr KIEU: We can only act on what we have been given and know. Just quickly before my time runs out: I believe that you have a court action against certain entities and also some police statements that you have made in view of the investigation now being open. If you think they are relevant, could you provide it for us, as the committee?

Mr COOK: How do you mean provide it, Dr Kieu? What would you like me to provide, the statement of claim?

Dr KIEU: The statement, just like Mr Christy provided us with his, not just one—

Mr COOK: I am sorry. Yes, I can send you my police statement. I can also send you the statement of claim for the Supreme Court actions, both of them.