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Imported Food Control Regulations 2019

Authoritative Version
Regulations as made
These regulations replace the Imported Food Control Regulations 1993 prior to sunsetting on 1 October 2019. They provide for the Imported Food Control Inspection Scheme (Scheme) to monitor the compliance of imported food through targeted and random inspection or inspection and analysis, impose obligations on importers of food subject to the Scheme, and provide for the cost recovery charges to maintain the Scheme, incorporate provisions permitted by sections inserted into the Act as a result of the Imported Food Control Amendment Act 2018, and make provisions arising from the public consultation and the sunsetting review conducted by the Department of Agriculture.
Administered by: Agriculture
Registered 26 Jul 2019
Tabling HistoryDate
Tabled HR29-Jul-2019
Tabled Senate30-Jul-2019

 

Imported Food Control Regulations 2019

I, General the Honourable David Hurley AC DSC (Retd), Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulations.

Dated 25 July 2019

David Hurley

Governor‑General

By His Excellency’s Command

Bridget McKenzie

Minister for Agriculture

 

 

 

 

  

  

  


Contents

Part 1—Preliminary                                                                                                                                        3

1............ Name............................................................................................................................. 3

2............ Commencement............................................................................................................. 3

3............ Authority....................................................................................................................... 3

4............ Schedules...................................................................................................................... 3

5............ Definitions..................................................................................................................... 3

Part 2—Food control                                                                                                                                      6

6............ Food from New Zealand to which the Act does not apply............................................ 6

7............ Food imported for private consumption to which the Act does not apply..................... 6

8............ Application for food control certificate.......................................................................... 6

Part 3—Food Inspection Scheme                                                                                                            8

Division 1—Establishment of Food Inspection Scheme                                                        8

9............ Establishment of Food Inspection Scheme.................................................................... 8

Division 2—Ministerial orders                                                                                                           9

10.......... Minister may make orders............................................................................................. 9

11.......... Risk food....................................................................................................................... 9

12.......... Compliance agreement food.......................................................................................... 9

13.......... Surveillance food........................................................................................................... 9

Division 3—Referral of food by officers of Customs                                                           10

14.......... Risk food..................................................................................................................... 10

15.......... Surveillance food......................................................................................................... 10

Division 4—Inspection and analysis of food                                                                             12

Subdivision A—Risk food                                                                                                                 12

16.......... Rates of inspection for risk food................................................................................. 12

17.......... Rate at which risk food is first inspected..................................................................... 13

18.......... When the rate of inspection for risk food may be varied............................................. 13

19.......... Holding risk food that is subject to inspection............................................................. 14

20.......... Testing reliability of recognised foreign government certificate or recognised quality assurance certificate             15

Subdivision B—Surveillance food                                                                                                 15

21.......... Rates of inspection for surveillance food..................................................................... 15

Subdivision C—Food the subject of a holding order                                                                 16

22.......... Rates of inspection for food the subject of a holding order......................................... 16

Subdivision D—Taking samples of food                                                                                      16

23.......... Taking samples of food............................................................................................... 16

Subdivision E—Marking of food held for inspection                                                               17

24.......... Marking of food held for inspection............................................................................ 17

Subdivision F—Analysis of food                                                                                                    18

25.......... Analysis of food.......................................................................................................... 18

Division 5—Failing food                                                                                                                      19

26.......... When food is failing food............................................................................................ 19

27.......... Dealing with failing food—lots of food...................................................................... 19

28.......... Presenting failing food for inspection again................................................................ 20

Division 6—Powers of authorised officers                                                                                21

29.......... Powers of authorised officers...................................................................................... 21

Part 4—Chargeable services                                                                                                                    22

30.......... Payable amounts for chargeable services..................................................................... 22

31.......... Reimbursement of amount paid for analysis of food................................................... 23

32.......... Waiver of payable amounts......................................................................................... 23

33.......... Prescribed chargeable services.................................................................................... 23

Part 5—Transitional provisions                                                                                                             25

34.......... Ministerial orders........................................................................................................ 25

35.......... Things done under the old regulations......................................................................... 25

Schedule 1—Repeals                                                                                                                                     26

Imported Food Control Regulations 1993                                                                                     26

 


Part 1Preliminary

  

1  Name

                   This instrument is the Imported Food Control Regulations 2019.

2  Commencement

             (1)  Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  The whole of this instrument

1 October 2019.

1 October 2019

Note:          This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

             (2)  Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

3  Authority

                   This instrument is made under the Imported Food Control Act 1992.

4  Schedules

                   Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

5  Definitions

Note:          A number of expressions used in this instrument are defined in the Act, including the following:

(a)    applicable standard;

(b)    Australia New Zealand Food Standards Code;

(c)    authorised officer;

(d)    compliance agreement;

(e)    failing food;

(f)    food;

(g)    food control certificate;

(h)    holding order;

(i)     imported food inspection advice;

(j)     inspection;

(k)    officer of Customs;

(l)     owner;

(m)   recognised food safety management certificate;

(n)    recognised foreign government certificate;

(o)    recognised quality assurance certificate;

(p)    treatment.

                   In this instrument:

Act means the Imported Food Control Act 1992.

analyst means a person in respect of whom an appointment is in force under subsection 34(1) of the Act.

batch means food of a particular kind made or packed in a distinct manner which may include one or more lots.

chargeable service has the meaning given by subsection 36(11) of the Act.

compliance agreement food means food of a particular kind that is classified as compliance agreement food in an order made under section 10.

consignment means food of a particular kind that comprises one or more batches imported by the same owner at the same time and described by a single line in an import entry.

Note:          There may be more than one consignment in the same import entry.

import entry has the same meaning as in the Customs Act 1901.

in‑office, in relation to the provision of a chargeable service, means the provision of the service at a location where the services of an authorised officer are available on an ongoing basis.

lot means a quantity of food of a particular kind prepared or packed under essentially the same conditions (ordinarily from a particular preparation or package unit and during a particular time usually not exceeding 24 hours).

ordinary hours of duty, in relation to a business day, means the period that begins at 6.30 am and ends at 6.30 pm on that day.

out‑of‑office, in relation to the provision of a chargeable service, means the provision of the service at a location where the services of an authorised officer are not available on an ongoing basis.

package means a container of food that is not separated from the food by any intervening covering except lining material.

particular source, in relation to food, includes the overseas producer, manufacturer, packer and supplier of the food.

prohibited plants and fungi means prohibited plants and fungi specified in Schedule 23 to the Australia New Zealand Food Standards Code, as in force at the commencement of this instrument.

relevant documentation has the meaning given by subsection 36(11) of the Act.

risk food means food of a particular kind that is classified as risk food in an order made under section 10.

Scheme means the Food Inspection Scheme established by Part 3.

surveillance food means food of a particular kind that is classified as surveillance food in an order made under section 10.

Part 2Food control

  

6  Food from New Zealand to which the Act does not apply

                   For the purposes of paragraph 7(1)(aa) of the Act, the kind of food to which the Act does not apply is food that:

                     (a)  is imported into, or is made or produced in, New Zealand; and

                     (b)  is not risk food.

7  Food imported for private consumption to which the Act does not apply

Food in liquid form

             (1)  For the purposes of paragraph 7(2)(a) of the Act, a volume of 1 litre is prescribed in respect of food that is in liquid form.

Food not in liquid form

             (2)  For the purposes of paragraph 7(2)(b) of the Act, a net weight of 0 kilograms is prescribed in respect of prohibited plants and fungi.

             (3)  For the purposes of paragraph 7(2)(b) of the Act, a net weight of 1 kilogram is prescribed in respect of food that is not in liquid form and that is not covered by subsection (2) of this section.

8  Application for food control certificate

Manner of application

             (1)  For the purposes of paragraph 11(1)(a) of the Act, an application for a food control certificate must be in a form approved by the Secretary.

Information in application

             (2)  For the purposes of paragraph 11(1)(d) of the Act, an application for a food control certificate must:

                     (a)  contain the following information about the importer and the importation of the food:

                              (i)  the name of the vessel on which the food is imported;

                             (ii)  details of the port of loading of the vessel;

                            (iii)  the date on which the food is, or is to be, landed in Australia;

                            (iv)  the name and address, and contact details, of the importer and of the importer’s agent (if any) in relation to the importation; and

                     (b)  contain the following information about the food:

                              (i)  its description;

                             (ii)  its country of origin;

                            (iii)  details of its producer, manufacturer or packer;

                            (iv)  its brand name;

                             (v)  the number of consignments covered by the importation and the number of batches in each consignment;

                            (vi)  details of lot or batch codes in relation to each consignment and the number of lots or packages in each batch;

                           (vii)  the total weight of each consignment;

                          (viii)  the weight of each lot or package in each batch;

                            (ix)  details of a place at which the applicant considers each consignment may be inspected or inspected and analysed.

Interaction with the Customs Act 1901

             (3)  For the purposes of subsection 11(2) of the Act, an entry of goods covered by a declaration under section 71A or 71DH of the Customs Act 1901 for home consumption or warehousing that is communicated to the Immigration and Border Protection Department by computer is to be taken, to the extent that that entry relates to examinable food, to be an application for a food control certificate for the purposes of subsection 11(1) of the Act.

Part 3Food Inspection Scheme

Division 1Establishment of Food Inspection Scheme

9  Establishment of Food Inspection Scheme

             (1)  For the purposes of subsection 16(1) of the Act, the Food Inspection Scheme (the Scheme) is established.

             (2)  This Part sets out the particulars of the Scheme.

Division 2Ministerial orders

10  Minister may make orders

                   For the purposes of paragraph 16(2)(a) of the Act, the Minister may make orders:

                     (a)  identifying food of particular kinds as food of a kind that is required to be inspected, or inspected and analysed, under the Scheme; or

                     (b)  identifying food of particular kinds as food that must be covered by a recognised foreign government certificate; or

                     (c)  identifying food of particular kinds as food that must be covered by a recognised food safety management certificate; or

                     (d)  classifying food of particular kinds into particular categories.

Note 1:       Under section 17 of the Act, the Minister must not make an order without first consulting Food Standards Australia New Zealand.

Note 2:       See section 35B of the Act for how an order may refer to a kind of food.

11  Risk food

                   The Minister may, in an order under section 10, classify food of a particular kind as risk food only if Food Standards Australia New Zealand advises the Minister that food of that kind has the potential to pose a high or medium risk to public health.

12  Compliance agreement food

                   The Minister may, in an order under section 10, classify food of a particular kind as compliance agreement food to the extent that a compliance agreement applies to food of that kind.

13  Surveillance food

                   The Minister may, in an order under section 10, classify food of a particular kind as surveillance food if food of that kind:

                     (a)  is not risk food; and

                     (b)  is not compliance agreement food; and

                     (c)  is not the subject of a holding order.

Division 3Referral of food by officers of Customs

14  Risk food

                   For the purposes of paragraph 16(2)(aa) of the Act, an officer of Customs must refer 100% of consignments of risk food for inspection, or inspection and analysis, under the Scheme.

15  Surveillance food

             (1)  Subject to this section, for the purposes of paragraph 16(2)(aa) of the Act, an officer of Customs must refer 5% of consignments of surveillance food for inspection, or inspection and analysis, under the Scheme.

Surveillance food where emerging risk to human health

             (2)  For the purposes of paragraph 16(2)(ab) of the Act, the Secretary may make an order that, in respect of surveillance food of a specified kind, 100% of consignments of food of that kind must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme.

Note 1:       See section 35B of the Act for how an order may refer to a kind of food.

Note 2:       The Secretary may, in the order, also specify rates of inspection, or inspection and analysis, and rates of sampling that are to apply to the food referred by an officer of Customs: see subsection 21(2) of this instrument.

             (3)  The Secretary may make an order under subsection (2) only if the Secretary is satisfied in relation to food of that kind:

                     (a)  that there may be an emerging risk to human health; and

                     (b)  that the best available scientific evidence to the Secretary is insufficient to enable the conduct of an accurate assessment of the risk; and

                     (c)  that the risk needs to be further investigated.

             (4)  An order under subsection (2) must specify the period during which the order is in force, which must not be more than 6 months after the day on which the order is made.

             (5)  An order under subsection (2) ends at the earlier of the following times:

                     (a)  at the end of the period specified in the order;

                     (b)  the time when the order is revoked.

             (6)  Before an order ends under paragraph (5)(a), the Secretary must review the appropriateness of the order.

Surveillance food imported from a country with equivalent food safety system

             (7)  For the purposes of paragraph 16(2)(ac) of the Act, the Minister may make an order that in respect of surveillance food imported from a specified country:

                     (a)  a specified percentage of consignments of all such food must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; or

                     (b)  a specified percentage of consignments of all such food, except food of a specified kind, must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; or

                     (c)  a specified percentage of consignments of food of a specified kind must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme.

Note 1:       The percentage specified in an order under subsection (7) must be less than 5% (including zero): see subsection 16(2A) of the Act.

Note 2:       Subsection 16(2B) of the Act provides that the Minister may make an order in relation to a particular country only if the Minister is satisfied that there is in force an agreement between Australia and that country of the kind referred to in that subsection.

Note 3:       See section 35B of the Act for how an order may refer to a kind of food.

Division 4Inspection and analysis of food

Subdivision ARisk food

16  Rates of inspection for risk food

             (1)  Subject to this section, for the purposes of paragraph 16(2)(b) of the Act, all risk food is subject to one of the following rates of inspection or inspection and analysis:

                     (a)  tightened—under which each consignment from a particular source is inspected or inspected and analysed;

                     (b)  normal—under which 25% of consignments from a particular source are selected randomly for inspection or inspection and analysis;

                     (c)  reduced—under which 5% of consignments from a particular source are selected randomly for inspection or inspection and analysis.

Risk food where emerging risk to human health

             (2)  For the purposes of paragraph 16(2)(ba) of the Act, the Secretary may make an order that, in respect of risk food of a specified kind:

                     (a)  a specified percentage of consignments of food of that kind must be inspected or inspected and analysed; and

                     (b)  a specified rate of samples must be taken for inspection from food of that kind.

Note:          See section 35B of the Act for how an order may refer to a kind of food.

             (3)  The Secretary may make an order under subsection (2) only if the Secretary is satisfied in relation to food of that kind:

                     (a)  that there may be an emerging risk to human health; and

                     (b)  that the best available scientific evidence to the Secretary is insufficient to enable the conduct of an accurate assessment of the risk; and

                     (c)  that the risk needs to be further investigated.

             (4)  An order under subsection (2) must specify the period during which the order is in force, which must not be more than 6 months after the day on which the order is made.

             (5)  An order under subsection (2) ends at the earlier of the following times:

                     (a)  at the end of the period specified in the order;

                     (b)  the time when the order is revoked.

             (6)  Before an order ends under paragraph (5)(a), the Secretary must review the appropriateness of the order.

Risk food imported from a country with equivalent food safety system

             (7)  For the purposes of paragraph 16(2)(bb) of the Act, the Minister may make an order that in respect of risk food imported from a specified country:

                     (a)  a specified percentage of consignments of all such food must be inspected or inspected and analysed; or

                     (b)  a specified percentage of consignments of all such food, except food of a specified kind, must be inspected or inspected and analysed; or

                     (c)  a specified percentage of consignments of food of a specified kind must be inspected or inspected and analysed.

Note 1:       The percentage specified in an order under subsection (7) must be less than 5% (including zero): see subsection 16(2A) of the Act.

Note 2:       Subsection 16(2B) of the Act provides that the Minister may make an order in relation to a particular country only if the Minister is satisfied that there is in force an agreement between Australia and that country of the kind referred to in that subsection.

Note 3:       See section 35B of the Act for how an order may refer to a kind of food.

17  Rate at which risk food is first inspected

                   Subject to section 16 of this instrument, for the purposes of paragraph 16(2)(b) of the Act, risk food must be inspected, or inspected and analysed, at the tightened rate if its rate of inspection, or inspection and analysis, has not been lowered under section 18 of this instrument.

18  When the rate of inspection for risk food may be varied

             (1)  For the purposes of paragraphs 16(2)(b) and (i) of the Act, the rate of inspection, or inspection and analysis, of risk food of a particular kind imported from a particular source may be varied in accordance with this section.

Lowering from tightened rate to normal rate

             (2)  The rate of inspection, or inspection and analysis, of the food may be lowered from the tightened rate to the normal rate if 5 consecutive batches of the food pass inspection or inspection and analysis.

Lowering from normal rate to reduced rate

             (3)  The rate of inspection, or inspection and analysis, of the food may be lowered from the normal rate to the reduced rate if:

                     (a)  all of the following apply:

                              (i)  the rate of inspection, or inspection and analysis, of the food has not been raised under this section;

                             (ii)  20 consecutive batches of the food pass inspection or inspection and analysis;

                            (iii)  an authorised officer reasonably believes that the food complies with the applicable standard and does not pose a risk to human health; or

                     (b)  all of the following apply:

                              (i)  the rate of inspection, or inspection and analysis, of the food has been raised under this section;

                             (ii)  after that raising, 5 consecutive batches of the food pass inspection or inspection and analysis;

                            (iii)  an authorised officer reasonably believes that the food complies with the applicable standard and does not pose a risk to human health.

Raising from normal rate or reduced rate to tightened rate

             (4)  The rate of inspection, or inspection and analysis, of the food may be raised from the normal rate, or the reduced rate, to the tightened rate if:

                     (a)  one or more batches of the food, from which samples are taken, fail inspection or inspection and analysis; or

                     (b)  an authorised officer reasonably believes that the food does not comply with the applicable standard or poses a risk to human health.

Varying rate if recognised foreign government certificate or recognised quality assurance certificate

             (5)  The rate of inspection, or inspection and analysis, of the food may be varied if:

                     (a)  a recognised foreign government certificate or a recognised quality assurance certificate in relation to the food is provided to an authorised officer; and

                     (b)  the authorised officer has no reason to doubt the authenticity or reliability of the certificate.

19  Holding risk food that is subject to inspection

             (1)  For the purposes of paragraph 16(2)(h) of the Act, if samples of a consignment (the current consignment) of a kind of risk food are selected for inspection or inspection and analysis, then, until the results of the inspection, or inspection and analysis, are known, the rest of the current consignment must, subject to this section, be held at a place that an authorised officer considers appropriate.

Exception—agreement or certificate

             (2)  The rest of the current consignment is not required to be so held if that consignment is covered by:

                     (a)  an agreement referred to in subsection 16(2B) of the Act; or

                     (b)  a recognised foreign government certificate; or

                     (c)  a recognised quality assurance certificate.

Exception—perishable food

             (3)  If:

                     (a)  5 previous consignments of that kind of risk food have been inspected or inspected and analysed; and

                     (b)  an imported food inspection advice has been issued in respect of each of those consignments and none of those advices identifies any of the food as failing food; and

                     (c)  an authorised officer is satisfied that, if the rest of the current consignment were to be held under subsection (1), the food would perish or become unusable;

an authorised officer may give the owner of the current consignment an approval to deal with the rest of the current consignment in the manner specified in the approval, subject to any conditions specified in the approval relating to minimising or overcoming any risk to human health posed by the food.

Note:          Sections 9 and 9A of the Act contain offences and civil penalties relating to the dealing with food in a manner not approved by an authorised officer.

Offence

             (4)  A person commits an offence if:

                     (a)  an authorised officer gives the person an approval under subsection (3); and

                     (b)  the person does an act or omits to do an act; and

                     (c)  the act or omission breaches a condition specified in the approval.

Penalty for contravention of this subsection:        10 penalty units.

20  Testing reliability of recognised foreign government certificate or recognised quality assurance certificate

                   For the purposes of paragraph 16(2)(j) of the Act, the circumstances and procedures for testing the reliability of a recognised foreign government certificate, or a recognised quality assurance certificate, covering risk food of a particular kind are any one or more of the following:

                     (a)  considering whether consignments of that kind of food pass inspection or inspection and analysis;

                     (b)  auditing the system operated by the relevant instrumentality of the foreign government or the person conducting the relevant overseas food processing operation;

                     (c)  for a recognised foreign government certificate—conducting documentation checks by requiring the relevant instrumentality of the foreign government to verify certificates for food of that kind.

Subdivision BSurveillance food

21  Rates of inspection for surveillance food

Food referred by an officer of Customs

             (1)  Subject to this section, for the purposes of paragraph 16(2)(b) of the Act, each consignment of surveillance food that an officer of Customs refers for inspection, or inspection and analysis, under the Scheme must be inspected or inspected and analysed.

             (2)  For the purposes of paragraph 16(2)(ba) of the Act, the Secretary may specify in an order under subsection 15(2) of this instrument:

                     (a)  the percentage of consignments of food of the kind covered by the order that must be inspected or inspected and analysed; and

                     (b)  the rate of samples that must be taken for inspection from food of the kind covered by the order.

Food not referred by an officer of Customs

             (3)  For the purposes of paragraph 16(2)(b) of the Act, if, in relation to particular surveillance food that an officer of Customs has not referred for inspection, or inspection and analysis, under the Scheme, an authorised officer reasonably believes that the food does not comply with the applicable standard for the food or poses a risk to human health, an authorised officer must:

                     (a)  arrange for the inspection, or inspection and analysis, of the food; and

                     (b)  give the owner of the food a notice setting out the reasons why the food must be inspected or inspected and analysed.

Subdivision CFood the subject of a holding order

22  Rates of inspection for food the subject of a holding order

                   For the purposes of paragraph 16(2)(c) of the Act, each consignment of food that is the subject of a holding order must be inspected or inspected and analysed.

Subdivision DTaking samples of food

23  Taking samples of food

             (1)  For the purposes of paragraph 16(2)(b) of the Act, food may be inspected, or inspected and analysed, by taking samples of the food (including taking randomly selected samples of the food).

             (2)  Subject to this instrument, the rate at which samples must be taken is set out in this section.

Lots are provided

             (3)  If a consignment is to be inspected, or inspected and analysed, then, for each batch in the consignment for which details of lots are provided, the number of lots to be sampled is worked out in accordance with the following table if:

                     (a)  the food is risk food and the rate of inspection, or inspection and analysis, of the food is tightened or normal; or

                     (b)  the food is surveillance food; or

                     (c)  the food is the subject of a holding order.

 

Rate of sampling

Item

Number of lots in batch

Number of lots to be sampled

1

1

1

2

2 to 8

2

3

9 to 15

3

4

16 to 25

5

5

26 to 50

8

6

51 or more

13

             (4)  If a consignment is to be inspected, or inspected and analysed, then, for each batch in the consignment for which details of lots are provided, the number of lots to be sampled is worked out in accordance with the following table if the food is risk food and the rate of inspection, or inspection and analysis, of the food is reduced.

 

Rate of sampling

Item

Number of lots in batch

Number of lots to be sampled

1

1

1

2

2 to 25

2

3

26 to 50

3

4

51 or more

4

Lots are not provided

             (5)  If a consignment is to be inspected, or inspected and analysed, then, for each batch in the consignment for which details of lots are not provided, the number of packages (however described) to be sampled is worked out in accordance with the following table.

 

Rate of sampling

Item

Number of packages in batch

Number of packages to be sampled

1

1 to 5

All of the packages

2

6 to 4,800

6

3

4,801 to 24,000

13

4

24,001 to 48,000

21

5

48,001 to 84,000

29

6

84,001 to 144,000

48

7

144,001 to 240,000

60

8

240,001 or more

72

Subdivision EMarking of food held for inspection

24  Marking of food held for inspection

             (1)  For the purposes of subsection 16(1) of the Act, an authorised officer must mark batches of food held for inspection, or inspection and analysis, with the following:

‘HOLD

Imported Foods’.

             (2)  The markings must be clearly visible.

Offence

             (3)  A person commits an offence if:

                     (a)  a batch of food is held for inspection or inspection and analysis; and

                     (b)  the batch of food is marked as mentioned in subsection (1); and

                     (c)  the person interferes with the markings on the batch of food.

Penalty for contravention of this subsection:        10 penalty units.

Subdivision FAnalysis of food

25  Analysis of food

             (1)  For the purposes of subsection 16(1) of the Act, analysis of food under the Scheme must be performed by an analyst.

             (2)  The analysis may be microbiological, chemical or physical analysis, or any other kind of analysis, necessary to determine whether:

                     (a)  the food poses a risk to human health; or

                     (b)  the food complies with the applicable standard.

Note:          Paragraph 29(e) allows an authorised officer to request that certain kinds of tests be carried out on food to be analysed under the Scheme.

Division 5Failing food

26  When food is failing food

Food that must be covered by a recognised foreign government certificate or a recognised food safety management certificate

             (1)  For the purposes of paragraph 16(2)(fa) of the Act, particular food is taken to be failing food if:

                     (a)  the food is identified in an order made under section 10 as food of a kind that must be covered by a recognised foreign government certificate or a recognised food safety management certificate; and

                     (b)  either:

                              (i)  the food is not covered by such a certificate; or

                             (ii)  such a certificate covering the food is given to an authorised officer, but the officer has reason to doubt the authenticity or reliability of the certificate.

Lots of food

             (2)  For the purposes of paragraph 16(2)(g) of the Act, if details of lots are provided for a batch of food, a particular lot (the subject lot) of food from the batch is taken to be failing food if:

                     (a)  another lot of the food from the batch fails inspection or inspection and analysis; and

                     (b)  the subject lot is not a lot that was selected for sampling.

Packages of food

             (3)  For the purposes of paragraph 16(2)(g) of the Act, if details of lots are not provided for a batch of food, a particular package (the subject package) of food from the batch is taken to be failing food if:

                     (a)  another package of the food from the batch fails inspection or inspection and analysis; and

                     (b)  the subject package is not a package that was selected for sampling.

27  Dealing with failing food—lots of food

             (1)  For the purposes of subsection 14(3) of the Act, the circumstances are that subsection 26(2) of this instrument applies.

             (2)  For the purposes of paragraph 16(2)(b) of the Act, if:

                     (a)  details of lots are provided for a batch of food; and

                     (b)  2 or more lots of food from the batch are taken to be failing food under subsection 26(2) of this instrument; and

                     (c)  the owner of the food presents some or all of those lots for inspection, or inspection and analysis, within a reasonable period after they were taken to be failing food;

then samples of those lots may be taken at a rate that is higher than the rate set out in section 23 of this instrument.

28  Presenting failing food for inspection again

             (1)  For the purposes of subsection 16(1) of the Act, if a particular lot or package of food from a batch has been inspected, or inspected and analysed, and is failing food, the owner of the food must not present the lot or package for inspection, or inspection and analysis, again unless the food has been treated as mentioned in paragraph 20(2)(a) of the Act.

             (2)  If 2 or more lots or packages of food from a batch are presented for inspection, or inspection and analysis, in accordance with subsection (1), then samples of those lots or packages may be taken at a rate that is higher than the rate set out in section 23 of this instrument.

Division 6Powers of authorised officers

29  Powers of authorised officers

                   For the purposes of subsection 16(1) of the Act, an authorised officer may:

                     (a)  require a person involved in the importation of particular food to provide enough of the food for inspection to enable random samples to be taken for inspection or inspection and analysis; and

                     (b)  require a person involved in the importation of particular food to provide details of lot or batch codes and quantities of the food to enable random samples to be taken for inspection or inspection and analysis; and

                     (c)  require a person involved in the importation of particular food to provide information about the food to enable the officer to:

                              (i)  determine if the food is risk food, surveillance food or food that is the subject of a holding order to ensure that the food is inspected, or inspected and analysed, correctly; or

                             (ii)  determine if the food is failing food; and

                     (d)  take samples of food in a way that the officer considers appropriate, including taking the samples free of any charge and free of any liability for damage necessarily caused in the taking of the samples; and

                     (e)  ask an analyst to analyse samples of food, whether or not requesting that specific tests, or tests for specific contaminants or matter, be carried out on the food.

Note:          Section 149.1 of the Criminal Code deals with obstruction of Commonwealth public officials.

Part 4Chargeable services

  

30  Payable amounts for chargeable services

                   For the purposes of subsection 36(1) of the Act, the payable amount in respect of the provision of a chargeable service referred to in column 1 of an item in the following table is the amount set out in, or worked out in accordance with, column 2 of the item.

 

Payable amounts

Item

Column 1
Chargeable service

Column 2
Amount

1

In‑office assessment, issue of approval or other relevant documentation, inspection, treatment, audit, analysis, training or other chargeable service in relation to food to which the Act applies, provided on a business day during ordinary hours of duty

For each authorised officer providing the chargeable service—$30 for each quarter hour or part of a quarter hour

2

In‑office chargeable service mentioned in item 1 provided on a business day outside ordinary hours of duty

For each authorised officer providing the chargeable service:

(a) if the service is provided immediately before or immediately after an in‑office chargeable service provided by the authorised officer during ordinary hours of duty—$45 for each quarter hour or part of a quarter hour; or

(b) in any other case:

(i) for any period up to and including 30 minutes—$90; and

(ii) for each quarter hour, or part of a quarter hour, after the first 30 minutes—$45

3

In‑office chargeable service mentioned in item 1 provided on a Saturday, a Sunday or a public holiday in the place where the service is provided

For each authorised officer providing the chargeable service:

(a) for any period up to and including 30 minutes—$100; and

(b) for each quarter hour, or part of a quarter hour, after the first 30 minutes—$50

4

Out‑of‑office assessment, issue of approval or other relevant documentation, inspection, treatment, audit, analysis, training or other chargeable service in relation to food to which the Act applies, provided on a business day during ordinary hours of duty

For each authorised officer providing the chargeable service:

(a) for less than 7.5 hours—$50 for each quarter hour or part of a quarter hour; or

(b) for:

(i) each 7.5 hours—$1,000; and

(ii) each additional quarter hour or part of a quarter hour—$50

5

Out‑of‑office chargeable service mentioned in item 4 provided on a business day outside ordinary hours of duty

For each authorised officer providing the chargeable service:

(a) if the service is provided immediately before or immediately after an out‑of‑office chargeable service provided by the authorised officer during ordinary hours of duty—$65 for each quarter hour or part of a quarter hour; or

(b) in any other case:

(i) for any period up to and including 30 minutes—$130; and

(ii) for each quarter hour, or part of a quarter hour, after the first 30 minutes—$65

6

Out‑of‑office chargeable service mentioned in item 4 provided on a Saturday, a Sunday or a public holiday in the place where the service is provided

For each authorised officer providing the chargeable service:

(a) for any period up to and including 30 minutes—$140; and

(b) for each quarter hour, or part of a quarter hour, after the first 30 minutes—$70

7

Chargeable service provided by a person by arrangement with the Commonwealth

A fee equivalent to the cost incurred by the Commonwealth in arranging and paying for the person to provide the chargeable service

31  Reimbursement of amount paid for analysis of food

                   For the purposes of subsection 36(4) of the Act, the period is 30 days after the day the demand for payment is made.

32  Waiver of payable amounts

             (1)  For the purposes of subsection 36(5) of the Act, the Secretary may waive a payable amount for a chargeable service if the Secretary considers it appropriate to do so in all the circumstances.

             (2)  The Secretary may do so on the Secretary’s own initiative or on written application by a person.

33  Prescribed chargeable services

                   For the purposes of paragraph (e) of the definition of chargeable service in subsection 36(11) of the Act, the following services are prescribed:

                     (a)  at the request of a person, an assessment or audit of whether the person is able to comply with the Act, this instrument or any proposed compliance agreement between the Commonwealth and the person;

                     (b)  at the request of a person, an assessment or audit of whether the person is complying with the Act, this instrument or any compliance agreement between the Commonwealth and the person;

                     (c)  at the request of a person, training of the person in relation to matters covered by a compliance agreement between the Commonwealth and the person.

Part 5Transitional provisions

  

34  Ministerial orders

             (1)  An order that was in force under regulation 7 or 8 of the Imported Food Control Regulations 1993 immediately before the commencement of this section has effect on and after that commencement as if it were an order in force under section 10 of this instrument.

             (2)  Subsection (1) does not prevent the variation or revocation of the order on or after the commencement of this section.

35  Things done under the old regulations

                   If:

                     (a)  a thing was done for a particular purpose under the Imported Food Control Regulations 1993 as in force immediately before that instrument was repealed; and

                     (b)  the thing could be done for that purpose under this instrument;

the thing has effect for the purposes of this instrument as if it had been done for that purpose under this instrument.


Schedule 1Repeals

  

Imported Food Control Regulations 1993

1  The whole of the instrument

Repeal the instrument.