Bills Digest No. 12, 2017-18
PDF version [787KB]
Paula Pyburne
Law and Bills Digest Section
10
August 2017
Contents
Purpose of the Bill
Structure of the Bill
Background
Setting food safety standards
Table 1: number of recalls
coordinated by FSANZ, by year and classification, between 1 January 2007 and 31
December 2016
Role of the ACCC
Level of Australian imports
Table 2: Australia’s food imports
unprocessed and processed (A$ million)
Importation of contaminated berries
Costs of the contamination
Imported Food Control Ac
Application
Imported Food Inspection Scheme
Referral for inspection
Table 3: Examples of tests applied
Reviews
2015—Australian National Audit Office
2016—Food importer research
Regulation impact statement
Committee consideration
Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Food safety management certificates
Commencement
Background
Key provisions
Key issue
Scrutiny of Bills Committee
Making of orders of determinations
Commencement
Key provisions
Holding orders
Commencement
Key provisions
Scrutiny of Bills Committee
Classification of food
Commencement
Key provisions
Recognition of foreign country’s food
safety system
Commencement
Key provisions
Enforcement
Commencement
Key provisions
Updated offences
New civil penalty provisions
Enforcement under the Regulatory
Powers Act
Monitoring powers
Issuing a monitoring warrant
Investigation powers
Issuing an investigation warrant
Scrutiny of Bills Committee
Enforceable civil penalty provisions
Other enforcement options
Infringement notices
Enforceable undertakings
New Part 4—other matters
Power to require information or
documents
Record keeping
Commencement
Key provisions
Use and disclosure of information
Commencement
Key provisions
Use of information
Disclosure of information
Scrutiny of Bills Committee
Other amendments
Commencement
Key provisions
Concluding comments
Date introduced: 1
June 2017
House: House of
Representatives
Portfolio: Agriculture
and Water Resources
Commencement: various
dates as set out in the body of this Bills Digest
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at August 2017.
Purpose of
the Bill
The purpose of the Imported Food Control Amendment Bill
2017 (the Bill) is to amend the Imported Food
Control Act 1992 in order to deliver the
following objectives:
- increase importers’ accountability for food safety
- increase the number of importers who are sourcing safe food
- improve monitoring and management of new and emerging food safety risks
and
- improve incident responses.[1]
Structure
of the Bill
The Bill comprises one Schedule of nine Parts.
Part 1: introduces the concept of food safety
management certificates.
Part 2: allows the Secretary to make a holding
order in respect of food posing a serious risk to human health.
Part 3: empowers the Minister to make orders
identifying particular foods which pose new and emerging risks.
Part 4: allows for the recognition of a foreign
country’s food safety regulatory system where it is equivalent to Australia's
food safety system.
Part 5: sets out increased enforcement measures.
Part 6: updates recordkeeping measures.
Part 7: introduces a power to make an order or a
determination under the Imported Food Control Act.
Part 8: applies to the use and disclosure of
information.
Part 9: aligns the definition of food
with other Commonwealth legislation.
Background
Setting food safety standards
The Commonwealth of Australia and all the Australian
states and territories are signatories to an inter‑governmental agreement,
the Food Regulation Agreement.[2]
In addition, to reduce industry compliance costs and to help remove regulatory
barriers to trade between the two countries, Australia and New Zealand are
party to a bilateral agreement, the Agreement between the Government of
Australia and the Government of New Zealand concerning a Joint Food Standards
System.[3]
The system operates through the Food Standards
Australia New Zealand Act 1991 (FSANZ Act) which establishes
Food Standards Australia New Zealand (FSANZ).
The role of FSANZ is, amongst other things, to develop food
regulatory measures—that is, food standards or codes of practice. Relevant to
this Bills Digest, FSANZ has developed the Food Standards Code,[4]
Chapter 3 of which contains the Food Safety Standards.[5]
Consistent with clauses 19–27 of the Food Regulation
Agreement, it is for the states and territories to enact statutes which incorporate
the food standards contained in the Code.[6]
Those statutes adopt Model Food Provisions. This means that every jurisdiction
in Australia largely has the same provisions for key components of food
legislation such as:
- definitions
for food, unsafe food and unsuitable food
- offences
relating to food and
- emergency
powers.
Where food is subject to a recall on a national level,
that food recall is co-ordinated by FSANZ.[7]
Food recall powers are exercised by state and territory authorities under state
and territory laws which operate post-border.[8]
The table below shows the number of
recalls by year and recall classification over the last ten years.
Table 1: number
of recalls coordinated by FSANZ, by year and classification, between 1 January
2007 and 31 December 2016
Source: Food Standards Australia New Zealand (FSANZ), ‘Food recall statistics’,
FSANZ website.
Role of the ACCC
In addition to the requirements of the Food Regulation
Agreement—and working in tandem with those requirements—subclause 131(1) of the
Australian Consumer Law[9]
provides that, where a person who supplies consumer goods[10]
(including foods) becomes aware of the death or serious injury or illness of
any person—and considers that the death or serious injury or illness was
caused, or may have been caused, by the use or foreseeable misuse of the
consumer goods—then the supplier must, within two days of becoming so aware,
give the Commonwealth Minister a written notice to that effect. A supplier of
consumer goods must similarly notify the Commonwealth Minister where he, or
she, becomes aware that a person, other than the supplier, considers that the
death or serious injury or illness was caused, or may have been caused, by the
use or foreseeable misuse of the consumer goods.
Level of Australian imports
The table below sets out the monetary value of unprocessed
and processed food imports to Australia.
Table 2: Australia’s
food imports unprocessed and processed (A$ million)
|
2013–14
|
2014–15
|
2015–16
|
% growth 2014–15 to 2015–16
|
% growth
5 year trend
|
Unprocessed
|
|
|
|
|
|
Live animals, chiefly for food
|
112
|
102
|
113
|
11.8
|
-1.5
|
Seafood, fresh, chilled, dried, smoked, salted
|
336
|
338
|
364
|
7.5
|
7.8
|
Vegetables, fruit and nuts, fresh, chilled, or provisionally
preserved
|
842
|
973
|
1,028
|
5.7
|
10.6
|
Cereal grains
|
26
|
27
|
19
|
-31.3
|
33.9
|
Unprocessed food (not elsewhere specified)
|
605
|
726
|
835
|
15.0
|
6.9
|
Processed
|
|
|
|
|
|
Meat and meat preparations
|
646
|
790
|
790
|
-0.1
|
8.0
|
Seafood, frozen or processed
|
1,447
|
1,431
|
1,436
|
0.4
|
8.1
|
Dairy products
|
780
|
803
|
910
|
13.3
|
9.4
|
Vegetables, fruit and nut preparations
|
1,285
|
1,412
|
1,537
|
8.8
|
8.4
|
Cereal preparations
|
228
|
256
|
267
|
4.5
|
7.1
|
Animal and vegetable oils, fats and waxes
|
620
|
660
|
775
|
17.6
|
5.1
|
Sugars, honey, cocoa and confectionery
|
1,164
|
1,314
|
1,464
|
11.4
|
9.9
|
Preparations of food, beverages and tobacco (not elsewhere
specified)
|
6,823
|
7,496
|
8,631
|
15.1
|
13.3
|
Source: Department of Foreign Affairs and Trade, Composition
of Trade Australia 2015–16, p. 54.
Importation
of contaminated berries
In February 2015, it was reported that evidence had
emerged of members of the public developing hepatitis A arising from
consumption of imported berries.[11]
Victoria's Department of Health and Human Services confirmed the contamination
had been traced back to China.[12]
Subsequently, a nationwide voluntary recall of certain frozen mixed berries was
undertaken.[13]
It was not until April 2015 that the relevant brand of
frozen mixed berries was reintroduced into the marketplace. According to
Minister for Agriculture, Barnaby Joyce:
The berries used to generate new product will be sourced from
new farms and factories and subject to stricter microbiological testing than
ever before.
This testing includes microbiological testing for Hepatitis A
virus, E.coli and coliforms.
... products from the Chinese factories and farms associated
with the recall are all still being held at the border, in line with directions
given ... by the Department of Agriculture.[14]
Costs of
the contamination
Thirty-three people were confirmed as having contracted
hepatitis A during the 2015 outbreak, the cost of which was:
... an estimated $710 000. After the implicated product was
recalled, the profits of the company that had imported the berries went from
$16.7 million to $2.1 million per year. There are also much broader
implications, with consumer confidence in the safety of frozen berries
plummeting, resulting in a temporary reduction in sales for all brands of
imported berry products. Trade was also affected with some importers in
Australia choosing to no longer source frozen berries from the country of
origin of the implicated product.[15]
Imported Food
Control Act
Application
Whilst the February 2015 hepatitis A outbreak showed Australia’s
food recall system in action, it also called into question Australia's food
inspection regime which is set out in the Imported Food Control Act. It
was generally considered that the contaminated products should have been
detected at the border.[16]
The Imported Food Control Act is intended to provide
for the compliance of food imported into Australia with Australian food
standards and with public health and safety requirements.[17]
It applies to all food imported into Australia with the exception of:
- food
that is imported from New Zealand and is of a kind that is specified by the Regulations
to be food to which the Act does not apply
- prohibited
food
- food
that is imported for private consumption
- food
that is ship’s stores or aircraft’s stores, within the meaning of section 130C
of the Customs
Act 1901 or
- food
that is imported as a trade sample.[18]
The Imported Food Control Act provides that a
person must not import into Australia food that the person knows does
not meet applicable standards (being the standards set by FSANZ as above) or
poses a risk to human health. This is a criminal offence which gives rise to a maximum
penalty of 10 years imprisonment.[19]
Food poses a risk to human health if:
- it
contains: pathogenic micro-organisms or their toxins; micro-organisms
indicating poor handling; non-approved chemicals or chemical residues; approved
chemicals, or chemical residues, at greater levels than permitted; non-approved
additives; approved additives at greater levels than permitted; or any other
contaminant or constituent that may be dangerous to human health or
- it
has been manufactured or transported under conditions which render it dangerous
or unfit for human consumption.[20]
Imported Food
Inspection Scheme
Section 16 of the Imported Food Control Act
provides for Regulations to be made which set out the particulars of the Imported
Food Inspection Scheme (IFIS) which is applicable to all the foods to which the
Act applies.
The IFIS is contained in the Imported Food Control
Regulations 1993. The essential features of the IFIS are:
- there
are three classifications of food
- the
Minister may (on the advice of FSANZ) make orders classifying food as risk
food[21]
- compliance
agreement food is food to which a compliance agreement applies[22]
- surveillance
food[23]
- all
food to which the Imported Food Control Act applies may be
inspected under the IFIS[24]
- all risk foods must be referred by the Australian Customs Service for
inspection and five per cent of consignments of surveillance foods
must be referred by the Australian Customs Service for inspection under the
Scheme[25]
- the
rates of inspection of risk food are either:
-
tightened —under
which each consignment from a particular source is inspected
- normal—under
which 25 per cent of consignments from a particular source are selected
randomly for inspection or
- reduced—under
which five per cent of consignments from a particular source are selected
randomly for inspection[26]
- the
rate of inspection of food that is of a particular kind and classified as risk
food that is imported from a particular source may be raised or lowered[27]
- all surveillance food that is referred for inspection under the IFIS
must be inspected.[28]
If a surveillance food fails inspection, the rate of inspection for future
consignments of that food from that producer is increased to 100 per cent and
stays at this rate until a history of compliance is established.[29]
Referral
for inspection
The referral of food for IFIS inspection is based on 1,500
risk profiles within the Customs Integrated Cargo System. These profiles, which
are created and managed by the Department of Agriculture and Water Resources
(Agriculture), refer food to the IFIS when the consignment information declared
by importers matches certain criteria such as the tariff code, importer,
supplier and country of origin codes.[30]
When there is a match against the profile, the information about the imported
food consignment is electronically transferred to Agriculture’s Import
Management System.
Agriculture then uses this information to undertake the
inspection process. The food safety inspections are undertaken by departmental
staff at ports and warehouses across Australia. The Australian National Audit
Office (ANAO), in its audit report on the administration of the IFIS, explains:
These inspections consist of a visual examination to
determine if the food appears safe and suitable ... In addition, private
laboratories are engaged by Agriculture as “appointed analysts” under the Act
to conduct analytical testing for microbial, chemical and other contamination.[31]
The table below provides examples of the tests applied to
risk food.
Table 3: Examples
of tests applied
|
Hazard
|
Tests applied
|
Risk food
|
|
|
Cheese—soft, semi-soft and fresh
|
Micro-organisms
|
E. coli, listeria monocytogenes, salmonella
|
Peanuts and peanut products, pistachios and pistachio
products
|
Aflatoxin
|
Aflatoxin
|
Beef and beef products
|
Bovine spongiform encephalopathy (BSE)
|
National competent authority certificate from a country
permitted to trade and includes mandatory declaration
|
Seafood—bivalve molluscs such as clams, cockles, mussels,
oysters, pipis and scallops
|
Biotoxins and micro-organisms
|
Paralytic shellfish poisons, domoic acid, E. coli, listeria
monocytogenes
|
Surveillance food
|
|
|
Milk and cream concentrated powders, including powdered
infant formula
|
Micro-organisms
|
Salmonella
|
Fish
|
Chemical
|
Malachite green, nitrofurans (including furaltadone,
nitrofurantoine) and fluoroquinolones (including ciprofloxacin and enrofloxacin)
|
Fish
|
Contaminant
|
Histamine
|
Fruit—fresh, chilled or frozen, or dried
|
Chemical and micro-organisms
|
Pesticides (including acephate benalaxyl, chlorfenvinphos
and DDT) and E. coli
|
Source: ANAO, Administration
of the Imported Food Inspection Scheme, op. cit., pp. 31–32.
Reviews
Not only did the outbreak in 2015 of hepatitis A linked to
the importation of frozen berries call into question Australia's inspection
scheme at the border it also highlighted some regulatory gaps. That being the
case, the Government took action to identify those gaps and develop strategies
for improvement.
2015—Australian
National Audit Office
The first of these was an audit conducted by the ANAO ‘to
assess the effectiveness of the Department of Agriculture’s administration of
the Imported Food Inspection Scheme’.[32]
The ANAO noted that ‘in the six months to June 2014,
44,648 tests of imported food were undertaken as part of the inspection regime’.[33]
The reported compliance rate was 98.5 percent with most (79 per cent) instances
of non-compliance being due to breaches of labelling requirements.
The ANAO concluded that, ‘in the context of the
legislative framework established for the regulation of imported food, Agriculture's
administration of its responsibilities under the [IFIS] has been generally
effective’.[34]
The ANAO report made only three recommendations which it considered
would improve aspects of Agriculture’s administration of the IFIS. The
Department agreed with each of those recommendations.[35]
2016—Food
importer research
The second review took the form of food importer research
undertaken by Colmar Brunton at the request of the Department of Agriculture
and Water Resources. The rationale of the food importer research was to allow
the Department to establish a database of food importer information to include
demographics, size/turnover, food types, source countries, use of food safety
systems or other assistance for compliance, costs of compliance and state or territory
food business registration/licence details.[36]
It was intended that the information would assist the
Department in the development of further reforms to the management of imported
food. Unfortunately, participation was not compulsory and responses to the
requests for information were less than anticipated.
Regulation
impact statement
The Government circulated a consultation regulation impact
statement on 22 August 2016 for public consultation with comments being
accepted until 30 September 2016.[37]
The consultation related to three proposed options for action, being:
- Option
1—non-legislative improvements
- Option
2—option 1 plus further non-legislative improvements
- Option
3—options 1 and 2 plus changes to primary and consequential subordinate
legislation.
During the consultation period:
- nine submissions were received –
seven from industry associations or businesses, one from government and one
from a registered health promotion charity (promoting food safety)
- no comments were received from
trading partners in response to the Consultation RIS, however, a meeting was
held with members of the Delegation of the European Union at their request in
Canberra and comments [were] expected on the formal WTO notification before it
closes on 23 October
-
three meetings were held with
industry associations and industry representatives.[38]
Whilst the final form of the regulation impact statement
summarises the views of stakeholders, the submissions do not appear to have
been published on the Department's website.
In March 2017, the Minister for Agriculture, Barnaby Joyce,
announced that comprehensive changes would be introduced to give Australian
consumers greater assurance at the supermarket that imported food is safe,
without burdening local importers with unnecessary red tape.
The Coalition Government is committed to keeping Australia’s
borders strong and has set about amending the imported food laws, the changes
include giving the government greater scope to hold food at the border if there
are reasonable grounds to suspect food poses a serious risk to human health.
They address limitations with the current regulatory
framework for the management of imported food safety risks, which were
uncovered following the frozen berries linked to the hepatitis A outbreak in
February 2015.[39]
The Bill contains amendments which put into effect the Government's
preferred option, being Option 3.
Committee
consideration
Selection
of Bills Committee
At its meeting of 22 June 2017, Selection of Bills
Committee deferred consideration of the Bill to its next meeting.[40]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills reported
on the Bill in its Scrutiny Digest of 14 June 2017.[41]
The Committee’s comments are canvassed under the heading ‘Key issues and
provisions’ below.
Policy
position of non-government parties/independents
There has been no public comment in relation to the
provisions of the Bill at the time of writing this Bills Digest.
However, the issue of the use of imported ingredients
which are blended with Australian ingredients was raised in the context of a
separate debate about country of origin food labelling.[42]
Position of
major interest groups
As stated above, the Department of Agriculture and Water
Resources circulated the regulation impact statement for public comment.
However, individual stakeholder submissions do not appear to have been
published.[43]
Financial
implications
According to the Explanatory Memorandum to the Bill, it
will have no financial impact on the Australian Government.[44]
However, it should be noted that the regulation impact statement
states that the ‘estimated annual net cost to businesses to implement [the
government’s preferred option] ... is $216,000 per year across approximately
16,000 businesses importing food averaged over ten years’.[45]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bill’s compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[46]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights reported
on 8 August 2017 that the Bill did not raise human rights concerns.[47]
Key issues
and provisions
Food safety
management certificates
Commencement
The provisions in Part 1 of the Bill commence on the earlier
of a single day to be fixed by Proclamation or 12 months after Royal
Assent.
Background
The regulation impact statement describes the problem to be
addressed as follows:
Australia is also increasingly importing raw and minimally
processed foods as exporting countries are able to address biosecurity risks.
For example, the department [of Agriculture] is currently reviewing the
importation of beef and beef products from certain countries. The primary
processing of raw beef is strictly controlled by many countries, including
Australia, to minimise contamination of the meat during the slaughtering
process with foodborne pathogens, particularly pathogenic strains of Escherichia
coli, which can cause serious illness and death. If Australia is to receive
more imported raw and minimally processed foods, it is important that importers
are obliged to provide assurance that these foods have been produced and
processed to control likely hazards.[48]
Key
provisions
Part 1 of the Bill introduces the concept of food
safety management certificates. Item 4 inserts proposed
section 18A into the Imported Food Control Act to empower the
Secretary to determine, in writing, that, for food of a specified kind, a
specified certificate issued by a specified person or specified body is a
recognised food safety management certificate. In addition, the
Bill requires the Secretary to make written guidelines to which he, or she,
must have regard before making that determination.[49]
The Bill provides that a person must not forge, or utter, knowing it to be
forged, such a certificate. The maximum penalty is imprisonment for 10 years.[50]
Item 1 of the Bill inserts the definition of recognised
food safety management certificate into subsection 3(1) of the Imported
Food Control Act being either a recognised foreign government certificate
or a certificate covered by a determination under subsection 18A(1).
According to the Explanatory Memorandum to the Bill this
amendment:
... seeks to place increased accountability upon importers to
ensure the food they bring into Australia is safe for consumption. [It] makes
amendments to require documentary evidence from importers to demonstrate that
effective internationally recognised food safety controls are in place
throughout the supply chain for particular types of food where at-border testing
alone is insufficient to provide assurance of food safety. The importers will
be required to demonstrate supply chain assurance through a recognised food
safety management certificate.[51]
Key issue
Importantly, the Bill provides that neither the determination,
nor the guidelines, are legislative instruments.[52]
This means that they will not be published on the Federal Register of Legislation,
will not be tabled in the Parliament, and will not be subject to disallowance.[53]
The Bill addresses the issue of publication by requiring the Secretary to
publish both the determination and any relevant guidelines on the Department's
website.[54]
The justification given by the Department for proposed subsection
18A(4) is that neither of these instruments would fall within the
substantive definition of legislative instruments under the Legislation Act
2003. The Department states that this is because the determination and
guidelines merely identify the particular cases or particular circumstances in
which the law, as set out by the Imported Food Control Act and the Regulations
is, or is not, to apply. They do not, of themselves, determine or alter the
content of the law itself.[55]
Scrutiny of
Bills Committee
Although the Scrutiny of Bills Committee accepted that a
determination that a specified certificate is a recognised food safety
management certificate is one of an administrative rather than a legislative
character, it questioned ‘why guidelines ... should not be considered to be
decisions of a legislative character and therefore subject to parliamentary
oversight and accountability’.[56]
That being the case, the Scrutiny of Bills Committee has
requested that the Minister provide advice as to why the guidelines are not to
be included in a disallowable legislative instrument.[57]
Making of
orders of determinations
Commencement
The provisions relating to the making of orders or
determinations are in Part 7 of the Bill. They commence on the day after Royal
Assent.
Key
provisions
The Bill contains a number of amendments which empower the
Minister or Secretary to make certain orders and determinations in relation to
imported food. Item 40 of the Bill inserts proposed section 35B into
the Imported Food Control Act to make it clear that an order or
determination under either the Imported Food Control Act or the Imported
Food Control Regulations may refer to a kind of food by reference to any one or
more of the following:
- the
country or the place of origin of the food
- the
manner in which the food has been produced, processed, manufactured, stored,
packed, packaged, labelled or transported
- the
producer, processor, manufacturer, storer, packer, packager, supplier,
transporter or importer of the food
- the
period within which the food is imported into Australia
- the
physical properties and/or constituents of the food
- the
brand name of the food.
The Explanatory Memorandum states:
... by enabling an order made under the Act to identify food by
a range of characteristics, the order will be more specific and, therefore,
enable targeted at-border intervention consistent with the risks posed by the
particular food.[58]
Holding
orders
Commencement
The provisions in Part 2 of the Bill commence on the day after
Royal Assent.
Key
provisions
Currently, section 15 of the Imported Food Control Act
broadly operates so that if on inspection or analysis, food (or a part of the
food) is found to be failing food[59]
or the Secretary is satisfied that there are reasonable grounds for believing
that food of a particular kind would, on inspection, be identified as failing
food, then the Secretary may, by writing, make a holding order. The effect of
the holding order is that food of that kind that is imported into Australia
after the making of the order must be held in an approved place until an
inspection, or inspection and analysis, required under the IFIS, has been
completed.
The Bill makes significant changes to section 15 by
allowing holding orders to be made in respect of failing food and food posing a
serious risk to human health. The rationale for the amendment is that it will
ensure that ‘the Australian Government has the power to control the spread of
foodborne illness and communicable diseases (such as hepatitis or
listeriosis)’.[60]
Item 7 of the Bill repeals and replaces paragraph
15(1)(c) so that the holding order for failing food must state that the food is
to be held in a place to be approved by an authorised officer in writing, until
an inspection, or inspection and analysis, required under the IFIS has been
completed. The holding order applies to food of the kind specified that is
imported into Australia after the making of the order—until the order is
formally revoked.
Item 10 of the Bill inserts proposed subsections
15(3)-(9) into the Imported Food Control Act so that where the
Secretary is satisfied that there are reasonable grounds for believing that
food of a particular kind may pose a risk to human health and that the risk is
serious he, or she, may, by writing, make a holding order which must state:
- food
of that kind that is imported into Australia after the making of the order must
be held in a place to be approved by an authorised officer in writing until the
order ends
- the
order ends at the earlier of either the end of the period of 28 days
beginning on the day the order is made or, if that period is extended, the end
of the extended period or the time when the order is revoked[61]
and
- the
circumstances in which the order will be revoked.[62]
The Secretary may, in writing, extend the 28‑day
period of a holding order in respect of food posing a serious risk to human
health for a further period of up to 28 days. The Secretary may make more than
one such extension.[63]
However, before making an extension, the Secretary must review the appropriateness
of the order.[64]
According to the Explanatory Memorandum to the Bill:
The intent of a holding order made under new subsection 15(3)
of the Act is to merely preserve the status quo, and temporarily prevent a
particular food from further distribution until sufficient scientific evidence
can be gathered and the safety of that food can be determined. If the food is
determined not to be a risk to human health, the order will be revoked; if the
food is determined to be a risk to human health, a decision will then be made
to deal with the food.[65]
Accordingly, it is possible that at the end of the period
of a holding order for food posing a serious risk to human health that the food
may be classed as failing food.[66]
The Bill specifically provides that none of the
determinations under section 15 of the Imported Food Control Act,
whether by way of holding order, extension of a holding order or revocation of
a holding order are legislative instruments.[67]
Importantly, nothing in the Bill links the decisions made
under section 15 to section 42 of the Imported Food Control Act which
provides that certain decisions are reviewable decisions.
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee expressed concern that the
decision to extend a holding order in respect of food posing a serious risk to
human health is not subject to merits review.[68]
It noted that the Explanatory Memorandum provides that proposed subsection
15(4) ‘has been inserted to enable continued protection of human health
until the appropriate testing regime on the food for the particular hazard
and/or adequate risk management strategies can be implemented in relation to
the food’.[69]
The Committee also noted the comment in the Explanatory
Memorandum that ‘it is intended that the decision maker for an order under new
subsection 15(3) of the Act will not be the same decision maker for, if
applicable, a decision to extend the order under new subsection 15(4) of the
Act’.[70]
However, this is not specified in the Bill.
That being the case, the Scrutiny of Bills Committee
recommended that the Bill be amended to ensure that it is a legislative
requirement that the decision to extend the period of a holding order is made
by a different decision-maker to that who made the original holding order. The
Committee has sought the Minister's response in relation to this.[71]
Classification
of food
Commencement
The provisions in Part 3 of the Bill commence on the day
after Royal Assent.
Key
provisions
Section 16 of the Imported Food Control Act provides
that the particulars of the IFIS may be set out in Regulations. (See the
discussion under the heading ‘Imported Food Inspection Scheme’ above.) The Bill
expands the matters which may be particularised in the Regulations.
First, item 13 of the Bill repeals and replaces
existing paragraph 16(2)(a) and item 2 inserts proposed subparagraph
16(2)(a)(iia). Together they operate so that, in addition to making orders identifying
food of particular kinds as food that must be inspected, or inspected and
analysed,[72]
the Minister may also make Regulations:
- identifying
food of particular kinds as food that must be covered by a recognised
foreign government certificate
- identifying
food of particular kinds as food that must be covered by a recognised food
safety management certificate or
- classifying
food of particular kinds into particular categories.
If a food is classified as being in a particular category,
the Regulations may specify the percentage of the food in that category that
must be referred by an officer of Customs for inspection, or inspection and
analysis, under the Food Inspection Scheme.[73]
In addition the Regulations may empower the Secretary to
make an order about food that is classified into a particular category and is
of a particular kind, requiring a percentage of food of that kind to be
referred by an officer of Customs for inspection, or inspection and analysis,
under the Scheme.[74]
The order is not a legislative instrument.[75]
The order and any revocation of that order are to be published on the
Department’s website.[76]
Second, item 14 of the Bill inserts proposed
paragraph 16(2)(ba) into the Imported Food Control Act so that the Secretary
may make an order about food that is classified into a particular category and
is of a particular kind specifying the incidence of inspection, or inspection
and analysis attaching to the food and specifying the rate at which samples
must be taken for inspection. The order is not a legislative instrument.[77]
The order and any revocation of that order are to be published on the
Department’s website.[78]
The effect of the order is that food which is classified
into a particular category and is of a particular kind may be subject to an
increased rate of inspection or sampling ‘proportionate to the likelihood or
seriousness of the risk to human health’ which it poses.[79]
Recognition
of foreign country’s food safety system
Commencement
The provisions in Part 4 of the Bill commence on the day
after Royal Assent.
Key
provisions
The provisions of items 17–20 of the Bill amend
section 16 of the Imported Food Control Act to allow for the recognition
of a foreign country’s food safety system. According to the Explanatory
Memorandum to the Bill the recognition of a foreign country’s food safety
system ‘occurs only where that foreign country’s food safety system achieves
food safety outcomes that ensures determined food from that country does not
pose a risk to human health’.[80]
Proposed paragraph 16(2)(ac) allows the Minister to
make an order in respect of food classified into a particular category imported
from a country specified in the order setting out the percentage of all such
food (with or without exceptions) or the percentage of food of a particular
kind that is to be referred by an officer of Customs for inspection, or
inspection and analysis, under the Scheme.
Proposed paragraph 16(2)(bb) empowers the Minister
to make an order in respect of food classified into a particular category
imported from a country specified in the order setting out the percentage of
all such food (with or without exceptions) or the percentage of food of a
particular kind that is to be inspected, or inspected and analysed, under the
Scheme.
In either case, the percentage specified in the order must
be less than five percent (including zero).[81]
The Minister must not make either of the types of orders in
relation to a particular country unless the Minister is satisfied:
- there
is an agreement in force between Australia and that country and
- the
agreement is based on an assessment of the food safety systems of Australia and
that country which concluded that Australia and that country have equivalent
food safety systems and conduct equivalent monitoring of the food they
regulate.[82]
An order made under these provisions is a legislative
instrument.[83]
Enforcement
Commencement
The provisions in Part 5 of the Bill commence on the 28th day
after Royal Assent.
Key
provisions
Part 5 of the Bill contains the following:
Providing criminal and civil
remedies allows flexibility to respond to contraventions of the Imported
Food Control Act, with remedies proportionate to the seriousness of
the conduct. A criminal offence must be proved ‘beyond reasonable doubt’ and
results in a criminal record, whereas contravention of a civil penalty
provision is proved on the ‘balance of probabilities’ and does not result in a
criminal conviction. The period of imprisonment specified in the updated
offences is the same as for the offences as currently drafted.
Updated offences
Item 23 of the Bill repeals and replaces sections
8-9 of the Imported Food Control Act which give rise to criminal
offences only. The replacement offence provisions incorporate both the existing
fault-based offences as well as corresponding strict liability offences, for
which there is no requirement for proof of fault.[84]
Proposed section 8 deals with importation offences.
Proposed subsection 8(1) deals with food that does not meet applicable
standards (other than the labelling standard). Under that subsection, a person
commits an offence if the person imports food into Australia to which the Imported
Food Control Act applies and the food does not meet applicable standards—that
is, the standards made by FSANZ. In that case, the maximum penalty is imprisonment
for 10 years. Those same circumstances may, in the alternative, give rise to an
offence of strict liability for which the maximum penalty is 60 penalty units.[85]
Proposed subsection 8(3) deals with food that poses
a risk to human health. Under that subsection a person commits an offence if
the person imports food into Australia to which the Imported Food Control
Act applies and the person knows that the food poses a risk to human
health. In that case, the maximum penalty is imprisonment for 10 years. For the
purposes of that subsection, the person is taken to have known that the food
posed a risk to human health if the person ought reasonably to have known that
the food posed that risk, having regard to the person’s abilities, experience,
qualifications and other attributes and all the circumstances surrounding the
alleged contravention.[86]
In the alternative, the same circumstances give rise to an
offence of strict liability for which the maximum penalty is 60 penalty units.[87]
Proposed section 8A deals
with labelling offences. A person commits a fault‑based offence where
food is imported into Australia to which the Act applies, the person deals
with the food[88]
and the food does not meet applicable standards relating to information on
labels for packages containing food. The maximum penalty is imprisonment for 10
years.[89]
In the alternative, the same circumstances may give rise to an offence of
strict liability—the maximum penalty for which is 60 penalty units.[90]
Importantly, there is an exception to this general rule.
It does not apply to dealing with food in order to alter or replace the label
on the package containing the food so that it meets applicable standards
relating to information on labels for packages containing food.[91]
Proposed section 9 relates to dealings with examinable
food. Proposed subsection 9(1) provides that a person commits an offence
if the person deals with examinable food in a particular manner and each of the
following is satisfied:
- the
person knows that the food has been imported into Australia
- the
person knows that a food control certificate has not been issued in
respect of the food[92]
- the
person has not obtained the approval of an authorised officer to deal with the
food in that manner
- the
person is not dealing with the food in that manner in accordance with a
compliance agreement and
- the
person is neither an officer of Customs, nor an authorised officer, acting in
the course of his or her duties.
Those circumstances give rise to a fault-based offence,
the maximum penalty for which is imprisonment for 10 years.
Proposed subsection 9(2) gives rise to an offence
of strict liability in similar circumstances—absent the element of knowledge.
In that case, the maximum penalty is 60 penalty units.[93]
Proposed subsections 9(3) and (4) create both a fault-based
offence and an offence of strict liability for dealing with food where there is
no imported food inspection advice. Proposed subsections 9(6) and (7) create
both fault-based and strict liability offences for dealing with failing food.
In either case the maximum penalty for the fault-based offence is imprisonment
for 10 years and the maximum penalty for the offence of strict liability is 60
penalty units.[94]
Each of the offences in proposed section 9 of the Bill
reflects existing offences. However, the drafting of the circumstances giving
rise to each of the offences is more specific. This will assist in determining
whether any criminal prosecution should take place.
New civil
penalty provisions
Item 24 of the Bill inserts proposed section 9A into
the Imported Food Control Act to create civil penalty provisions for:
- importing
food that does not meet applicable standards (where those standards do not
relate to information on labels for packages containing food)[95]
- importing
food into Australia that poses a risk to human health[96]
- importing
food into Australia where the person deals with the food and the food does not
meet applicable standards relating to information on labels for packages
containing food[97]
- dealing
with examinable food that has been imported into Australia where a food control
certificate has not been issued in respect of the food; the person has not
obtained the approval of an authorised officer to deal with the food in that
manner; and the person is not dealing with the food in accordance with a
compliance agreement[98]
- dealing
with examinable food that has been imported into Australia for which a food
control certificate has been issued; where an imported food inspection
advice has not been issued and the approval of an authorised officer to deal
with the food in that manner has not been given; and where the person is not
dealing with the food in accordance with a compliance agreement[99]
- dealing
with examinable food that has been imported into Australia; for which a food
control certificate has been issued and the food has been identified as failing
food; where the person does not have approval to deal with the food in
that manner and is not permitted nor required to deal with the food in that
manner under the imported food inspection advice.[100]
In each of the circumstances outlined above, the maximum
civil penalty payable is 120 penalty units.[101]
The Explanatory Memorandum to the Bill provides the rationale for introducing
civil penalties as follows:
Civil penalties provisions have been introduced as one
component of differentiated enforcement provisions, which give greater
flexibility and more opportunity to encourage non-compliant food importers to become
compliant.[102]
Enforcement of the civil penalty provisions will be
subject to the terms of proposed section 24 which is discussed below.
Enforcement
under the Regulatory Powers Act
Item 25 of the Bill repeals and replaces sections 21–32
of the Imported Food Control Act which relate to enforcement of the Act.
The Bill inserts a suite of enforcement provisions that trigger the operation
of the Regulatory Powers Act, which was enacted to provide for
uniformity of enforcement provisions across Commonwealth statutes.
Monitoring
powers
Proposed subsections 22(1) to (3) of the Imported
Food Control Act provide:
- all
provisions of the Act and any regulations or orders made under the Act[103]
- information
given in compliance with the Act, regulations or orders and
- provisions
of a compliance agreement[104]
are subject to monitoring under Part 2 of the Regulatory
Powers Act.
The monitoring
powers (set out at section 19 of the Regulatory Powers Act)
which may be exercised on premises that an authorised person[105]
has entered under warrant or consent, include the power to:
- search the premises and any thing on the premises
- examine or observe any activity conducted on the premises
- inspect, examine, take measurements of or conduct tests on any
thing on the premises
- make any still or moving image or any recording of the premises
or any thing on the premises
- inspect any document on the premises
- take extracts from, or make copies of, any such document
- take
onto the premises such equipment and materials as the authorised person requires
in order to exercise powers in relation to the premises
- operate
electronic equipment on the premises, to put relevant data in documentary form or
copy the data onto a device and remove the documents or device from the
premises[106]
-
secure electronic equipment where an authorised person enters
premises under a monitoring warrant[107]
- secure
a thing for a period of 24 hours in circumstances where the thing is found
during the exercise of monitoring powers on the premises and an authorised
person believes on reasonable grounds that it relates to the contravention of a
related provision.[108]
These powers may only be exercised to:
- determine
whether the Imported Food Control Act (and regulations and orders made
under that Act) or a compliance agreement is being complied with and/or
- determine
whether information supplied under the Act, regulations, orders or a compliance
agreement is correct.[109]
Proposed subsections 22(12) and (13) of the Imported
Food Control Act provide additional monitoring powers, being the power to take
and keep samples of any thing at any premises entered under the powers set out
above. An authorised person executing a monitoring warrant, or a person
assisting the authorised person, may use such force as is reasonable and
necessary in the circumstances against things. However, this does not extend to
the use of force against a person.[110]
Issuing a monitoring warrant
A monitoring warrant may be issued if the issuing
officer[111]
is satisfied that it is reasonably necessary for one or more authorised persons
to have access to premises for the purpose of determining whether a provision
that is subject to monitoring has been, or is being, complied with or that
information subject to monitoring is correct.[112]
In that case the relevant warrant must do all of the following:
describe the premises to which the warrant relates
- state that the warrant is issued under section 32 of the Regulatory
Powers Act
- state the purpose for which the warrant is issued
- authorise
one or more authorised persons (whether or not named in the warrant) from time
to time while the warrant remains in force to enter the premises and to
exercise the monitoring powers
- state whether entry is authorised to be made at any time of the
day or during specified hours of the day and
- specify
the day (not more than three months after the issue of the warrant) on which
the warrant ceases to be in force.[113]
An authorised officer may enter premises and exercise the
monitoring powers only if the occupier of the premises has consented to the
entry, or the entry is made under a monitoring warrant.[114]
Investigation powers
Proposed section 23 of the Imported Food Control
Act sets out the provisions that are subject to investigation under Part 3
of the Regulatory Powers Act. They are:
- an offence against the Imported Food Control Act
- a civil penalty provision under the Imported Food Control Act
or
-
an offence against the Crimes Act or the Criminal Code
that relates to the Imported Food Control Act.
Part 3 of the Regulatory Powers Act applies to the evidential
material in respect of the above.[115]
Evidential material is material relevant to the criminal
offences and civil penalty provisions specified above.[116]
Proposed subsection 23(3) of the Imported Food
Control Act provides that the Secretary of the Agriculture Department and
an APS employee who is an ‘authorised officer’ under section 40 of that Act is
an authorised applicant and an authorised person
under Part 3 of the Regulatory Powers Act. Authorised applicants and
authorised persons can exercise various powers under Part 3. The powers of
authorised persons, including the power to enter premises under an
investigation warrant, are set out in Division 2 of Part 3. An authorised
applicant is able to apply for an investigation warrant under Division 6 of
Part 3.
Proposed subsection 23(5) provides that the
Secretary is the relevant chief executive under the Regulatory Powers
Act. This means that the Secretary may exercise certain powers under Part
3, such as such as disposing of items that were seized from premises entered
under that Part.[117]
The investigation powers (set out at section
49 of the Regulatory Powers Act) which may be exercised on premises that
an authorised person has entered under warrant or consent, include the power
to:
- where
the occupier consents to entry—search the premises and any thing on the
premises for the evidential material the authorised person suspects on
reasonable grounds may be on the premises
- where
the entry is under warrant—search the premises and any thing on the premises
for the kind of evidential material specified in the warrant and to seize
evidential material of that kind if the authorised person finds it on the
premises
-
inspect, examine, take measurements of, or conduct tests on, the
evidential material
- make any still or moving image or any recording of the premises
or evidential material
- take
onto the premises such equipment and materials as the authorised person requires
for the purpose of exercising powers in relation to the premises
- operate
electronic equipment on the premises, to put relevant data in documentary form or
copy the data onto a device and remove the documents or device from the
premises. If the entry is under warrant, the equipment may be seized[118]
-
secure electronic equipment where an authorised person enters
premises under an investigation warrant[119]
Similar to the provisions about monitoring powers, proposed
subsections 23(9) and (10) of the Imported Food Control Act provide for
additional investigation powers—being the power to take and keep samples of any
thing at the premises entered into by consent and under warrant. In addition, an
authorised person may be accompanied by another person to assist him or her in
exercising an investigation power.[120]
An authorised person or assisting person may use such force as is reasonable
and necessary in the circumstances against things. However, this does not
extend to the use of force against a person.[121]
Issuing an investigation warrant
Where an authorised person suspects on reasonable grounds
that there may be evidential material on any premises, he, or she, may enter
the premises and use investigation powers so long as the occupier consents or
the authorised person has an investigation warrant.[122]
The provisions in Part 3 of the Regulatory Powers Act set out the
requirements for applying for an investigation warrant and its contents.[123]
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee expressed its concern that
proposed subsections 22(14) and 23(11) provide that an authorised
officer may be assisted ‘by other persons’ in exercising powers or performing
functions or duties in relation to monitoring and investigation—but that the Explanatory
Memorandum does not describe the categories of ‘other persons’ who may be
granted such powers.[124]
The Committee queried the Explanatory Memorandum’s statement that the
provisions preserve the effect of existing section 32, repealed by item 25
of the Bill, and noted that this existing section is limited to requiring the
occupier of premises entered to provide reasonable assistance to the officer.[125]
The scope of proposed subsections 22(14) and 23(11) is not similarly
limited.
As the powers granted to ‘other persons’ are coercive in
nature the Scrutiny of Bills Committee has requested the Minister’s advice as
to the following:
- why
it is necessary to confer monitoring and investigatory powers on any ‘other
person’ to assist an authorised officer and
- whether
it would be appropriate to amend the Bill to require that any person assisting
an authorised officer be confined to the occupier of the relevant premises or
to require the person assisting have specified skills, training or experience.[126]
Enforceable
civil penalty provisions
Proposed section 24 of the Imported Food Control
Act provides that each of the civil penalty provisions is enforceable under
Part 4 of the Regulatory Powers Act. Accordingly a civil penalty
provision may be enforced by obtaining an order for a person to pay a pecuniary
penalty for the contravention of the provision.
Proposed subsection 24(2) provides that the
Secretary is an authorised applicant in relation to the civil
penalty provisions. This allows the Secretary to apply to the Federal Court of
Australia, the Federal Circuit Court of Australia or a court of a state or territory
that has jurisdiction under the Imported Food Control Act, for a civil
penalty order requiring a person who is alleged to have contravened a civil
penalty provision, to pay the Commonwealth a pecuniary penalty.[127]
The authorised applicant must make the application within four
years of the alleged contravention.[128]
In determining the pecuniary penalty, the court must take
into account all relevant matters, including:
- the
nature and extent of the contravention
- the
nature and extent of any loss or damage suffered because of the contravention
- the
circumstances in which the contravention took place and
- whether
the person has previously been found by a court (including a court in a foreign
country) to have engaged in any similar conduct.[129]
A relevant court may make a single civil penalty order
against a person for multiple contraventions of a civil penalty provision if
proceedings for the contraventions are founded on the same facts, or if the
contraventions form, or are part of, a series of contraventions of the same or
a similar character. However, the penalty must not exceed the sum of the
maximum penalties that could be ordered if a separate penalty were ordered for
each of the contraventions.[130]
Other enforcement options
The Bill also inserts provisions into the Imported Food
Control Act which will enable the Department to take other enforcement
actions which are more educative than punitive in nature.
Infringement
notices
One of these options is to issue an infringement notices.
The provisions about infringement notices are governed by Part 5 of the Regulatory
Powers Act. They apply to strict liability offences and civil penalty
provisions of the Imported Food Control Act. Proposed subsection
25(2) provides that both the Secretary and an APS employee in the
Department appointed by the Secretary (under subsection 40(1) of the
Imported Food Control Act) are infringement officers. The
Secretary is also the relevant chief executive officer under Part
5, which allows him or her to exercise powers such as allowing a person more
time to pay an infringement notice amount or withdrawing an infringement
notice.[131]
The Secretary may, in writing, delegate to an SES employee, or acting SES
employee, in the Department the Secretary’s powers and functions under
Part 5 of the Regulatory Powers Act in relation to infringement
notices.[132]
If an infringement officer
believes on reasonable grounds that a person has contravened a provision
subject to an infringement notice, he or she may give to the person an
infringement notice for the alleged contravention. That notice must be given
within 12 months after the day on which the contravention is alleged to have
taken place.[133]
The amount payable under the notice must be the lesser of: one-fifth of the
maximum penalty that a court could impose on the person for that contravention;
or 12 penalty units for an individual or 60 penalty units for a body corporate.[134]
Enforceable
undertakings
The other option is to accept an enforceable undertaking. A
provision is enforceable under Part 6 of the Regulatory Powers
Act if it is an offence against the Imported Food Control Act or a
civil penalty provision of the Imported Food Control Act.[135]
Proposed subsection 26(2) provides that the
Secretary is an authorised person for the purposes of Part 6
of the Regulatory Powers Act. This allows the Secretary to accept an
undertaking relating to compliance with an enforceable provision
of the Imported Food Control Act.
That undertaking may be enforced by a relevant court—that
is, the Federal Court of Australia, the Federal Circuit Court of Australia or a
court of a state or territory that has jurisdiction in relation to matters
under the Imported Food Control Act. The court may make any order that
it considers appropriate, include an order directing compliance, an order
requiring any financial benefit from the failure to comply to be surrendered
and an order for damages.[136]
New Part 4—other matters
Part 4 of the Imported Food Control Act currently commences
at section 35A and is titled ‘miscellaneous’.
The Bill retitles Part 4 as ‘other
matters’,[137] inserts new provisions so that it commences at proposed section 32A
and inserts a simplified outline to enhance readability. The revamped Part 4 deals
with various matters, such as evidence of analysts of food, the making of
compliance agreements and the use, disclosure and publication of information
obtained under Imported Food Control Act.
Power to require information or documents
Item 27 of the Bill inserts proposed section 34A
into the Imported Food Control Act so that
where the Secretary believes on reasonable grounds that a person has
information or documents relevant to the operation of the Imported Food Control Act, the Secretary may, by
written notice, require the person to give an authorised officer the
information or produce the documents specified in the notice within the period
specified in the notice. That period must be at least 14 days after the notice
is given—although a shorter period may be specified if the Secretary considers
it necessary to do so because the information or documents relate to food that
the Secretary is satisfied may pose a serious risk to human health.[138]
A person who fails to comply with a notice that has been given under proposed
section 34A commits an offence of strict liability. The maximum penalty is 60
penalty units.[139]
Record
keeping
Commencement
The amendments in Part 6 of the Bill commence on the
earlier of a single day to be fixed by Proclamation or 12 months after
Royal Assent.
Key
provisions
Item 37 of the Bill inserts
proposed Part 3A—Record-keeping into the Imported Food Control Act.
The principal requirements of proposed
Part 3A are as follows:
- if
food to which the Imported Food Control Act applies is imported into
Australia, the owner of the food at the time of the importation must keep
records containing the information which is determined in a legislative instrument
made by the Secretary, for a period of five years. A person commits an offence
of strict liability if the person fails to keep records as required.[140]
The maximum penalty for a contravention is 60 penalty units[141]
- the
Secretary may, by written notice, require a person who must keep records to produce
them to the Secretary, within the time and in the manner specified in the
notice.[142]
Generally, the period specified in the notice must be at least 14 days after
the notice is given.[143]
However, a shorter period may apply if the Secretary considers it necessary—because
the records relate to food that may pose a serious risk to human health.[144]
A person commits a criminal offence if he, or she, does not comply with a
notice that has been given.[145]
The maximum penalty for contravention of this provision is six months
imprisonment.[146]
Use and
disclosure of information
Commencement
The provisions in Part 8 of the Bill commence on the day
after Royal Assent.
Key
provisions
Item 43 of the Bill inserts proposed section 42A
into the Imported Food Control Act.
Use of
information
The Bill provides that an Australian Public Service (APS)
employee in the Department of Agriculture and Water Resources may use
information (including personal information[147])
obtained under the Imported Food Control Act for any purpose of the Act.[148]
Disclosure
of information
The Bill empowers the Secretary to disclose information
(including personal information) obtained under the Imported Food Control
Act to a range of entities if the Secretary is satisfied that the
disclosure of the information to that entity is necessary for the entity to perform
or exercise any of its functions, duties or powers.[149]
The Secretary may also disclose information (including
personal information) obtained under the Imported Food Control Act to a
department of the government of a foreign country or an agency, authority or
instrumentality of the government of a foreign country provided that the
Secretary is satisfied that the disclosure of the information is necessary for
that department, agency, authority or instrumentality to perform or exercise
any of its functions, duties or powers.[150]
However, such a disclosure must not be made unless the Secretary is satisfied
that the disclosure is in connection with food imported into Australia and that
the food may pose a risk to human health.[151]
Finally, the Bill requires the Secretary to make written guidelines
(published on the Department’s website) to which he, or she, must have regard
to before disclosing information to a foreign country or to an agency,
authority or instrumentality of the government of a foreign country.[152]
The Secretary must consult the Information Commissioner before making the
guidelines.[153]
The guidelines are not a legislative instrument.[154]
Scrutiny of
Bills Committee
The Scrutiny of Bills Committee noted the comments in the
Explanatory Memorandum in relation to the making of guidelines in consultation
with the Australian Information Commissioner.
However, the Committee stated that it was unclear ‘why the
guidelines, which become a mandatory consideration for exercising a power that
affects the right to privacy, should not be a legislative instrument and,
therefore, subject to parliamentary scrutiny and disallowance’ [and] ‘why the
development of the guidelines is limited to the exercise of the Secretary's
power in disclosing information to a foreign country, and not in relation to
disclosing information to other Commonwealth agencies and State, Territory or
local governments’.[155]
The being the case, the Scrutiny of Bills Committee has
requested the Minister's advice in relation to those matters.[156]
Other
amendments
Commencement
The provisions in Part 9 of the Bill commence on the day
after Royal Assent.
Key
provisions
Items 45 and 47 of the Bill
amend the definition of food in the Imported Food Control Act so that it
is in equivalent terms to those used in the FSANZ Act.[157]
Proposed section 3A provides that food includes:
(a) any substance or thing of a kind used, capable of being
used, or represented as being for use, for human consumption (whether it is
live, raw, prepared or partly prepared); and
(b) any substance or thing of a kind used, capable of being
used, or represented as being for use, as an ingredient or additive in a
substance or thing referred to in paragraph (a); and
(c) any substance used in preparing a substance or thing
referred to in paragraph (a); and
(d) chewing gum or an ingredient or additive in chewing
gum, or any substance used in preparing chewing gum; and
(e) any substance or thing declared to be a food under a
declaration in force under section 6 of the Food Standards Australia
New Zealand Act 1991.
(It does not matter whether the substance, thing or chewing
gum is in a condition fit for human consumption.)
Concluding comments
The Bill makes significant changes to the Imported Food
Control Act by expanding the power of the Secretary to make holding orders.
Under the Bill this power will also apply to food posing a serious risk to
human health. In addition, Part 3 of the Bill expands the matters about which
the Minister may make Regulations. This is intended to apply to the various
classifications of imported food so that particular foods which pose new and
emerging risks can be subject to a more intensive inspection regime.
The Bill also allows for the recognition of a foreign
country’s food safety regulatory system where it is equivalent to Australia's
food safety system—so that food inspection may be better targeted.
To complement these new powers, Part 5 of the Bill sets
out increased enforcement measures—including civil penalty provisions and
infringement notices.
The Scrutiny of Bills Committee has suggested minor, but
valuable, amendments to the Bill—in particular the need to make clear that the
person who makes a decision to impose a holding order is different from the
person who makes a decision to extend the order.
[1]. Department
of Agriculture and Water Resources (DoAWR), ‘Strengthening the
management of imported food safety’, DoAWR website, 9 August 2017.
[2]. Food
Regulation Agreement, 3 July 2008.
[3]. Agreement
between the Government of Australia and the Government of New Zealand
concerning a Joint Food Standards System, 5 December 1995.
[4]. Food
Standards Australia New Zealand (FSANZ), ‘Food standards
code’, FSANZ website.
[5]. Australia New Zealand Foods
Standards Code, Standard
3.1.1: Interpretation and Application; Australia New Zealand Foods
Standards Code, Standard
3.2.1: Food Safety Programs; Australia New Zealand Foods Standards Code, Standard 3.2.2: Food
Safety Practices and General Requirements; Australia New Zealand Foods
Standards Code, Standard
3.2.3: Food Premises and Equipment.
[6]. Food Act
2006 (Qld); Food Act
2003 (NSW); Food Act
1984 (Vic); Food Act
2003 (Tas); Food Act
2001 (SA); Food Act
2008 (WA); Food Act
2001 (ACT); Food Act
(NT).
[7]. FSANZ,
‘Food
recalls’, FSANZ website, October 2016.
[8]. Senate
Community Affairs Committee, Answers to Questions on Notice, Health Portfolio,
Budget Estimates 2015–16, Question
SQ15–000400.
[9]. The
Australian Consumer Law is located at Schedule 2 of the Competition and
Consumer Act 2010.
[10]. Consumer
goods are defined in clause 2 of the Australian Consumer Law as goods
that are intended to be used, or are of a kind likely to be used, for personal,
domestic or household use or consumption, and includes any such goods that have
become fixtures since the time they were supplied if (a) a recall notice for
the goods has been issued or (b) a person has voluntarily taken action to
recall the goods.
[11]. C
Baggoley (Chief Medical Officer), Hepatitis
A linked to frozen berries, media release, 26 February 2015.
[12]. S
Santow, ‘Poor
hygiene in China thought to be cause of hepatitis A outbreak linked to imported
frozen berries’, ABC News, (online edition),
16 February 2015.
[13]. F
Nash (Assistant Minister for Health), Action
on Hepatitis A, media release, 18 February 2015.
[14]. B
Joyce (Minister for Agriculture), Update
on situation around imported berries and Hepatitis A, media release, 16
April 2015.
[15]. DoAWR,
Imported
food reforms: decision regulation impact statement, DoAWR, Canberra,
2016, p. 16, (references removed).
[16]. J
Ross, ‘Tests
fail to keep up with food imports’, The Australian, 24 February
2015, p. 2; R Harris, ‘Holes
in tests for safe food’, The Adelaide Advertiser, 11 June
2015, p. 2.
[17]. Imported
Food Control Act, section 2A.
[18]. Ibid.,
section 7.
[19]. Ibid.,
section 8.
[20]. Ibid.,
subsection 3(2).
[21]. Risk
food is food that FSANZ has advised the Minister has the potential to
pose a high or medium risk to public health. Imported Food Control Regulations,
section 9.
[22]. Imported
Food Control Regulations, section 10; Imported Food Control Act, section
35A. Food Import Compliance Agreements (FICAs) are a co-regulatory assurance
arrangement that allows importers to manage their compliance with safety
requirements and food standards as an alternative to IFIS inspection and
testing. To qualify for a FICA, importers are required to have in place a
quality assurance regime—through a food safety management system—and meet other
conditions, including mandatory reporting of detections of non-compliant food. Source:
Australian National Audit Office (ANAO), Administration
of the Imported Food Inspection Scheme, Report, 49, 2014–15, ANAO,
Canberra, 2015, p. 12.
[23]. Food may be
classified as surveillance food if it is not risk food,
compliance agreement food or subject to a holding order. Imported Food Control
Regulations, section 11.
[24]. Imported
Food Control Regulations, section 13.
[25]. Imported Food
Control Regulations, section 14.
[26]. Imported
Food Control Regulations, section 15.
[27]. Imported
Food Control Regulations, section 17.
[28]. Imported
Food Control Regulations, section 21.
[29]. ANAO,
Administration
of the Imported Food Inspection Scheme, op. cit., p. 12.
[30]. Ibid.,
p. 13.
[31]. Ibid.
[32]. ANAO,
Administration
of the Imported Food Inspection Scheme, op. cit., p. 14.
[33]. Ibid.,
p. 15.
[34]. Ibid.
[35]. Ibid.,
pp. 22–23.
[36]. Colmar
Brunton, Food
importer research: prepared for the Department of Agriculture and Water
Resources, report prepared for the Australian Communications and Media
Authority (ACMA), ACMA, Canberra, 25 May 2016, p. 8.
[37]. DoAWR,
Imported
food reforms: decision regulation impact statement, op. cit., p. x.
[38]. Ibid.,
p. 26.
[39]. B
Joyce (Minister for Agriculture and Water Resources), Protecting
Australians from unsafe food, media release, 20 March 2017.
[40]. Selection
of Bills Committee, Report,
7, 2017, Senate, Canberra, 22 June 2017.
[41]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2017, 14 June 2017, pp. 30–34.
[42]. See,
for example, M Roberts, ‘Second
reading speech: Competition and Consumer Amendment (Country of Origin) Bill
2016’, Senate, Debates, 8 February 2017, p. 268.
[43]. A
summary of the feedback by stakeholders to the consultation is contained in pp.
26–29 of DoAWR, Imported
food reforms: decision regulation impact statement, op. cit.
[44]. Explanatory
Memorandum, Imported Food Control Amendment Bill 2017, p. 2.
[45]. DoAWR,
Imported
food reforms: decision regulation impact statement, op. cit., p. x.
[46]. The
Statement of Compatibility with Human Rights can be found at pages 4–35 of the Explanatory
Memorandum to the Bill.
[47]. Parliamentary
Joint Committee on Human Rights, Report,
7, 2017, 20 June 2017, p. 55.
[48]. DoAWR,
Imported
food reforms: decision regulation impact statement, op. cit., p. 15.
[49]. Imported
Food Control Act, proposed subsection 18A(2).
[50]. Imported
Food Control Act, proposed subsection 18A(3).
[51]. Explanatory
Memorandum, Imported Food Control Amendment Bill 2017, p. 37.
[52]. Imported
Food Control Act, proposed subsection 18A(4).
[53]. The
requirement for registration on the Federal Register of Legislation and the
rules relating to tabling and disallowance are contained in the Legislation Act
2003.
[54]. Imported
Food Control Act, proposed subsection 18A(5).
[55]. Explanatory
Memorandum, Imported Food Control Amendment Bill 2017, pp. 39–40.
[56]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2017, op. cit., p. 31.
[57]. Ibid.
[58]. Explanatory
Memorandum, Imported Food Control Amendment Bill 2017, p. 70.
[59]. Section
3 of the Imported Food Control Act defines failing food as
examinable food, that (a) as a result of an inspection, or inspection and
analysis, under the Food Inspection Scheme, is found to be food that does not
meet the applicable standards for that food or food that poses a risk to human
health; or (b) is taken, under the provisions of the Scheme, to be such food.
[60]. Explanatory
Memorandum, Imported Food Control Amendment Bill 2017, p. 7
[61]. Imported
Food Control Act, proposed subsection 15(6) sets out the Secretary’s
power to revoke a holding order in respect of food posing a serious risk to
human health.
[62]. Imported
Food Control Act, proposed subsection 15(3).
[63]. Imported
Food Control Act, proposed subsection 15(4).
[64]. Imported
Food Control Act, proposed subsection 15(5).
[65]. Explanatory
Memorandum, Imported Food Control Amendment Bill 2017, p. 42.
[66]. Imported
Food Control Act, proposed subparagraph 15(1)(c)(ii).
[67]. Imported
Food Control Act, proposed subsection 15(8).
[68]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2017, op. cit., p. 31.
[69]. Explanatory
Memorandum, Imported Food Control Amendment Bill 2017, p. 42.
[70]. Ibid.
[71]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2017, op. cit., p. 32.
[72]. Imported
Food Control Act, proposed paragraph 16(2)(a).
[73]. Imported
Food Control Act, proposed paragraph 16(2)(aa).
[74]. Imported
Food Control Act, proposed paragraph 16(2)(ab).
[75]. Imported
Food Control Act, proposed subsection 16(6).
[76]. Imported
Food Control Act, proposed subsection 16(7).
[77]. Imported
Food Control Act, proposed subsection 16(6).
[78]. Imported
Food Control Act, proposed subsection 16(7).
[79]. Explanatory
Memorandum, Imported Food Control Amendment Bill 2017, p. 44.
[80]. Ibid.,
p. 46.
[81]. Imported
Food Control Act, proposed subsection 16(2A).
[82]. Imported
Food Control Act, proposed subsection 16(2B).
[83]. Imported
Food Control Act, subsection 16(5) (as amended by item 20).
[84]. In
a criminal law offence the proof of fault is usually a basic requirement.
However, offences of strict liability remove the fault (mental) element that
would otherwise apply, but the offence will not criminalise honest errors and a
person cannot be held liable if he, or she, had an honest and reasonable belief
that they were complying with relevant obligations.
[85]. Imported
Food Control Act, proposed subsection 8(2). Under section 4AA of the
Crimes Act 1914,
a penalty unit is equivalent to $210. This means that the maximum penalty would
be $12,600.
[86]. Imported
Food Control Act, proposed subsection 8(5).
[87]. Imported
Food Control Act, proposed subsection 8(4). This means that the
maximum penalty would be $12,600.
[88]. The
term deal with in relation to food is defined in section 3 of the
Imported Food Control Act as including: (a) moving, altering or
interfering with in any physical manner whatsoever; and (b) entering into a
transaction whereby the ownership of the food, or of any beneficial interest in
the food, passes from one person to another.
[89]. Imported
Food Control Act, proposed subsection 8A(1).
[90]. Imported
Food Control Act, proposed subsection 8A(2). This means that the
maximum penalty would be $12,600.
[91]. Imported
Food Control Act, proposed subsection 8A(3).
[92]. Section
10 of the Imported Food Control Act provides that food that is imported
for home consumption but not entered into for home consumption may be subject
to a food control certificate. The Bill does not alter the
existing regime for issuing food control certificates.
[93]. This
means that the maximum penalty would be $12,600.
[94]. This
means that the maximum penalty would be $12,600.
[95]. Imported
Food Control Act, proposed subsection 9A(1).
[96]. Imported
Food Control Act, proposed subsection 9A(2).
[97]. Imported
Food Control Act, proposed subsection 9A(3).
[98]. Imported
Food Control Act, proposed subsection 9A(5).
[99]. Imported
Food Control Act, proposed subsection 9A(6).
[100]. Imported
Food Control Act, proposed subsection 9A(8).
[101]. This
means that the maximum penalty would be $25,200.
[102]. Explanatory
Memorandum, Imported Food Control Amendment Bill 2017, p. 52.
[103]. ‘This
Act’ is defined at subsection 3(1) of the Imported Food Control Act to
include regulations and orders made under the Act.
[104]. Imported
Food Control Act, proposed subsections 22(2) and (3). Section 35A of
the Imported Food Control Act governs the circumstances in which the
Commonwealth may enter into a compliance agreement with a person.
[105]. Section
40 of the Imported Food Control Act empowers the Secretary make a signed
instrument appointing an APS employee of the Department to be an authorised
officer. Proposed subsection 22(5) provides that for the
purposes of Part 2 of the Regulatory Powers Act an authorised officer is
both an authorised applicant and an authorised person.
[106]. Regulatory
Powers Act, subsections 20(1) and (4).
[107]. Regulatory
Powers Act, subsection 21(2).
[108]. Regulatory
Powers Act, subsection 22(1).
[109]. Regulatory
Powers Act, subsection 18(1) and proposed subsections 22(1) to (3) of the Imported
Food Control Act.
[110]. Imported
Food Control Act, proposed subsection 22(15).
[111]. Imported
Food Control Act, proposed subsection 22(7) provides that an issuing
officer means a magistrate-.
[112]. Regulatory
Powers Act, section 32.
[113]. Regulatory
Powers Act, subsection 32(4).
[114]. Regulatory
Powers Act, section 18.
[115]. Proposed
subsection 23(1), together with section 38 of the Regulatory Powers Act operate
to apply Part 3 of that Act to the Imported Food Control Act.
[116]. Section
39 of the Regulatory Powers Act contains the definition of evidential
material.
[117]. Regulatory
Powers Act, section 68.
[118]. Regulatory
Powers Act, subsections 50(1) and (2).
[119]. Regulatory
Powers Act, subsection 51(2).
[120]. Imported
Food Control Act, proposed subsection 23(11).
[121]. Imported
Food Control Act, proposed subsection 23(12).
[122]. Regulatory
Powers Act, section 48.
[123]. Regulatory
Powers Act, section 70.
[124]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2017, op. cit., p. 32.
[125]. Ibid.
[126]. Ibid.,
p. 33.
[127]. Regulatory
Powers Act, subsection 82(1); Imported Food Control Act, proposed
subsection 24(3).
[128]. Regulatory
Powers Act, subsection 82(2).
[129]. Regulatory
Powers Act, subsection 82(6).
[130]. Regulatory
Powers Act, section 85.
[131]. Regulatory
Powers Act, sections 105 and 106.
[132]. Imported
Food Control Act, proposed subsection 25(4).
[133]. Regulatory
Powers Act, subsections 103(1) and (2).
[134]. Regulatory
Powers Act, subsection 104(2).
[135]. Imported
Food Control Act, proposed subsection 26(1).
[136]. Regulatory
Powers Act, section 115.
[137]. Item
29 of the Bill repeals the existing heading.
[138]. Imported
Food Control Act, proposed subsection 34A(3).
[139]. This
means that the maximum penalty would be $12,600.
[140]. The
imposition of strict liability means that a fault element does not need to be
satisfied, but the offence will not criminalise honest errors and a person
cannot be held liable if he, or she, had an honest and reasonable belief that
they were complying with relevant obligations.
[141]. This
means that the maximum penalty would be $12,600.
[142]. Imported
Food Control Act, proposed subsection 29(1).
[143]. Imported
Food Control Act, proposed subsection 29(2).
[144]. Imported
Food Control Act, proposed subsection 29(3).
[145]. The
notice must include information about the application of the Criminal Code
(which is contained in the Criminal Code Act
1995) to a person giving false or misleading information and to a
person producing false or misleading documents: Imported Food Control Act,
proposed subsection 29(4).
[146]. Under
subsection 4B(2) of the Crimes Act, where a natural person is convicted
of an offence against a law of the Commonwealth punishable by imprisonment
only, the court may, if the contrary intention does not appear and the court
thinks it appropriate in all the circumstances of the case, impose, instead of
or in addition to a penalty of imprisonment, a pecuniary penalty calculated
using the formula in that Act.
[147]. Imported
Food Control Act, proposed subsection 42A(12) provides that the term
personal information has the same meaning as in the Privacy Act 1988.
[148]. Imported
Food Control Act, proposed subsection 42A(1).
[149]. Imported
Food Control Act, proposed subsection 42A(2).
[150]. Imported
Food Control Act, proposed subsection 42A(3).
[151]. Imported
Food Control Act, proposed subsection 42A(4).
[152]. Imported
Food Control Act, proposed subsection 42A(5).
[153]. Imported
Food Control Act, proposed subsection 42A(6).
[154]. Imported
Food Control Act, proposed subsection 42A(7).
[155]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2017, 14 June 2017, pp. 33–34.
[156]. Ibid.,
p. 34.
[157]. FSANZ
Act, section 5.
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