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Imported Food Control Amendment Bill 2017



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ISSN 1328-8091

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BILLS DIGEST NO. 12, 2017-18 10 AUGUST 2017

Imported Food Control Amendment Bill 2017 Paula Pyburne Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 4

Structure of the Bill ............................................................. 4

Background ......................................................................... 4

Setting food safety standards .................................................. 4

Table 1: number of recalls coordinated by FSANZ, by year and classification, between 1 January 2007 and 31 December 2016 ..................................................................... 5

Role of the ACCC.................................................................... 5

Level of Australian imports ...................................................... 5

Table 2: Australia’s food imports unprocessed and processed (A$ million) ........................................................... 6

Importation of contaminated berries ...................................... 6

Costs of the contamination ................................................... 7

Imported Food Control Act ...................................................... 7

Application ............................................................................ 7

Imported Food Inspection Scheme ....................................... 7

Referral for inspection ............................................................. 8

Table 3: Examples of tests applied ........................................ 9

Reviews .................................................................................... 9

2015—Australian National Audit Office ................................ 9

2016—Food importer research ........................................... 10

Regulation impact statement ................................................ 10

Committee consideration .................................................. 11

Selection of Bills Committee.................................................. 11

Senate Standing Committee for the Scrutiny of Bills ............ 11

Policy position of non-government parties/independents ... 11

Position of major interest groups ....................................... 11

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.

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Financial implications ........................................................ 11

Statement of Compatibility with Human Rights .................. 11

Parliamentary Joint Committee on Human Rights ................ 11

Key issues and provisions................................................... 12

Food safety management certificates ................................... 12

Commencement .................................................................. 12

Background .......................................................................... 12

Key provisions...................................................................... 12

Key issue .............................................................................. 12

Scrutiny of Bills Committee ................................................. 13

Making of orders of determinations ..................................... 13

Commencement .................................................................. 13

Key provisions...................................................................... 13

Holding orders ....................................................................... 13

Commencement .................................................................. 13

Key provisions...................................................................... 13

Scrutiny of Bills Committee ................................................. 15

Classification of food ............................................................. 15

Commencement .................................................................. 15

Key provisions...................................................................... 15

Recognition of foreign country’s food safety system ............ 16

Commencement .................................................................. 16

Key provisions...................................................................... 16

Enforcement .......................................................................... 16

Commencement .................................................................. 16

Key provisions...................................................................... 16

Updated offences ................................................................ 17

New civil penalty provisions ................................................ 18

Enforcement under the Regulatory Powers Act ................. 19

Monitoring powers ............................................................ 19

Issuing a monitoring warrant ............................................ 20

Investigation powers ......................................................... 20

Issuing an investigation warrant ....................................... 21

Scrutiny of Bills Committee ................................................. 21

Enforceable civil penalty provisions .................................... 22

Other enforcement options ................................................ 22

Infringement notices ......................................................... 22

Enforceable undertakings ................................................. 23

New Part 4—other matters ................................................... 23

Power to require information or documents ...................... 23

Record keeping ...................................................................... 24

Commencement .................................................................. 24

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Key provisions...................................................................... 24

Use and disclosure of information ........................................ 24

Commencement .................................................................. 24

Key provisions...................................................................... 24

Use of information ............................................................ 24

Disclosure of information .................................................. 24

Scrutiny of Bills Committee ................................................. 25

Other amendments ............................................................... 25

Commencement .................................................................. 25

Key provisions...................................................................... 25

Concluding comments ....................................................... 26

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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:

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).

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• 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 Law9 provides that, where a person who supplies consumer goods10 (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.

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.

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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.

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.

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… 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.

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).

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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 food21 - compliance agreement food is food to which a compliance agreement applies22 - surveillance food23 • all food to which the Imported Food Control Act applies may be inspected under the IFIS24

• 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 Scheme25

• 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

inspection26

• 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 lowered27

• 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:

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.

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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)

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

31. Ibid.

32. ANAO, Administration of the Imported Food Inspection Scheme, op. cit., p. 14.

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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.

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.

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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

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.

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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

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).

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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 food59 or the Secretary is satisfied that there are reasonable grounds

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.

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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 revoked61 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.

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).

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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

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).

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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:

• updates to existing offences

• new civil penalty provisions and

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).

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• provisions that trigger a range of enforcement powers under the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act).

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 food88 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

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).

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• the person knows that a food control certificate has not been issued in respect of the food92

• 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 health96

• 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 food97

• 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 agreement98

• 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 agreement99

• 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

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).

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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 Act103

• information given in compliance with the Act, regulations or orders and

• provisions of a compliance agreement104

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 person105 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 premises106

• secure electronic equipment where an authorised person enters premises under a monitoring warrant107

• 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:

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).

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• 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 officer111 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

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.

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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 seized118

• secure electronic equipment where an authorised person enters premises under an investigation warrant119

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

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.

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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

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.

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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

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.

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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 units141

• 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 information147) 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

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).

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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.

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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(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.

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