Export Control (Dairy, Eggs and Fish) Orders 2005 (Cth)

Export Control (Dairy, Eggs and Fish) Orders 2005

as amended

made under section regulation 3 of the

Export Control (Orders) Regulations 1982

This compilation was prepared on 15 July 2005
taking into account amendments up to Export Control (Dairy, Eggs and Fish) Amendment Orders 2005 (No. 1)

Prepared by the Office of Legislative Drafting and Publishing,
Attorney-General’s Department, Canberra

Contents

Part 1Preliminary

Division IGeneral

1Citation [see Note 1]   8

2Commencement   8

3Objectives of these Orders   8

4Outline of these Orders   9

5Application of Export Control (Prescribed Goods — General) Order 2005 10

6Contravention for purposes of the Regulations   10

7Operation of other laws   11

Division IIMeaning of words and expressions

8Interpretation   11

9Prescribed goods   17

10Meaning of unsafe   17

11Meaning of unsuitable   18

12These Orders   19

13Notes   19

Part 2Application of these Orders

Division IThese Orders apply to processed food

14Application of these Orders to eggs, fish and milk   20

15Orders do not apply to small consignments   20

16Processed food for export to New Zealand   21

Division IIExpanded application of these Orders

17Explanation of this Division   21

18Processed food to which this Division applies   21

19Expanded application if government certificate required   22

20Notice specifying that these Orders apply   22

Division III             Application of these Orders — processed food for export as food

21Orders apply to processed food for export as food   24

Division IVOrders do not apply to certain establishments

22Explanation   24

23Laying establishments that store or chill eggs   24

24Establishments that only grow, relay, kill, gut, wash, ice etc fish           24

25Establishments that only kill or bleed crocodiles   25

26Establishments that store or chill milk   25

Division VShips stores, imported processed food held under bond etc

27When these orders do not apply   25

Division VIExemptions

28When the Secretary may specify orders do not apply   26

29Exemption may be subject to conditions   27

30Orders specified in the instrument do not apply   27

31When the instrument ceases to have effect   27

32If instrument ceases to have effect the orders apply   27

Part 3The preparation of processed food for export as food

Division IRegistration

33Requirement for registration   28

34Approval to prepare processed food in an unregistered establishment     28

35When registration is not required for catcher boats   28

Division IIManagement practices

36Requirement for an approved arrangement   29

37Management practices   29

38When other processed food operations may take place at export establishments          29

Division III             Export standards

39Export standards for processed food   30

Part 4Conditions and restrictions on export of processed food

Division IGeneral requirement

40Prohibition on export of processed food   32

41Conditions and restrictions on export   32

Division IIRegistration and approved arrangement

42Requirement for registration   32

43When registration is not required for catcher boats   32

44Requirement for an approved arrangement   33

45Catcher boats   33

46Prohibition on the export from certain establishments   33

Division III             Export standards for processed food

47Premises, equipment and vehicles   33

48Operational hygiene   34

49Preparation and transport   34

50Compliance with product standards   34

51Trade descriptions   34

52Identification, tracing systems, integrity and transfer   35

53Export permits   35

Part 5Exporters and other issuers of export documentation

Division IGeneral requirement

54Application   36

Division IIInformation and documentary requirements

55Security of export permits and government certificates   36

56Return of export permits and government certificates   36

57Requirement to notify   37

58Effective measures to ensure accuracy and completeness                    37

59Export to document compliance measures   37

60Record keeping requirements   38

Part 6Audit

Division IPerformance of the audit

61Secretary may require audits   39

62Who may conduct the audit   39

63Purpose of audit   39

64Additional audits on occupier’s request   40

65Notice of audit   40

66Audit frequency and intensity   40

67Assistance to be provided   40

68Audit of catcher boats and registered fishing vessels   41

Division IIFailures to comply and audit reports

69Notification and assessment of failures to comply   41

70Audit reports   42

71Audit report must be given to Secretary   42

Part 7Official marks

Division IGeneral

72Manufacture etc of official marks and official marking devices                 43

73Resemblances   44

74Action to be taken if an official mark is altered   44

75Official marking device that is damaged   44

76Security of official marks and marking devices   45

Part 8Directions to take action

Division IWhen a direction may be given

77Direction given to the occupier   46

78Direction given to an exporter   46

79Direction that may be given   46

80Directions requiring that preparation ceases   47

Division IICompliance with a direction

81Obligation to comply with direction   47

Part 9Miscellaneous

Division IGeneral

82Government certificates for processed food   49

83Accuracy, legibility etc of records   49

84Requirement to provide translations   49

85Assistance to authorized officers   49

Division IIRegulatory arrangements

86Alternative regulatory arrangements   50

87Importing country does not require compliance with a requirement          50

Division III             Reconsideration of decisions of authorized officers

88Application for reconsideration by senior authorized officer   51

89The application   51

90Senior authorized officer to reconsider decision   52

91Authorized officer’s decision to give direction ceases to have effect        52

92Senior authorized officer to advise of decision   52

93Application to the Secretary   52

94The application   52

95Secretary to reconsider decision   52

96Senior authorized officer’s decision ceases to have effect   52

97Secretary to advise of decision   52

Division IVReview of decisions made by the Secretary

98Part 16 of Export Control (Prescribed Goods — General) Order 2005      53

99When Part 16 does not apply [see Note 2]   53

Division VSampling and analysis

101Certificates of analysis   53

103Analysis of samples for certification as to a particular condition             54

Division VIGiving notices

104Notices given to the occupier or exporter   54

Part 10Transitional

Division IRepeal and transitional

105Repeal of the Export Control (Processed Food) Orders 1992                  55

106Transitional arrangements — approvals   55

107Transitional arrangements — export permits   56

108Section 18.02 of Export Control (Prescribed Goods — General) Order 2005      57

Schedule 1Registration   58

Part 1Plans and specifications   59

Division IApplication for registration   59

Division IIAlterations and additions   60

Part 2Approval to prepare processed food in an unregistered establishment     61

Schedule 2Management of food safety and suitability   64

Part 1Management of food safety and suitability   66

Division IGeneral requirements   66

Division IIApproved arrangements   66

Division III                Management practices   68

Part 2Approved arrangements   71

Division IApproval of arrangements   71

Division IIVariation of approved arrangement   73

Division III                Suspension and revocation   75

Schedule 3Structural requirements   79

Part 1Requirements for processed food establishments   80

Division IPremises, equipment and vehicles   80

Division IICleaning and sanitising facilities   84

Division III                Amenities   85

Division IVEssential services   85

Part 2Application of Schedule: catcher boats, registered fishing vessels and live fish packing establishments   87

Schedule 4Operational hygiene   89

Part 1General requirements   90

Division IHygiene controls for premises and equipment   90

Division IIHygiene requirements for processing   92

Division III                Personal hygiene and health requirements   95

Part 2Application of Schedule: catcher boats   97

Schedule 5Preparation and transport   98

Part 1Harvesting, sourcing, depurating, wet storage and killing   101

Division IGeneral requirements   101

Division IISourcing and handling eggs   101

Division III                Harvesting and sourcing fish   102

Division IVDepuration of shellfish   105

Division VWet storage of shellfish   106

Division VISourcing, killing and initial processing of crocodiles   106

Division VII              Sourcing milk   108

Part 2Chilling, freezing, thawing and tempering   109

Division IChilling and freezing   109

Division IIThawing and tempering   111

Part 3Preserving processed food   111

Division IGeneral   111

Division IIThermal processing of canned processed food   112

Division III                Eggs and egg products   113

Division IVMilk and milk products   114

Part 4Packaging   116

Part 5Storage, handling and loading   116

Part 6Transport   117

Part 7Fitness for human consumption   117

Schedule 6Product standards   120

Part 1Product standards for food and ingredients   121

Part 2Methods of sampling and examination   123

Schedule 7Trade description   124

Part 1Requirement to have a trade description   125

Part 2Contents of the trade description   125

Division IInformation requirements   125

Division IIDescription of food   127

Division III                Declaration of ingredients   127

Division IVIdentifying the establishment   128

Division VIdentifying the producer, exporter etc   128

Part 3Miscellaneous   128

Schedule 8Identification, tracing systems, integrity and transfer                    130

Part 1General requirements   131

Part 2Supply and preparation of processed food   131

Part 3Transfer of processed food   132

Schedule 9Export documentation   136

Part 1Export permits   138

Division IApplication for an export permit   138

Division IIDeclaration of compliance made under an approved arrangement          139

Division III                Verification and inspection by an authorized officer   140

Division IVPermission to export   140

Part 2Government certificates   148

Part 3Giving information or documents about exports   149

Schedule 10          Approved auditors   152

Part 1Approved auditors   153

Division IRegister of approved auditors   153

Division IIApproval of auditors   153

Division III                Revocation of approval of auditor   157

Notes   158

Part 1                 Preliminary

Division I               General

1              Citation [see Note 1]

These Orders may be cited as the Export Control (Dairy, Eggs and Fish) Orders 2005.

2              Commencement

These Orders commence on 1 July 2005.

3              Objectives of these Orders

3.1   The objectives of these Orders are to facilitate trade by ensuring the following:

(a)    that processed food for export as food is fit for human consumption or is manufacturing grade processed food and is identified as manufacturing grade for export for further processing;

(b)    that processed food for export as food has a complete and accurate trade description and its integrity is assured;

(c)    that processed food for export as food meets importing country requirements;

(d)    that processed food for export as food is accurately identified and there can be effective traceability and recall if required.

Note 1   For the meaning of fit for human consumption, importing country requirement, manufacturing grade processed food and processed food and see order 8. For the meaning of these Orders see order 12. For the meaning of food see section 3 of the Act.

Note 2   For manufacturing grade processed food see suborders 39.2 and 50.3 and clause 49 of Schedule 5 and subclauses 24.3 and 24.4 of Schedule 9.

3.2   The objectives of these Orders are also to ensure:

(a)    the accuracy of any statement made in relation to the condition and preparation of processed food for export as food; and

(b)    that an accurate assessment can be made as to whether the objectives specified in suborder 3.1 and paragraph 3.2 (a) are met; and

(c)    that an accurate assessment can be made as to whether the requirements of the Act and these Orders are met.

3.3   These Orders also make provision for other matters generally necessary or convenient to be prescribed for carrying out or giving effect to the Act including:

(a)    audit and other functions of authorized officers; and

(b)    the approval of approved arrangements, the giving of export permits, the approval of persons to issue export permits, the issue of government certificates, the approval of auditors and the performance of other functions by the Secretary; and

(c)    official marks, specifications for electronic transmissions and other miscellaneous matters.

4              Outline of these Orders

4.1   The following is an outline of these Orders.

4.2   Part 1 of these Orders:

(a)    defines the interrelationship of these Orders and the Export Control (Prescribed Goods — General) Order 2005; and

(b)    gives the meaning of key words and expressions used in these Orders; and

(c)    declares that processed food to which these Orders apply is prescribed goods for the purposes of the application of the Export Control Act 1982 and the Export Control (Prescribed Goods — General) Order 2005.

Note   The Export Control Act 1982 regulates the export of prescribed goods.

4.3   Part 2 of these Orders:

(a)    describes the kinds of processed food for export as food to which these Orders apply; and

(b)    describes the small export consignments and the exports to New Zealand to which these Orders do not apply; and

(c)    provides a mechanism to expand the operation of these Orders to cover the processed food, the small consignments and the exports to New Zealand that are otherwise outside the operation of these Orders but that require a government certificate; and

(d)    explains that these Orders apply to and in relation to processed food that is for export as food; and

(e)    provides when these Orders do not apply to specified low risk methods of preparation of processed food at certain establishments; and

(f)    explains when these Orders apply to ships stores, imported food held under bond, food consigned to offshore installations and the like; and

(g)    provides that the Secretary may exempt a person from complying with these Orders in certain special circumstances.

4.4   Part 3 of these Orders identifies the obligations applying to a person who prepares processed food for export as food. Failure to comply with these obligations results in an offence under these Orders.

4.5   Part 4 of these Orders identifies the conditions and restrictions on the export of processed food. Non compliance with these conditions and restrictions will for example attract the high penalty provisions of the Act and preclude the giving of an export permit and the issue of a government certificate.

Note   For the high penalty provisions see for example section 7A and subsections 8 (3) and 8 (4) of the Act.

4.6   Part 5 of these Orders identifies the additional obligations that apply to an exporter of processed food for export as food but that are not conditions and restrictions on export.

4.7   Part 6 of these Orders provides for audit.

4.8   Part 7 of these Orders provides for official marks (seals).

4.9   Part 8 of these Orders provides for directions that must be complied with.

4.10   Part 9 of these Orders provides for regulatory arrangements, reconsideration and review of decisions and miscellaneous matters.

4.11   Part 10 of these Orders provides for repeal and transitional provisions.

5              Application of Export Control (Prescribed Goods — General) Order 2005

5.1           The following provisions of the Export Control (Prescribed Goods — General) Order 2005 apply to processed food declared under these Orders to be prescribed goods:

(a)    Part 1;

(b)    Part 4 (other than section 4.02, subparagraph 4.09 (b) (iii) and Division 4.3);

(c)    Part 13 (other than sections 13.19 to 13.21);

(d)    sections 14.02, 14.03 and 14.04;

(e)    Part 16 (subject to suborder 5.2 of these Orders);

(f)    Part 17 (other than section 17.04);

(g)    Part 18 (subject to suborder 5.3 of these Orders).

Note   For when processed food is declared to be prescribed goods see order 9.

5.2 Part 16 of the Export Control (Prescribed Goods — General) Order 2005 applies to the extent specified in orders 98 and 99 of these Orders.

5.3 Subsection 18.02 (2) of the Export Control (Prescribed Goods — General) Order 2005 applies to the extent specified in order 108 of these Orders.

6              Contravention for purposes of the Regulations

If in these Orders the words ‘Penal provision’ are set out at the foot of:

(a)    a provision of an order; or

(b)    a provision of a clause made under these Orders;

the provision is taken to provide that it is a penal provision for the purposes of subregulation 4 (1) of the Export Control (Orders) Regulations 1982.

Note   A person who fails to comply with the provision is guilty of a strict liability offence, see regulation 4 of the Export Control (Orders) Regulations 1982. For strict liability see section 6.1 of the Criminal Code Act 1995.

7     Operation of other laws

These Orders do not exclude the operation of a provision of a law of the Commonwealth, a State or a Territory with respect to fisheries that relates to the enforcement of a provision of that law concerning the taking of fish.

Division II              Meaning of words and expressions

8              Interpretation

In these Orders unless the contrary intention appears:

amenities include toilets, showers, locker rooms, change rooms, canteens, kitchens, smoking rooms for staff and sleeping quarters on a ship.

amount payable to the Department means an amount payable to the Department in respect of:

(a)    a fee for a service performed at, or in respect of an establishment; and

(b)    a fee in respect to the approval of a person as an auditor; and

(c)    a charge or levy the liability for which was ascertained in relation to an establishment or in relation to approval of a person as an auditor by reference to a matter prescribed by a law of the Commonwealth; and

(d)    a penalty in relation to a failure to discharge the liability to pay that fee, charge or levy.

Note   For the meaning of Department see the Acts Interpretation Act 1901 subsection 19A (3). (See also section 13 of the Legislative Instruments Act 2003.)

animal food means processed food for use as feed for animals.

approved means approved by the Secretary by instrument in writing.

approved arrangement means an arrangement approved under clause 14 of Schedule 2 and includes a variation of an arrangement in the circumstances specified in suborder 86.5 and clause 20 of Schedule 2.

approved export permit issuer means a person given approval to issue permits under subclause 16.5 of Schedule 9.

approved auditor means an auditor approved under subclause 5.1 of Schedule 10.

auditor means a person who under order 62 may conduct an audit.

Australian Fish Names means the name for the fish as listed in the Australian Seafood Handbook Domestic Species, published by CSIRO Publishing (Marine Research and Fisheries Research and Development Corporation Australia) 2001.

Australian Shellfish Quality Assurance Program — Export Standards means the Australian Shellfish Quality Assurance Program — Export Standards published by AQIS and dated 2004.

Note   For this document see Standard for Hygienic Production of Crocodile Meat For Human Consumption means AS4467:1998 Australian Standard for Hygienic Production of Crocodile Meat For Human Consumption published by CSIRO Publishing.

can means an immediate container made of metal, glass or other material suitable as a hermetically sealed container.

canned means thermally processed and enclosed in a hermetically sealed can.

catcher boat means a ship that is used for:

(a)    catching fish; or

(b)    catching fish and one or more of the following activities applied to fish that takes place on the ship used to catch the fish: killing (other than shucking molluscs), bleeding, gilling, heading, gutting, chilling, icing for transport, sorting, grading, washing;

provided that no part of the ship is used for any other preparation of processed food other than that referred to in paragraphs (a) and (b).

cheese means a ripened or unripened solid or semi-solid product, which may be coated, and in which the whey protein/casein ratio does not exceed that of milk obtained by one or both of the following processes:

(a)    coagulating wholly or partly the protein of milk, skimmed milk, cream, whey cream or butter milk, or any combination of these materials, through the action of rennet and other suitable coagulating agents and by partially draining the whey resulting from such coagulation;

(b)    processing techniques involving coagulation of the protein of milk and/or product with similar physical, chemical and organoleptic characteristics as the product defined in accordance with paragraph (a).

chilled when used in relation to processed food means the food is at a temperature required for the food in clause 24 of Schedule 5.

Codex means the Codex Alimentarius issued by the body known as the Codex Alimentarius Commission of the Food and Agriculture Organization of the United Nations and the World Health Organization.

commercially sterile when used in relation to processed food, means food that is free of pathogens which are capable of growing under the conditions the food is likely to encounter during storage and distribution at ambient temperature.

condemned means not suitable for use as food or for animal food and requiring destruction.

condition when used to refer to a person having a condition means a condition that could affect the fitness for human consumption of processed food and includes an injury, infected skin lesion or discharge from the ear, nose or eye.

construction when used in relation to premises or equipment includes design, installation, assembly, lay out and the materials of which the premises and equipment are made.

container when used in relation to a processed food, means the principal covering in which the food is packed.

container system unit means a container (but not including a vehicle) designed for use as a unit of cargo handling equipment in the transport of processed food by aircraft or ships.

corporation means a legal person who is not an individual.

cracked egg includes an egg with cracks detectable by candling or other method.

critical control point means a factor, practice, procedure, process, or location, that can be controlled in order to prevent, control, eliminate or reduce a hazard, or minimise the likelihood of its occurrence.

critical limit means the limit to which a hazard must be controlled to prevent, control, eliminate or reduce to an acceptable level the occurrence of the hazard.

crocodile meat means the edible part of a crocodile.

depuration has the meaning given in the Australian Shellfish Quality Assurance Program — Export Standards.

disability has the meaning given by section 4 of the Disability Discrimination Act 1992.

diseased when used in relation to an animal means the animal suffers from or is a carrier of a disease is likely to be transmitted through processed food.

egg means an egg from an avian species.

egg product means the contents of an egg removed from its shell, and in liquid, frozen or dried form.

equipment includes an implement but does not include a vehicle used to transport processed food.

essential services include but are not limited to:

(a)    the supply of water, gas and electricity; and

(b)    sewerage, draining and waste disposal systems.

export permit means a permit:

(a)    issued under clauses 11 or 12 of Schedule 9; or

(b)    given by the Secretary under clauses 13 or 14 of Schedule 9.

fish means aquatic vertebrates and aquatic invertebrates including shellfish, aquatic amphibians and reptiles.

Note   For example fish includes crocodiles.

fish product means a product containing fish.

fishing vessel means a ship used to prepare fish.

fit for human consumption means safe and suitable.

Note   See further orders 10 and 11.

food carrying compartment means the part or area of a vehicle, ship, aircraft or other means of transport in which processed food is carried.

food contact surface means a surface that is likely to come into contact with exposed processed food or ingredients.

food handler means a person who directly engages in the handling of processed food or ingredients or who handles surfaces likely to come into contact with processed food or ingredients, for the occupier of an establishment.

food handling area means an area (including a refrigeration chamber or storage area) in which processed food or ingredients are prepared or in which packaging materials are stored.

Food Standards Code means the Australia New Zealand Food Standards Code as defined in section 3 of the Food Standards Australia New Zealand Act 1991.

frozen when used in relation to processed food means the food is at a temperature required for the food in clause 27 of Schedule 5.

government certificate means an instrument in writing issued by the Secretary under clause 23 of Schedule 9.

HACCP means Hazard Analysis and Critical Control Point.

harvest when used in relation to fish means the capture or taking of fish and includes the capture and taking of fish as part of aquaculture.

hazard means a biological, chemical or physical agent in, or a condition of, food that has the potential to cause an adverse heath effect.

immediate container when used in relation to a processed food, means the container (or covering) of the food that is not separated from the food by any intervening covering except packaging material such as carton liners, wraps or sheets within blocks to separate processed food.

implied described characteristic includes a pictorial representation.

importing country authority for processed food imported or to be imported into a country means the authority or body in that country responsible for regulating the import of the processed food of that kind into that country.

importing country requirement means a requirement relating to processed food that an importing country authority requires to be complied with before the goods may be imported into that country from Australia.

ingredient means any substance (including a food additive) that is:

(a)    a constituent of processed food (including raw materials); or

(b)    a processing aid for processed food.

initial decision has the same meaning as in the Export Control (Prescribed Goods — General) Order 2005.

Note   See section 16.01 of the Export Control (Prescribed Goods — General) Order 2005.

installed has the same meaning as in the Sea Installations Act 1987 (disregarding any reference to an adjacent area).

integrity when used in relation to processed food means that the identity of the food in regard to any condition or restriction specified in Part 4 that may apply to them:

(a)    is readily ascertainable; and

(b)    is not lost or confused with that of any other processed food.

Joint Petroleum Development Area has the same meaning as in the Petroleum (Timor Sea Treaty) Act 2003.

loaded for export means:

(a)    placed for export into a container system unit at an establishment; or

(b)    if processed food is to be stowed direct on board a ship or aircraft without first being placed into a container system unit — loaded onto the ship or aircraft for export.

lot when used in relation to processed food means a quantity of processed food of the same type processed or packed under essentially the same conditions during a particular time interval generally not exceeding 24 hours, and usually from a particular processing or packing line or other identifiable processing or packing unit.

major component, in relation to processed food, means the ingredient in the food which:

(a)    comprises the largest proportion of the food by weight or volume; or

(b)    is in such a proportion by weight or volume that if the ingredient is withdrawn from the food, the food would no longer have the stated or implied described characteristics.

manufacturing grade processed food means processed food that is:

(a)    not fully processed; or

(b)    not fit for human consumption;

but is suitable for further processing to make the food fit for human consumption.

milk means the lacteal secretion obtained from an animal.

milk product means a product containing milk.

monitor when used in relation to the monitoring of a critical control point means conduct a planned sequence of observations or measurements to assess whether the critical control point is under control.

NATA means the National Association of Testing Authorities.

notifiable disease means a disease the presence or suspected presence of which must be notified or reported (however this is expressed) under a law of the State or Territory in which the disease is present or suspected of being present.

occupier:

(a)    in relation to a registered establishment means the individual, corporation or other legal entity (or any combination of these) in whose name the establishment is registered; and

(b)    in relation to an unregistered establishment means the individual, corporation or other legal entity (or any combination of these) who:

(i)    is the operator of the business preparing processed food; or

(ii)    if that person cannot be ascertained — the person in charge of the operations for the preparation of processed food.

off-shore when used in relation to an off-shore location has the meaning given in the Australian Shellfish Quality Assurance Program — Export Standards.

person in management or control means a person who under subsection 1.05 (2) of the Export Control (Prescribed Goods — General) Order 2005 is taken to be a person who manages or controls, or is to manage or control operations carried on, or to be carried on, in an establishment.

pest includes an insect, arachnid, rodent, bird or other vermin.

potable water means water of a quality that is acceptable for human consumption.

processed food means eggs, egg products, fish, fish products, milk and milk products.

processing aid means a substance used in the processing of processed food (or its ingredients) to fulfil a technological purpose relating to treatment or processing, but that does not perform a technological function in the final food.

refrigeration chamber includes a chiller, freezer and a cool room.

registered establishment means an establishment registered under section 4.04 of the Export Control (Prescribed Goods — General) Order 2005.

registered fishing vessel means a ship used to prepare fish that is a registered establishment.

registration number means the registration number allotted to a registered establishment under paragraph 4.09 (a) of the Export Control (Precribed Goods — General) Order 2005 and the number assigned to an unregistered establishment under paragraph 8.3 (c) of Schedule 1.

relaying has the meaning given in the Australian Shellfish Quality Assurance Program ¾ Export Standards.

resources industry structure means:

(a)    a resources industry fixed structure (within the meaning given by the Sea Installation Act 1987); or

(b)    a resources industry mobile unit (within the meaning given by that Act) that is not a vessel.

sanitise means to apply a process (including heat or chemicals) to a surface so that the number of pathogens on the surface is reduced to a level that:

(a)    does not compromise the safety of processed food with which it may come into contact; and

(b)    does not permit the transmission of infectious disease.

senior authorized officer means an authorized officer who is formally appointed under section 20 of the Act to a position within the Department of ‘DPIE Band 2 work Level 6’ or more senior.

shellfish means the edible species of molluscan bivalves such as oysters, clams, scallops, pipis or mussels.

single-use item means an instrument, apparatus, utensil or other thing intended to be used only once in connection with food handling and includes disposable gloves.

site of microbiological concern when used in relation to processed food means:

(a)    if the sites on the food where pathogens are likely to be located are known — those sites; and

(b)    in any other case — the thermal centre of the food.

storage area means an area used for the storage of processed food, ingredients and packaging materials.

substance includes an organism or any other matter.

the Act means the Export Control Act 1982.

thermal centre when used in relation to processed food (or a receptacle containing processed food) means the last point in the food (or receptacle) at which a change in temperature occurs.

thermal process means the heat sterilisation process in which a container of food is exposed to a defined heating medium at a specified temperature for a specified time for the purpose of making the food commercially sterile.

validate means provide evidence to demonstrate the effectiveness of a system of controls.

vehicle includes a ship, aircraft or other means of transport of food.

verify means apply methods, procedures, tests and other evaluations in addition to monitoring to determine whether a requirement is complied with.

whole egg means the whole of an egg with its shell intact.

working day means a day that is not a Saturday, a Sunday or a public holiday in the relevant State or Territory.

Note   Section 3 of the Act provides the meaning (unless the contrary intention appears) of a number of words and expressions used in these Orders. See for example the meaning given to the following in section 3: animal, apply, authorized officer, document, enter for export, enter for export to a specified place, establishment, examine, food, occupier, official mark, official marking device, order, prescribed goods, premises, preparation, regulations, Secretary, ship, trade description.

9              Prescribed goods

9.1   Processed food for export as food is declared to be prescribed goods for the purposes of the Act.

Note 1   For the meaning of processed food see order 8.

Note 2   For the meaning of food and prescribed goods see section 3 of the Act.

Note 3   This provision is necessary so that the relevant provisions of the Act (see for example Part II and Part IV of the Act) apply to this processed food.

Note 4   For processed food for export as animal food prepared at establishments where processed food for export as food is prepared see order 38 and see further clause 52 of Schedule 5.

9.2   Despite suborder 9.1, the processed food referred to in that suborder is not declared to be prescribed goods if, in accordance with Part 2, these Orders do not apply to the processed food.

Note   Suborder 9.2 prevents processed food to which these Orders do not apply (for example ships stores) becoming prescribed goods.

10            Meaning of unsafe

10.1   Processed food is not safe if it would be likely to cause physical harm to a person who might consume it, assuming it was:

(a)    subjected to the preparation (if any) that is relevant to its reasonable intended use; and

(b)    consumed by the person according to its reasonable intended use.

10.2   However processed food is not unsafe merely because its inherent nutritional or chemical properties or its inherent nature causes an adverse reaction only in persons with allergies or sensitivities that are not common to the majority of persons.

11            Meaning of unsuitable

11.1   Processed food is not suitable if it:

(a)    is damaged, deteriorated, perished or contaminated to an extent that affects its reasonable intended use; or

(b)    contains any damaged, deteriorated, perished or contaminated substance that affects its reasonable intended use; or

(c)    is derived from an animal that is diseased or dead:

(i)    for fish — at the time of harvest; and

(ii)    for milk — at the time of milking; and

(iii)    for eggs — at the time the eggs are collected; and

(iv)    for crocodile meat — at the time the crocodile from which the meat is derived is presented for slaughter and dressing;

and is not declared by or under another Act to be safe for human consumption; or

(d)    contains a biological or chemical agent or other substance that is foreign to the nature of food of that kind; or

(e)    is produced using, or is subjected to a process contrary to the Food Standards Code; or

(f)    is treated with a substance contrary to a law of the Commonwealth or a law of the State or Territory in which the treatment takes place; or

(g)    is produced under controls (including hygiene, temperature and other processing controls) that are inadequate to ensure that the food is safe and is not unsuitable (as defined in paragraphs 11.1 (a) to (f)).

Note   An example of paragraph (e) is processed food produced using gene technology or irradiation contrary to the requirements for using these processes that are specified in the Food Standards Code.

11.2   However processed food is not unsuitable merely because it:

(a)    contains a chemical in an amount that does not contravene the Food Standards Code; or

(b)    contains contaminant or natural toxicant in an amount that does not contravene the permitted level for the contaminant or toxicant in the Food Standards Code; or

(c)    contains any substance that is permitted by the Food Standards Code; or

(d)    is produced using, or is subjected, to a process permitted by the Food Standards Code.

Note   For the meaning of substance see order 8.

12            These Orders

Unless the contrary intention appears a reference in these Orders to these Orders means the Export Control (Dairy, Eggs and Fish) Orders 2005 and its Schedules.

13            Notes

In these Orders, a note is not to be taken as part of these Orders. Notes are intended as guidance only.

Part 2                 Application of these Orders

Division I               These Orders apply to processed food

14            Application of these Orders to eggs, fish and milk

Subject to Division II of this Part, these Orders apply only to:

(a)    eggs from a hen of the species Gallus gallus; and

(b)    egg products derived from eggs from a hen of the species Gallus gallus; and

(c)    fish other than aquatic mammals; and

(d)    fish products for which fish (other than aquatic mammals) is the major component; and

(e)    milk (other than colostrum) obtained from an animal of the bovine species; and

(f)    the following milk products derived from milk (other than colostrum) obtained from an animal of the bovine species:

(i)    flavoured milk and modified milk;

(ii)    cream and thickened cream;

(iii)    butter, butter concentrate, buttermilk, concentrated buttermilk, dairy blend, ghee (clarified butter) and anhydrous milk fat (butter oil);

(iv)    casein, caseinate and cheese;

(v)    whey, whey cream and concentrated whey cream;

(vi)    cultured milk and yoghurt;

(vii)    butter milk powder, lactose powder, milk sugar, powdered milk, skim milk powder, whey powder, milk protein powder, condensed milk, milk minerals and other milk concentrates;

(viii)    dips containing yoghurt, cream cheese or other dairy base;

(ix)    any other like milk product a major component of which is milk.

Note   For the meaning of cheese, egg, egg product, fish, fish product, major component, milk and milk product see order 8. See also the meaning of processed food in order 8.

15            Orders do not apply to small consignments

Subject to Division II of this Part, these Orders do not apply to the following processed food:

(a)    liquid processed food exported in a consignment of no more than 10 litres; and

(b)    dried fish (other than dried abalone) exported in a consignment of no more than 2 kilograms; and

(c)    processed food of any other kind (other than dried abalone) exported in a consignment of no more than 10 kilograms.

Note   The expression prescribed goods does not include processed food to which these Orders do not apply, see order 9.

16            Processed food for export to New Zealand

Subject to Division II of this Part, these Orders do not apply to processed food for export to New Zealand.

Division II              Expanded application of these Orders

17            Explanation of this Division

17.1   This Division provides the mechanism for bringing within the application of these Orders eggs, egg products, fish, fish products, milk or milk products that are not otherwise covered under these Orders because:

(a)    they are of a kind that fall outside the scope of order 14; or

(b)    they are for export in small consignments or for export to New Zealand.

17.2   The aim of this Division is to facilitate the issue of government certificates by the Secretary for these kinds of food, these small consignments and these exports to New Zealand.

17.3   This aim is achieved by enabling the exporter of processed food to obtain a notice from the Secretary specifying the orders that are to apply to the preparation and export of the processed food by persons identified in the notice.

18            Processed food to which this Division applies

18.1   This Division applies to the following:

(a)    egg and egg products obtained from an avian species other than Gallus gallus;

(b)    aquatic mammals;

(c)    a product a component of which is fish (including aquatic mammals) where the major component is not derived from fish (including an aquatic mammal);

(d)    milk that is, and milk products that are, derived from, the lacteal secretion obtained from an animal of a species other than bovine;

(e)    colostrum (including colostrum obtained from an animal of a species other than bovine);

(f)    a product (not being a product referred to in paragraph 14 (f)) a component of which is milk.

Note   For the meaning of major component see order 8.

18.2   In paragraph 18.1 (f):

milk includes:

(a)    the lacteal secretion obtained from animal of a species other than bovines; and

(b)    colostrum referred to in paragraph 18.1 (e).

18.3   This Division applies to processed food for export in consignments less than the amounts specified in order 15.

18.4   This Division applies to processed food for export to New Zealand.

19            Expanded application if government certificate required

19.1   A person who intends to apply to the Secretary for the issue of a government certificate in respect of processed food to which this Division applies must make a written application to the Secretary for a notice declaring that these Orders apply to the processed food.

Note   For the issue of a government certificate see order 82 and Part 2 of Schedule 9 of these Orders.

19.2   The application must:

(a)    describe the processed food to be exported; and

(b)    identify the exporter of the food; and

(c)    identify each establishment at which the food is to be prepared; and

(d)    be signed by the exporter and the occupier of each establishment; and

(e)    identify the country to which the food is to be exported.

19.3   For the purposes of orders 20 and 21 the persons concerned means the persons referred to in paragraph 19.2 (d) who sign the application.

20            Notice specifying that these Orders apply

20.1   If an application that meets the requirements of subclause 19.2 is given to the Secretary the Secretary must give each of the persons concerned a written notice specifying the orders that apply to, and in relation to, the processed food.

20.2A notice need not be given under suborder 19.1 if the Secretary is not satisfied that:

(a)    the application complies with the requirements of suborder 19.2; or

(b)    the information given to the Secretary in, or in connection with the application for the certificate is accurate and complete; or

(c)    there is a sound basis for the information.

20.3   A notice need not be given under suborder 20.1 if:

(a)    an application is given to the Secretary in respect of processed food of kind referred to in suborder 18.1; and

(b)    there are reasonable grounds to believe that the issue of a government certificate for processed food of the kind to which the application relates could result in trade in the export from Australia of goods being adversely affected.

20.4   If a notice given under suborder 20.1 has effect the orders specified in the notice as applying, apply to and in relation to:

(a)    the preparation of the processed food by each occupier referred to in subclause 19.2 who signs the application; and

(b)    the export of the processed food by an exporter who signs the application.

20.5   If the Secretary decides not to give a notice under suborder 20.1, the Secretary must give each of the persons concerned written notice of that decision.

20.6   The Secretary may amend the notice as it specifies the orders that apply by giving a further written notice to each of the persons concerned.

20.7   The Secretary may revoke the notice by giving a further written notice to each of the persons concerned if the Secretary has reasonable grounds to believe that:

(a)    the information given to the Secretary in, or in connection with the application for the certificate is inaccurate or complete or does not have a sound basis; or

(b)    if the notice relates to processed food of kind referred to in suborder 18.1 — the issue of a government certificate for processed food of the kind to which the application relates could result in trade in the export from Australia of goods being adversely affected.

20.8   The amendment or revocation takes effect:

(a)    when written notice of it is given to the persons concerned; or

(b)    on a later day specified in the notice of the amendment or revocation.

20.9   The Secretary must give each of the persons concerned written notification of:

(a)    the reasons for a decision not to give or to revoke a notice given under suborder 20.1; and

(b)    the ability of a person whose interests are affected by the decision to apply for reconsideration of the decision.

Note   For reconsideration and review of the Secretary’s decision see Part 16 of the Export Control (Prescribed Goods — General) Order 2005 and see orders 98 and 99 of these Orders.

20.10   A notice given under suborder 20.1 ceases to have effect on the earlier of:

(a)    the day specified in the notice as the day the notice ceases to have effect; or

(b)    when it is revoked.

Division III             Application of these Orders — processed food for export as food

21            Orders apply to processed food for export as food

These Orders apply to, and in relation to, processed food that is for export from Australia as food.

Note   For the meaning of food see section 3 of the Act.

Division IV             Orders do not apply to certain establishments

22            Explanation

22.1   This Division describes the establishments to which these Orders do not apply because of the limited processing activity that takes place at these establishments.

22.2   Order 46 prohibits the export of processed food from these establishments unless, before it is exported, the processed food is subsequently prepared at a registered establishment (or at an unregistered establishment in relation to which an approval referred to in order 34 has effect).

22.3   These Orders also set out requirements for sourcing processed food from establishments to which, under this Division, these Orders do not apply. See further clauses 3, 11, 18 and 22 of Schedule 5.

22.4   For evaluating the fitness for human consumption of processed food sourced from these establishments see clause 47 of Schedule 5.

23            Laying establishments that store or chill eggs

   These Orders do not apply to an establishment engaged in storing or chilling eggs laid at the establishment provided no part of the establishment is used for any preparation of processed food other than storing or chilling eggs.

Note 1   For requirements for sourcing from these establishments see clause 3 of Schedule 5.

Note 2   See the meaning of preparation in section 3 of the Act. See note 3 of suborder 33.1.

24            Establishments that only grow, relay, kill, gut, wash, ice etc fish

These Orders do not apply to an establishment engaged in the following activities:

(a)    thegrowing of fish;

(b)    the relaying of shellfish;

(c)    the harvesting, holding, killing, bleeding, gilling, heading, gutting, sorting, grading and icing for transport of fish at the premises used to grow the fish;

(d)    the washing of fish using:

(i)    for shellfish — water sourced within an area that is in an open status and classified for the purposes of the Australian Shellfish Quality Assurance Program — Export Standards; and

(ii)    for fish (other than shellfish) — clean sea water that does not adversely affect the fitness for human consumption of the fish;

provided no part of the establishment is used for any other preparation of processed food other than that referred to in paragraphs (a) to (d).

Note 1   For the meaning of Australian Shellfish Quality Assurance Program — Export Standards and relaying see order 8.

Note 2   For requirements for sourcing from these establishments see clause 11 of Schedule 5.

Note 3   See the meaning of preparation in section 3 of the Act. See note 3 of suborder 33.1.

25            Establishments that only kill or bleed crocodiles

   These Orders do not apply to an establishment engaged in killing or bleeding crocodiles provided no part of the establishment is used for any preparation of processed food other than killing or bleeding crocodiles.

Note 1   For requirements for sourcing from these establishments see clause 18 of Schedule 5.

Note 2   See the meaning of preparation in section 3 of the Act. See note 3 of suborder 33.1.

26            Establishments that store or chill milk

   These Orders do not apply to establishments engaged in storing or chilling milk provided no part of the establishment is used for any preparation of processed food other than storing or chilling milk.

Note 1   For requirements for sourcing from these establishments see clause 22 of Schedule 5.

Note 2   See the meaning of preparation in section 3 of the Act. See note 3 of suborder 33.1.

Division V              Ships stores, imported processed food held under bond etc

27            When these orders do not apply

27.1   These Orders do not apply to processed food in the following circumstances:

(a)    the processed food is:

(i)    ship’s stores for the use of passengers and crew or for the service of the ship on a voyage from Australia; or

(ii)    aircraft stores for the use of passengers and crew or for the service of the aircraft on a flight from Australia;

(b)    the processed food is imported into Australia and is not prepared in Australia and is held in bond at all times prior to export;

(c)    the processed food is imported into Australia and then exported in the same covering and under the same trade description as the covering and trade description in and under which they were imported;

(d)    the processed food is consigned to an external territory for consumption within the Territory;

(e)    the processed food is consigned to a resource industry structure that is installed within the Joint Petroleum Development Area, for consumption on the structure.

Note   For the meaning of installed, Joint Petroleum Development Area and resources industry structure see order 8.

27.2   For paragraphs 27.1 (a) and 27.1 (e), a resource industry mobile unit (within the meaning given by the Sea Installation Act 1987) that is not installed is taken to be a ship.

Division VI             Exemptions

28            When the Secretary may specify orders do not apply

28.1   A person who is or is to be:

(a)    the occupier of an establishment at which processed food for export is prepared; or

(b)    the exporter of processed food;

may make a written application to the Secretary for an instrument of exemption for the processed food to be exported to a country specified in the application:

(c)    as a commercial sample that does not exceed:

(i)    in the case or liquid — 50 litres; and

(ii)    in any other case — 60 kilograms; or

(d)    for experimental purposes; or

(e)    in special circumstances.

28.2   The application must:

(a)    be given to the Secretary at least 10 clear working days, or such shorter period as the Secretary allows, before the proposed date of export or preparation of the processed food concerned; and

(b)    specify the provisions of these Orders from which the exemption is sought; and

(c)    give the reasons for seeking the exemption; and

(d)    provide enough information to enable the Secretary to identify the processed food (including if possible the information specified in subclause 2.1 of Schedule 9).

28.3   If an application is made under suborder 28.1 the Secretary may give the applicant an instrument of exemption.

28.4   The instrument of exemption must specify which of the provisions of these Orders do not apply to processed food of the kind described in the instrument that are prepared for export, or are for export (as the case may be) by the applicant, specified in the instrument to a country specified in the instrument.

29            Exemption may be subject to conditions

29.1   The Secretary may:

(a)    give the applicant an exemption subject to conditions specified in the instrument of exemption; and

(b)    impose new conditions or vary or revoke the conditions by giving the applicant a further written notice.

29.2   The conditions must be for the purpose of ensuring compliance by the applicant with one or more of the objectives specified in suborders 3.1 and 3.2.

30            Orders specified in the instrument do not apply

The provisions of these Orders specified in the instrument of exemption do not apply to, or in relation to, the processed food of the kind described in the instrument of exemption that are prepared for export or exported (as the case may be) by the applicant specified in the instrument to the country specified in the instrument.

31            When the instrument ceases to have effect

31.1   The Secretary may revoke the instrument.

31.2   The revocation takes effect:

(a)    when written notice of it is given to the applicant; or

(b)    on a later day specified in the notice given.

31.3   The instrument ceases to have effect:

(a)    the end of the period for its expiry specified in the instrument; or

(b)    if no period is specified in the instrument — the end of 12 months after the day the instrument is issued;

unless it is earlier revoked.

Note   For revocation of an instrument see section 33 (3A) of the Acts Interpretation Act 1901. (See also section 13 of the Legislative Instruments Act 2003.)

32            If instrument ceases to have effect the orders apply

If the instrument of exemption ceases to have effect the orders that are specified in the instrument as not applying apply.

Part 3                 The preparation of processed food for export as food

Division I               Registration

33            Requirement for registration

33.1   Processed food for export as food must be prepared at an establishment that is registered in respect of the operations for the preparation of the food undertaken.

Note 1   For the meaning of registered establishment see order 8.

Note 2   Establishment includes premises, see the meaning of establishment and registered premises in section 3 of the Act. Premises includes a building, ship, aircraft or vehicle, see section 3 of the Act.

Note 3   Preparation includes killing of fish and the processing, packing, storage, treatment, handling or loading of processed food. See the meaning of preparation in section 3 of the Act.

Note 4   For the requirements for applications for registration see Part 1 of Schedule 1 and see section 4.03 of the Export Control (Prescribed Goods — General) Order 2005.

33.2   If processed food for export as food is prepared at an establishment that is not registered the occupier of the establishment is guilty of an offence.

Level 5 penal provision

Note 1   A level 5 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 50 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

34            Approval to prepare processed food in an unregistered establishment

Despite suborder 33.1 processed food for export as food need not be prepared in a registered establishment if:

(a)    in accordance with clause 8 of Schedule 1 the Secretary gives the occupier of the establishment written approval to prepare the food at the establishment; and

(b)    the approval has effect.

Note 1   For when the approval has effect see subclause 8.2 and clause 13 of Schedule 1.

Note 2   For exemptions from specified requirements of these Orders that are specified in the approval to prepare processed food in an unregistered establishment referred to in order 34, see clause 9 of Schedule 1.

35            When registration is not required for catcher boats

A catcher boat need not be registered.

Division II              Management practices

36            Requirement for an approved arrangement

36.1   The occupier of:

(a)    a registered establishment; and

(b)    an unregistered establishment in relation to which an approval referred to in order 34 has effect;

must have an approved arrangement that complies with the requirements of the Schedule 2 (Management of food safety and suitability).

Note 1   For the meaning of approved arrangement see order 8.

Note 2   If there is non compliance with the arrangement or its conditions the Secretary may suspend or revoke the arrangement, see paragraph 21.1 (a) of Schedule 2. For audit of compliance with an approved arrangement see Part 6 of these Orders. For directions to take action to correct or prevent the recurrence of a non compliance see Part 8 of these Orders.

36.2   If processed food for export as food is prepared at an establishment referred to in subclause 36.1 and the occupier does not have an approved arrangement that covers the preparation concerned, the occupier is guilty of an offence.

Level 5 penal provision

Note   A level 5 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 50 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

37            Management practices

37.1   The occupier of:

(a)    a registered establishment; and

(b)    an unregistered establishment in relation to which an approval referred to in order 34 has effect;

must ensure that the requirements of the Schedule 2 (Management of food safety and suitability) are complied with.

Note   For exemptions from specified requirements of these Orders that are specified in the approval to prepare processed food in an unregistered establishment referred to in order 34 see clause 9 of Schedule 1.

37.2   Orders 36 and suborder 37.1 do not apply to the occupier of an unregistered establishment that is a catcher boat that under order 35 need not be registered, provided the occupier has a system of controls in place to ensure the fitness for human consumption of fish caught by the catcher boat.

38            When other processed food operations may take place at export establishments

38.1   Processed food for export as food must not be prepared at an establishment that prepares processed food for:

(a)    domestic consumption; or

(b)    animal food; or

(c)    any other purposes other than for export as food;

unless:

(d)    the establishment’s approved arrangement allows for the preparation for the purpose specified in paragraphs 38.1 (a), 38.1 (b) or 38.1 (c) that takes place; and

(e)    the establishment has controls in place that ensure that the fitness for human consumption of the processed food for export as food is not put at risk by the preparation of processed food for a purpose specified in paragraphs 38.1 (a), 38.1 (b) or 38.1 (c) that takes place; and

(f)    the establishment has controls in place that ensure that:

(i)    the separate identity of the processed food for export as food is maintained; or

(ii)    the processed food prepared for a purpose specified in paragraphs 38.1 (a), 38.1 (b) or 38.1 (c) that takes place complies with the requirements of the Act and these Orders that apply to and in relation to processed food of the same kind for export as food.

38.2   If:

(a)    processed food for export as food is prepared at an establishment where the preparation of processed food for a purpose specified in paragraphs 38.1 (a), 38.1 (b) or 38.1 (c) takes place; and

(b)    a requirement of paragraphs 38.1 (d), 38.1 (e) and 38.1 (f) is not met;

the occupier of the establishment is guilty of an offence.

Level 5 penal provision

Note   A level 5 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 50 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

Division III             Export standards

39            Export standards for processed food

39.1   The occupier of an establishment engaged in the preparation of processed food must ensure that the applicable requirements of the following Schedules are met:

(a)    Schedule 3 (Structural requirements);

(b)    Schedule 4 (Operational hygiene);

(c)    Schedule 5 (Preparation and transport);

(d)    Schedule 6 (Product standards);

(e)    Schedule 7 (Trade description);

(f)    Schedule 8 (Identification, tracing systems, integrity and transfer).

Level 5 penal provision

Note   A level 5 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 50 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

39.2   Paragraph 39.1 (d) does not apply to processed food that is manufacturing grade processed food and is identified as manufacturing grade for export for further processing.

Note   For the meaning of manufacturing grade processed food see order 8. See further clause 49 of Schedule 5 and subclauses 24.3 and 24.4 of Schedule 9.

Part 4                 Conditions and restrictions on export of processed food

Division I               General requirement

40            Prohibition on export of processed food

Processed food must not be exported from Australia as food unless the requirements specified in this Part are complied with.

Note 1   For the meaning of food see section 3 of the Act.

Note 2   For requirements applying to processed food for animal food at establishments engaged in the preparation of processed food as food see order 38 and see also clause 52 of Schedule 5.

41            Conditions and restrictions on export

For the purposes of subsection 8 (3) of the Act the requirements specified for the processed food in this Division are specified conditions and restrictions applicable to the export of processed food that is exported as food.

Note   Non compliance with these conditions and restrictions attracts for example the high penalty provisions of the Act, see section 7A and subsections 8 (3) and 8 (4) of the Act. Non compliance with these conditions and restrictions may preclude the giving of an export permit and is also a ground of revocation of an export permit, see Division IV of Part 1 of Schedule 9. Non compliance with these conditions and restrictions also precludes the issue of a government certificate, see Part 2 of Schedule 9.

Division II              Registration and approved arrangement

42            Requirement for registration

Processed food for export as food must be prepared at:

(a)    an establishment that is registered in respect of the operations for the preparation of the food undertaken; or

(b)    an unregistered establishment in relation to which an approval referred to in order 34 has effect.

Note 1   Establishment includes premises, see the meaning of establishment and registered premises in section 3 of the Act.

Note 2   Premises includes a building, ship, aircraft or vehicle, see section 3 of the Act.

Note 3   For exemptions from specified requirements of these Orders enabling the preparation of processed food in an unregistered establishment referred to in paragraph 42 (b) see clause 9 of Schedule 1.

43            When registration is not required for catcher boats

A catcher boat need not be registered if, before export, fish caught by the boat are to be prepared at a registered establishment.

44            Requirement for an approved arrangement

44.1   Processed food for export as food must be prepared in an establishment where the occupier has an approved arrangement that covers the preparation undertaken.

Note 1   For the meaning of approved arrangement see order 8. See further Schedule 2.

Note 2   If there is non compliance with the arrangement or its conditions the Secretary may suspend or revoke the arrangement, see clause 21 of Schedule 2. For when non compliance with the approved arrangement (including importing country requirements identified in the arrangement) may preclude the giving of an export permit or the issue of a government certificate see Division IV of Part 1 of Schedule 9 and Part 2 of Schedule 9. For audit of compliance with an approved arrangement see Part 6 of these Orders.

44.2   Suborder 44.1 applies to the preparation of processed food at:

(a)    a registered establishment; and

(b)    an unregistered establishment in relation to which an approval referred to in order 34 has effect.

Note   For exemptions from specified requirements of these Orders enabling the preparation of processed food in an unregistered establishment referred to in order 44.2 see clause 9 of Schedule 1.

45            Catcher boats

The occupier of an unregistered establishment that is a catcher boat need not have an approved arrangement if the occupier has a system of controls in place to ensure the fitness for human consumption of fish caught by the catcher boat.

46            Prohibition on the export from certain establishments

Processed food that is prepared at:

(a)    an establishment to which, under orders 23 to 26, these Orders do not apply; or

(b)    an unregistered establishment that is a catcher boat that under order 35 need not be registered;

must not be exported as food unless before it is exported it is prepared at:

(c)    a registered establishment; or

(d)    an unregistered establishment in relation to which an approval referred to in order 34 has effect.

Note   For requirements for sourcing from establishments to which, under orders 23 to 26, these Orders do not apply see clauses 3, 11, 18 and 22 of Schedule 5.

Division III             Export standards for processed food

47            Premises, equipment and vehicles

Processed food for export as food must:

(a)    be prepared in an establishment where there is compliance with the applicable requirements of Schedule 3 (Structural requirements); and

(b)    be transported to and from establishments engaged in the preparation of the processed food using vehicles and equipment that comply with the applicable requirements of Schedule 3 (Structural requirements).

Note 1   Premises includes a building, ship, aircraft or vehicle, see section 3 of the Act.

Note 2   See the meaning of preparation in section 3 of the Act. See note 3 to suborder 33.1.

48            Operational hygiene

Processed food for export as food must:

(a)    be prepared at an establishment where there is compliance with the applicable requirements of Schedule 4 (Operational hygiene); and

(b)    be transported to and from establishments engaged in the preparation of the processed food using vehicles and equipment that comply with the applicable requirements of Schedule 4 (Operational hygiene).

49            Preparation and transport

Processed food for export as food must:

(a)    be prepared; and

(b)    be transported to and from establishments engaged in the preparation of the processed food;

in accordance with the applicable requirements of Schedule 5 (Preparation and transport).

50            Compliance with product standards

50.1   Processed food for export as food and its ingredients must comply with the applicable requirements of Schedule 6 (Product standards).

Note   For the meaning of ingredients see order 8.

50.2   Processed food must not be exported as food unless it is fit for human consumption.

Note   For the meaning of food see order 8.

50.3   Suborders 50.1 and 50.2 do not apply to processed food that is manufacturing grade processed food and is identified as manufacturing grade for export for further processing.

Note   For the meaning of manufacturing grade processed food see order 8 and see further clause 49 of Schedule 5 and subclauses 21.3 and 21.4 of Schedule 9.

51            Trade descriptions

   Processed food for export as food must comply with the applicable requirements of Schedule 7 (Trade description).

52            Identification, tracing systems, integrity and transfer

Processed food for export as food must be prepared in an establishment that complies with the applicable requirements of Schedule 8 (Identification, tracing systems, integrity and transfer).

53            Export permits

53.1   Before processed food for export as food is exported, an export permit must have been issued or given for the export of the food.

Note 1   For the meaning of export permit see order 8.

Note 2   For the issue or giving of export permits see Division IV of Part 1 of Schedule 9. For giving an export permit electronically see further Part 3 of Schedule 9.

53.2   At the time of export of the food the export permit must have effect.

Note   For when an export permit ceases to have effect see clauses 19 to 21 of Schedule 9.

Part 5                 Exporters and other issuers of export documentation

Division I               General requirement

54            Application

Unless the contrary intention appears this Part applies to the following persons:

(a)    if an export permit is issued by a person designated in an approved arrangement for an establishment — the occupier of the establishment; and

(b)    if an export permit is issued by an approved export permit issuer — the approved export permit issuer; and

(c)    in any other case — the person identified as the exporter in an application for an export permit.

Note 1   For the meaning of approved export permit issuer see order 8.

Note 2   For permits issued by a person designated in an approved arrangement see clause 11, subclauses 13.2 and 13.3 and clause 15 of Schedule 9. For permits issued by an approved permit issuer see clause 12, subclauses 13.2 and 13.3 and clause 16 of Schedule 9.

Division II              Information and documentary requirements

55            Security of export permits and government certificates

A person to whom this Part applies must ensure that export permits and government certificates are held under conditions of security when not in use.

Level 5 penal provision

Note 1   A level 5 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 50 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

Note 2   Failure to comply with the requirements of this Part may preclude the giving of an export permit or could result in the revocation of an export permit or could preclude the issuing of a government certificate, see paragraphs 17.2 (c), 19.3 (h) and 24.2 (b).

Note 3   Failure to comply may also preclude the approval of approved arrangements as they relate to the issue of permits and the approval of persons as approved export permit issuers or result in the revocation of these approvals, see subclause 15.1, paragraphs 15.3 (b) and 16.5 (b) and subclause 16.10 and paragraph 21.2 (b) of Schedule 9.

56            Return of export permits and government certificates

If:

(a)    an export permit for processed food is revoked; or

(b)    a government certificate for processed food is cancelled; or

(c)    the intention to export processed food is abandoned;

a person to whom this Part applies must return:

(d)    any export permit issued by the person or given to the person by the Secretary; and

(e)    any government certificate for the food given to the person by the Secretary;

before the end of three working days after the day on which the revocation, cancellation or abandonment concerned occurred.

Level 2 penal provision

Note   A level 2 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 20 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

57            Requirement to notify

   If before the export of processed food for which an export permit is issued or given, a person to whom this Part applies suspects that:

(a)    the fitness for human consumption of the processed food is jeopardised or its security or integrity is compromised; or

(b)    importing country requirements applying to the food are not complied with;

the person must notify an authorized officer immediately on forming the suspicion.

Level 5 penal provision

Note 1   A level 5 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 50 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

Note 2   For example security may be compromised if an official mark that is a seal applied to processed food is altered or interfered with. For official marks see further Part 7 of these Orders.

58            Effective measures to ensure accuracy and completeness

   A person to whom this Part applies must have effective measures in place to ensure that:

(a)    information given to the Secretary in, or in connection with, an application for an export permit or a government certificate is accurate and complete; and

(b)    there is a sound basis for the information.

Note   For criminal penalties applying to persons who make false or misleading statements to a Commonwealth entity see the Criminal Code Act 1995 Part 7.4 (False or misleading statements).

59            Export to document compliance measures

A person whom this Part applies must document the measures they will take to comply with the applicable requirements of:

(a)    this Part; and

(b)    subclauses 11.5, 11.6, 12.4 and 12.5 of Schedule 9; and

(c)    the conditions of an approval of an approved export permit issuer referred to in subclause 16.8 of Schedule 9.

Note 1   If export permits are issued by a person designated in the occupier’s approved arrangement, the approved arrangement will need to contain the these measures, see paragraph 15.1 (c) of Schedule 9.

Note 2   For audit see Part 6 of these Orders.

60            Record keeping requirements

   A person:

(a)    to whom under paragraph 54 (a) this Part applies must retain a copy of each export permit issued by the person designated under the approved arrangement; and

(b)    to whom under paragraph 54 (b) this Part applies must retain a copy of each export permit issued by the person; and

(c)    to whom under paragraph 54 (c) this Part applies must retain a copy of each application for an export permit for all processed food to be exported by the person; and

(d)    to whom this Part applies must retain each declaration of compliance referred to in subclause 3.1 of Schedule 9 that relates to processed food exported by the person or each permit issued by the person; and

(e)    to whom this Part applies this Part applies must retain all other documents that:

(i)    are made by the person or come into the person’s possession; and

(ii)    are relevant to whether the person complies with the requirements of the Act and the Orders applying to the person;

for a minimum period of three years after the day the document is made by the person or comes into the person’s possession (as the case may be).

Level 5 penal provision

Note 1   A level 5 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 50 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

Note 2   The Criminal Code Act 1995 Part 7.7 (Forgery and related offences) contains offences relating to forgery and the falsification of documents.

Note 3 For the requirement for the exporter to make documents available during an audit see order 67. For penal provisions applying to failures to give information or documents to an authorized officer or the Secretary see Part III, Division 7 of the Act.

Part 6                 Audit

Division I               Performance of the audit

61            Secretary may require audits

61.1   The Secretary may require the following to be audited:

(a)    operations for the preparation of processed food for export as food;

(b)    operations for the export of processed food as food;

(c)    operations for the issue of export permits for processed food.

Note   For the issue of export permits see Division IV of Part 1 of Schedule 9.

61.2   The Secretary may require the audit to be for:

(a)    the audit of compliance with all of:

(i)    the applicable requirements of the Act and these Orders; and

(ii)    the requirements of any applicable approval (including an approval of an approved arrangement and an approval given under subclauses 8.1 of Schedule 1 or 16.5 of Schedule 9) given by the Secretary and its conditions; and

(iii)    any applicable importing country requirements;

for all aspects of the operations in relation to all processed for export as food covered under operations; or

(b)    the audit of one or more of the following:

(i)    the aspects of operations specified by the Secretary;

(ii)    the processed food specified by the Secretary;

(iii)    compliance with one or more of the applicable requirements referred to in paragraph 61.2 (a).

62            Who may conduct the audit

An audit of operations may be performed:

(a)    by an authorized officer; or

(b)    if so specified by the Secretary in writing, by an auditor approved to perform an audit of that kind by the Secretary under clause 5 of Schedule 10.

63            Purpose of audit

The purpose of an audit of operations is to establish whether there is compliance with one or more of the applicable requirements referred to in paragraph 61.2 (a).

64            Additional audits on occupier’s request

64.1   The occupier of an establishment may request audits by an authorized officer at a registered establishment that are in addition to those required by the Secretary under these Orders.

(a)    an application for an permit for processed food is given to the Secretary and an authorized officer has had an opportunity to inspect the food if required; and

(b)    the application contains the information specified in clause 2 of this Schedule; and

(c)    a declaration referred to in clause 3 of this Schedule is made; and

(d)    the conditions and restrictions on export specified in Part 4 of these Orders that must be satisfied before the processed food may be exported from Australia; are complied with; and

(e)    the information given to the Secretary in, or in connection with the application for the permit is accurate and complete and that there is a sound basis for the information.

Note 1   For requirements for permits see order 53.

Note 2   For the prohibition on granting an export permit if certain amounts required to be paid under the Export Inspection and Meat Charges Act 1985 are outstanding see section 12 of that Act.

13.5   An export permit issued under this clause is taken to be given by the Secretary.

Note   For how an export permit is given electronically see Part 3 of this Schedule.

Permits given by the Secretary in other circumstances

14.1   This clause applies to permits given by the Secretary that are not generated as described in subclause 13.1 of this Schedule.

14.2The Secretary may give the person named in an application for an export permit as the exporter of processed food an export permit for the export of processed food if all of the following circumstances exist:

(a)    an application for an export permit for the food is given to the Secretary and an authorized officer has had an opportunity to inspect the processed food if required; and

(b)    the application contains the information specified in clause 2 of this Schedule; and

(c)    a declaration referred to in clause 3 of this Schedule is made; and

(d)    the Secretary is satisfied that the conditions and restrictions on export specified in Part 4 of these Orders that must be satisfied before the processed food may be exported from Australia are complied with; and

(e)    the Secretary is satisfied that the information given to the Secretary in, or in connection with the application for the permit is accurate and complete and that there is a sound basis for the information.

Note 1   For the prohibition on granting an export permit if certain amounts required to be paid under the Export Inspection and Meat Charges Act 1985 are outstanding, see section 12 of that Act.

Note 2   For how an export permit is given electronically see Part 3 of this Schedule.

Approval etc of approved arrangements for issuing permits

15.1         The Secretary may under clause 14 of Schedule 2 approve an arrangement as it relates to the matters referred to in subclause 11.2 if the Secretary is satisfied that:

(a)    permits issued under the arrangement and other information given by the occupier to the Secretary in, or in connection with the export of processed food will be accurate and complete and have a sound basis; and

(b)    the conditions and restrictions on export specified in Part 4 of these Orders that must be satisfied before processed food to which the export permits relate may be exported from Australia will be complied with; and

(c)    the occupier’s arrangement contains controls to demonstrate how the occupier will comply with the requirements of Part 5 of these Orders and subclauses 11.5 and 11.6.

15.2         The Secretary may under subclause 19.1 of Schedule 2 require the occupier to submit a variation of the approved arrangement as it relates to the matters referred to in subclause 11.2 if the Secretary is not satisfied that compliance with the controls specified in the approved arrangement ensures that the matters specified in Part 5 of these Orders and subclauses 11.5 and 11.6 of this Schedule are complied with.

Note   A variation of the approved arrangement proposed by the occupier that relates to a matters referred to in subclause 11.2 requires approval before it is implemented see subparagraph 18.2 (b) (iv) of Schedule 2.

15.3         The Secretary may under subclause 21.1 of Schedule 2 suspend or revoke the approval of an approved arrangement as it relates to the matters referred to in subclause 11.2 if:

(a)    the Secretary is satisfied that any of the matters specified in subclause 15.1 are not met; or

(b)    the occupier has failed to comply with a requirement of Part 5 of these Orders or subclauses 11.5 or 11.6 of this Schedule; or

(c)    the occupier has failed to provide the assistance referred to in order 67.

15.4The preconditions specified in subclause 15.1 are in addition to those specified in subclause 14.1 of Schedule 2.

15.5         Subclauses 15.2 and 15.3 do not operate so as to limit the ability of the Secretary to require a variation or suspend or revoke an arrangement under subclauses 19.1 and 21.1 (as the case may be) of Schedule 2.

Approval to issue permits

16.1   A person may apply for approval to issue permits for the export of processed food prepared under an approved arrangement that contains export inspection procedures that include the making of declarations referred to in paragraph 3.1 (a) of this Schedule.

16.2         The application must contain:

(a)    the information specified in paragraphs 2.1 (a) and 2.1 (b) of this Schedule; and

(b)    a description of the processed food for export for which approval to issue export permits is required; and

(c)    a statement by the exporter that all information given in the application is true and complete; and

(d)    any other information required by the Secretary.

16.3         The Secretary may request that the applicant provide further specified information or documents that the Secretary reasonably requires in order to decide the application.

16.4         If the Secretary has not decided the application within 60 days after the day the application is received (not including any period between the Secretary making a written request under subclause 16.3 and the applicant meeting the request) the Secretary is taken to have refused the application.

16.5         The Secretary may by written notice give the applicant approval to issue export permits for processed food of the kind specified in the application if the Secretary is satisfied:

(a) the person is a fit and proper person having regard to the matters specified in section 4.05 of the Export Control (Prescribed Goods — General) Order 2005; and

(b)    the applicant will comply with the applicable requirements of Part 5; and

(c)    export permits issued by the applicant will comply with subclause 12.4; and

(d)    the applicant will comply with subclause 12.5.

16.6   If the Secretary decides not to approve the applicant the Secretary must give the applicant written notice of the decision.

16.7         The notice must:

(a)    set out the reasons for the decision; and

(b)    tell the applicant of his or her right to apply for reconsideration of the decision.

16.8         The Secretary may:

(a)    give approval under subclause 16.5 subject to conditions specified in the approval; and

(b)    by written notice given to the exporter impose new conditions or vary or revoke the conditions.

16.9   The conditions must be for the purpose of ensuring that:

(a)    export permits issued by the applicant will comply with subclause 12.4; and

(b)    the applicant will comply with subclause 12.5; and

(c)    that an accurate assessment can be made as to whether paragraphs 16.9 (a) and 16.9 (b) are met.

16.10       The Secretary may by written notice given to the applicant revoke approval of the person given under subclause 16.5 if the Secretary:

(a) is satisfied the person is not a fit and proper person having regard to the matters specified in section 4.05 of the Export Control (Prescribed Goods — General) Order 2005; or

(b)    has reasonable grounds to believe that the person has failed to comply with an applicable requirement of these Orders or a condition of the approval; or

(c)    has reasonable grounds to believe that the person has in an application or other document given to the Secretary or in a document or information required to be made or given under the Act, the Orders or a condition of the approval of the person made a statement that is:

(i)    false, misleading, or incomplete; or

(ii)    for which there is no sound basis for making the statement; or

(d)    has reasonable grounds to believe that the person has failed to provide the assistance referred to in order 67.

16.11   The approval of a person and a revocation take effect:

(a)    when written notice of it is given to the person concerned; or

(b)    on a later day specified in the notice given.

16.12       The Secretary must give the person concerned written notice of:

(a)    the reasons for the revocation; and

(b)    the person’s right to apply for reconsideration of the decision.

Note   For reconsideration and review of decisions made under this Schedule see Part 16 of the Export Control (Prescribed Goods — General) Order 2005 and see also orders 98 and 99 of these Orders.

Restrictions on giving an export permit

17.1         An export permit must not be given under this Schedule for processed food if the Secretary has reasonable grounds to believe that:

(a)    a condition or disease that could affect the acceptability of processed food to the importing country is present in Australia; or

(b)    the export of the processed food could result in trade in the export from Australia of goods being adversely affected.

17.2         An export permit need not be given under this Schedule for processed food if the Secretary has reasonable grounds to believe that:

(a)    an importing country requirement for the food is not complied with; or

(b)    a person to whom order 54 applies in respect of the food has failed to provide the assistance referred to in order 67; or

(c)    a person to whom order 54 applies in respect of the food has failed to comply with an applicable requirement of the Act or these Orders.

Allocation of permit number

18.1   The Secretary must take all reasonable steps to ensure that an export permit given under this Schedule is allocated a unique identifying number at the time it is given (including generated).

Variation and revocation of an export permit

19.1   The Secretary may, at the written request of a person to whom order 54 applies, vary an export permit to:

(a)    correct any error; or

(b)    update the information;

on the face of the permit.

Note   For variation electronically see Part 3 of this Schedule.

19.2         The Secretary may revoke an export permit for the export of processed food by giving a notice to a person to whom order 54 applies.

19.3         The notice of revocation may be given if the Secretary has reasonable grounds to believe that:

(a)    a condition or restriction on export specified in Part 4 of these Orders that must be satisfied before the processed food may be exported from Australia is not complied with; or

(b)    an importing country requirement for the processed food is not complied with; or

(c)    there is a risk the processed food has deteriorated or is likely to deteriorate or is likely to be unfit for human consumption; or

(d)    the intention to export the processed food is abandoned; or

(e)    information given to the Secretary in relation to the processed food is inaccurate or incomplete or does not have a sound basis; or

(f)    a condition or disease that could affect the acceptability of processed food to the importing country is present in Australia; or

(g)    the export of the processed could result in trade in the export from Australia of goods being adversely affected; or

(h)    a circumstance referred to in paragraphs 17.3 (b) or 17.3 (c) exists.

Note   For how a notice of revocation is to be given see Part 3 of this Schedule.

When an export permit ceases to have effect

20.1   An export permit ceases to have effect:

(a)    when it is revoked; or

(b)    in any other case — at the end of a period of 28 days after the day it is issued.

Direction given by authorized officer prevails

21.1   If an export permit given under this Part is inconsistent with a written notice of a direction given by an authorized officer in accordance with Division 1 of Part 8 of these Orders then the permit is, to the extent of the inconsistency, of no effect.

Part 2          Government certificates

Application for a government certificate

22.1   A person may apply to the Secretary for the issue of a government certificate in respect of processed food to be imported into a country.

Note   The Criminal Code Act 1995 Part 7.4 (False or misleading statements) contains offences for making false and misleading statements.

22.2         The Secretary may accept information given in an application for an export permit as satisfying any requirement to give the same information in an application for a government certificate.

Issue of government certificate

23.1         The Secretary may issue a government certificate for processed food to be imported into a country if the Secretary is satisfied that the following are complied with:

(a)    the conditions and restrictions on export specified in Part 4 of these Orders that must be satisfied before the processed food may be exported from Australia; and

(b)    the importing country requirements for the processed food; and

(c)    any matters specified on the certificate concerning processed food of the kind that are to be exported.

Note 1   For the meaning of importing country requirement see order 8.

Note 2   For how the certificate may be given electronically by the Secretary see Part 3 of this Schedule.

Restrictions on issuing a government certificate

24.1   A government certificate must not be issued under clause 23 of this Schedule if the Secretary is satisfied that:

(a)    an export permit has not been issued or given for the food or for the food of that kind (as the case may be) or the export permit given has ceased to have effect; or

(b)    the information given to the Secretary in, or in connection with, the application for the certificate is inaccurate or incomplete or does not have a sound basis; or

(c)    a condition or disease that is likely to affect the acceptability of processed food to the importing country is present in Australia; or

(d)    the export of the processed food could result in trade in the export from Australia of goods being adversely affected.

24.2         The Secretary need not issue a government certificate under clause 23 for processed food if the Secretary is satisfied that:

(a)    a person to whom order 54 applies in respect of the food concerned has failed to provide the assistance referred to in order 67; or

(b)    a person to whom order 54 applies in respect of the food concerned has failed to comply with an applicable requirement of the Act and these Orders.

Note   For cancellation of a government certificate by the Secretary see subsection 23 (3) of the Act.

24.3         A government certificate must not be issued under clause 23 of this Schedule for manufacturing grade processed food or processed food for use for animal food that specifies that the condition of manufacturing grade processed food or animal food complies with the requirements of these Orders.

24.4         Despite subclause 24.3, the Secretary may issue a government certificate that describes the nature and actual condition of manufacturing grade processed food of the kind to be exported or processed food for use for animal food of the kind to be exported.

Note   For the meaning of animal food and manufacturing grade processed food see order 8.

Part 3          Giving information or documents about exports

Specifications for systems used in transmissions

25.1   For the purposes of section 24A of the Act:

(a)    the computer operating system under the control of the Secretary and known as the EXDOC Operating System is the computer operating system for use for giving documents or information in relation to the export of processed food; and

(b)    the software system known as the EXDOC Exporter Software Interface System is the software interface system for use for giving documents or information in relation to the export of processed food; and

(c)    any software operating system listed in the document entitled Approved EXDOC Interface Software Suppliers for use for giving documents or information in relation to the export of processed food is a software operating system for that purpose.

Note   For the Approved EXDOC Interface Software Suppliers see If the following are to be done electronically they must be done electronically by being transmitted using the systems specified in subclause 25.1:

(a)    the giving of an application for an export permit and an amendment of an application for an export permit to the Secretary;

(b)    the issuing or giving of an export permit.

Note   For examples of information not given electronically see clauses 11 and 12 of this Schedule.

25.3         Subclause 25.2 does not apply to export permits issued under clauses 11 or 12.

25.4         The following may be given electronically by being transmitted using the systems specified in subclause 25.1:

(a)    an application for a government certificate;

(b)    a government certificate.

25.5         If a person has a disability, or a particular disability, the Secretary must take reasonable steps to ensure:

(a)    the person has equal opportunity in relation to the issuing, giving and receiving of documents referred to in subclauses 25.2 and 25.4; and

(b)    the special needs the person may have in relation the issuing, giving and receiving of the documents are met.

Note   For the meaning of disability see order 8.

If the system is inoperative

26.1   If a system described in subclause 25.1 of this Schedule is inoperative, the information must be given in the manner specified by the Secretary in writing.

Note   For when a document or information that is transmitted in accordance with the specifications outlined in this clause are taken to be given see section 24A of the Act.

26.2   Subclause 26.1 does not require the Secretary to specify the manner of giving information unless a system is inoperative.

Specifications for transmissions to a person other than the Secretary

27.1An electronic transmission made to a person (other than the Secretary) must be transmitted to the person as identified by the identifying code given to the person under clause 30 of this Schedule.

Authentication for transmissions to the Secretary

28.1An electronic transmission made to the Secretary by a person must be authenticated by transmitting the identifying code given to the person under clause 30 of this Schedule.

Requirements are specifications for the purposes of the Act

29.1 The requirements specified in clauses 25 to 28 of this Schedule are specifications for the purposes of section 24A of the Act.

Allocation of user identifying code

30.1   The Secretary must take all reasonable steps to ensure that the person is given an identifying code for use in electronic transmissions under this Schedule.

Schedule 10      Approved auditors

TABLE OF CONTENTS

Clause

PART 1 — APPROVED AUDITORS

Division I — Register of approved auditors

1.         Secretary must keep a register

Division II — Approval of auditors

2.         Application for approval

3.         Request for information, documents or assessment

4.         Decision by Secretary

5.         Approval by Secretary

6.         When the Secretary need not approve an auditor

7.         Notice of decision

8.         Approval may be subject to conditions

9.         How long approval lasts

10.       Assessing the competence of approved auditor

Division III — Revocation of approval of auditor

11.       Revocation

Part 1          Approved auditors

Division I         Register of approved auditors

Secretary must keep a register

1.1           The Secretary must keep a register of approved auditors.

1.2   The register must contain the following information about each approved auditor:

(a)    the auditor’s name; and

(b)    whether the approval is for approval as an approved auditor of:

(i)    operations for the preparation of processed food; or

(ii)    operations for the export of processed food; or

(iii)    operations for the issue of export permits; and

(c)    if the approval is for approval as an approved auditor of operations for the preparation of processed food — any limitations of the kind specified in paragraph 5.3 (b).

1.3           The Secretary must ensure that the register can be readily accessed by members of the public.

Note   For the meaning of approved auditor and export permit see order 8.

Note 2   For the issue of export permits see Division IV of Part 1 of Schedule 9.

Division II        Approval of auditors

Application for approval

2.1           An individual may make a written application for approval as an approved auditor of:

(a)    operations for the preparation of processed food; or

(b)    operations for the export of processed food; or

(c)    operations for the issue of export permits.

Note   An individual means a natural person and excludes a body politic, see subsection 22 (i) of the Acts Interpretation Act1901. (See also section 13 of the Legislative Instruments Act 2003.)

2.2           The application must be given to the Secretary and must be accompanied by:

(a)    evidence of the applicant’s qualifications; and

(b)    details of the applicant’s experience relevant to the work of an auditor; and

(c)    documented procedures for the conduct of audits by the applicant.

2.3           An application for approval as an approved auditor of operations for the preparation of processed food must specify:

(a)    that approval of the applicant is sought for the audit of compliance with all of the following:

(i)    all of the applicable requirements of the Act and these Orders; and

(ii)    all requirements of approved arrangements and their conditions; and

(iii)    all importing country requirements;

for all aspects of the preparation of all processed food at all establishments preparing processed food for export as food; or

(b)    must specify:

(i)    the requirements; and

(ii)    the aspects of preparation; and

(iii)    the processed food; and

(iii)    the establishments (including industries or industry sectors) of a particular kind; and

in relation to which the approval of the auditor is sought.

Request for information, documents or assessment

3.1           The Secretary may request that the applicant do any of the following that the Secretary reasonably requires in order to decide the application:

(a)    provide further specified information or documents;

(b)    submit to assessment by interview, audit or written examination, or any combination of those ways.

Decision by the Secretary

4.1           If the Secretary has not decided the application within 30 days after the day the application is received (not including any period between the Secretary making a written request under clause 3.1 and the applicant meeting the request) the Secretary is taken to have refused the application.

Approval by the Secretary

5.1        The Secretary may, by written notice given to the applicant, approve the applicant as an auditor if the Secretary is satisfied that:

(a)    the applicant has the necessary knowledge, training, skills and experience to competently carry out audits of the kind for which approval is sought; and

(b)    the audits conducted by the applicant will be objective, independent, fair and accurate and, unless stated otherwise in the audit report, will be complete; and

(c)    the applicant will comply with the requirements of Division II of Part 6 of these Orders; and

(d)    the applicant will comply with documented procedures for the conduct of audits that are necessary to ensure:

(i)    the matters specified in paragraphs 5.1 (b) and 5.1 (c) will be met; and

(ii)    an accurate assessment can be made of whether the matters specified in paragraphs 5.1 (b) and 5.1 (c) are met; and

(e)    the applicant will comply with the procedures referred to in paragraph 5.1 (d); and

(f) the applicant is a fit and proper person having regard to the matters specified in section 4.05 of the Export Control (Prescribed Goods — General) Order 2005.

5.2           Without limiting the matters the Secretary may take into account for the purpose of being satisfied of the matters specified in subclause 5.1, the Secretary may take into account any real or perceived conflict of interest that could arise if the applicant was to be approved.

5.3           The notice of approval of an approved auditor of operations for the preparation of processed food:

(a)    must specify that the approval is for the audit of compliance with all of the requirements specified in paragraph 2.1 (a) for all aspects of the preparation of all processed food at all establishments preparing processed food for export as food; or

(b)    must specify:

(i)    the requirements; and

(ii)    the aspects of preparation; and

(iii)    the processed food; and

(iv)    the establishments (including industries or industry sectors) of a particular kind; and

in relation to which the approval of is given.

When the Secretary need not approve an auditor

6.1           The Secretary need not approve the applicant as an auditor if the applicant:

(a)    either alone or jointly with another person owes to the Commonwealth any amount payable to the Department; or

(b)    has, in an application or other document given to the Secretary, or in a document or information required to be made or given under the Act, the Orders or a condition of the approval of the auditor made a statement that is:

(i)    false, misleading, or incomplete; or

(ii)    for which there is no sound basis for making the statement.

Note   For the meaning of any amount payable to the Department see order 8.

Notice of decision

7.1   If the Secretary decides not to approve the applicant as an approved auditor the Secretary must give the applicant written notice of the decision.

7.2           The notice must:

(a)    set out the reasons for the decision; and

(b)    tell the applicant of his or her right to apply for reconsideration of the decision.

Approval may be subject to conditions

8.1           The Secretary may:

(a)    approve a person as an approved auditor subject to conditions specified in the notice of approval; and

(b)    by written notice given to the approved auditor impose new conditions or vary or revoke the conditions.

8.2   The conditions must be for the purpose of ensuring that the matters specified in paragraphs 5.1 (a) to 5.1 (e) of this Schedule are met.

How long approval lasts

9.1           The approval of a person as an auditor takes effect on and from:

(a)    the day stated in the notice given under subclause 5.1 of this Schedule as the day of commencement of approval; or

(b)    if no day is so specified — the day that the notice is given to the person.

9.2           However, if the auditor must pay a fee under the Export Control (Fees) Orders, the approval does not begin to have effect until the fee is paid.

9.3   The approval of a person as an auditor ceases to have effect:

(a)    at the end of 12 months after the day specified in subclause 9.1 as the day the approval takes effect; or

(b)    when it is revoked;

which ever occurs first.

Note   For revocation see clause 11 of this Schedule.

Assessing the competence of approved auditor

10.1   The Secretary may assess the competence of an approved auditor, as often as the Secretary thinks necessary.

10.2         Without limiting suborder 10.1 the assessment may include:

(a)    an examination of reports made by the auditor in the course of auditing operations; and

(b)    an audit of at least one operation that was audited under these Orders within the previous six months by the auditor; and

(c)    observing the auditor while he or she is conducting an audit.

Division III       Revocation of approval of auditor

Revocation

11.1   The Secretary may by written notice revoke the approval of a person as an approved auditor if the Secretary:

(a) is satisfied that the applicant is not to a fit and proper person having regard to the matters specified in section 4.05 of the Export Control (Prescribed Goods — General) Order 2005; or

(b)    hasreasonable grounds to believe the person does not have the necessary knowledge, training, skills and experience to competently carry out audits of the kind for which approval is given or the person has failed to show reasonable competence in audit work; or

(c)    hasreasonable grounds to believe an audit conducted or an audit report prepared by the person is not objective, independent, fair, accurate or complete (and the audit report fails to give reasons why the audit is incomplete); or

(d)    hasreasonable grounds to believe the person has failed to comply with a requirement of Division II of Part 6 of these Orders or a condition of the approval; or

(e)    hasreasonable grounds to believe the person has in an application or other document given to the Secretary or in a document or information required to be made or given under the Act, the Orders or a condition of the approval of the auditor made a statement that is:

(i)    false, misleading, or incomplete; or

(ii)    for which there is no sound basis for making the statement.

11.2         Without limiting the matters the Secretary may take into account for the purpose of forming a view as to the matters specified in subclause 11.1, the Secretary may take into account any real or perceived conflict of interest.

11.3         The revocation takes effect:

(a)    when written notice of it is given to the auditor concerned; or

(b)    on a later day specified in the notice given.

11.4         The Secretary must give the auditor concerned written notice of:

(a)    the reasons for the revocation; and

(b)    the auditor’s right to apply for reconsideration of the decision.

Note   For reconsideration and review of decisions made under this Schedule see Part 16 of the Export Control (Prescribed Goods — General) Order 2005 and see also orders 98 and 99 of these Orders.

Notes to the Export Control (Dairy, Eggs and Fish) Orders 2005

Note 1

The Export Control (Dairy, Eggs and Fish) Orders 2005 (in force under regulation 3 of the Export Control (Orders) Regulations 1982) as shown in this compilation is amended as indicated in the Tables below.

Under the Legislative Instruments Act 2003, which came into force on 1 January 2005, it is a requirement for all non-exempt legislative instruments to be registered on the Federal Register of Legislative Instruments.

Table of Instruments

Title	Date of FRLI registration	Date of commencement	Application, saving or transitional provisions
Export Control (Dairy, Eggs and Fish) Orders 2005	3 Feb 2005 (see F2005L00161)	1 July 2005
Export Control (Dairy, Eggs and Fish) Amendment Orders 2005 (No. 1)	30 June 2005 (see F2005L01855)	1 July 2005	—

Table of Amendments

ad. = added or inserted      am. = amended      rep. = repealed      rs. = repealed and substituted
Provision affected	How affected
Part 1
O. 4.2......................................	am. 2005 No. 1
O. 5......................................... .............................................	rs. 2005 No. 1
O. 8.........................................	am. 2005 No. 1
O. 9.1......................................	am. 2005 No. 1
Part 2
Note to o. 20.9......................	am. 2005 No. 1
Part 3
Note 4 to o. 33.1...................	am. 2005 No. 1
Part 7
O. 72.1...................................	rs. 2005 No. 1
O. 72.2...................................	rs. 2005 No. 1
O. 72.3...................................	rep. 2005 No. 1
O. 72.4...................................	rep. 2005 No. 1
O. 73.2...................................	rs. 2005 No. 1
Part 9
O. 98.......................................	rs. 2005 No. 1
Heading to o. 99..................	rs. 2005 No. 1
O. 99.......................................	am. 2005 No. 1
Note 2 to o. 99......................	am. 2005 No. 1
O. 100....................................	rep. 2005 No. 1
O. 102....................................	rep. 2005 No. 1
Part 10
Heading to o. 105................	am. 2005 No. 1
O. 107.2.................................	am. 2005 No. 1
O. 108....................................	ad. 2005 No. 1
Schedule 1
Schedule 1............................	am. 2005 No. 1
Schedule 2
Schedule 2............................	am. 2005 No. 1
Schedule 3
Schedule 3............................	am. 2005 No. 1
Schedule 5
Schedule 5............................	am. 2005 No. 1
Schedule 9
Schedule 9............................	am. 2005 No. 1
Schedule 10
Schedule 10.........................	am. 2005 No. 1

Note 2

Order 99, Note 2 — Schedule 1 (item 20) of the Export Control (Dairy, Eggs and Fish) Amendment Orders 2005 (No. 1) provides as follows:

[20]     Order 99, Note 2

omit

Order 117 of Part 20 of the Prescribed Goods (General) Orders 1985 provides for review (subject to the Administrative Appeals Tribunal Act 1975) by the Administrative Appeals Tribunal of decisions made by the Secretary in accordance with order 114 of Part 20 of the Prescribed Goods (General) Orders 1985.

substitute

Section 16.05 of the Export Control (Prescribed Goods—General) Order 2005 provides for application to the Administrative Appeals Tribunal for review of decisions made by the Secretary under section 16.03 of the Export Control (Prescribed Goods—General) Order 2005.

The proposed amendment was misdescribed and is not incorporated in this compilation.