Will Studd Enterprizes Pty Ltd and Food Standards Australia New Zealand

Will Studd Enterprizes Pty Ltd and Food Standards Australia New Zealand [2020] AATA 3080 (17 August 2020)

Division:GENERAL DIVISION
File Numbers: 2019/0169, 2019/0170
Re:Will Studd Enterprizes Pty Ltd
APPLICANT

AndFood Standards Australia New Zealand
RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie
Date of decision: 17 August 2020
Place:Melbourne

The Tribunal decides:

on being satisfied that the applications for review of the respondent’s decisions under the Food Standards Australia New Zealand Act 1991 have no reasonable prospect of success, to dismiss them under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975.

……………[sgd]………………..
Deputy President S A Forgie

Catchwords – PRACTICE AND PROCEDURE – application to vary standards 2.5.4 and 1.6.2 from the Australia New Zealand Food Standards Code – whether application should be dismissed under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 – whether application has reasonable prospects of success – standards 2.5.4 and 1.6.2 removed from Food Standards Code – no reasonable prospects of success – application dismissed

Legislation

Administrative Appeals Tribunal Act 1975; s 42B

Australia New Zealand Food Standards Code; Standard 2.5.4; Standard 1.6.2;
Standard 4.2.4

Federal Court Act 1976; s 31A

Food Health Act 1984 (Vic); s 3; s17B; s 17D

Food Standards Australia and New Zealand Amendment Act 2007

Food Standards Australia New Zealand Act 1991; s 3A; s 12AA

Imported Food Control Act 1992; s 2A; s 3A; s 7; s 7A; s 8; s 16; s 18; s 19; s 42; s 45

Imported Food Control Regulations 2019; r 10; r 14; r 15

Secondary Materials
Country of Origin Food Labelling Information Standard 2016
Primary Production and Processing Standard for Dairy Products
Primary Production and Processing Standard for Specific Cheeses

Cases
Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955

REASONS FOR DECISION

Deputy President S A Forgie

On 12 and 16 February 2004, Mr Will Studd, then trading as Fromagent Australia (Fromagent), made two applications (A530 and A531) to Food Standards Australia and New Zealand (Authority).[1] They are set out in more detail in Attachment A, which is part of these reasons. Application A530 applied to vary Standard 2.5.4 of the Australia New Zealand Food Standards Code (Food Standards Code) in order to permit the importation and sale of certain named cheeses. Application A531 applied to vary Standard 1.6.2 to permit the importation and sale of raw milk cheeses generally provided they met European Union or Codex microbiological, physical and chemical standards of identity.[2] The Authority responded to Fromagent on 7 July 2005 advising that it was then developing a Dairy Primary Production and Processing Standard (Dairy PPP Standard) numbered P296 (Proposal 296). It expected that the Dairy PPP Standard would be completed in the first half of 2007.[3] That Standard would address the issues of raw milk products. While applications A530 and A531 were due for commencement by the Authority in the third quarter of 2005, the Authority noted that Mr Studd might wish to withdraw the applications or let them remain on the Work Plan until the completion of its consideration of Proposal 296. Mr Studd responded on 29 September 2005 to the effect that the delay seemed reasonable but that the applications should remain on the Work Plan.
[1] Will Studd Enterprizes Pty Ltd (WSE) is the successor to the business of Fromagent.
[2] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents): T documents A530; T6 at 353-461 and T documents A531; T6 at 353-368
[3] T documents A530; T11 at 525 and T documents A531; T11 at 432

The Authority then decided that it would not consider the applications at that time and Fromagent would be advised of any call for public comments and might choose to withdraw its applications or let them stand and determine whether P296 addressed the matters it had raised. At the conclusion of its consideration of Proposal 296, the Authority approved Standard 4.2.4, of which it gave notice to the Australia and New Zealand Food Regulation Ministerial Council (Council). Standard 4.2.4, entitled “Primary Production and Processing Standard for Dairy Products”, was approved on 5 October 2006 and came into force on 5 October 2008. The Authority had also approved Standard 4.2.4A, which was entitled “Primary Production and Processing Standard for Specific Cheeses” and which had commenced a little earlier on 14 August 2008. Standards 2.5.4 and 1.6.2 were no longer part of the Food Standards Code.
Following the usual practice, the parties were required to lodge and give each other a Statement of Facts Issues and Contentions (SFIC). After receiving a SFIC lodged by WSE, the Authority asked the Tribunal to dismiss its application under s 42B of the Administrative Appeals Tribunal Act 1975 (AAT Act). I have decided that the applications for review have no reasonable prospect of success and should be dismissed under s 42B(1)(b) of the AAT Act.
TRIBUNAL’S POWER TO DISMISS UNDER SECTION 42B(1) OF THE AAT ACT
Section 42B(1) of the AAT Act may provide:
“The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)       is frivolous, vexatious, misconceived or lacking in substance; or
(b)       has no reasonable prospect of success; or
(c)       is otherwise an abuse of the process of the Tribunal.”

What is meant by the expression “no reasonable prospect of success” was considered by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd[4] in the context of s 31A of the Federal Court Act 1976 (Federal Court Act). That context is similar to that of s 42B(1)(b) of the AAT
[4] [2008] FCA 955

Act.Section 31A provides:
“Summary judgment
(1)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is prosecuting the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.

(4)This section does not limit any powers that the Court has apart from this section.” (emphasis added)

Section 31A gives the Court power to enter judgment for the party prosecuting or defending a proceeding if the criteria are met. That is consistent with the Federal Court’s role as the adjudicator of disputes between parties on the basis of pleadings. The Tribunal does not have a role as an adjudicator. Rather, its responsibility is as the reviewer of the merits of an administrative decision according to the law and on the evidence. The differences in their roles account for the most obvious difference between s 42B(1)(b) of the AAT Act and s 31A of the Federal Court Act. That difference is that, unlike s 31A, s 42B(1)(b) gives the Tribunal power to dismiss only the application of the applicant. Consistently with the Tribunal’s responsibility, it does not give the Tribunal power to make a decision affirming the decision-maker’s decision.

Despite that difference, some guidance is to be found in the cases that have considered s 31A. As Gilmour J said in Dandaven v Harbeth Holdings Pty Ltd[5] in relation to whether there is “no reasonable prospect of success”, which lies at the heart of s 31A and is the
[5] [2008] FCA 955 at [6]

only issue arising under s 42B(1)(b):
“Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A:
(a)the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings;
(b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed;
(c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading;
(d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial;
(e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is ‘no reasonable prospect of success’;
(g)it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial;
(h)evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects;
(i)in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party.”[6]

[6] [2008] FCA 955 at [6] (paragraph (f) omitted in judgment)

DECISIONS OF WHICH FORMAGENT SOUGHT REVIEW

The Authority decided to reject Fromagent’s applications after conducting an assessment of each under s 13 of the Food Standards Australia New Zealand Act 1991 (Food Act). Amendments were made to the Food Act with effect from 1 July 2007 and after Fromagent made its applications. I will continue to refer to the Food Act but, where the amendments made with effect from 1 July 2007 are relevant, I will refer to it as the “Post 2007 amendment Food Act”. The Authority notified Mr Studd on 13 December 2018 that it had decided to reject both applications under s 13A on the basis that they do not relate to a matter that warrants a variation of the Code.

Authority’s reasons for rejecting application A530 to amend Standard 2.5.4

The Authority’s reasons for rejecting application A530 were set out in its Initial Assessment Report of the application:
“« The Code now contains general provisions in relation to the processing of raw milk cheeses in Standard 4.2.4. None of the provisions that were relevant to the processing of raw milk cheeses in 2004 and to which A530 relates, remain in the Code. Nor does the Code now include provisions for specific provisions for specific reference to types of cheeses produced in accordance with specified legislation.
«The purpose of A530 was to enable the importation and sale of two raw milk products, namely Keen’s Farmhouse Cheddar and Montgomery Cheddar. As a result of proposals P1007 and P1022, a risk-based framework for the manufacture, importation and sale of raw milk cheese is now in place in Australia.
«No evidence has been submitted to FSANZ that would warrant a change to or reconsideration of the risk assessment and risk management conclusions stated in the approved reports for P1007 and P1022 or to the Code provisions relating to the production and sale of raw milk cheese.”[7]
[7] T documents A530; T2 at 5
Authority’s reasons for rejecting application A531 to amend Standard 1.6.2
The Authority’s reasons for rejecting application A531 were set out in its Initial Assessment Report of the application:
“« The Code now contains general provisions in relation to the processing of raw milk cheeses in Standard 4.2.4. None of the provisions that were relevant to the processing of raw milk cheeses in 2004 and to which A531 relates, remain in the Code.
«The purpose of A531 was to enable the production and sale of any cheese made from unpasteurised milk, provided the cheese met the European Union or Codex standards of identity. As a result of proposals P1007 and P1022, a risk-based framework for the manufacture, importation and sale of raw milk cheese is now in place in Australia.
«FSANZ is unaware of any evidence that would warrant a change to or reconsideration of the risk assessment and risk management conclusions stated in the approved reports for P1007 and P1022 or to the Code provisions relating to the production and sale of raw milk cheese.”[8]
[8] T documents A531; T2 at 5
CORRESPONDENCE BETEWEEN MR STUDD AND DEPARTMENT OF AGRICULTURE AND WATER RESOURCES
On 31 January 2019, Mr Studd wrote to the Department of Agriculture and Water Resources (DAWR) saying:
“I am seeking to import a variety of raw milk cheeses to Australia produced in the European Union, and USA.
Some of the cheeses will not be made in accordance with Standard 4.2.4 of the ANZ Food Standards Code.
Can you please advise as soon as possible how I should make an application for an assessment of safety equivalence in relation to the production of those cheeses to enable their import, and sale?
I have seen your web page at it appears to relate only to matters raised by overseas countries, and not to Australians wishing to import product.”
DAWR responded on 4 February 2019:
“It is important to first note that raw milk cheese is defined as cheese that has not undergone a heat treatment step (such as pasteurisation, thermisation with additional hurdles or high temperature curd cooking) during production. This is explained in further detail on page 31-35 in the attached guide to Standard 4.2.4.
If you are referring to raw milk cheese as defined above, then under section 5 of the Imported Control Order 2001 raw milk cheese is classified as a risk food that must be covered by a recognised foreign government certificate.
As an importer, if you wish to import raw milk cheese into Australia you will need to engage the overseas producer to request their competent government authority to advise the Department of Agriculture and Water Resources of its intention to export to Australia. The department will then provide an application for assessment document to the overseas authority. For information about this process and relevant requirements is detailed on the webpage you cited in your email …
Alternatively, if the cheese undergoes a heat treatment step in accordance with Standard 4.2.4 then it may be classified either as a risk food or surveillance food depending on whether the cheese does support the growth of Listeria monocytogenes. Further guidance on this can be found at
You are welcome to contact us if you have any further questions …”

THE SUBMISSIONS
Acting on behalf of Mr Studd, Mr Preston pointed to a statement made by the Authority in the Initial Assessment Report that it had made in relation to each of applications A530 and A531:
“Importation of raw milk cheese
Following P1022, the Department of Agriculture and Water Resources (DAWR) finalised import conditions for raw milk cheese which include an assessment process for equivalence with the food safety requirements for raw milk cheese in the Code. Countries wishing to export raw milk cheese to Australia, and cheese importers, now need to contract DAWR for an assessment of equivalence.”[9]
[9] T documents A530; T2 at 7 and T documents A531; T2 at 7
There is nothing in the Imported Food Control Act 1992 (IFC Act), which is administered by DAWR, requiring all imported food to be subject to inspection for compliance against the Food Standards Code. Except in emergency circumstances, safety assessments are within the purview of the Authority and not of DAWR. The Authority has legal and policy responsibility for the safety assessment of imported food. Neither Standard 4.2.4 nor any other Standard under the Food Standards Code authorises the DAWR to apply some other rule or assessment as to safety equivalence under the IFC Act. DAWR has no process to allow Australians to apply to import raw milk cheese.

The Authority, Mr Preston submitted on behalf of Mr Studd, has wrongly delegated to the DAWR its responsibility to assess a legitimate food standards matter. It has confused importation of food under the ICF Act and the sale of food under State and Territory food laws. By asking the DAWR to undertake safety equivalence assessments instead of progressing them as food standards matters, the Authority has denied persons, such as Fromagent and now WSE, from applying for review of the decisions that are made. Mr Preston continued:
“The Respondent seeks by its decision to substitute administrative decisions and assessments by DAWR for its own legislated decisions and assessments under the FSANZ Act (it asks DAWR to undertake safety equivalence assessments instead of such matters being progressed as food standard matters). Importantly, this denies persons the right of appeal to this Tribunal against adverse decisions, a right enshrined in the FSANZ Act.”[10]
[10] Applicant’s Statement of Facts, Issues and Contentions at [4.7]
In the production of traditional raw milk cheddar, which is the subject of application A530, the curds are not heated to a minimum of 48°C as required by Standard 4.2.4. In particular, Mr Preston submitted:
“[4.1] The outcome of the Proposals and the alleged DAWR processes do not address the intent or objectives of A530 in that the FSANZ has not assessed the safety equivalence of the cheeses specified in paragraph 2.1.4 of the Application …, nor provided permission to sell such cheeses, nor has any process been established to allow the Applicant to apply to DAWR to import and sell such cheeses, including due to the curd cooking temperature requirement.
[4.2]The outcome of the Proposals and the alleged DAWR processes do not address the intent or objectives of A531 in that the FSANZ has not assessed the safety equivalence of raw milk cheeses produced according to the EU or Codex Alimentarius standards of identity, microbiology or chemistry as specified in paragraph 1.2(a) of the Application …, nor provided permission to sell such cheeses, not has any process been established to allow the Applicant to apply to DAWR to import and sell such cheeses.
By rejecting both applications at the Initial Assessment stage, the Authority has, Mr Preston submitted, made its decisions irrespective of their merits and prior to public consultation. The difficulties caused by the lapse of time can be readily addressed within the Standards of the Food Standards Code as it is currently drafted. Amendments to Standards 4.2.4 and 2.5.4, for example, could be considered. Any suggestion that WSE could seek relief from DAWR or seek legislative change from Parliament, Mr Preston submitted, demonstrates a grave misconstruction of the Authority’s statutory role when compared with the administrative processes followed by DAWR. There is no direct Ministerial or Parliamentary review or oversight of the Authority’s handling of food standards matters.

The Authority had advised Mr Studd of a right of review. It cannot, and should not, now make submissions denying the substance of such a right. Any difficulty in handling the matter is a matter of the Authority’s own making and not a reason to deny procedural fairness to WSE by making an application under s 42B of the AAT Act. The substance of Fromagent’s applications can readily be addressed by considering amendments to Standards 4.2.4 and or 2.5.4. To state otherwise is to rely on form over substance.
On behalf of the Authority, Mr Costello of counsel submitted that WSE’s application is lacking in substance and had no reasonable prospects of success. In written submissions, Mr Costello said:
“14. First, at the most fundamental level, the Application must fail. At the time the Applications came to be assessed, they sought variations to standards that were no longer in force. There was no other decision available to the decision maker. That is sufficient reason to dismiss the Application under section 42B.
15.Second, the Applicant’s statement of facts, issues and contentions ignores this fundamental defect in the Application and instead seeks review of an unmade decision in respect of an unmade application to vary certain standards.
16.There has been no application to amend the extant standards, which have been in place since December 2014. The Applicant is, and has been free at any time to lodge a new application to amend the Code and to provide evidence demonstrating that the amendments introduced following P1007 and P1022 require revision and how they should be revised. It has chosen not to take that path.
17Third, the Application proceeds from a misunderstanding as to the Respondent’s functions and powers. The Applicant in effect seeks review of a decision or process of another body (DAWR). The Applicant claims that the Respondent has not:
“assessed the safety equivalence of raw milk cheeses produced according to EU or Codex Alimentarius standards of identity, microbiology or chemistry as specified in paragraph 1.2(a) of the Application (T6), nor provided permission to sell such cheeses …’ (Applicant’s Statement of Facts, Issues and Contentions filed 12 April 2019, paragraph 4.2).
But it is not the Respondent’s function 9nor that of the Tribunal in its shoes) to assess whether those cheeses (which would be hundreds of cheeses) comply with the provisions of the Code, and then provide the Applicant with ‘permission’ to sell such cheeses. Those responsibilities sit with food regulatory authorities, including DAWR, whose laws adopt or apply the Code (section 2A and section 8 of the IFCA and Standard 1.1.1, Division 4, Note 1 …
…
20.The fourth reason the Application must fail is because there is no evidence to demonstrate why the current standards, and the risk assessment and the risk management conclusion on which standards are based, are incorrect of otherwise require variation. The Applicant has had an opportunity to provide such evidence to both the Respondent in response to draft decisions … and to the Tribunal. ... [see the Direction of the Tribunal as made in this matter on 15 March 2019.] It has not done so. While the statement of facts, issues and contentions explains that the Applicant is discontent with the current regulatory regime, it does not discharge the burden of demonstrating that another decision or decisions would have been correct and preferable.
21.Each of the above reasons is, independently, a sufficient basis to dismiss the Application under section 42B.”
CONSIDERATION OF APPLICATION UNDER SECTION 42B OF THE AAT ACT
In Attachment A, I have summarised the relevant provisions of the Food Act, the Post 2007 Amendment Food Act and the IFC Act as well as those of the Food Standards Code. I have traced the variations in the Food Standards Code from the time of the lodgement on Fromagent’s two applications in February 2004 to the current time. At the same time, I have referred to the correspondence or discussions that took place between Fromagent or Mr Studd on behalf of Fromagent and later WSE and the Authority.
Having read the written submissions made on behalf of Mr Studd and heard oral submissions made on his behalf by Mr Preston, it seems to me that his main concern is that the Food Standards Code should be amended to permit the import into Australia of raw milk cheeses that meet the requirements of the EU or Codex Alimentarius standards of identity, microbiology or chemistry. He seems to regard DAWR as taking upon itself the role of setting standards for cheese made from raw milk when it undertakes inspection, or inspection and analysis, of food under the Food Inspection Scheme (FIS) to ensure that it meets applicable standards being those specified in the Food Standards Code.
I think that the starting point is to understand the scheme of regulation that has been established for the importation of food into Australia and for the production and sale of food in Australia. It is a scheme that is made up of Commonwealth and State and Territory legislation. For its part, the Commonwealth Parliament passed the Food Act. That legislation sets the foundation of the regulatory measures in place setting minimum standards for food consistent with public health and safety, giving high degree of consumer confidence in the quality and safety of food produced, processed, sold or exported from Australia and New Zealand and ensures the provision of adequate information relating to food to enable consumers to make informed choices.

The Food Act sets those standards by means of the Food Standards Code. That code is formulated after following the procedures set out in the Food Act. I have outlined these procedures in Attachment A to these reasons.
What the Food Act does not do is to provide a means by which the Authority enforces the standards it makes. That is left to the State and Territory legislation regarding the production in the relevant State or Territory and sale within Australia or for export from Australia. I have given an example in relation to the Victorian legislation at [80] below. Import of food is regulated by the IFC Act. The regulatory schemes established by the State and Territory legislation as well as the Commonwealth’s IFC Act require compliance with the Food Standards Code however that code is described.

The IFC Act establishes the FIS under which food may be inspected or inspected and analysed for compliance with the Food Standards Code. The FIS is provided for in the Imported Food Control Regulations 2019 (IFC Regulations) whereby Secretary of the DAWR[11] and Customs officers are given responsibility for ensuring that food imported into Australia meets the “applicable standard” and so the national standard in force in relation to the particular food being imported. The “national standard” is a standard included in the Food Standards Code or is the Country of Origin Food Labelling Information Standard 2016 (COFLI Standard).[12] That Standard provides for mandatory country of origin labelling requirements for food that is sold, or offered or displayed for sale, in Australia. It does not impose labelling requirements on food sold outside Australia.
[11] Acts Interpretation Act 1901; s 19A
[12] IFC Act; s 3(1) and see [100] below
The only role that the Authority plays in the IFS is as a body which the Minister must consult under s 17 in making orders identifying particular foods of particular kinds under s 16(2)(a).[13] The Secretary of DAWR, DAWR and the officers of Customs have not been given any role determining the applicable standards. Their responsibility is to carry out the FIS which has itself been developed to ensure that imported food complies with the Food Standards Code and is labelled consistently with Australian requirements.
[13] See [102] below
The IFC Act makes provision for review of certain decisions made under it. I have summarised the review provisions at [108]-[109] below. Decisions that may be reviewed will have been made in the course of carrying out the scheme. They are not decisions that relate to the standards that a food must meet for decisions of that sort are not made under the IFC Act. As I have said, the standards that imported food is being inspected, or inspected and analysed, for compliance are those set out in the Food Standards code or, with regard to labelling, the COFLI Standard. The applications made by Fromagent in February 2004 did not relate to a decision that was reviewable under the IFC Act.
Responsibility for the standards in the Food Standards Code and their variation lies with the Authority. Fromagent properly made applications A530 and A531 in February 2004 for variation of Standards 2.5.4 and 1.6.2 that would enable it to import a named cheese and other cheeses made from raw milk. In Attachment A, I have set out the events that were in train at the time Fromagent lodged its applications and those that followed. What those events show is that the Authority had already tentatively scheduled consideration of a Dairy PPP Standard for the middle of 2004. The Authority suggested to Mr Studd of Fromagent that a Dairy PPP Standard might supersede both applications. Mr Studd agreed to defer consideration of the applications and the Authority scheduled their consideration for a later date in its Work Plan.
The substance of what WSE and Mr Studd seek is a variation of the Food Standards Code to permit the production, sale and import of any cheese type made from unpasteurized milk, provided that the cheese meets European Union or Codex microbiological, physical and chemical standards of identity. That is consistent with Fromagent’s Application A531 and would incorporate the variation sought for inclusion of a specific cheese in Application A530.
The applications for review lodged in the Tribunal, however, are not for review of decisions made by the Authority to reject the variations for which Fromagent applied. The applications are for review of decisions made by the Authority under s 13A of the Food Act to reject the applications themselves. In Attachment A, I have set out the requirements of the Food Act relating to Fromagent’s application and to its consideration by the Authority. A clear distinction is made between decision made by the Authority under s 13A to accept or rejects the applications and those made under ss 15A.
The scope of review of a decision made under s 13A is very limited. It is focused on whether the application should be accepted or rejected. Before reaching that decision, the Authority will have made an initial assessment of each application under s 13. It is not a decision whether the Authority will prepare a draft standard or a draft variation of a standard or, alternatively, whether the Authority will reject the application. That is not a decision made under s 13A but under s 15A after first accepting an application and then following the procedures in ss 14, 14A and 15. Fromagent’s applications were rejected at the first level of consideration under ss 13 and 13A. Therefore, the Authority was never under any obligation, or indeed authorised, to call for public submissions, to consider them or to make a draft assessment of the application for that obligation only arose if the application had been accepted under s 13A.
Fromagent’s application is not for review of any decision that the Authority would make under s 18 to approve a draft standard or draft variation of a standard after making a final assessment . The Authority’s decision would be made after considering any written submissions made by appropriate government agencies and by each body or person who made a submission within the specified period in response to a notice given under s 14A. Such a decision is not reviewable by the Tribunal for it is not identified in s 63 as a decision in respect of which an application may be made to the Tribunal for review. Even if it were, a decision under s 18 is not the decision of which WSE has applied for review.
That brings me back to the decisions of which WSE has sought review i.e. those made under s 13A to reject applications made for variations of Standards 2.5.4 and 1.6.2. In Attachment A, I have traced the history of the variations that were made to the Food Standards Code in relation to cheeses made from raw milk in the years that followed. The upshot is that neither Standards 2.5.4 nor 1.6.2 remains in the Food Standards Code. Following the procedures set out in the Food Act at the time, Fromagent’s applications were expressly made for the variation of those Standards. As those Standards are no longer in force, there is no utility in applying for their variation. Applications A530 and A531 have no point since the two Standards were removed from the Food Standards Code. They would have no reasonable prospects of success.

Even if the Tribunal were to ignore the fact that it is limited to reviewing the decisions made under s 13A and move to reviewing decisions (that were not in fact made by the Authority) to reject the application rather than prepare draft variations of the standards, there would be no point. There would be no point because Standards 2.5.4 and 1.6.2 are no longer in the Food Standards Code. The application would have no reasonable prospects of success even if I could go down that path.
I have had regard to the transitional provisions made in the Food Standards Australia and New Zealand Amendment Act 2007 (2007 Amendment Act) to the effect that amendments restructuring the procedures for varying Food Standards apply only to applications made after a period of 3 months, beginning on the day on which Part 4 of the Schedule commences, has elapsed i.e. applications made three months after 1 July 2007.[14] Regard must be had to that when reviewing the Authority’s decisions. The procedures and processes set out in the relevant provisions of Part 3 of the Food Act as they applied when Fromagent made its applications continue to apply.

[14] See [75]-[78] below

What the transitional provisions do not do is preserve in time the Food Standards Code as it was at the time the 2007 Amendment Act came into operation to amend the Food Act. The Food Standards Code is a code that is directed to the quality and safety of food produced, processed, sold or exported from Australia and New Zealand. The processes and requirements set out in Part 3 of the Food Act remain unchanged but the Food Standards Code that is sought to be varied must be taken to be that which applies currently. To say that it is the Food Standards Code that applied in 2004 when Fromagent made its applications would be to say that the review rights given by s 63(1)(a)(i) would be to limit the review to an arbitrary period of time that is of no consequence to the Food Standards Code in force today and which regulates the production, processing, sale and export of cheeses made from raw milk. The review of the Authority’s decisions under s 13A would be a hypothetical exercise of no consequence as soon as Standards 2.5.4 and 1.6.2 were removed from the Food Standards Code. It has no reasonable prospects of success.

Finally, I note that any decision that the Tribunal made in reviewing the Authority’s decisions under s 13A would not alter the outcome of the wider ranging views subsequently undertaken by the Authority in relation to dairy products generally and to cheese made from raw milk in particular. WSE may wish to seek variation of the Food Standards Code as it now regulates cheeses made from raw milk but I am satisfied that its current applications to the Tribunal for decisions made by the Authority to reject its previous applications to it for variation have no reasonable prospect of success and should be dismissed under s 42B of the AAT Act.

ATTACHMENT A
THE FOOD STANDARDS AUSTRALIA NEW ZEALAND ACT
The Food Standards Australia New Zealand Act 1991 at the time of Fromagent’s applications in 2004
A. The functions and objectives of the Authority

The Food Standards Australia New Zealand Act 1991 (Food Act) established the Authority with functions relating to the development of food regulatory measures[15] and to achieve the following goals:
[15] Food Act; Long Title
“(a) a high degree of consumer confidence in the quality and safety of food produced, processed, sold or exported from Australia and New Zealand;
(b)an effective, transparent and accountable regulatory framework within which the food industry can work efficiently;
(c)the provision of adequate information relating to food to enable consumers to make informed choices;
(d)the establishment of common rules for both countries and the promotion of consistency between domestic and international food regulatory measures without reducing the safeguards applying to public health and consumer protection.”[16]
[16] Food Act; s 2A

39. The word “food” was defined in s 3A:
“(1) Food includes:
(a) any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared); and
(b) any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a); and
(c) any substance used in preparing a substance or thing referred to in paragraph (a); and
(d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; and
(e) any substance or thing declared to be a food under a declaration in force under section 6 of the Food Standards Australia New Zealand Act 1991. (It does not matter whether the substance, thing or chewing gum is in a condition fit for human consumption.)

(2) However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989.
(3) To avoid doubt, food may include live animals and plants.”

After consulting the Authority, the Minister might make a written declaration that a substance or thing is food for the purposes of the Food Act.[17]
[17] Food Act; s 3B

The expression “food regulatory measures” meant a standard or a code of practice.[18] As part of its role, the Authority was required to develop and review both standards and variations of standards[19] and codes of practice.[20] Standards and variations of standards might relate to a class of food generally or a particular brand of food.[21] Particular matters to which they might relate were set out in s 9(1) of the Food Act 1991. Codes of practice and variations of codes of practice might deal only with matters included in standards.[22]
[18] Food Act; s 3(1)
[19] Food Act; s 7(1)(a)
[20] Food Act; s 7(1)(b)
[21] Food Act; s 9(2)
[22] Food Act; s 9A
The objectives of the Authority in developing or reviewing food regulatory measures (i.e. the standards and the codes of practice) were, in descending priority order:
“(a) the protection of public health and safety;
(b)the provision of adequate information relating to food to enable consumers to make informed choices; and
(c)the prevention of misleading or deceptive conduct.”[23]
[23] Food Act; s 10(1)
In their development or variation, the Authority must also have regard to:
“(a) the need for standards to be based on risk analysis using the best available scientific evidence;
(b)the promotion of consistency between domestic and international food standards;
(c)the desirability of an efficient and internationally competitive food industry;
(d)the promotion of fair trading in food;
(e)any written policy guidelines formulated by the Council for the purposes of this paragraph and notified to the Authority.”[24]
[24] Food Act; s 10(2) The reference to the “Council” is a reference to the Australia and New Zealand Food Regulation Ministerial Council established by the Food Regulation Agreement: Food Act; s 3(1).
B.Development or variation of food regulatory measures

Part 3 of the Food Act was concerned with applications and proposals for the development or variation of food regulatory measures. Section 12AA provided that the Authority might prepare a proposal for development or variation on its own initiative. Division 5 of Part 3 provided for the situation in which the Authority declared an application for a standard or its review to be an urgent application. I am not concerned with urgent applications.
B.1 Application for development or variation of food regulatory measure
I am concerned with the process set out in Divisions 2, 3 and 4 of Part 5 and beginning with an application by a body or person for the development or variation of a food regulatory measure.[25] Section 12(2) provided:
[25] Food Act; s 12(1)
“The application must:
(a)must be in writing; and
(b)contain, or be accompanied by, information in support of the application; and
(c)be accompanied by an application fee being the sum of:
(i)the charge (if any) fixed under section 66 in relation to the making of the initial assessment of the application; and
(ii)the charge (if any) fixed under section 66 in relation to the giving of notices under section 14 in relation to the application.
Note:The Authority’s objectives in developing food regulatory measures and variations of food regulatory measures are set out in section 10. These objectives should be considered in deciding what information to provide in support of an application.”
At any time up until the Authority approved a draft food regulatory measure, or a draft variation, or until the Authority rejected the application, an applicant may withdraw its application by giving notice to the Authority.[26] The Authority was required to refund charges in accordance with s 12B. Provision was made for refunding charges, or some of them, at other stages of the process.[27]
[26] Food Act; s 12A(1)
[27] See, for example, Food Act; ss 13A(5) and 15A(3).
Having received an application, the Authority was required to make an initial assessment of it having regard to the following matters:
“(a) whether the application relates to a matter that may be developed as a food regulatory measure, or that warrants a variation of a food regulatory measure, as the case requires;
(b)whether the application is so similar to a previous application for the development or variation of a food regulatory measure that it ought not to be accepted;
(c)whether costs that would arise from a food regulatory measure developed or varied as a result of the application outweigh the direct and indirect benefits to the community, Government or industry that would arise from measure or variation;
(d)whether other measures (available to the Authority or not) would be more cost-effective than a food regulatory measure developed or varied as a result of the application;
(e)any other relevant matters.”[28]
[28] Food Act; s 13(2)
Having completed the initial assessment, the Authority had to either accept or reject the application. If it decided to reject the application, it was required to give a written decision with written reasons to the applicant,[29] who might make an application to the Tribunal for review of that rejection.[30] If the Authority decided to accept the application, it must give public and other notice of the application in accordance with s 14(3)[31] as well as giving the applicant an opportunity to make submissions on matters relevant to the application.[32] It must also prepare a draft assessment of an application that it has accepted provided the applicant pays any charges fixed under s 66.[33] In making a draft assessment of the application, the Authority must have regard to submissions made to it by the applicant and by the public[34] as well as to:
“(a) …
(b)the objectives and matters listed in section 10; and
(c)whether costs that would arise to bodies or persons from food regulatory measure developed or varied as a result of the application outweigh benefits that would arise to the public from the measure or variation; and
(d)whether there are any alternatives (available to the Authority or not) which are more cost-effective than a food regulatory measure developed or varied as a result of the application; and
(e)any other relevant matters.”[35]
[29] Food Act; s 13A(3)
[30] Food Act; s 13A(3) and s 63
[31] Food Act; ss 14(1) and (2)
[32] Food Act; s 13A(2)(c)
[33] Food Act; s 15
[34] Food Act; s 15(3)(a)
[35] Food Act; s 15(3)

After making a draft assessment of the application, the Authority must either prepare a written draft, or draft variation, food regulatory measure or reject the application.[36] The Authority must give the applicant written notice of a decision to reject the application as well as reasons for that decision.[37] It must also give written notice of the rejection decision to each appropriate government agency and those who made a submission under s 14.[38] The applicant might seek review of the decision to reject the application.[39]
[36] Food Act; s 15A
[37] Food Act; s 17A(1)
[38] Food Act; s 17A(2)
[39] Food Act; s 63
The next step in the process depended on whether a charge was fixed under s 66 of the Food Act. If a charge was fixed, the Authority was required to give the applicant a written notice that the draft had been prepared and invited the applicant to request it to make a final assessment in relation to the draft. If the applicant paid the charge fixed under s 66 and asked the Authority to make a final assessment in relation to the draft, the Authority would give written notice to invite the applicant and the public to make submissions. The notice would state that the Authority will make a final assessment in relation to the draft.[40] A similar process was followed where no charge is fixed under s 66 although there was no requirement that the applicant asked the Authority to make a final assessment.[41]
[40] Food Act; s 16(5) and (6)
[41] Food Act; s 17
If the Authority made a final assessment in relation to a draft standard or draft variation of a standard, it was required to approve the draft, approve it subject to amendments or reject the draft.[42] If it made a final assessment, the Authority must give written notice to, among others, the applicant and those who made submissions.[43] Approval of a draft standard or variation under s 18 meant that the Authority must, within 14 days after the approval, give the Council written notification of the approval, a copy of the approved draft, a list of written submissions and an analysis of them, a summary of its reasons for approving the draft and a Regulation Impact Statement.[44]
[42] Food Act; s 18
[43] Food Act; s 19(1)
[44] Food Act; s 20(1)
Division 3 of Part 3 of the Food Act was concerned with the Council’s consideration of the draft standard or variation that the Authority has approved. In summary, the Council must either request the Authority to review the draft or inform it that it does not intend to make that request. The Authority might decide to reaffirm its approval of the draft, to decide to reaffirm its approval with amendments or to decide to withdraw its approval of the draft. The Council might request a second review and the process was repeated.[45]
[45] Food Act; ss 22 and 23
Division 4 of Part 3 was concerned with the publication of a standard or a variation of a standard at various stages of the process.
B.2Authority may prepare proposal for development or variation of food regulatory measure
Under s 12AA of the Food Act, the Authority might, on its own initiative, prepare a written proposal for the development or variation of a food regulatory measure. Having done that, it must give the public and each appropriate government agency notice of the proposal and invite submissions on matters relevant to it.[46] Having regard to any submissions that were made, the objectives and matters listed in s 10, any relevant New Zealand standards and any other relevant matters, the Authority must then make a draft assessment of the proposal.[47]

[46] Food Act 1991; s 14A

[47] Food Act; s 15AA

Once it had completed that task, the Authority must either prepare a written draft food regulatory measure or a draft food regulatory measure or abandon the proposal.[48] If it abandoned the proposal, the Authority must give a written notice of its decision to each appropriate government agency and each body or person who made a submission in response to the notice given under s 14A.[49]
[48] Food Act; s 15B
[49] Food Act; s 17AB
If the Authority prepared a written draft food regulatory measure or draft food regulatory measure, it must give notice of its decision to each appropriate government agency and each body or person who made a submission in response to the notice given under s 14A.[50] The notice would state that the Authority will make a final assessment in relation to the draft and extend a further invitation to make submissions.[51]
[50] Food Act; s 17AA(1)
[51] Food Act; s 17AA(2)
If the Authority made a final assessment in relation to a draft standard or draft variation of a standard, it was required to follow the procedure I have set out at [50] above. Section 18 did not distinguish between whether the provenance of the draft standard or variation lay in an application or in the Authority’s own proposal. If the Authority made a final assessment in relation to a code of practice or draft variation of a code of practice, the Authority must approve the draft, approve it subject to amendments or reject the draft.[52] Whichever decision it made, the Authority must give written notice of it to, among others, the applicant and those who made submissions.[53] If another code of practice would be wholly or partly superseded because of the Authority’s decision to make a draft code of practice or variation of a code of practice, it must revoke or vary that code of practice as appropriate.[54]
[52] Food Act; s 17B(1)
[53] Food Act; s 17B(3)
[54] Food Act; s 17B(2)
B.3 Review of decisions
At the time that Fromagent made its application and the Authority started work on P296, s 63 of the Food Act provided:
“Review of decisions
(1) Subject to the Administrative Appeals Tribunal Act 1975, application may be made

to the Administrative Appeals Tribunal:

(a) by an applicant for the development or variation of a standard for review of:
(i) a decision by the Authority under section 13A to reject the application; or
(ii) a decision by the Authority under section 15A to reject the application; or
(iii) a decision by the Authority under section 25 to reject the application; or

(b) for review of a decision under section 36 or 36A not to do something.

(2) In subsection (1), decision has the same meaning as in the Administrative Appeals Tribunal Act 1975.

AUSTRALIA NEW ZEALAND FOOD STANDARDS CODE

In December 2002, the Australian New Zealand Food Standards Code (Food Standards Code) became the sole food code for both Australia and New Zealand after it had first been gazetted in Australia in December 2000. Clause 1(1) of the Food Standards Code stated that, unless provided elsewhere in the code, its provisions applied to food products sold or prepared for sale in Australia and/or New Zealand and/or imported into Australia or New Zealand. After defining the terms “cheese”, “processed cheese” and “composition of cheese” in cll 1 and 2, Standard 2.5.4 went on to provide in cl 3:
“Milk and milk products used to manufacture cheese or cheese products specified in Column 1 of the Table to this clause must be produced and processed using a method that –
(a)ensures that the cheese produced achieves an equivalent level of safety protection as cheese prepared from milk or milk products that have been heat treated in accordance with paragraph (2)(a) in Standard 1.6.2; and
(b)is set out in the legislation or documentation listed in Column 2 of the Table to the paragraph.
Table to clause 3

Column1

Column 2 documentation

Milk and milk products

Legislation or

Milk and milk products used to produce Gruyere, Sbrinz or Emmental cheese only

The Ordinance on Quality Assurance in the Dairy Industry of the Swiss Federal Council of 18 October 1995

Editorial note

(1) From raw material production to the point of consumption, the milk, milk products and products containing milk or milk products should be subject to a combination of control measures, which may include, for example, pasteurisation, and these should be shown to achieve the appropriate level of public health protection.

(2) Legislation or documentation will only be listed in the Table to clause 3 if it incorporates or provides for methods which provide a level of safety protection equivalent to that provided by a process that includes treatment of the milk or milk product in accordance with paragraph 3(a), and has adequate hazard identification with process controls.”[55]

[55] T documents A530; T4 at 299

Processing requirements were set out in Standard 1.6.2. The processing of milk and liquid milk products was the subject of clause 1 of that standard. Clause 2 was concerned with the processing of cheese and cheese products when it provided:
“(1) Cheese and cheese products must be manufactured –
(a)from milk and milk products that have been heat treated –
(i)by being held at a temperature of no less than 72°C for a period of no less than 15 seconds, or by using a time and temperature combination providing an equivalent level of bacteria reduction; or
(ii)by being held at a temperature of no less than 62°C for a period of no less than 15 seconds, and the cheese or cheese product stored at a temperature of no less than 2°C for a period of 90 days from the date of manufacture; or
(b)such that –
(i)the curd is heated to a temperature of no less than 48°C; and
(ii)the cheese of cheese product has a moisture content of less than 36%, after being stored at a temperature of no less than 10°C for a period of no less than 6 months from the date of manufacture; or
(c)in accordance with clause 3 of Standard 2.5.4.

Editorial note

Paragraph 2(1)(b) is to be reviewed within 12 months from its date of gazettal.

Cheese under paragraph 2(1)(b) is generally known as ‘extra hard grating cheese’ – see the Codex International Standard for Extra Hard Grating Cheese (CODEX STAN C-35-1978).

For Australia, cheese and cheese products must also be manufactured using measures to ensure compliance with requirements in Standard 1.11 – Microbiological Limits for Food, Chapter 3 – Food Safety Standards, and any applicable State and Territory requirements in relation to the safety of raw milk and raw milk cheese production.

For New Zealand, the processing of cheese and cheese products, other than those manufactured in accordance with clause 3 of Standard 2.5.4, is regulated under the Dairy Industry Act 1952 and the Food Act 1991.”[56]

[56] T documents A530; T4 at 291

FROMAGENT’S APPLICATIONS TO AUTHORITY TO VARY FOOD STANDARDS CODE

Application A530 to amend Standard 2.5.4

On 12 February 2004, Fromagent applied to the Authority:
“… to insert, in the Table to clause 3 of Standard 2.5.4 ‘Cheese’, an entry for KEENS FARM CHEDDAR/MONTGOMERY CHEDDAR produced according to the evaluation report and HACCP management system attached that sets out production requirements.”[57]
[57] T documents A530; T6 at 353-461
After setting out cl 3 and the Editorial Note relating to Standard 2.5.4, Fromagent’s application went on to explain the purpose and efficacy of the proposed variation:
“Standard 1.6.2 of the Food Standards Code requires that cheese imported into or sold in Australia either be heat treated, or made according to a process set out in the Table to clause 3 of Standard 2.5.4. As the cheese in this case has not received a heat treatment as set out in Standard 1.6.1, this application is necessary to provide for the importation and sale of the cheese in Australia by including an appropriate entry for the cheese in the Table to clause 3.”[58]
[58] T documents A530; T6 at 356

The justification for the application was explained in the following passage:
“2.3.1 The cheese is as safe, if not safer, than cheese that has been pasteurised. This is because its production has been subject to careful hazard assessment and risk control at critical points throughout its production, rather than relying on a single step heat treatment.
2.3.2Due to regulatory concerns about raw milk cheese in Australia, and leaving to one side the question as to whether such concerns represent evidence-based regulation, the Food Standards Code requires that raw milk cheese only be sold in Australia if produced according to a process that has been reviewed and approved by Australian regulators.
2.3.3The application is therefore necessary to seek Australian regulatory review and approval of the production process and a precondition to importation.”
Application A531 to amend Standard 1.6.2
On 16 February 2004, Fromagent applied to the Authority:
“(a) … to vary the existing standard 1.6.2 Clause 2 “Processing of cheese and cheese products’ to enable the production and sale of any cheese type made from unpasteurized milk, provided that the cheese meets European Union or Codex microbiological, physical and chemical standards of identity.
(b)Application is being made on behalf of all specialist cheese manufacturers, cheese distributors, importers, retailers and consumers.”[59]
AUTHORITY’S RECEIPT OF APPLICATIONS
[59] T documents A531; T6 at 353
Receipt of application A530 to amend Standard 2.5.4
On 17 February 2004, the Authority acknowledged Fromagent’s application advising that it would be considered for inclusion in its food standards development Work Plan.[60] It conducted a “scoping” exercise in which it considered matters such as key issues, key risks and identification of key stakeholders. The Authority identified inter-relationships with three other applications. They were: an application to amend Standard 2.5.4 to allow the sale of Roquefort cheese (A499); an application to amend the Code to allow the sale of raw milk (A514); and an application to allow the sale of any cheese made from raw milk being scoped (A531). Production of Keens Farmhouse Cheddar was recognised and governed by domestic legislation of the United Kingdom. The scoping exercise also noted that, except for Australia, the major dairy consuming countries of the world do not ban raw milk cheeses. Regard was also had to Codex guidelines, WTO obligations and NZ Dairy Regulations.[61] Finally, the scope noted that the Dairy PPP Standard was tentatively scheduled for mid-2004. If a dairy standard were put into place, it might supersede the need for Application A530. The timing of completion of the dairy standard might determine the application.[62]
[60] T documents A530; T7 at 462
[61] T documents; A530; T8 at 463-464
[62] T documents A530; T8 at 463-464

At the conclusion of the scoping exercise, the Authority advised Fromagent on 22 March 2004 that its application would be considered in the second year of the Work Plan if it paid further fees, its application considered in the first year.[63]
[63] T documents A530; T9 at 465-466
Receipt of application A531 to amend Standard 1.6.2

Also on 17 February 2004, the Authority acknowledged Fromagent’s application to amend the Food Standards Code to allow the production and sale of any cheese type made from unpasteurrised milk. It advised Mr Studd that Fromagent’s application would be considered for inclusion in its Work Plan and that he would be advised of that consideration.[64]
[64] T documents A531; T7 at 369

The Authority undertook a scoping of Fromagent’s application. It raised the same issues as those raised in relation to application A530. The final comments drew the outcome of the Authority’s scoping together in the final comments:
“This is not the first time FSANZ is dealing with the raw milk cheese issue although previously it has been on an individual cheese by cheese basis. The Dairy PPP Standard is under consideration with the start time contingent on external funding resources. If the Dairy PPP Standard is put into place it may be that raw milk cheeses are allowed and this Application will be superseded.”[65]
[65] T documents A531; T8 at 371

PROPOSAL P296: Primary Production & Processing Standard for Dairy

On 15 December 2004, the Authority released an Initial Assessment Report in relation to Proposal P296 entitled “Primary Production & Processing Standard for Dairy”. The Authority noted that the dairy industry in Australia is a highly regulated sector and practises high levels of food safety food management. The arrangements were managed and implemented through State based dairy regulation and industry codes of practice and guidelines. The dairy industry, the Authority observed, was very keen to develop a single set of dairy regulations through a single Diary Primary Production & Processing Standard. a Standard Development Committee (SDC) to advise and assist the Authority. With that in mind, the Authority established a Standard Development Committee (SDC) and engaged in consultations with a range of interest groups. The Authority was to examine the entire dairy supply chain.

AUTHORITY’S NOTIFICATION TO FROMAGENT OF PROPOSAL P296

On 7 July 2005, the Authority wrote to Mr Studd telling him that he might be aware that it was currently drafting Proposed P296 that would address the issue of raw milk products. While applications A530 and A531 were due for commencement by the Authority in the third quarter of 2005, the matters raised by them were already under consideration as part of Proposal P296. Therefore, the Authority did not propose to commence work on them at that stage. The Authority told Mr Studd that he would be placed on a mailing list as an Interested Party for Proposal P296 so that he would be advised of any call for public comments. It advised Mr Studd:
“In this circumstance, you may choose to withdraw Applications A530 and A531 or let them remain on the FSANZ Work Plan until such time as Proposal P296 is completed at which time you may determine whether you believe P296 has addressed the matters raised in your Applications. Currently, indicative timelines would have the Dairy PPP Standard being completed in the first half of 2007.”[66]
[66] T documents A530; T11 at 525

Mr Studd responded on 29 September 2005 to the effect that the delay seemed reasonable but that the applications should remain on the Work Plan. If he was not satisfied with the findings of P296, which he understood were due in the first quarter of 2007, he would ask for work to begin on Fromagent’s applications without delay.[67]
[67] T documents A530; T12 at 526

The Authority responded on 29 October 2005 advising that it was obliged to undertake a rigorous scientific risk assessment and that would not be available until mid-2006. Following its receipt, the Authority would need to develop appropriate risk management arrangements for inclusion in the standard. It was important that the Authority based its work on science. The Authority concluded its letter with the following:
“If the Dairy PPP proposal work does not satisfactorily address Applications A530 and A531, FSANZ will be obliged to assess these applications without further delay, given their position on the Work Plan.”[68]
[68] T documents A530; T13 at 527

GAZETTAL OF STANDARD 4.2.4A: Primary Production and Processing Standard for Specified Cheeses

Reference is made to Standard 4.2.4A later in these reasons. It was gazetted on 21 July 2005 and set out primary production and processing requirements for Gruyere, Sbrinz, Emmental and Roquefort cheese. Clause 1 specified that:
“Cheese and cheese products specified in Column 1 of the Table to this clause may be manufactured from milk and milk products that have been produced and processed using a method that –
(a)ensures that the cheese produced achieves an equivalent level of safety protection as cheese prepared from milk or milk products that have been heat treated in accordance with paragraph 2(1)(a) of Standard 1.6.2; and
(b)is set out in the legislation or documentation listed in Column 2 of the Table to this clause; and
(c)complies with the conditions, if any, specified in Column 3 of the Table to this clause.
Table to clause 1

Column 1

Column 2

Column 3

Cheese and cheese products

Legislation or documentation

Conditions

Gruyere, Sbrinz or Emmental chhese

The Ordinance on Quality Assurance in the Dairy Industry of the Swiss Federal Council of 18 October 1995

Roquefort

The Ministerial Order of 30 December 1993 on requirements relating to the premises, equipment and operation of milk collection or standardization centres and of establishments involved in the treatment or processing of milk or milk-based products.

…………….

(1) The following matters must be monitored and recorded during the cheese production:

(a) pH during the acidification process; and
(b) salt concentration;
(c) moisture conent.

(2) Unpasteurised milk for cheese production must be tested and demonstrated to have no detected levels of Listeria moncytogenes in 25ml of milk per tanker.

(3) The cheese must be stored at an appropriate temperature for a period of no less than 90 days from the date of manufacture.”

Editorial note:

Legislation or documentation will only be listed in the Table to clause 1 if it incorporates or provides for methods which provides a level of safety protection equivalent to that provided by a process that includes treatment of the milk or milk product in accordance with paragraph 3(2)(a) of Standard 4.2.4, and has adequate hazard identification and process controls.

…”

*Column 1*	*Column 2*	*Column 3*
Gruyere, Sbrinz or Emmental chhese	The Ordinance on Quality Assurance in the Dairy Industry of the Swiss Federal Council of 18 October 1995
Roquefort	The Ministerial Order of 30 December 1993 on requirements relating to the premises, equipment and operation of milk collection or standardization centres and of establishments involved in the treatment or processing of milk or milk-based products. …………….	(1) The following matters must be monitored and recorded during the cheese production: (a) pH during the acidification process; and (b) salt concentration; (c) moisture conent. (2) Unpasteurised milk for cheese production must be tested and demonstrated to have no detected levels of Listeria moncytogenes in 25ml of milk per tanker. (3) The cheese must be stored at an appropriate temperature for a period of no less than 90 days from the date of manufacture.”

THE FINAL ASSESSMENT OF PROPOSAL P296

The Authority completed two stages of the assessment process, including two rounds of public consultation before presenting its Final Assessment Report, dated 9 August 2006, with recommendations to the Council. It recommended to the Council that it adopt Standard 4.2.4. In so far as that Standard related to dairy processing requirements, it required dairy processing businesses to:
“« implement a documented food safety program;
«have a system to enable tracing of dairy products and ingredients.
The processing requirements for milk and milk products and for cheese that were contained in Standard 1.6.2 of the Code have been relocated into Standard 4.2.4 under the dairy processing section.
These requirements have been revised to allow for the use of alternative technologies (any other approved process) to time-temperature treatments in the future, as they are developed and validated.”[69]
[69] T documents A530; T15 at 542-543

Standard 4.2.4 was gazetted on 5 October 2006 and came into effect from 5 October 2008. It is registered on the Federal Register of Legislation as the Australia New Zealand Food Standards Code - Standard 4.2.4 - Primary Production and Processing Standard for Dairy Products (Australia Only).[70] The relevant in this case was cl 16, which stated:
[70] FRL F2010C00095
“Processing of dairy products to make cheese and cheese products
Milk or dairy products used to make cheese or cheese products must be processed –
(a)in accordance with subclause 15(1); or
(b)by being held at a temperature of no less than 62°C for a period of not less than 15 seconds, and the cheese or cheese product stored at a temperature of no less than 2°C for a period of 90 days from the date of processing; or
(c)such that –
(i)the curd is heated to a temperature of not less than 48°C; and
(ii)the cheese or cheese products has a moisture content of less than 36%, after being stored at a temperature of no less than 10°C for a period of no less than 6 months from the date of processing; or
(d)in accordance with clause 1 of Standard 4.2.4A.”[71]
[71] T documents A531; T15 at 528

AMENDMENT OF THE FOOD ACT IN 2007

The Food Act was amended by the Food Standards Australia and New Zealand Amendment Act 2007 (2007 Amendment Act). With effect from 1 July 2007,[72] Divisions 1 to 5 of Part 3 of the Food Act 1991 were repealed.[73] New Divisions 1 to 4 were substituted. The heading of Division 6 was repealed so that it became Division 5 entitled “General rules for considering applications and proposals”. Other than s 114, the substance of what had been Division 6 but was now Division 5 was repealed and replaced.[74] I will refer to the Food Act 1991 as amended by the 2007 Amendment Act as the Food Act 1991-2007.
[72] 2007 Amendment Act; s 2(1); Item 6
[73] 2007 Amendment Act; s 3, Schedule 1; Part 4; cl 74
[74] 2007 Amendment Act; s 3, Schedule 1; Part 4; cl 76
The transitional provisions regarding amendments made by Part 4 of the 2007 Amendment Act are the subject of cl 77 of Part 5 of Schedule 1 which provides:
“The amendments made by Parts 1 and 4 of this Schedule apply in relation to:
(a)applications made after a period of 3 months, beginning on the day on which Part 4 of the Schedule commences, has elapsed; and
(b)proposals prepared after a period of 3 months, beginning on the day on which Part of the Schedule commences, has elapsed.”
The practical effect of cl 77 was that the amendments made by Parts 1 and 4 of the 2007 Amendment Act applied only to those applications made three months after Part 4 of the Schedule commenced i.e. three months after 1 July 2007. Fromagent’s applications had been made before 1 July 2007 and so continued to be subject to consideration under the Food Act as it applied before 1 July 2007. The amendments only applied to proposals prepared more than three months after 1 July 2007.

Item 35 of Part 1 was also subject to the transitional provisions of cl 77 of Part 5 of Schedule 1 for it came within Part 1 of Schedule 1. It repealed and amended s 63, which provided for applications to be made to the Tribunal’s review of various decisions that were made during the process. Section 63 continued to apply in its unamended form to those applications made before 1 July 2007 and up to three months after. Unless stated elsewhere in the Food Standards Code, its provisions applied to food products sold or prepared for sale in Australia and/or New Zealand and/or imported into Australia and/or New Zealand.[75]
[75] Standard 1.1.1. at cl 1(1)
STANDARD 1.1.1
As it applied in 2007, Standard 1.1.1 of the Food Standards Code set out the preliminary provisions applying generally to the application and interpretation of the code. The Editorial Note explained that the Food Standards Code is adopted as the required standards for food produced in New Zealand and the States, Territories and Commonwealth of Australia under ten pieces of legislation it specified. Apart from the Commonwealth’s IFC Act, the Editorial Note set out the relevant Food Act of each Australian State and Territory other than Western Australia and the New Zealand’s Food Act 1981. For Western Australia, reference was made to the Health Act 1911 (WA).

Taking the Victorian Food Health Act 1984 as it applied in 2007 as an example, its objects were to ensure that food for sale is both safe and suitable for human consumption, to prevent misleading conduct in connection with the sale of food and to provide for the application in Victoria of the Food Standards Code.[76] Section 4A defined the word “food” in the same terms as s 3A of the Food Act. Section 16 requires compliance with the Food Standards Code in relation to matters such as the conduct of a food business or to food intended for sale or food for sale, the sale of any food and the packaging and labelling of any food that is sold or advertised. Except in so far as food intended for export is concerned, compliance is required even if the food concerned was sold or intended for sale outside Victoria.[77]
[76] Food Health Act 1984 (Vic); s 3
[77] Food Health Act 1984 (Vic); ss 17B and 17D
PROPOSALS P1007 and P1022: Primary Production & Processing Requirements for Raw Milk products
Once Standard 4.2.4 had been completed, the Authority assessed raw milk products. It began with the publication in December 2009 of a document called the “Microbiological Risk Assessment of Raw Milk”;[78] another called “Microbiological Risk Assessment of Raw Goat Milk”[79] and a third called “Microbiological Risk Assessment of Raw Milk Cheese”.[80] These assessments were followed by two separate proposals: Proposal P1007 (Primary Production and Processing Requirements for Raw Milk Products and Proposal P1022 (Primary Production and Processing Requirements for Raw Milk Milk).
[78] T documents A530; T16 at 1085-1203
[79] T documents A530; T17 at 1204-1368
[80] T documents A530; T18 at 1369-1672

Proposal P1007

A discussion paper was first prepared for Proposal P1007. The submissions received in response to that discussion paper and the issues that they raised were discussed in the Authority’s First Assessment of Proposal P1007. The First Assessment was opened for an 11 week consultation period beginning from 16 December 2009. The submissions were summarised in the Authority’s Second Assessment of Proposal P1007 dated 19 August 2011.[81]
[81] T documents A530; T19 at 1686
The Second Assessment of Proposal 1007 assessed the then current restrictions on the production and processing of raw milk products for sale in Australia. The problem it addressed was whether an acceptable level of public health and safety could be achieved through alternative processing and/or production measures to those then in place. The primary objective of Proposal P1007 was to enable a greater range of dairy products to be produced in, or imported into, Australia while maintaining an acceptable level of public health and safety for the Australian population. The Authority prepared a second Assessment Report for public consultation on Proposal P1007.

It put forward as its preferred approach at that time the preparation of draft variations to Standard 4.2.4 to allow for the production and import of raw milk products that meet the definition of Category 1 in Australia i.e. products that provide for the elimination of pathogens so that the risk they present is very low.[82] That risk had been assessed by probabilistic modelling of selected cheese styles as reported in the Microbiological Risk Assessment of Raw Milk Cheese. Those cheese styles were cheddar, blue, feta and camembert.[83]
[82] T documents A530; T19 at 1673-1675
[83] T documents A530; T19 at 1683

The safety of Category 1 products was provided through the establishment of process and product criteria that give a net 5 log reduction of pathogens. In addition to pasteurisation the assessment had identified two examples of processing factors and intrinsic characteristics of cheese that would meet Category 1 requirements. The Second Assessment described the requirements:
“1. Thermisation of milk at 64.5°C for 16 seconds in combination with a storage period of at least 90 days at no less than 7°C …
2.Curd cooking at elevated temperatures (>48°C) in combination with a storage period of at least 120 days at no less than 10°C. The final product moisture content must be less than 39%.
These products can be permitted through amending parameters in the existing processing provisions of clause 16 of Standard 4.2.4. The change in temperature from 62°C to 64.5°C for thermisation of milk is to provide greater assurance that the required log reduction would be met and to align with New Zealand requirements. The relaxation of moisture content from 36% to 39% is based on risk assessment work which showed that pathogens were eliminated at this moisture range for the maturation period specified.
No additional on-farm requirements for raw milk for processing category 1 products are recommended (i.e. beyond those already required by Standard 4.2.4).’[84]
[84] T documents A530; T19 at 1684 (footnote omitted)

On 2 August 2012, the Authority completed an Approval Report for Proposal P1007. It attached to its report the variations that it had approved to Standards 4.2.4 and 4.2.4A to permit the production and import of Category 1 documents.[85] Standard 4.2.4 was varied by omitting cl 16 and substituting a new cl 16:
[85] T documents A530; T21 at 1725-1727
“16 Processing of dairy products to make cheese and cheese products
(1)Milk used to make cheese or cheese products must be processed –
(a)in accordance with subclause 15(1); or
(b)by being held at a temperature of no less than 64.5°C for a period of no less than 16 seconds, and the cheese or cheese product stored at a temperature of no less than 7°C for a period of no less than 90 days from the date of processing.
(2)Dairy products used to make cheese or cheese products must be processed –
(a)in accordance with subclause 15(3); or
(b)using a heat treatment that uses a combination of time and temperature of equal or greater lethal effect on any pathogenic micro-organisms in the dairy product achieved by paragraph 16(1)(b).
(3)However, milk or dairy products used to make cheese or cheese products do not need to be processed in accordance with subclauses 16(1) and 16(2) if the cheese of cheese product is processed –
(a)such that –
(i)the curd is heat treated to a temperature of no less than 48°C; and
(ii)the cheese or cheese product has a moisture content of less than 39%, after being stored at a temperature of no less than 10°C for a period of no less than 120 days from the date of processing; or
(b)in accordance with clause 1 of Standard 4.2.4A.”[86]
[86] T documents A530; T21 at 1726

Standard 4.2.4A was varied by omitting from the Table to cl 1 the following:

Gruyere, Sbrinz or Emmental cheese

The Ordinance on Quality Assurance in the Dairy Industry of the Swiss Federal Council of 18 October 1995

The Editorial note was omitted and the following substituted:

Editorial note:

Clause 4 of Standard 1.2.4 requires ingredients to be declared using the common name of the ingredient, or a name that describes the true nature of the ingredient, or if applicable a generic name. This requirement means that in relation to cheese made from unpasteurised milk, the ingredient declaration should include a statement that the milk is unpasteurised, and in the case of cheese made other than from cow’s milk, should also include the common name of the species from which the milk is sourced.”[87]

[87] T documents A530; T21 at 1727

The Authority’s Explanatory Statement stated that:
“The Authority had prepared variations to the processing requirements in Standard 4.2.4 of the Code is to provide increased flexibility in the measures of a dairy processing business must take to reduce to safe levels any pathogens that may be present in cheeses and cheese products. In particular, a broader range of production parameters will be specified for cheese and cheese products e.g. minimum moisture content and minimum storage time. The variations will also mean that specific cheeses previously covered by Standard 4.2.4A will now be covered by the processing provisions of subclause 16(3) of Standard 4.2.4 instead.”[88]
[88] T documents A530; T21 at 1728
Proposal P1022
In the body of its Approval Report for Proposal 1007, the Authority noted that it had decided to prepare a new proposal to assess requirements for the safe production of Category 2 products.[89] On 10 July 2014, the Authority called for submission in relation to Proposal P1022. The Authority noted that the risk management approach developed under Proposal P1007 established a framework in which generic permissions for raw milk products could be included in Standard 4.2.4. That approach would eliminate the need for a product-by-product assessment by the Authority. Proposal P1022 had been prepared to assess additional requirements for the safe production of raw milk products and the amendments to the relevant standards in the Code (Standards 4.2.4, 4.2.4A and 1.6.1) needed to support that.[90]
[89] T documents A530; T21 at 1717
[90] T documents A530; T22 at 1790 and see also 1929

On 16 December 2014, the Authority prepared an Approval Report for Proposal P1022 entitled “Primary Production & Processing Requirements for Raw Milk Products”. It approved the draft variations it had presented for public submissions. The effect of those variations was intended to:
“« clarify that current measures in Standard 4.2.4 for dairy production, transport and processing also provide a baseline set of requirements for raw milk cheese
«include additional requirements for primary production, transport and processing of milk for raw milk cheese in a new division of Standard 4.2.4
«repeal Standard 4.2.4A, as the legislation and conditions specified for Roquefort cheese in Table 1 of that Standard are now subsumed by the approved draft variations to Standard 4.2.4
«delete existing limits for ‘butter made from unpasteurised milk’, ‘all raw milk cheese’ and ‘raw milk unripened cheese’ and including limits specifically for ‘raw milk cheese’. Microbiological limits for raw milk cheese include Salmonella and Staphylococcal enterotoxin.
The limits for Listeria monocytogenes also apply to raw milk cheese (as a ready-to-eat food) following gazettal of amendments to Standard 1.6.1 in July 2014. ”[91]
[91] T documents A530; T24 at 1935

The variations were approved. Those made to Standard 4.2.4 came into effect on 26 February 2015. From the same day, Standard 4.2.4A was repealed.
FURTHER CONSIDERATION OF FROMAGENT’S APPLICATIONS

In a letter dated 24 May 2018, the Acting Manager, Food Safety and Response, in the Authority wrote to Mr Studd regarding Fromagent’s two applications. She advised that the matters raised in those applications had been considered as part of the work undertaken for the development of a dairy PPP standard and subsequent assessment of raw milk products. Following the completion of the final dairy work, Proposal P1022, the Authority had understood that Mr Studd was satisfied with the outcomes and that he proposed to withdraw applications A530 and A531.

At the time, Mr Studd had advised the Authority that he was interested in how the then DAWR would implement the standards contained in Standard 4.2.4. The letter advised Mr Studd that the DAWR had implemented an assessment process for countries wanting to export raw milk cheese to Australia and directed him to a website. It continued:
“The combination of requirements in the Australia New Zealand Food Standards Code and the assessment process applied by the Department of Agriculture and Water Resources, established a risk-based framework for the manufacture and importation of raw milk products, including cheese.”[92]
[92] T documents A530; T25 at 2083

Mr Studd responded to the Authority’s letter by email dated 25 May 2018. He advised that he would not withdraw applications A530 and A531. After reviewing the changes to the Standards affecting raw milk cheese and their practical application, he did not consider that the risk assessment undertaken by the Authority had addressed them. Mr Studd concluded:
“The regulations are out of step with international standards and have created over reaching barriers to the production and sale, and importation of raw milk cheese that are out of step with international standards.”[93]
[93] T documents A530; T25 at 2084

The Authority responded by advising that its Board was required to assess each application in order to decide whether to accept or reject them. It had made a preliminary assessment on each application and had concluded that the Board should reject both of them. The Authority sent Mr Studd a draft Initial Assessment report in relation to each application to so that he might comment on them and provide any further material he considered relevant before any advice, recommendation or report was provided to the Board.[94]
[94] T documents A530; T25 at 2088
IMPORTED FOOD CONTROL ACT
The object of the IFC Act[95] is:
“… to provide for the compliance of food imported into Australia with Australian food standards and the requirements of public health and safety.”[96]
In the current legislation, the word “food” is defined in s 3A in the same terms as it is in s 3A of the Food Act.[97]
[95] I have referred to the IFC Act as currently in force and not that in force when Fromagent lodged its applications with the Authority. The earlier version is not relevant because Fromagent had not lodged its application under the IFC Act for review of a decision made under it. Furthermore, whether in force in 2004 or currently, the IFC Act has no relevance in determining an application for review under the Food Act. In any event, apart from adding a definition of “food”, the provisions of the IFC Act, to which I have referred, are in substantively the same terms.
[96] IFC Act; s 2A
[97] See [39] above
The IFC Act creates offences relating to the importation, labelling and dealing with food, for which it imposes penalties. Regulations made under the IFC Act provide for a food inspection scheme for food, to which the legislation applies. The Secretary may make orders requiring food to be held at certain places if he or she considers that the food does not meet applicable standards or considers that the food poses a serious risk to human health. Food identified as failing food may be required to be treated, destroyed or re-exported.[98]

[98] IFC Act; s 7A

An example of an importation offence was set out in s 8(1) of the IFC Act when it provides:
“A person commits an offence if:
(a)the person imports food into Australia; and
(b)this Act applies to the food; and
(c)the food does not meet the applicable standards; and
(d)those standards do not relate to information on labels for packages containing food.
Penalty: Imprisonment for 10 years.”
Section 7(1) provides:
“This Act applies to all food imported into Australia other than:
(aa) food that is imported from New Zealand and is of a kind that is specified by the regulations to be food to which this Act does not apply; or
(a) prohibited food; or
(b) food that is imported for private consumption; or
(c) food that is ship’s stores or aircraft’s stores, within the meaning of section 130C of the Customs Act; or
(d) food that is imported as a trade sample.”
Terms such as being “imported for private consumption” and “imported as a trade sample” are defined in the remaining provisions of s 7. So too is the term “applicable standard”, which is defined in s 3(1):
“applicable standard, in relation to particular food, or a particular matter affecting food, at a particular time, means the national standard in force in relation to that food or matter at the time.”
A “national standard” means:
“(a) a standard that is included in the Australia New Zealand Food Standards Code; or
(b)the Country of Origin Food Labelling Information Standard 2016, as in force from time to time.
Note:The Country of Origin Food Labelling Information Standard 2016 is an information standard made under section 134 of the Australian Consumer Law (see Schedule 2 to the Competition and Consumer Act 2010).”
The Food Inspection Scheme (IFS) is the subject of Division 2 of Part 2 of the IFC Act. Section 16 sets out the parameters within which that scheme must be made. Those parameters are made up of identification of categories of food, the percentage of each category that must be referred to a Customs officer for inspection or for inspection and analysis and the manner and incidence of inspection or inspection and analysis. The IFS may also specify powers of authorised officers to inspect, or to inspect and analyse, food required or permitted to be inspected, or inspected and analysed, under it.
Section 16(2)(a), for example, provides that the regulations:
“empower the Minister, subject to section 17, to make orders:
(i)identifying food of particular kinds as food of a kind that is required to be inspected, or inspected and analysed, under the Scheme; or
(ii)identifying food of particular kinds as food that must be covered by a recognised foreign government safety management certificate; or
(iia)identifying food of particular kinds as food that must be covered by a recognised food safety management certificate; or
(iii)classifying food of particular kinds into particular categories; …”

Under s 17 of the IFC Act, the Minister must not make an order without first consulting the Authority.

Consistently with s 16(2)(a)(i), r 10[99] of the Imported Food Control Regulations 2019 (IFC Regulations) prescribes food in various classifications. Food is described as “risk food”, for example, if the Authority advises the Minister that food of that kind has the potential to pose a high or medium risk to public health.[100] Other food may be classified as compliance agreement food or surveillance food.[101] Section 16(2)(aa) provides that the IFS may specify the percentage of food classified into a particular category that must be referred by a Customs officer for inspection, or for inspection and analysis, under the IFS. Consistent with s 16(2)(aa), rr 14 and 15 then go on to provide what part of a consignment of food must be referred by a Customs officer for inspection or for inspection and analysis. In the case of risk food, it is 100% of the consignment, for surveillance food it is 5% unless the Secretary has ordered that, in respect of surveillance food of a specified kind, it is 100% of the consignment.[102] Division 4 of Part 3 of the IFC Regulations then sets out the rates of inspection, or inspection and analysis, of the consignments from a particular source for risk food and surveillance food.[103] It does so for the purposes of s 16(2)(b) of the IFC Act.
[99] The IFC Regulations refer to its sections but I have referred to them as regulations to make the distinction between them and the sections of the IFC Act.
[100] IFC Regulations; r 11
[101] IFC Regulations; r 12 and 13
[102] IFC Regulations; rr 14 and 15(1) and (2)
[103] IFC Regulations; rr 16-18 and 21

Foreign government safety management certificates referred to in s 16(2)(a)(ii) of the IFC Act are the subject of s 18. Section 18(1) provides that the Secretary may determine, in writing, that a certificate issued by an instrumentality of a specified foreign government stating that the food of a specified kind meets applicable standards and does not pose a risk to human health is a recognised foreign government certificate. Given the definition of the term “applicable standard” and its incorporation of a reference to a “national standard” in s 3(1) of the IFC Act,[104] the Secretary is making a determination that food of a specified kind meets a Standard that is included in the Food Standards Code.
[104] See [100] above

Section 19 is concerned with quality assurance certificates. On behalf of the Commonwealth, the Secretary may enter an arrangement with the person conducting an overseas food processing operation. At the expense of the person, that arrangement provides for the periodic inspection and evaluation of that operation to decide whether the Secretary should exercise his or her powers under s 19(1A). The Secretary’s power under s 19(1A) is to approve a food processing operation for the purposes of Part 2 of the IFC Act or to revoke any such approval. If an overseas food processing operation is subject to a current approval under s 19(1A):
“… the Secretary may determine, in writing, to the effect that, while the determination remains in force, each certificate issued by the person purportedly in charge of that operation stating that particular food processed in that operation meets applicable standards and does not pose a risk to human health is a recognised quality assurance certificate.”[105] (emphasis added)
[105] IFC Act; s 19(2)

Under s 16(2)(j) regulations may set out the circumstances in which, and procedures by which, the reliability of certificates, including a recognised foreign government certificate or a recognised quality assurance certificate, will be tested. Regulation 20 sets out those circumstances.
Division 3 of Part 2 of the IFC Act is concerned with the treatment, destruction or re-exportation of failing food. The expression “failing food” means:
“… examinable food, that:
(a) as a result of an inspection, or inspection and analysis, under the Food Inspection Scheme, is found to be:
(i) food that does not meet the applicable standards for that food; or
(ii) food that poses a risk to human health; or (b) is taken, under the provisions of the Scheme, to be such food.”[106]
[106] IFC Act; s 3(1)
The expression “examinable food” means:
“(a) food of a kind that is the subject of an order made for the purposes of paragraph 16(2)(a); or
(b) food of a kind that is the subject of a holding order; or
(c) particular food that, despite the fact that it is not food of a kind that is the subject of an order made for the purposes of paragraph 16(2)(a) or of a holding order, is nevertheless required to be inspected, or inspected and analysed, under the Food Inspection Scheme; or
(d) particular food, other than food of a kind referred to in paragraph (a) or (b) or food referred to in paragraph (c):
(i) that an authorised officer has reasonable grounds to believe may be failing food; and
(ii) in respect of which the officer has notified that belief to an owner.”[107]
[107] IFC Act; s 3(1)
Section 42 of the IFC Act provides that an application may be made for review of reviewable decisions. A reviewable decision is an initial decision identified in one of the paragraphs of s 42(2) and reviewed by the Secretary under s 42(5). Section 42(2) provides that:
“Subject to subsection (3), initial decision means:
(a) a decision under section 12 to issue a food control certificate that states that the food to which the certificate relates is required to be inspected, or inspected and analysed; or
(b) a decision under subsection 14(1) to issue an imported food inspection advice identifying food as failing food and specifying the manner of dealing with that food; or
(c) a decision under subsection 14(6) refusing an application for a further imported food inspection advice; or
(d) a decision under subsection 14(6) to issue a further imported food inspection advice identifying food as failing food and specifying the manner of dealing with that food; or
(e) a decision made by the Secretary to revoke a determination under subsection 19(3); or
(f) a decision by the Secretary under subsection 20(13) to direct that food control certificates should not be issued to a person who has failed to comply with a notice under subsection 20(2), (3) or (4); or
(g) a decision by the Secretary under subsection 36(8) to direct that documentation not be issued in respect of food imported by a person who has failed to pay fees to the Commonwealth; or (h) a decision of the Secretary under subsection 39(1).”
The qualification in s 42(3) is:
“If food to which an initial decision relates has been subjected to analysis to determine if it either:
(a) meets applicable standards; or
(b) poses a risk to human health; the results of such analysis are not reviewable by the Administrative Appeals Tribunal.”

I certify that the preceding one hundred and nine (109) paragraphs are a true copy of the reasons for the decision herein of Deputy President SA Forgie

....................[sgd].................................................
Associate
Date of decision: 17 August 2020

Heard:

Applicant’s Advocate:

26 June 2019

Mr Christopher Preston
Comply ANZ

Respondent’s Counsel: Mr Mark Costello
Respondent’s Solicitor: Ms Phoebe Richards
Clayton UTZ

[2020] AATA 3080

17 August 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Appeal

*Column1*	*Column 2 documentation*
*Milk and milk products*	*Legislation or*
Milk and milk products used to produce Gruyere, Sbrinz or Emmental cheese only	The Ordinance on Quality Assurance in the Dairy Industry of the Swiss Federal Council of 18 October 1995