Export Control (Dairy, Eggs and Fish) Orders 2005

as amended

made under section regulation 3 of the

Export Control (Orders) Regulations 1982

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

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

Contents

Part 1 Preliminary

Division I General

1 Citation [see Note 1]

2 Commencement

3 Objectives of these Orders

4 Outline of these Orders

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

6 Contravention for purposes of the Regulations

7 Operation of other laws

Division II Meaning of words and expressions

8 Interpretation

9 Prescribed goods

10 Meaning of unsafe

11 Meaning of unsuitable

12 These Orders

13 Notes

Part 2 Application of these Orders

Division I These Orders apply to processed food

14 Application of these Orders to eggs, fish and milk

15 Orders do not apply to small consignments

16 Processed food for export to New Zealand

Division II Expanded application of these Orders

17 Explanation of this Division

18 Processed food to which this Division applies

19 Expanded application if government certificate required

20 Notice specifying that these Orders apply

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

21 Orders apply to processed food for export as food

Division IV Orders do not apply to certain establishments

22 Explanation

23 Laying establishments that store or chill eggs

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

25 Establishments that only kill or bleed crocodiles

26 Establishments that store or chill milk

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

27 When these orders do not apply

Division VI Exemptions

28 When the Secretary may specify orders do not apply

29 Exemption may be subject to conditions

30 Orders specified in the instrument do not apply

31 When the instrument ceases to have effect

32 If instrument ceases to have effect the orders apply

Part 3 The preparation of processed food for export as food

Division I Registration

33 Requirement for registration

34 Approval to prepare processed food in an unregistered establishment

35 When registration is not required for catcher boats

Division II Management practices

36 Requirement for an approved arrangement

37 Management practices

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

Division III Export standards

39 Export standards for processed food

Part 4 Conditions and restrictions on export of processed food

Division I General requirement

40 Prohibition on export of processed food

41 Conditions and restrictions on export

Division II Registration and approved arrangement

42 Requirement for registration

43 When registration is not required for catcher boats

44 Requirement for an approved arrangement

45 Catcher boats

46 Prohibition on the export from certain establishments

Division III Export standards for processed food

47 Premises, equipment and vehicles

48 Operational hygiene

49 Preparation and transport

50 Compliance with product standards

51 Trade descriptions

52 Identification, tracing systems, integrity and transfer

53 Export permits

Part 5 Exporters and other issuers of export documentation

Division I General requirement

54 Application

Division II Information and documentary requirements

55 Security of export permits and government certificates

56 Return of export permits and government certificates

57 Requirement to notify

58 Effective measures to ensure accuracy and completeness

59 Export to document compliance measures

60 Record keeping requirements

Part 6 Audit

Division I Performance of the audit

61 Secretary may require audits

62 Who may conduct the audit

63 Purpose of audit

64 Additional audits on occupier’s request

65 Notice of audit

66 Audit frequency and intensity

67 Assistance to be provided

68 Audit of catcher boats and registered fishing vessels

Division II Failures to comply and audit reports

69 Notification and assessment of failures to comply

70 Audit reports

71 Audit report must be given to Secretary

Part 7 Official marks

Division I General

72 Manufacture etc of official marks and official marking devices

73 Resemblances

74 Action to be taken if an official mark is altered

75 Official marking device that is damaged

76 Security of official marks and marking devices

Part 8 Directions to take action

Division I When a direction may be given

77 Direction given to the occupier

78 Direction given to an exporter

79 Direction that may be given

80 Directions requiring that preparation ceases

Division II Compliance with a direction

81 Obligation to comply with direction

Part 9 Miscellaneous

Division I General

82 Government certificates for processed food

83 Accuracy, legibility etc of records

84 Requirement to provide translations

85 Assistance to authorized officers

Division II Regulatory arrangements

86 Alternative regulatory arrangements

87 Importing country does not require compliance with a requirement

Division III Reconsideration of decisions of authorized officers

88 Application for reconsideration by senior authorized officer

89 The application

90 Senior authorized officer to reconsider decision

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

92 Senior authorized officer to advise of decision

93 Application to the Secretary

94 The application

95 Secretary to reconsider decision

96 Senior authorized officer’s decision ceases to have effect

97 Secretary to advise of decision

Division IV Review of decisions made by the Secretary

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

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

Division V Sampling and analysis

101 Certificates of analysis

103 Analysis of samples for certification as to a particular condition

Division VI Giving notices

104 Notices given to the occupier or exporter

Part 10 Transitional

Division I Repeal and transitional

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

106 Transitional arrangements — approvals

107 Transitional arrangements — export permits

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

Schedule 1 Registration

Part 1 Plans and specifications

Division I Application for registration

Division II Alterations and additions

Part 2 Approval to prepare processed food in an unregistered establishment

Schedule 2 Management of food safety and suitability

Part 1 Management of food safety and suitability

Division I General requirements

Division II Approved arrangements

Division III Management practices

Part 2 Approved arrangements

Division I Approval of arrangements

Division II Variation of approved arrangement

Division III Suspension and revocation

Schedule 3 Structural requirements

Part 1 Requirements for processed food establishments

Division I Premises, equipment and vehicles

Division II Cleaning and sanitising facilities

Division III Amenities

Division IV Essential services

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

Schedule 4 Operational hygiene

Part 1 General requirements

Division I Hygiene controls for premises and equipment

Division II Hygiene requirements for processing

Division III Personal hygiene and health requirements

Part 2 Application of Schedule: catcher boats

Schedule 5 Preparation and transport

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

Division I General requirements

Division II Sourcing and handling eggs

Division III Harvesting and sourcing fish

Division IV Depuration of shellfish

Division V Wet storage of shellfish

Division VI Sourcing, killing and initial processing of crocodiles

Division VII Sourcing milk

Part 2 Chilling, freezing, thawing and tempering

Division I Chilling and freezing

Division II Thawing and tempering

Part 3 Preserving processed food

Division I General

Division II Thermal processing of canned processed food

Division III Eggs and egg products

Division IV Milk and milk products

Part 4 Packaging

Part 5 Storage, handling and loading

Part 6 Transport

Part 7 Fitness for human consumption

Schedule 6 Product standards

Part 1 Product standards for food and ingredients

Part 2 Methods of sampling and examination

Schedule 7 Trade description

Part 1 Requirement to have a trade description

Part 2 Contents of the trade description

Division I Information requirements

Division II Description of food

Division III Declaration of ingredients

Division IV Identifying the establishment

Division V Identifying the producer, exporter etc

Part 3 Miscellaneous

Schedule 8 Identification, tracing systems, integrity and transfer

Part 1 General requirements

Part 2 Supply and preparation of processed food

Part 3 Transfer of processed food

Schedule 9 Export documentation

Part 1 Export permits

Division I Application for an export permit

Division II Declaration of compliance made under an approved arrangement

Division III Verification and inspection by an authorized officer

Division IV Permission to export

Part 2 Government certificates

Part 3 Giving information or documents about exports

Schedule 10 Approved auditors

Part 1 Approved auditors

Division I Register of approved auditors

Division II Approval of auditors

Division III Revocation of approval of auditor

Notes

Part 1 Preliminary

Division I General

1 Citation [see Note 1]

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

2 Commencement

These Orders commence on 1 July 2005.

3 Objectives of these Orders

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

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

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

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

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

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

3.2 The objectives of these Orders are also to ensure:

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

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

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

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

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

4 Outline of these Orders

4.1 The following is an outline of these Orders.

4.2 Part 1 of these Orders:

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

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

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

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

4.3 Part 2 of these Orders:

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

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

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

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

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

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

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

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

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

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

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

4.7 Part 6 of these Orders provides for audit.

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

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

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

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

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

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

(a) Part 1;

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

(d) sections 14.02, 14.03 and 14.04;

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

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

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

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

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

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

6 Contravention for purposes of the Regulations

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

(a) a provision of an order; or

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

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

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

7 Operation of other laws

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

Division II Meaning of words and expressions

8 Interpretation

In these Orders unless the contrary intention appears:

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

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

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

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

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

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

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

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

approved means approved by the Secretary by instrument in writing.

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

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

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

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

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

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

Note For this document see http://www.aqis.gov.au/fish.

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

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

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

catcher boat means a ship that is used for:

(a) catching fish; or

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

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

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

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

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

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

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

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

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

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

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

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

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

corporation means a legal person who is not an individual.

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

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

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

crocodile meat means the edible part of a crocodile.

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

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

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

egg means an egg from an avian species.

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

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

essential services include but are not limited to:

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

(b) sewerage, draining and waste disposal systems.

export permit means a permit:

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

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

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

Note For example fish includes crocodiles.

fish product means a product containing fish.

fishing vessel means a ship used to prepare fish.

fit for human consumption means safe and suitable.

Note See further orders 10 and 11.

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

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

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

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

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

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

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

HACCP means Hazard Analysis and Critical Control Point.

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

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

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

implied described characteristic includes a pictorial representation.

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

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

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

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

(b) a processing aid for processed food.

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

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

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

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

(a) is readily ascertainable; and

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

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

loaded for export means:

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

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

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

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

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

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

manufacturing grade processed food means processed food that is:

(a) not fully processed; or

(b) not fit for human consumption;

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

milk means the lacteal secretion obtained from an animal.

milk product means a product containing milk.

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

NATA means the National Association of Testing Authorities.

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

occupier:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

resources industry structure means:

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

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

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

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

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

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

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

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

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

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

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

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

substance includes an organism or any other matter.

the Act means the Export Control Act 1982.

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

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

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

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

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

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

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

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

9 Prescribed goods

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

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

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

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

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

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

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

10 Meaning of unsafe

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

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

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

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

11 Meaning of unsuitable

11.1 Processed food is not suitable if it:

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

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

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

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

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

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

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

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

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

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

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

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

11.2 However processed food is not unsuitable merely because it:

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

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

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

Note For the meaning of substance see order 8.

12 These Orders

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

13 Notes

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

Part 2 Application of these Orders

Division I These Orders apply to processed food

14 Application of these Orders to eggs, fish and milk

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

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

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

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

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

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

(i) flavoured milk and modified milk;

(ii) cream and thickened cream;

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

(iv) casein, caseinate and cheese;

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

(vi) cultured milk and yoghurt;

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

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

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

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

15 Orders do not apply to small consignments

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

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

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

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

16 Processed food for export to New Zealand

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

Division II Expanded application of these Orders

17 Explanation of this Division

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

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

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

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

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

18 Processed food to which this Division applies

18.1 This Division applies to the following:

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

(b) aquatic mammals;

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

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

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

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

Note For the meaning of major component see order 8.

18.2 In paragraph 18.1 (f):

milk includes:

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

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

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

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

19 Expanded application if government certificate required

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

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

19.2 The application must:

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

(b) identify the exporter of the food; and

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

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

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

20 Notice specifying that these Orders apply

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

20.8 The amendment or revocation takes effect:

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

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

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

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

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

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

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

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

(b) when it is revoked.

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

21 Orders apply to processed food for export as food

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

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

Division IV Orders do not apply to certain establishments

22 Explanation

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

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

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

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

23 Laying establishments that store or chill eggs

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

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

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

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

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

(a) the growing of fish;

(b) the relaying of shellfish;

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

(d) the washing of fish using:

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

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

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

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

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

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

25 Establishments that only kill or bleed crocodiles

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

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

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

26 Establishments that store or chill milk

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

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

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

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

27 When these orders do not apply

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

(a) the processed food is:

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

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

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

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

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

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

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

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

Division VI Exemptions

28 When the Secretary may specify orders do not apply

28.1 A person who is or is to be:

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

(b) the exporter of processed food;

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

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

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

(d) for experimental purposes; or

(e) in special circumstances.

28.2 The application must:

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

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

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

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

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

29 Exemption may be subject to conditions

29.1 The Secretary may:

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

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

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

30 Orders specified in the instrument do not apply

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

31 When the instrument ceases to have effect

31.1 The Secretary may revoke the instrument.

31.2 The revocation takes effect:

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

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

31.3 The instrument ceases to have effect:

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

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

unless it is earlier revoked.

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

32 If instrument ceases to have effect the orders apply

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

Part 3 The preparation of processed food for export as food

Division I Registration

33 Requirement for registration

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

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

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

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

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

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

Level 5 penal provision

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

34 Approval to prepare processed food in an unregistered establishment

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

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

(b) the approval has effect.

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

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

35 When registration is not required for catcher boats

A catcher boat need not be registered.

Division II Management practices

36 Requirement for an approved arrangement

36.1 The occupier of:

(a) a registered establishment; and

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

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

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

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

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

Level 5 penal provision

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

37 Management practices

37.1 The occupier of:

(a) a registered establishment; and

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

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

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

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

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

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

(a) domestic consumption; or

(b) animal food; or

unless:

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

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

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

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

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

38.2 If:

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

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

the occupier of the establishment is guilty of an offence.

Level 5 penal provision

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

Division III Export standards

39 Export standards for processed food

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

(a) Schedule 3 (Structural requirements);

(b) Schedule 4 (Operational hygiene);

(d) Schedule 6 (Product standards);

(e) Schedule 7 (Trade description);

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

Level 5 penal provision

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

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

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

Part 4 Conditions and restrictions on export of processed food

Division I General requirement

40 Prohibition on export of processed food

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

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

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

41 Conditions and restrictions on export

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

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

Division II Registration and approved arrangement

42 Requirement for registration

Processed food for export as food must be prepared at:

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

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

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

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

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

43 When registration is not required for catcher boats

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

44 Requirement for an approved arrangement

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

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

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

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

(a) a registered establishment; and

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

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

45 Catcher boats

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

46 Prohibition on the export from certain establishments

Processed food that is prepared at:

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

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

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

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

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

Division III Export standards for processed food

47 Premises, equipment and vehicles

Processed food for export as food must:

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

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

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

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

48 Operational hygiene

Processed food for export as food must:

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

49 Preparation and transport

Processed food for export as food must:

(a) be prepared; and

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

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

50 Compliance with product standards

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

Note For the meaning of ingredients see order 8.

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

Note For the meaning of food see order 8.

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

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

51 Trade descriptions

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

52 Identification, tracing systems, integrity and transfer

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

53 Export permits

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

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

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

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

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

Part 5 Exporters and other issuers of export documentation

Division I General requirement

54 Application

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

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

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

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

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

Division II Information and documentary requirements

55 Security of export permits and government certificates

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

Level 5 penal provision

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

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

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

56 Return of export permits and government certificates

If:

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

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

a person to whom this Part applies must return:

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

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

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

Level 2 penal provision

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

57 Requirement to notify

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

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

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

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

Level 5 penal provision

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

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

58 Effective measures to ensure accuracy and completeness

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

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

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

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

59 Export to document compliance measures

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

(a) this Part; and

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

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

Note 2 For audit see Part 6 of these Orders.

60 Record keeping requirements

A person:

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

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

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

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

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

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

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

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

Level 5 penal provision

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

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

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

Part 6 Audit

Division I Performance of the audit

61 Secretary may require audits

61.1 The Secretary may require the following to be audited:

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

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

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

61.2 The Secretary may require the audit to be for:

(a) the audit of compliance with all of:

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

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

(iii) any applicable importing country requirements;

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

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

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

(ii) the processed food specified by the Secretary;

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

62 Who may conduct the audit

An audit of operations may be performed:

(a) by an authorized officer; or

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

63 Purpose of audit

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

64 Additional audits on occupier’s request

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

64.2 The Secretary may at any time withdraw the additional audits.

65 Notice of audit

An audit may be unannounced.

66 Audit frequency and intensity

66.1 The Secretary may by giving a written notice to the occupier, exporter or approved export permit issuer specify the frequency and intensity of the audits of their operations.

66.2 The Secretary may by giving a further written notice to the person to whom the first notice is given vary or revoke the earlier notice.

66.3 Suborders 66.1 and 66.2 do not preclude the Secretary from specifying in the conditions of any applicable approved arrangement or approval of a person as an export permit issuer the frequency and intensity of audits required.

Note See the AQIS guidelines for audit frequency which varies as to level of risk for the establishment or the exporter (ie the level of risk being the likelihood of there being a failure to comply with the requirements of the Act or these Orders and the harm that may result from the failure).

67 Assistance to be provided

67.1 The occupier, exporter and approved export permit issuer must provide such assistance to an auditor as is reasonably necessary to enable the auditor to perform the audit of their operations.

Note For the meaning of auditor see order 8.

67.2 Without limiting the generality of suborder 67.1 the occupier, exporter and approved export permit issuer must:

(a) provide information to the auditor on request (including provide explanations and make documents and translations available) and operate any equipment at their premises; and

(b) allow an auditor to:

(i) observe and interview their employees, agents or contractors of the occupier, exporter or permit issuer; and

(ii) observe any of their procedures; and

(iii) use their equipment for the purpose of accessing, examining, testing, sampling, recording or reproducing any documents or other thing at their premises; and

(iv) bring onto the premises at which the audit is conducted equipment for the purposes referred to in subparagraph 67.2 (b) (iii).

Note 1 Failure to provide assistance is a ground of suspension or revocation of an approved arrangement (see paragraph 21.1 (d) of Schedule 2 and paragraph clause 15.3 of Schedule 9) or of an approval of a persons to issue permits (see clause 16 of Schedule 9). Failure by the exporter to provide assistance may preclude the giving of an export permit or government certification see subclause 17.2 and paragraph 19.3 (h) of Schedule 9.

Note 2 Contrast the enforcement powers in Part III of the Act.

68 Audit of catcher boats and registered fishing vessels

The Secretary may require that, subject to operational constraints, the audit of a catcher boat or a registered fishing vessel take place during operations at sea.

Division II Failures to comply and audit reports

69 Notification and assessment of failures to comply

69.1 If as the result of an audit of operations, in the auditor’s opinion, there is a failure (or a combination of failures) to comply with a requirement referred to in order 63 the auditor must:

(a) notify the occupier, exporter and approved export permit issuer immediately on ending the audit of their operations; and

(b) assess whether the failure (or a combination of failures) is a critical defect.

Note A failure to comply with the requirements of this Division may preclude the approval of an approved auditor or result in the revocation of an approval of an approved auditor, see paragraphs 5.1 (c) and 11.1 (c) of Schedule 10.

69.2 If in the auditor’s opinion the failure (or a combination of the failures) amounts to a critical defect, the auditor must notify the Secretary immediately on forming the opinion.

69.3 A critical defect when used in relation to the audit of an establishment, exporter or approved export permit issuer means a failure (or a combination of failures) to comply with a requirement referred to in order 63 that:

(a) results in, or is likely to result in, the preparation or export of processed food for export as food that:

(i) is not fit for human consumption or its integrity is compromised; or

(ii) does not comply with importing country requirements; or

(b) prevents an accurate assessment being made as to whether the processed food:

(i) is fit for human consumption and its integrity is assured; or

(ii) complies with importing country requirements; or

(c) results in, or is likely to result in the issue or giving of an export permit or government certificate that is inaccurate or incomplete; or

(d) prevents an accurate assessment being made as to whether an export permit or government certificate that is issued or given is accurate or complete.

70 Audit reports

70.1 The auditor must make a report of the audit.

70.2 The audit report must include the following information:

(a) the name of the auditor;

(b) the date of the audit;

(d) the nature and scope of the audit, including the activities audited.

70.3 The audit report must state:

(a) whether in the auditor’s opinion the audit was satisfactorily completed or was terminated prior to completion; and

(b) whether in the auditor’s opinion the requirements referred to in order 63 are complied with; and

70.4 The audit report must:

(a) describe each failure to comply with the requirements referred to in order 63 identified by the auditor; and

(b) state whether in the auditor’s opinion the failure (or a combination of the failures) is a critical defect or has contributed to a critical non compliance.

71 Audit report must be given to Secretary

Within 14 working days after the day an auditor ends an audit the auditor must give:

(a) the audit report to the Secretary; and

(b) the occupier, exporter and approved export permit issuer a copy of the audit report for their operations.

Part 7 Official marks

Division I General

72 Manufacture etc of official marks and official marking devices

72.1 Despite subsection 13.18 (2) of the Export Control (Prescribed Goods General) Order 2005 a person:

(a) may manufacture an official marking device for use for processed food if the person is an authorized officer or is acting in accordance with a direction of an authorized officer; and

(b) may manufacture an official marking device for use for processed food or have in their possession an official marking device for use for processed food if:

(i) the person is an authorized officer or is acting in accordance with a direction of an authorized officer; or

(ii) the person is designated in an approved arrangement as a person who may do the relevant act and the act is done in accordance with the approved arrangement.

Note 1 For the meaning of official marking device see section 3 of the Act and see also section 13.17 of the Export Control (Prescribed Goods — General) Order 2005.

Note 2 Part 13 (other than sections 13.19 to 13.21) of the Export Control (Prescribed Goods — General) Order 2005 applies, see paragraph 5.1 (c) of these Orders.

Note 3 Contravention of subsection 13.18 (2) of the Export Control (Prescribed Goods — General) Order 2005 is an offence, see section 14 of the Act.

72.2 A person must not alter or interfere with an official mark applied to processed food for export or to anything containing processed food for export unless:

(a) the person is an authorized officer or is acting in accordance with a direction of an authorized officer; or

(b) the person is designated in an approved arrangement as a person who may do the relevant act and the act is done in accordance with the approved arrangement.

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

Note 2 For the meaning of official mark see also section 3 of the Act and see also sections 13.02 to 13.16 of the Export Control (Prescribed Goods — General) Order 2005.

Note 3 For a requirement to retain an official mark that is a seal declared under section 13.11 of the Export Control (Prescribed Goods — General) Order 2005 during transport see clause 46 of Schedule 5. The seal is used to ensure the physical security of processed food.

Note 4 Contravention of suborder 72.2 is an offence, see section 14 of the Act.

73 Resemblances

73.1 For the purposes of section 14 of the Act a person must not apply to processed food or to any thing containing processed food a mark resembling an official mark (including a resemblance of an official mark) or any thing apparently intended to resemble or pass for an official mark unless the following circumstances exist:

(a) the person is designated in the applicable approved arrangement as a person who may apply such a mark; and

(b) the application of the mark is done in accordance with the provisions of the applicable approved arrangement.

Note 1 Section 14 of the Act creates an offence if this order is not complied with.

Note 2 For when importing country requirements for applying the resemblance need to be set out in the applicable approved arrangement, see clause 2 of Schedule 2.

73.2 For the purposes of suborder 73.1:

resemblance of an official mark means a design that:

(a) is similar to the design of an official mark specified in the Export Control (Prescribed Goods — General) Order 2005; and

(b) differs materially from the design so specified for the official mark only in respect of its dimensions.

74 Action to be taken if an official mark is altered

If the occupier of an establishment suspects:

(a) a container, vehicle, ship, aircraft or anything else containing processed food for export is:

(i) located at an establishment at which processed food for export is prepared; and

(ii) is sealed with an official mark; and

(b) the mark is altered or interfered with other than in accordance with these Orders;

the occupier must:

(d) not deal further with the food without the written approval of an authorized officer.

Level 5 penal provision

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

75 Official marking device that is damaged

The occupier of an establishment engaged in the preparation of processed food for export as food must give an authorized officer each official marking device that:

(a) is in the occupier’s possession; and

(b) is damaged, worn or otherwise not fit for applying an official mark;

as soon as practicable after becoming aware that it is damaged, worn or otherwise unfit.

76 Security of official marks and marking devices

76.1 The occupier of an establishment engaged in the preparation of processed food for export as food must keep official marks and marking devices under conditions of security when not in use.

76.2 The occupier must make a record of the occupier’s:

(a) receipt, use and return of official marking devices; and

(b) receipt or manufacture of official marks; and

Part 8 Directions to take action

Division I When a direction may be given

77 Direction given to the occupier

77.1 If an authorized officer has reasonable grounds to believe that:

(a) the occupier of an establishment at which processed food for export as food is prepared has not, or is not likely to, comply with a requirement of the Act, these Orders, the occupier’s approved arrangement or a condition of the occupier’s approved arrangement; or

(b) the fitness for human consumption of processed food is or is likely to be jeopardised or its integrity is, or is likely to be compromised; or

the officer may give:

(d) the occupier of the establishment at which the food is located; or

(e) the occupier of the establishment at which it is prepared;

a direction requiring action to be taken.

78 Direction given to an exporter

78.1 If an authorized officer has reasonable grounds to believe that:

(a) a requirement of the Act or these Orders applying to or in relation to processed food for export as food by the exporter is not complied with or is not likely to be complied with; or

(b) a circumstance referred to in paragraphs 77.1 (b) or (c) exists in relation to processed food for export by the exporter;

the officer may give the exporter a direction requiring the action to be taken.

78.2 An authorized officer may not give a direction under suborder 78.1 if the processed food is located at an establishment engaged in the preparation of processed food.

Note For directions that may be given if the processed food is located at an establishment engaged in the preparation of processed food see order 77.

78.3 In this order the exporter of processed food means the person identified as the exporter in the application for an export permit for the food.

79 Direction that may be given

79.1 The direction must be a direction to take action that is necessary to ensure that compliance by the occupier or exporter concerned with one of more of the objectives specified in suborders 3.1 and 3.2.

79.2 If the authorized officer has reasonable grounds to believe that a matter specified in paragraph 77.1 (a) or 78.1 (a) exists the direction must also be a direction to take action:

(a) to address the fact a requirement is not complied with or is not likely to be complied with; or

(b) to ensure that the failure to comply with the requirement or the likelihood it is not be complied with does not recur; or

79.3 The direction provided it is for the purposes specified in suborders 79.1 and 79.2 (if applicable), may require the following action in relation to processed food:

(a) the movement of processed food (including movement to premises identified in the notice);

(b) the retention, securing, identification, segregation, treatment, inspection, examination, sampling, condemnation, destruction, denaturing or other disposal of processed food;

(c) the cessation of the preparation of processed food or that processed food not be exported or not be exported to a specified country;

(d) that action be taken in relation to premises, equipment and vehicles used for the processed food.

Note 1 An occupier’s failure to take corrective action if a requirement of these Orders is not being met may result in the suspension or revocation of an approved arrangement, see clause 7 and paragraph 21.1 (a) of Schedule 2.

Note 2 For reconsideration of an authorized officer’s decision to give a direction see Division III of Part 9.

80 Directions requiring that preparation ceases

80.1 An authorized officer may not give a direction requiring that the preparation of processed food cease unless the authorized officer has reasonable grounds to believe that the purposes specified in suborder 79.1 and 79.2 (if applicable) cannot be achieved without the cessation of the preparation.

80.2 An authorized officer may not give a direction requiring that the preparation of processed food cease for a period of longer than 5 days.

Note For cessation periods longer than 5 days see suspension or revocation in Division III of Part 2 of Schedule 2.

Division II Compliance with a direction

81 Obligation to comply with direction

81.1 An occupier or exporter who is given written notice of a direction under this Part must take the action specified in the notice within the period specified in the notice.

Level 5 penal provision

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

81.2 The notice must state that a failure to take the action specified within the time specified is an offence under suborder 81.1.

81.3 An authorized officer may amend or revoke the notice by giving a further written notice to the person to whom the notice is given.

Note For giving notices to the occupier or exporter see order 104.

Part 9 Miscellaneous

Division I General

82 Government certificates for processed food

The Secretary may, in accordance with the requirements of Part 2 of Schedule 9, issue a government certificate for processed food for export.

Note This governments certificate is for the purpose of facilitating the importation of processed food into a country.

83 Accuracy, legibility etc of records

Records required to be made under these Orders must:

(a) be accurate, legible, auditable, dated and in English; and

(b) be signed by the maker of the record.

Note For electronic records (including electronic signatures) see sections 9 and 10 of the Electronic Transactions Act 1999.

84 Requirement to provide translations

84.1 If any part of a trade description applied to processed food appears in a language other than English an authorized officer may give any of the following persons a written notice requesting a translation:

(a) the occupier of the establishment at which the information is applied;

(b) the occupier of the establishment in possession of the processed food;

84.2 The translation must be prepared by a person who:

(a) has appropriate qualifications to make the translation; and

(b) is independent of and not employed in operations to prepare processed food or export processed food by a person referred to in paragraphs 84.1 (a) to (c).

84.3 For the purpose of this clause a trade description is taken to be applied to processed food if any of the circumstances specified in paragraphs 15 (2) (a) to 15 (2) (c) of the Act exist.

85 Assistance to authorized officers

The occupier of an establishment engaged in the preparation of processed food for export as food must if requested by an authorized officer, provide reasonable assistance to the authorized officer for the purpose of the exercise of a function by the authorized officer.

Note 1 Contrast the requirement to provide assistance to an authorized officer when exercising powers under Part III of the Act see section 13 of the Act.

Note 2 For prohibitions on obstruction etc of Commonwealth public officials see Part 7.8 of the Criminal Code Act 1995.

Division II Regulatory arrangements

86 Alternative regulatory arrangements

86.1 The occupier of an establishment may make a written application to the Secretary for a notice stating that an alternative procedure, standard or other requirement specified in the application achieves the purpose of a requirement of these Orders specified in the application.

86.2 If the Secretary is satisfied that the specified alternative procedure, standard or other requirement achieves the purpose of the specified requirement of these Orders the Secretary may give the occupier a written notice to this effect.

86.3 The Secretary may amend or revoke the notice by giving the occupier of the establishment a further written notice.

86.4 If the notice has effect then compliance with the procedure, standard or other requirement specified in the notice given by the Secretary is taken to be compliance with the requirement of these Orders that is specified in the notice in the circumstances specified in the notice.

86.5 Suborder 86.4 applies only if a variation is made to the approved arrangement to include the specified procedure, standard or other requirement.

86.6 In this order:

a requirement of these Orders means a requirement of Schedules 3 to 8 of these Orders that must under Division III of Part 3 of these Orders be complied with by the occupier.

87 Importing country does not require compliance with a requirement

87.1 The occupier of an establishment may make a written application to the Secretary for a notice stating that a requirement of these Orders that is specified in the application does not apply to or in relation to the processed food prepared at the establishment to be exported to an importing country identified in the application.

87.2 If the Secretary is satisfied that the relevant importing country authority does not require the requirement of these Orders to be complied with, the Secretary may, at the Secretary’s discretion, give the occupier a written notice.

87.3 If the Secretary is satisfied that all of the following circumstances exist:

(a) a relevant importing country requirement differs from the requirement of these Orders;

(b) compliance with the importing country requirement would not result in compliance with the requirement of these Orders;

the Secretary may at the Secretary’s discretion give the occupier a written notice.

87.4 A notice referred to in subclause 87.2 and 87.3 may specify that the requirement of these Orders specified in the notice does not apply to or in relation to the processed food prepared at the establishment.

87.5 If a notice given by the Secretary has effect, the requirement of these Orders specified in the notice as not applying does not apply.

87.6 Suborder 87.5 applies only while an establishment’s approved arrangement contains controls to achieve the importing country requirement.

87.7 The Secretary may amend or revoke the notice by giving the occupier of the establishment a further written notice.

87.8 In this order:

a requirement of these Orders means a requirement of Schedules 3 to 8 of these Orders that must under Division III of Part 3 of these Orders be complied with by the occupier.

Note For the requirement to specify importing country requirements in the approved arrangement see clause 2 of Schedule 2. Clause 2 of Schedule 2 applies to those importing country requirements where compliance with these Orders would not be sufficient to result in compliance with the importing country requirements.

Division III Reconsideration of decisions of authorized officers

88 Application for reconsideration by senior authorized officer

A person whose interests are affected by a decision to give a direction made under Part 8 of these Orders may make a written application for a reconsideration of that decision by a senior authorized officer at the office of the Department in the State or Territory where the direction is given.

Note 1 For the meaning of senior authorized officer see order 8.

Note 2 For the meaning of Department see the Acts Interpretation Act 1901 subsection 19A (3). (See also section 13 of the Legislative Instruments Act 2003.)

89 The application

The application must:

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

(b) be given to the senior authorized officer within 7 days after the day on which the decision to give the direction first comes to the notice of the applicant or within such further period as the senior authorized officer allows.

90 Senior authorized officer to reconsider decision

On receiving an application made in accordance with order 89, the senior authorized officer must reconsider the decision to give the direction and may make any decision that may have been made in the first instance.

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

If the senior authorized officer makes a decision under order 90, the decision to give the direction that was reconsidered by the senior authorized officer ceases to have effect.

92 Senior authorized officer to advise of decision

Within 14 days after the day on which the senior authorized officer receives the application the senior authorized officer must give the applicant written notice of:

(a) the senior authorized officer’s decision; and

(b) the reasons for the decision.

93 Application to the Secretary

A person whose interests are affected by a decision made by the senior authorized officer under order 90 may make a written application to the Secretary for review of that decision.

94 The application

The application must:

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

(b) be given to the Secretary within 7 days after the day on which the decision made by the senior authorized officer first comes to the notice of the applicant or within such further period as the Secretary allows.

95 Secretary to reconsider decision

On receiving an application made in accordance with order 94, the Secretary must reconsider the decision made by the senior authorized officer and may make any decision that may have been made in the first instance.

96 Senior authorized officer’s decision ceases to have effect

If the Secretary makes a decision under order 95, the senior authorized officer’s decision that the Secretary reconsidered ceases to have effect.

97 Secretary to advise of decision

Within 28 days after the day on which Secretary receives the application made in accordance with order 94, the Secretary must, give the applicant written notice of:

(a) the Secretary’s decision; and

(b) the reasons for the decision.

Division IV Review of decisions made by the Secretary

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

Subject to order 99, Part 16 of the Export Control (Prescribed Goods — General) Order 2005 applies to an initial decision made under these Orders.

Note 1 For the meaning of initial decision see order 8 and see also section 16.01 of the Export Control (Prescribed Goods — General) Order 2005.

Note 2 Part 16 of the Export Control (Prescribed Goods — General) Order 2005 deals with reconsideration of an initial decision made by the Secretary and the availability of Administrative Appeal Tribunal Review of the Secretary’s reconsideration.

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

Part 16 of the Export Control (Prescribed Goods — General) Order 2005 does not apply to an initial decision made under the following provisions of these Orders:

(a) Division VI of Part 2;

(b) orders 86 and 87;

(d) Part 2 of Schedule 1;

(e) clauses 13, 14, 17 and 19 of Schedule 9;

(f) Part 2 of Schedule 9.

Note 1 Division VI of Part 2 deals with exemptions from compliance with these Orders. Orders 86 and 87 deal with regulatory arrangements for alternative compliance. Order 95 deals with reconsideration decisions of an authorized officer’s decision to give a notice requiring action to be taken. Part 2 of Schedule 1 deals with exemptions from the need to be registered. Clauses 13, 14, 17 and 19 of Schedule 9 deals with export permits and Part 2 of Schedule 9 deals with government certificates.

Note 2 Order 117 of Part 20 of the Prescribed Goods (General) Orders 1985 provides for review (subject to the Administrative Appeals Tribunal Act 1975) by the Administrative Appeals Tribunal of decisions made by Secretary in accordance with order 114 of Part 20 of Prescribed Goods (General) Orders 1985. Accordingly decisions made by the Secretary under these Orders other than those decisions referred to in order 99 may (subject to the Administrative Appeals Tribunal Act 1975) be reviewable by the Administrative Appeals Tribunal.

Division V Sampling and analysis

101 Certificates of analysis

The following persons must if given a written notice by the Secretary provide at their expense to an authorized officer the certificates of analysis by an approved analyst specified in the notice within the period specified:

(a) an occupier of an establishment preparing processed food for export;

(b) an exporter of processed food.

Level 1 penal provision

Note A level 1 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 10 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

103 Analysis of samples for certification as to a particular condition

If a statement as to a particular condition of processed food is made on a certificate for the purposes of these Orders, the analysis, inspection or examination must be carried out in a laboratory accredited by NATA to perform the analysis, inspection or examination.

Division VI Giving notices

104 Notices given to the occupier or exporter

A notice is taken to be given to the occupier of an establishment or an exporter if it is given to:

(a) the occupier or exporter concerned; or

(b) a person who is in charge or apparently in charge at the occupier’s establishment or at the exporter’s business premises (as the case may be).

Note For when requirements to give written notices can be complied with by an electronic communication see section 9 of the Electronic Transactions Act 1999.

Part 10 Transitional

Division I Repeal and transitional

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

The following Export Control (Processed Food) Orders 1992 made under the Export Control (Orders) Regulations are repealed:

(a) No. 9 of 1992;

(b) No. 1 of 1999;

106 Transitional arrangements — approvals

106.1 An approval to prepare processed food in an unregistered establishment that is made by the Secretary under order 15 of the Export Control (Processed Food) Orders 1992 and that has effect immediately prior to the commencement of these Orders, continues to have effect for the purposes of these Orders:

(a) for the prescribed period; and

(b) as if the approval was given under subclause 8.1 of Schedule 1 of these Orders.

106.2 An approval of a Food Processing Accreditation (FPA) system of inspection that is made by the Secretary under subclause 5.1 of Schedule 7 the Export Control (Processed Food) Orders 1992 and that has effect immediately prior to the commencement of these Orders, continues to have effect:

(a) for the prescribed period; and

(b) as if the approval is an approval of an approved arrangement given under clause 14 of Schedule 2 of these Orders.

106.3 An approval of an Approved Quality Assurance (AQA) system of inspection that is made by the Secretary under subclause 5.1 of Schedule 8 the Export Control (Processed Food) Orders 1992 and that has effect immediately prior to the commencement of these Orders, continues to have effect:

(a) for the prescribed period; and

(b) as if the approval is an approval of an approved arrangement given under clause 14 of Schedule 2 of these Orders.

106.4 An approval of a scheduled thermal process that is made by the Secretary under subclause 34.1 of Schedule 3 of the Export Control (Processed Food) Orders 1992 and that has effect immediately prior to the commencement of these Orders, continues to have effect:

(a) for the prescribed period; and

(b) as if the approval forms that part of the approval of an approved arrangement (given under clause 14 of Schedule 2 of these Orders) that deals with thermal processing for the purposes of clause 31 of Schedule 5 of these Orders.

106.5 An approval of an alternative export clearance procedure that is made by the Secretary under clause 2 of Schedule 13 of the Export Control (Processed Food) Orders 1992 and has effect immediately prior to the commencement of these Orders, continues to have effect:

(a) for the prescribed period; and

(b) as if the approval forms that part of the approval of an approved arrangement (given under clause 14 of Schedule 2 of these Orders) to which clause 15 of Schedule 9 of these Orders relates.

106.6 An approval of a person as an authorised signatory that is made by the Secretary under clause 29 of Schedule 13 of the Export Control (Processed Food) Orders 1992 and that has effect immediately prior to the commencement of these Orders, continues to have effect:

(a) for the prescribed period; and

(b) as if the approval forms that part of the approval of an approved arrangement (given under clause 14 of Schedule 2 of these Orders) that designates the person as a person who may issue export permits and to which clause 15 of Schedule 9 of these Orders relates.

106.7 A suspension of an approval referred to in suborders 106.1 to 106.6 that under the Export Control (Processed Food) Orders 1992 has effect immediately prior to the commencement of these Orders, continues to have effect for the unexpired period for which, at the date of commencement of these Orders, the suspension had effect under the Export Control (Processed Food) Orders 1992.

106.8 In this order:

prescribed period means the period until whichever of the following occurs first:

(a) the expiration of a period of two years after the day these Orders commence;

(b) the day (if any) specified in the approval as being the day it ceases to have effect (however this is expressed);

(d) if suborders 106.2 to 106.6 applies — the day the relevant part of the approved arrangement ceases to have effect under clause 27 of these Orders.

107 Transitional arrangements — export permits

107.1 An export clearance notice for the export of processed food that is issued under clause 16 of Schedule 13 of the Export Control (Processed Food) Orders 1992 and that has effect immediately prior to the commencement of these Orders, continues in force for the purposes of these Orders:

(a) for the prescribed period; and

(b) as if the export clearance notice is an export permit issued under clauses 11 or 13 of Schedule 9 of these Orders.

107.2 In suborder 107.1:

prescribed period means for whichever is the shorter of:

(a) the unexpired period for which, at the date of commencement of these Orders, the permit is valid under clause 17 of Schedule 13 of the Export Control (Processed Food) Orders 1992; or

(b) the period until the day the permit ceases to have effect under these Orders;

as if it was issued under clause 11 or 13 of Schedule 9 of these Orders.

Note For when an export permit ceases to have effect see clause 20 of Schedule 9 of these Orders.

107.3 An export permit granted under order 75 of the Prescribed Goods (General) Orders 1985 that has effect immediately prior to the commencement of these Orders, continues in force for the purposes of these Orders:

(a) for the prescribed period; and

(b) as if the export permit is given under clause 14 of Schedule 9 of these Orders.

107.4 In suborder 107.3:

prescribed period means for whichever is the shorter of:

(a) the unexpired period for which, at the date of commencement of these Orders, the permit is valid under clause 77 of the Prescribed Goods (General) Orders 1985; or

(b) the period until the day the permit ceases to have effect under these Orders;

as if it was issued or given under clause 14 of Schedule 9 of these Orders.

Note For when an export permit ceases to have effect see clause 20 of Schedule 9 of these Orders.

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

Subsection 18.02 (2) of the Export Control (Prescribed Goods — General) Order 2005 does not apply to instruments in writing mentioned in column 2 for the following items listed in column 1 of the table for subsection 18.02 (2) that are made in relation to processed food under the Orders repealed by section 18.01 of the Export Control (Prescribed Goods — General) Order 2005:

(a) items 1 and 2;

(b) items 6 to 16;

(d) items 22 and 23.

Note For transitional provisions for export permits referred to in item 12 of the table for subsection 18.02 (2) of the Export Control (Prescribed Goods — General) Order 2005 see suborders 1.07 (3) and 1.07 (4) of these Orders.

Schedule 1 Registration

TABLE OF CONTENTS

Clause

PART 1 — PLANS AND SPECIFICATIONS

Division I — Application for registration

1. Plans and specifications for application for registration

2. Plans for land based establishments

3. Plans for fishing vessels

4. Details to be shown in specifications

Division II — Alterations and additions

5. Proposals for alterations or additions

6. Requirements for plans and specifications

PART 2 — APPROVAL TO PREPARE PROCESSED FOOD IN AN UNREGISTERED ESTABLISHMENT

7. Application for approval for a limited number of exports

8. Approval

9. Exemption from compliance with orders

10. Approval may be subject to conditions

11. Revocation of approval

12. Termination of approval

13 Effect of revocation or termination

Part 1 Plans and specifications

Division I Application for registration

Plans and specifications for application for registration

1.1 Plans and specifications of an establishment and equipment for use in operations to prepare processed food at the establishment must:

(a) accompany the application for registration of the establishment; or

(b) be made available to the Secretary on request.

Note For the requirement to apply for registration see section 4.03 of the Export Control (Prescribed Goods — General) Order 2005.

1.2 The plans and specifications must be sufficiently detailed to show whether the establishment and equipment would, if constructed in accordance with the plans and specifications, be suitable for preparing (in accordance with the requirements of these Orders) processed food at the establishment.

Plans for land based establishments

2.1 In the case of a land based establishment, the plans must include:

(a) a locality map showing the site; and

(b) a site plan showing:

(i) the layout of the entire premises; and

(ii) access roads and roads at the establishment; and

(iii) the water supply; and

(iv) stormwater and waste water drainage; and

(v) on site waste disposal (if any); and

(vi) the amenities; and

(vii) all features of the site and its location that are relevant to whether the premises would comply with the applicable requirements of the Export Control (Prescribed Goods — General) Order 2005 and these Orders; and

(viii) adjoining sites including location of adjacent establishments; and

(ix) the north compass point; and

(x) the scale used in the plan; and

(c) a floor plan of all processed food handling areas (including laboratories) showing all permanent fixtures and the layout of equipment (other than implements and utensils); and

(d) a description of all equipment (other than implements and utensils) for the preparation of processed food at the premises.

Note For the meaning of equipment and food handling area see order 8.

Plans for fishing vessels

3.1 For fishing vessels used to prepare fish for export, the plans must include:

(a) above and below deck layout, including position of all major facilities for use for handling the fish; and

(b) a description of all equipment (other than implements and utensils) used for the preparation of the fish.

Details to be shown in specifications

4.1 The specifications must show details of:

(a) construction materials of the premises including fixtures; and

(b) construction materials of the equipment (other than implements and utensils) used in food handling areas; and

(d) surfaces in contact with processed food or ingredients; and

(e) essential services.

Note For the meaning of essential services see order 8.

Division II Alterations and additions

Proposals for alterations or additions

5.1 For the purposes of section 4.20 of the Export Control (Prescribed Goods — General) Order 2005 plans and specifications relevant to an alteration or addition to an establishment and equipment for use in operations to prepare processed food at the establishment must:

(a) accompany the proposal for the alteration or addition; or

(b) be made available to the Secretary on request.

5.2 The plans and specifications must be sufficiently detailed to show whether the establishment and equipment would if altered or extended in accordance with the plans and specifications, be suitable for preparing (in accordance with the requirements of these Orders) the processed food at the establishment.

Requirements for plans and specifications

6.1 The plans and specifications for an alteration or addition must contain such information specified in clauses 2 to 4 of this Schedule as is relevant to the alteration or addition.

Part 2 Approval to prepare processed food in an unregistered establishment

Note The intention of this Part is to facilitate the export of small volumes of processed food from unregistered establishments for the purpose of testing the markets for new products while ensuring that fitness for human consumption is maintained. See further order 34.

Application for approval for limited number of exports

7.1 A person who is or is to be the occupier of an establishment may apply to the Secretary for approval to prepare processed food of the kind specified in the application for export in an unregistered establishment.

Note For other grounds of exemptions, see Division VI of Part 2 of these Orders.

7.2 The application must:

(a) describe each process to be used in preparing the food; and

(b) identify the country to which it is intended to export the food.

Approval

8.1 If the Secretary is satisfied that the applicant will comply with:

(a) the requirements of Part 3 of these Orders; and

(b) applicable importing country requirements;

the Secretary may give the applicant approval to prepare at the unregistered establishment processed food for export as food to a country specified in the approval.

8.2 The approval takes effect:

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

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

8.3 The notice must specify:

(a) the period within which the food must be exported, being a period of not more than 12 months after the day on which the approval is granted; and

(b) the number of consignments (being not more than five) of the processed food that may be prepared for export in the establishment; and

Note A reference in these Orders to a registration number includes the registration number referred to in paragraph 8.3 (c), see the meaning of registration number in order 8.

8.4 No more than one approval may be given under subclause 8.1 for processed food prepared in the unregistered establishment being processed food of the kind specified in the application that is for export to the country specified in the application.

8.5 If the Secretary decides not to give approval under subclause 8.1 the Secretary must give the applicant written notice of:

(a) the decision; and

(b) the reasons for the decision.

Exemption from compliance with orders

9.1 The Secretary may:

(a) specify in the approval given under subclause 8.1 of this Schedule that the establishment is exempt from one or more of the requirements of Schedule 2 specified in the approval; and

(b) by written notice vary or revoke the specification made under paragraph 9.1 (a).

9.2 If the approval has effect the requirements specified in the notice do not apply to establishment.

Approval may be subject to conditions

10.1 The Secretary may:

(a) give approval under subclause 8.1 of this Schedule subject to conditions specified in the notice of approval; and

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

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

Revocation of approval

11.1 The Secretary may revoke an approval given under subclause 8.1 of this Schedule if the Secretary has reasonable grounds to believe:

(a) a circumstance specified in paragraphs 21.1 (a) to (e) of Schedule 2 exists; or

(b) the person to whom the approval is given ceases to be the occupier of the establishment.

11.2 The revocation takes effect:

(a) when written notice of it is given to the person to whom the notice of the approval was given under subclause 8.2; or

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

Termination of approval

12.1 The occupier may terminate the approval by giving the Secretary written notice of the termination.

12.2 The termination takes effect:

(a) 7 days after the notice is given to the Secretary; or

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

Effect of revocation or termination

13.1 On revocation or termination:

(a) the approval ceases to have effect; and

(b) the orders that are specified under subclause 9.1 as not applying apply.

Schedule 2 Management of food safety and suitability

TABLE OF CONTENTS

Clause

PART 1 — MANAGEMENT OF FOOD SAFETY AND SUITABILITY

Division I — General requirements

1. Occupier’s commitment

Division II — Approved arrangements

2. Minimum requirements approved arrangements

3. HACCP plan

Division III — Management practices

4. Management practices, organisational structure, resources and competence

5. Person in management or control must be present

6. Verification

7. Corrective and preventative action

8. Internal audit and management review

9. Sampling and analysis

10 Notifiable diseases

11. Requirements to retain documents

PART 2 — APPROVED ARRANGEMENTS

Division I — Approval of arrangements

12. Application for approval

13. Assessment of application and Secretary’s decision

14. When the Secretary may approve the arrangement

15. Notice of a decision not to approve an arrangement

16. Approved arrangement may be subject to conditions

Division II — Variation of approved arrangement

17. Variations to be recorded

18. Variations requiring notification and approval before implementation

19. Variations required by the Secretary

20. When an arrangement includes a variation

Division III — Suspension and revocation

21. Grounds for suspension or revocation

22. Notice of suspension or revocation

23. Revocation of suspended arrangement

24. Termination

25. Secretary may require the occupier to take action

26. Occupier must comply with notice

27. When an approved arrangement ceases to have effect

Part 1 Management of food safety and suitability

Division I General requirements

Occupier’s commitment

1.1 The commitment of the occupier of an establishment used to prepare processed food for export as food to:

(a) the objectives specified in suborders 3.1 and 3.2; and

(b) compliance with the requirements of these Orders and applicable importing country requirements;

must be documented.

Note 1 For the meaning of occupier see order 8.

Note 2 The occupier of a registered establishment and of an unregistered establishment with approval to prepare processed food given under Part 2 of Schedule 1 must comply with this Schedule, see suborder 37.1. For exemptions from compliance with specified requirements of this Schedule given to the occupier who has approval to prepare processed food in an unregistered establishment see clause 9 of Schedule 1.

Note 3 For when the occupier of an unregistered establishment (ie a catcher boat) need not comply with this Schedule see suborder 37.2.

Division II Approved arrangements

Minimum requirements for approved arrangements

2.1 An arrangement for the preparation of processed food at an establishment that is required for the purposes of order 36 of these Orders must cover each step of the preparation of processed food undertaken at the establishment and must:

(a) contain a HACCP plan referred to in clause 3 of this Schedule; and

(b) document the controls used to ensure that the applicable requirements of these Orders (other than a requirement of Schedule 3) are complied with at the establishment; and

(c) identify the applicable importing country requirements and document the controls used to ensure compliance with these requirements; and

(d) document any other measures necessary to ensure there is a sound basis for giving any export permit or issuing any government certificate for processed food prepared at the establishment.

Note 1 For the requirement for the occupier to have an approved arrangement see order 36.

Note 2 For the meaning of export permit, government certificate, HACCP and importing country requirement see order 8.

Note 3 For requirements for ascertaining export eligibility to a particular country see clause 53 of Schedule 5. For the issue of a government certificate required by an importing country authority see Part 2 of Schedule 9.

2.2 Paragraphs 2.1 (c) applies only to each importing country requirement for which compliance with these Orders would not be sufficient to result in compliance with the importing country requirement.

Note 1 For example subclause 2.2 refers to importing country requirements that are in addition to or more stringent than the requirements of these Orders.

Note 2 For regulatory arrangements where compliance with an importing country requirement would not result in compliance with these Orders see order 87.

HACCP plan

3.1 The HACCP plan must identify each of the steps in the preparation of the food.

Note For guidance see the Codex requirements for a HACCP plan. A flow chart may be used.

3.2 For each step the HACCP plan must identify the potential hazards that may reasonably be expected to occur.

Note For the meaning of hazard see order 8.

3.3 The HACCP plan must identify the means of control of each potential hazard.

3.4 Despite subclause 3.3 hazards controlled by meeting the operational hygiene requirements of these Orders need not be identified as part of the HACCP plan.

Note For examples of operational hygiene requirements referred to in subclause 3.4 see the requirements in Schedule 4 for cleaning, pest controls, hazardous substances and the like which must be included as part of the approved arrangement, see paragraph 2.1 (b) of this Schedule.

3.5 For each significant hazard that is identified the HACCP plan must identify:

(a) the critical control points; and

(b) the critical limits; and

(i) the frequency with which these procedures are to be performed; and

(ii) the person, or persons included in a class of persons, who are to carry out these procedures; and

(d) the corrective action to be taken if a critical limit is exceeded.

Note For the meaning of critical control point, critical limit and monitor see order 8.

3.6 The action that referred to in paragraph 3.5 (d) includes:

(a) action to address the fact the critical limit is exceeded; and

(b) action to ensure that the exceeding of the critical limit does not recur; and

3.7 The HACCP plan must identify procedures used to verify compliance with the HACCP plan and the frequency with which these procedures are to be performed.

3.8 The HACCP plan must provide for records to be made and documents to be kept to demonstrate compliance with the HACCP plan and its effectiveness.

Note For requirements for validation see for example clause 12 of Schedule 4 and clauses 24 to 31 and 39 to 41 of Schedule 5.

3.9 In this clause:

a significant hazard means a hazard (or a hazard in combination with other hazards) that is of such a nature that its elimination, control or reduction to an acceptable level is essential to the production of safe food.

Division III Management practices

Management practices, organisational structure, resources and competence

4.1 The management practices, organisational structure, provision of resources and the provision of personnel and their competence (including knowledge, training, skills and experience) must:

(a) be documented; and

(b) be appropriate to ensure each of the following are met:

(i) the applicable requirements of these Orders;

(ii) the applicable importing country requirements.

Person in management or control must be present

5.1 A person in management or control of the operations must be present whenever operations to prepare processed food for export as food are in progress.

Note For the meaning of person in management or control see order 8.

5.2 If an occupier of an establishment, who must under suborder 37.1 ensure the requirements of this Schedule are complied with, fails to comply with a requirement of subclause 5.1 the occupier is guilty of an offence.

Level 3 penal provision

Note A level 3 penal provision means a person who is guilty of the relevant offence is punishable by a fine of 30 penalty units, see Regulation 4 of the Export Control (Orders) Regulations 1982.

Verification

6.1 Whether the following are complied with must be verified:

(a) the applicable requirements of Division III of Part 3 of these Orders; and

(b) the importing county requirements identified in the approved arrangement.

Note For the meaning of verify see order 8. Verification could for example include sampling procedures.

6.2 A written record must be made of:

(a) the methods, procedures, tests, monitoring and other evaluations used to verify compliance; and

(b) the results of the verification.

Corrective and preventative action

7.1 If a requirement of Division III of Part 3 of these Orders or an importing country requirement identified in the approved arrangement is not complied with or is not likely to be complied with:

(a) action must be taken:

(i) to address the fact the requirement is not complied with or is not likely to be complied with; and

(ii) to ensure that the failure to comply with the requirement, or the likelihood that it is not complied with, does not recur; and

(b) the effectiveness of the action taken must be assessed.

Note For directions to take action to correct or prevent the recurrence of a non compliance see Part 8 of these Orders.

7.2 A written record must be made of the action referred to in paragraph 7.1 (a) that is taken and the assessment of its effectiveness.

Internal audit and management review

8.1 Internal audits and management reviews of the effectiveness of the management practices at the establishment in meeting:

(a) the requirements of Division III of Part 3 of these Orders; and

(b) the importing country requirements identified in the approved arrangement;

must be conducted at least once every twelve months.

Note For external audits see Part 6 of these Orders.

8.2 A written record must be made of:

(a) the internal audits and managements reviews conducted; and

(b) the results of the audits and reviews.

Note 1 For other examples of requirements to make records see subclause 3.8 and clause 17 of this Schedule, clause 1 of Schedule 4 and clause 5 of Schedule 8. See also order 83.

Note 2 For making electronic records see subsection 12 (1) of the Electronic Transactions Act 1999.

8.3 For an establishment employing less than three people subclause 8.1 is taken to be satisfied if a management review is conducted.

Sampling and analysis

9.1 Sampling and the analysis of a sample made for the purposes of these Orders must be made in accordance with the method for sampling and analysis specified in these Orders.

Note For an example of methods of sampling and analysis specified in these Orders see clause 4 of Schedule 6.

9.2 If a method of sampling and analysis is not specified in these Orders the sampling and analysis must be made in accordance with:

(a) an applicable method specified in the Food Standards Code; or

(b) an applicable method specified in a relevant standard published by Standards Australia; or

(c) any other validated science based method that is appropriate for the sample to be tested and that ensures the accuracy of the results obtained.

Notifiable diseases

10.1 If an animal from which processed food is derived:

(a) is at an establishment used to prepare processed food for export; and

(b) is affected by or is suspected of being affected by a notifiable disease;

the occupier of the establishment must notify an authorized officer without delay.

Note For the meaning of notifiable disease see order 8.

10.2 If an occupier of an establishment, who must under suborder 37.1 ensure the requirements of this Schedule are complied with, fails to comply with a requirement of subclause 10.1 the occupier is guilty of an offence.

Level 5 penal provision

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

Requirement to retain documents

11.1 Each document that:

(a) is made by the occupier of an establishment or that comes into the possession of the occupier of an establishment used for the preparation of processed food; and

(b) is relevant to whether the occupier complies with:

(i) the requirements of the Act, these Orders or the occupier’s approved arrangement or a condition of that arrangement; and

(ii) the importing country requirements identified in the approved arrangement;

must be retained for a period of not less than three years from the time the document is made by the occupier or comes into the occupier’s possession (as the case may be).

Note 1 For retaining records electronically see subsection 12 (2) of the Electronic Transactions Act 1999.

Note 2 For suspension or revocation of an approved arrangement if the occupier fails to make available to an authorized officer documents the occupier is required to retain see paragraph 21.1 (e) of this Schedule.

Note 3 For audit of these documents see Part 6 of these Orders.

11.2 If an occupier of an establishment, who must under suborder 37.1 ensure the requirements of this Schedule are complied with, fails to comply with a requirement of subclause 11.1 the occupier is guilty of an offence.

Level 5 penal provision

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

Part 2 Approved arrangements

Division I Approval of arrangements

Application for approval

12.1 A person who is or is to be the occupier of an establishment may apply to the Secretary for approval of an arrangement for the preparation of processed food.

Note A person includes a body politic as well as a natural person, see paragraph 22 (1) (a) of the Acts Interpretation Act 1901. (See also section 13 of the Legislative Instruments Act 2003.)

12.2 The arrangement for which approval is sought must:

(a) accompany the application; or

(b) be made available for evaluation by the Secretary.

Assessment of application and Secretary’s decision

13.1 For the purposes of assessing the application the Secretary must:

(a) evaluate the arrangement in a desk audit; and

(b) conduct an inspection of the establishment, facilities, equipment and services to be used in the operations.

13.2 The Secretary may in order to consider the application request any of the following that the Secretary reasonably requires:

(a) further information or documents of the kind specified by the Secretary;

(b) a demonstration of the operations and procedures to be followed;

(c) the applicant’s consent to the use (at the applicant’s expense) of an appropriately qualified person nominated by the Secretary in any inspection, evaluation or demonstration.

13.3 If the Secretary has not made a decision on whether to approve the arrangement within 60 days after the day the application is received (not including any period between the Secretary making a written request under subclause 13.2 and the applicant meeting the request) the Secretary is taken to have refused the application.

When the Secretary may approve the arrangement

14.1 The Secretary may by written notice given to the applicant approve the arrangement if the Secretary is satisfied that:

(a) the arrangement complies with subclause 2.1 of this Schedule; and

(b) compliance with the controls specified in the arrangement will ensure that:

(i) the requirements of these Orders will be complied with at the establishment; and

(ii) the applicable importing country requirements will be complied with at the establishment; and

(iii) there is a sound basis for giving any export permit or issuing any government certification for processed food prepared at the establishment; and

14.2 The approval takes effect:

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

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

Notice of decision not to approve an arrangement

15.1 If the Secretary decides not to approve an arrangement, the Secretary must give the occupier written notice of the decision.

15.2 The notice must:

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

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

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

Approved arrangement may be subject to conditions

16.1 The Secretary may:

(a) approve an arrangement subject to conditions specified in the notice of approval; and

(b) by written notice given to the occupier of an establishment impose new conditions or vary or revoke the conditions.

16.2 The conditions must be for the purpose of ensuring compliance with the matters specified in subparagraphs 14.1 (b) (i), 14.1 (b) (ii) and 14.1 (b) (iii) of this Schedule.

Note If there is non compliance with the arrangement or its conditions (including with an importing country requirement specified in the approved arrangement) the Secretary may suspend or revoke the arrangement, see paragraph 21.1 (a) of this Schedule. Non compliance may preclude the issue of an export permit, see Division IV of Schedule 9 or the issue of a government certificate, see Part 2 of Schedule 9. For audit of compliance with an approved arrangement see Part 6 of these Orders. For directions to take action to correct or prevent the recurrence of a non compliance see Part 8 of these Orders.

Division II Variation of approved arrangement

Variations to be recorded

17.1 The occupier must make a record of each variation of an approved arrangement.

Level 2 penal provision

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

Variations requiring notification and approval before implementation

18.1 A proposed variation (or a proposed variation in combination with other variations) to an arrangement that has the potential to adversely affect:

(a) the likelihood of compliance with the requirements of these Orders or an applicable importing country requirement; or

(b) the fitness for human consumption or integrity of processed food at the establishment; or

(i) there is compliance with requirements of these Orders or an applicable importing country requirement; or

(ii) processed food at the establishment is fit for human consumption and its integrity is assured;

must not be implemented unless:

(d) the occupier of the establishment make a written application to the Secretary for approval to vary the arrangement; and

(e) the Secretary gives the occupier a written notice approving the variation.

Level 5 penal provision

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

Note 2 Variations (including variations not covered by clause 18) need to be recorded (see clause 17 of this Schedule). Variations not covered by clause 18 are to be considered for approval by the auditor at the time of audit.

18.2 A proposed variation of a provision of an approved arrangement (or a proposed variation in combination with other variations) that:

(a) identifies persons in management or control or their functions (including as it designates persons who may make declarations or possess, alter, interfere with or apply an official mark) under these Orders; or

(b) relates to any of the following:

(i) an alternative, procedure, standard or other requirement referred to in suborder 86.5 of these Orders;

(ii) a control referred to in suborder 87.6 of these Orders;

(iii) an alternative requirement or control referred to in these Orders;

(iv) a matter referred to in subclause 11.2 of Schedule 9;

must not be implemented unless:

(c) the occupier of the establishment makes a written application to the Secretary for approval to vary the arrangement; and

(d) the Secretary gives the occupier a written notice approving the variation.

Level 5 penal provision

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

Note 2 For the meaning of person in management or control see order 8.

Note 3 For an example of an alternative requirement or control referred to in subparagraph 18.2 (b) (iii) see subclause 24.1 of Schedule 5 and subclauses 1.3, 2.3, 3.3 or 4.3 of Schedule 6.

Variations required by the Secretary

19.1 The Secretary may give the occupier of an establishment a written notice requiring the occupier to submit a variation of an approved arrangement if:

(a) circumstances relating to the preparation of the food at the establishment change; or

(b) the Secretary is not satisfied that compliance with the controls specified in the approved arrangement for the preparation of processed food ensures that the matters specified in subparagraphs 14.1 (b) (i), 14.1 (b) (ii) and 14.1 (b) (iii) of this Schedule are complied with; or

(d) the person to whom the Secretary gives the approval of an arrangement under clause 14 of this Schedule ceases to be the person in charge of the operations to prepare processed food at the establishment.

Note For the requirement to notify the Secretary of changes persons in management or control see Division 4.4 of Part 4 of the Export Control (Prescribed Goods — General) Order 2005.

19.2 The notice must:

(a) specify the variation required; and

(b) specify the period within which the variation must be submitted to the Secretary.

19.3 The Secretary may give the occupier a notice approving the variation submitted.

19.4 An occupier who is given a notice under subclause 19.1 must not fail to submit the variation specified in the notice within the period specified.

When an arrangement includes a variation

20.1 An approved arrangement includes a variation to the arrangement.

20.2 If a variation is of a kind referred to in subclauses 18.1, 18.2 or 19.1 of this Schedule, then the approved arrangement includes the variation only when the Secretary gives a notice approving the variation in accordance with paragraphs 18.1 (e) or 18.2 (d) or subclause 19.3 (as the case may be).

Division III Suspension and revocation

Grounds for suspension or revocation

21.1 The Secretary may give the occupier of an establishment written notice suspending or revoking the approval of an arrangement if the registration of the establishment is revoked or the Secretary has reasonable grounds to believe that:

(a) a requirement of any of the following is not complied with by the occupier:

(i) these Orders;

(ii) the occupier’s approved arrangement or a condition of that arrangement (including an importing country requirement identified in that arrangement); or

(b) compliance with the controls specified in the approved arrangement is unreliable or not effective in ensuring that the matters specified in subparagraphs 14.1 (b) (i), 14.1 (b) (ii) or 14.1 (b) (iii) of this Schedule are met; or

(c) the occupier or a person in management or control of the establishment has, in an application or other document given to the Secretary or in a document or information that must under a requirement these Orders or the occupier’s approved arrangement or a condition of that arrangement be made or given, made a statement:

(i) that is false, misleading, or incomplete; or

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

(d) the occupier fails to provide such assistance to an auditor as is reasonably necessary to enable the auditor to perform an audit of the establishment; or

(e) the occupier fails to make available to an authorized officer a document that, under a requirement of these Orders or the occupier’s approved arrangement or a condition of that arrangement, the occupier is required to retain; or

(f) the person to whom the Secretary gives the approval of the approved arrangement ceases to be the person in charge of the operations to prepare processed food at the establishment.

Note 1 For the meaning of person in management or control see order 8.

Note 2 For penal provisions relating to requirements to give information or documents to an authorized officer or the Secretary see Part III, Division 7 of the Act.

Note 3 For requirements to retain documents see clause 11 of this Schedule.

Note 4 For the requirement to notify the Secretary of changes to persons in management or control etc see Division 4.4 of Part 4 of the Export Control (Prescribed Goods — General) Order 2005.

21.2 The Secretary may suspend or revoke the approval of an arrangement at the written request of the occupier.

21.3 The suspension or revocation of the approval of the arrangement may be:

(a) in full; or

(b) in part, in respect of:

(i) one or more of the processed foods prepared at the establishment; or

(ii) one or more of the stages of preparation of the food.

21.4 The suspension or revocation takes effect:

(a) when written notice of it is given to the person to whom the approval was given under clause 14.2; or

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

Notice of suspension or revocation

22.1 If the Secretary suspends or revokes the approval of an arrangement, the Secretary must give the occupier written notice of:

(a) the reason for the suspension or revocation; and

(b) the occupier’s right to apply for reconsideration of the decision to suspend or revoke; and

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

22.2 A period of suspension must not exceed 12 months and may be extended only if the total period does not exceed 12 months.

Revocation of suspended arrangement

23.1 The Secretary may revoke an approval of an arrangement that is suspended despite the fact that the period of suspension has not expired.

23.2 The Secretary may revoke an arrangement that is suspended on grounds that are the same as or similar to the grounds for the suspension.

Termination

24.1 An occupier may terminate the occupier’s approved arrangement:

(a) in full; or

(b) in part, in respect of:

(i) one or more of the processed foods prepared at the establishment; or

(ii) one or more of the stages of preparation of the food;

by giving the Secretary written notice of the termination.

24.2 The termination takes effect:

(a) 7 days after the notice is given to the Secretary; or

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

Secretary may require the occupier to take action

25.1 If the approval of an arrangement (or part of an arrangement) at an establishment:

(a) is suspended or revoked; or

(b) is terminated;

the Secretary may, by giving the occupier of the establishment a notice, require the occupier to take action within the period specified in the notice in respect of any of the following:

(d) any export permits or government certificates the Secretary has issued or given to the occupier under these Orders;

(e) any processed food at the establishment.

25.2 The action referred to in subclause 25.1 must be action to ensure compliance by the occupier with one of more of the objectives specified in suborders 3.1 and 3.2.

Occupier must comply with notice

26.1 An occupier who is given a notice under subclause 25.1 must take the action specified in the notice within the period specified.

Level 5 penal provision

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

When an approved arrangement ceases to have effect

27.1 An approval of an arrangement (or a part of an arrangement) ceases to have effect if the approval of the arrangement (or that part of the arrangement) is revoked or terminated.

Note For revocation or termination in part see subclause 21.3 and clause 24 of this Schedule.

27.2 An approval of an arrangement (or a part of an arrangement) ceases to have effect for the period of its suspension.

Schedule 3 Structural requirements

TABLE OF CONTENTS

Clause

PART 1 — REQUIREMENTS FOR PROCESSED FOOD ESTABLISHMENTS

Division I — Premises, equipment and vehicles

1. Provision of facilities and equipment

2. Construction of premises

3. Construction must comply with plans and specifications

4. Immediate surrounds

5. Floors

6. Walls and ceilings

7. Fixtures, fittings and equipment — general requirement

8. Construction of fixtures, fittings and equipment

9. Food carrying compartments, container system units and vehicles

10. Measuring devices

11. Storage facilities for items other than processed food

Division II — Cleaning and sanitising facilities

12. Cleaning and sanitising premises and equipment

13. Handwashing facilities

Division III — Amenities

14. Amenities

Division IV — Essential Services

15. General requirement

16. Effluent and waste

17. Facilities for storage of waste and inedible material

18. Lighting

19. Ventilation

20. Water supply

PART 2 — APPLICATION OF THIS SCHEDULE: CATCHER BOATS, REGISTERED FISHING VESSELS AND LIVE FISH PACKING ESTABLISHMENTS

21. Catcher boats

22. Registered fishing vessels

23. Live fish packing establishments

Part 1 Requirements for processed food establishments

Division I Premises, equipment and vehicles

Provision of facilities and equipment

1.1 Establishments used to prepare processed food must have the premises, facilities, equipment and vehicles that are necessary to ensure the preparation of processed food is conducted in accordance with the requirements of these Orders.

Note 1 Premises includes for example a ship, a building and any part of a building (eg fittings and fixtures) see section 3 of the Act.

Note 2 For the meaning of equipment and vehicle see order 8.

Note 3 For when Part 1 of this Schedule does not apply to catcher boats, registered fishing vessels and live fish packing establishments see Part 2 of this Schedule.

Construction of premises

2.1 The premises and their construction must:

(a) facilitate the preparation of processed food that is fit for human consumption; and

(b) be fit for the purpose for which they are used; and

(d) permit the premises to be effectively cleaned and, if necessary, sanitised if there is a risk they may cause contamination of processed food; and

(e) permit the premises to be effectively accessed, inspected and monitored; and

(f) not permit the harbourage of pests; and

(g) to the extent that is practicable:

(i) exclude dirt, dust, fumes, smoke and other contaminants; and

(ii) not permit the entry of pests; and

(iii) minimise the accumulation of contaminating substances.

Note For the meaning of construction, pest, sanitise and substance see order 8.

Construction must comply with plans and specifications

3.1 The construction of the premises and equipment must, in the case of registered establishments, comply with the plans and specifications in relation to which the Secretary registers the establishment.

Note For plans and specifications see Part 1 of Schedule 1.

3.2 Alterations or additions for which a proposal is required under section 4.20 of the Export Control (Prescribed Goods — General) Order 2005 must comply with the plans and specifications in relation to which approval for the proposal is given.

Immediate surrounds

4.1 Areas immediately surrounding buildings, roads and other areas serving land based premises used to prepare processed food must:

(a) be paved, graded, landscaped or otherwise treated so as to minimise the risk of dust, pests or contaminants entering food handling areas; and

(b) be adequately drained.

Floors

5.1 Floors must be constructed in a way that is appropriate for the preparation of processed food at the premises.

5.2 Floors (including stairs, platforms and the like) in food handling areas, areas used for cleaning and sanitising and areas for personal hygiene must:

(a) be able to be effectively cleaned and if necessary, sanitised if there is a risk they may cause contamination of processed food; and

(b) be smooth and impervious; and

(d) not permit the harbourage of pests; and

(e) to the extent that is practicable:

(i) exclude dirt, dust, fumes, smoke and other contaminants; and

(ii) not permit the entry of pests; and

(iii) minimise the accumulation of contaminating substances.

Note For the meaning of food handling area see order 8.

5.3 Subclause 5.2 does not apply to floors in food handling areas on ships that are not enclosed.

5.4 Subclause 5.2 does not apply to areas for cleaning vehicles.

5.5 The floors of areas for cleaning vehicles must:

(a) be able to be effectively cleaned; and

(b) have impervious surfaces; and

Walls and ceilings

6.1 Walls and ceilings must:

(a) be provided where they are necessary to protect processed food or ingredients from contamination; and

(b) be constructed in a way that is appropriate for the activities conducted at the premises.

6.2 Walls and ceilings in food handling areas and in areas used for cleaning and sanitising and for personal hygiene must:

(a) be able to be effectively cleaned and if necessary, sanitised if there is a risk they may cause contamination of processed food; and

(b) be smooth and impervious; and

(i) exclude dirt, dust, fumes, smoke and other contaminants; and

(ii) not permit the entry of pests; and

(iii) minimise the accumulation of contaminating substances (including condensation).

6.3 Subclause 6.2 does not apply to areas for cleaning vehicles.

6.4 The walls and ceilings of areas for cleaning vehicles must:

(a) be able to be effectively cleaned; and

(b) have impervious surfaces.

Fixtures, fittings and equipment — general requirement

7.1 The fixtures, fittings and equipment (including in refrigeration chambers and storage areas) must:

(a) facilitate the preparation of processed food that is fit for human consumption; and

(b) be fit for the purpose for which they are used; and

(c) have sufficient capacity for the maximum quantity of processed food prepared at any one time using the fixtures, fittings and equipment concerned.

Note 1 For the meaning of refrigeration chamber and storage area see order 8.

Note 2 For example refrigeration chambers need to have adequate capacity. For validation of refrigeration chambers see clause 12 of Schedule 4.

Construction of fixtures, fittings and equipment

8.1 The fixtures, fittings and equipment must be constructed so that:

(a) they do not cause contamination of processed food; and

(b) they are able to be easily and effectively cleaned, and if necessary, sanitised if there is a risk they may cause contamination of processed food; and

(d) they can be effectively accessed, inspected and monitored; and

(e) to the extent practicable they:

(i) exclude dirt, dust, fumes, smoke and other contaminants; and

(ii) do not permit the entry or harbourage of pests; and

(iii) minimise the accumulation of contaminating substances.

8.2 Food contact surfaces of fixtures, fittings and equipment must:

(a) be able to be easily and effectively cleaned and, if necessary sanitised, if there is a risk they may cause contamination of processed food; and

(b) be smooth and impervious; and

Note 1 Equipment includes implements but does not include vehicles used to transport processed food, see order 8. However equipment does include things used to handle and load processed food during transport. For requirements for vehicles used to transport processed food clause 9 of this Schedule.

Note 2 For the meaning of food contact surface see order 8.

Food carrying compartments, container system units and vehicles

9.1 Container system units and the food carrying compartments of vehicles used for the transport of processed food must be designed and constructed:

(a) to protect processed food if there is a likelihood of its being contaminated during transport; and

(b) so that they are able to be effectively cleaned.

9.2 Food contact surfaces of:

(a) container system units; and

(b) the food carrying compartments referred to in subclause 9.1;

must be constructed so that they are able to be effectively cleaned and if necessary sanitised.

9.3 Container system units and the food carrying compartments of vehicles used for the transport of chilled or frozen processed food must be effectively insulated, constructed and equipped to maintain the food at the temperatures required in clause 28 of Schedule 5.

9.4 The food carrying compartment need not comply with subclauses 9.1 or 9.3 if the processed food is transported in a container system unit that meets the requirements of subclause 9.1 or 9.3 (as the case may be).

Note 1 For the meaning of container system unit, food carrying compartment and vehicle see order 8.

Note 2 Clause 9 applies to all food carrying compartments used to transport processed food including live fish.

Note 3 For transport see further clause 4 of Schedule 4, Parts 5 and 6 of Schedule 5 and clause 14 of Schedule 8.

Measuring devices

10.1 Measuring instruments that are relevant to whether the requirements of these Orders are complied with must:

(a) enable measurements to be accurately calculated using standard units of measurement; and

(b) meet levels of tolerance that are appropriate to the measurements taken; and

Note For the calibration of measuring devices see clause 11 of Schedule 4.

10.2 Temperature measuring devices must be able to measure the temperature of processed food to an accuracy of +/-1°C.

10.3 Refrigeration chambers and other equipment used for controlling the temperature of processed food must have a readily accessible temperature measuring device.

Note 1 For guidance on Australian legal units of measurements and tolerances, reference may be had to the National Measurement Act 1960. For the application of the National Measurement Act 1960 in relation to contracts, dealings or transactions made or entered into in connection with the exportation of goods, see section 13 of that Act.

Note 2 For validation of refrigeration chambers see clause 12 of Schedule 4.

Storage facilities for items other than processed food

11.1 The premises must have adequate facilities for the storage of items that could contaminate processed food, including chemicals, clothing and personal belongings.

11.2 The facilities must be located where there is no risk of stored items contaminating processed food.

Division II Cleaning and sanitising facilities

Cleaning and sanitising premises and equipment

12.1 The premises must have appropriate facilities for cleaning and sanitising premises and equipment.

12.2 Facilities for cleaning and sanitising equipment in contact with processed food must be located where they can be readily accessed by food handlers engaged in activities that require the cleaning and sanitising of the equipment.

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

Note 2 For floors, walls and ceilings in areas used for cleaning see clauses 5 and 6 of this Schedule.

Note 3 See further clauses 8 and 9 of Schedule 4 for requirements for the use and storage etc of chemicals and other hazardous substances.

Hand washing facilities

13.1 The premises must have handwashing facilities.

13.2 The hand washing facilities must be located near or adjacent to areas where food handlers work if there is a risk that their hands could be a source of contamination of processed food or ingredients.

13.3 The hand washing facilities must:

(a) have an adequate supply of warm, or hot and cold potable water over a sink; and

(b) have a suitable hand sanitising preparation; and

(d) have non hand operated taps (other than in an establishment preparing milk and milk products); and

(e) be clearly designated for the sole purpose of washing hands, arms and face.

Note For when catcher boats, registered fishing vessels and live fish packing establishments need not comply with the requirements of this clause see Part 2 of this Schedule.

Division III Amenities

Amenities

14.1 The premises must have adequate and conveniently located amenities for the use of food handlers.

Note For the meaning of amenities see order 8.

14.2 The amenities must:

(a) be physically separated from food handling areas and must not open directly onto these areas; and

(b) be well lit and ventilated; and

Note For the removal and storage of waste see clauses 16 and 17 of this Schedule.

14.3 Hand washing facilities must be provided near toilets.

14.4 The hand washing facilities must have:

(a) an adequate supply of warm, or hot and cold potable water over a sink; and

(b) a suitable hand sanitising preparation; and

Note 1 Contrast requirements in clause 13 of this Schedule for hand washing facilities.

Note 2 For when catcher boats, registered fishing vessels and live fish packing establishments need not comply with the requirements of this clause see Part 2 of this Schedule.

Division IV Essential services

General requirement

15.1 The premises must have the essential services that are necessary to ensure the preparation of processed food for export as food that is fit for human consumption.

Note For the meaning of essential services see order 8.

Effluent and waste

16.1 The premises must have a sewerage and waste system that:

(a) effectively disposes of and, if necessary, treats all sewage and waste, including during peak load; and

(b) prevents the sewage or waste polluting the establishment’s water supply or contaminating processed food; and

(i) is contained; and

(ii) is directed to the drainage system.

Note 1 Subparagraph 16.1 (c) (ii) would require for example that discharge from refrigeration be directed to the drainage system.

Note 2 For when catcher boats, registered fishing vessels and live fish packing establishments need not comply with the requirements of subparagraph 16.1 (c) (ii) see Part 2 of this Schedule.

Facilities for storage of waste and inedible material

17.1 The premises must have facilities for the separation and storage of waste and inedible material prior to its removal from the premises that adequately contain the volume and type of waste and inedible material on the premises.

17.2 The facilities and containers used for the waste and inedible material must:

(a) prevent access to waste or inedible material by pests; and

(b) prevent the waste or inedible material polluting the water supply or contaminating processed food; and

Lighting

18.1 The premises must have a lighting system that provides sufficient natural or artificial light for the activities conducted at the premises.

Note See for example AS 1680 Part 1-1990 Interior lighting: General principles and recommendations and AS/NZ 1680.2.4 1997 Industrial tasks and Processes.

18.2 The lighting system must not be a source of contamination.

Note Subclause 18.2 would require for example that light bulbs and lighting fixtures suspended over processed foods be protected.

Ventilation

19.1 The premises must have adequate ventilation (natural or mechanical):

(a) to effectively minimise the risk of airborne contamination (such as steam, smoke and condensation) of processed food; and

(b) where appropriate, to control ambient temperature.

Water supply

20.1 The premises must have a supply of potable water that is available for use at a volume, pressure and temperature that is adequate for the purposes for which the water is used.

Note 1 For the meaning of potable see order 8.

Note 2 For operational requirements for the use of water see clause 14 to 19 of Schedule 4.

20.2 Potable and non potable water must be supplied in separate lines (including outlets) that are readily identifiable as being for use for potable or non potable water (as the case may be).

20.3 Re-circulated water must have a separate distribution system which can be readily identified.

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

Catcher boats

21.1 Part 1 of this Schedule (other than clause 1) does not apply to a catcher boat.

21.2 Despite subclause 21.1 Part 1 of this Schedule applies to a catcher boat if the catcher boat is a registered fishing vessel.

21.3 Catcher boats and their construction must:

(a) be appropriate for the activities for which the catcher boat is used; and

(b) be able to be effectively cleaned; and

(d) have the necessary facilities and equipment to:

(i) prevent the contamination of fish during preparation and transport on the catcher boat; and

(ii) ensure the requirements for placing the fish under temperature controls are met.

Note For requirements to place fish under temperature controls see Part 2 of Schedule 5.

Registered fishing vessels

22.1 On written application by the occupier of a registered fishing vessel the Secretary may by written notice given to the occupier specify that one or more requirements of any of the following clauses of this Schedule do not apply to the registered fishing vessel:

(a) clause 13;

(b) clause 14;

Note For the meaning of registered fishing vessel see order 8.

22.2 The Secretary must not give the notice under subclause 22.1 unless the Secretary is satisfied that:

(a) it would be impracticable for the registered fishing vessel to comply with the requirement; and

(b) non compliance with the requirement does not jeopardise the fitness for human consumption of fish prepared on the registered fishing vessel.

22.3 The Secretary may amend or revoke the notice by giving the occupier of the registered fishing vessel a further written notice.

Live fish packing establishments

23.1 Areas of an establishment used solely for the following purposes:

(a) to pack live fish (other than shellfish);

(b) to grow and hold live fish prior to packing at the establishment;

are exempt from the requirements of paragraph 13.3 (d) of this Schedule.

Note For the meaning of shellfish see order 8.

23.2 On written application by the occupier of an establishment referred to in subclause 23.1 the Secretary may by written notice given to the occupier specify that one or more requirements of any of the following clauses of this Schedule do not apply to the establishment:

(a) clause 13 (other than paragraph 13.3 (d));

(b) clause 14;

23.3 The Secretary must not give the notice under subclause 23.2 unless the Secretary is satisfied that:

(a) it would be impracticable for the establishment to comply with the requirement; and

(b) non compliance with the requirement does not jeopardise the fitness for human consumption of fish for export as food prepared at the establishment.

23.4 The Secretary may amend or revoke the notice by giving the occupier of the establishment a further written notice.

Schedule 4 Operational hygiene

TABLE OF CONTENTS

Clause

PART 1 — GENERAL REQUIREMENTS

Division I — Hygiene controls for premises and equipment

1. Hygiene control program

2. Standard of cleanliness

3. Requirement to clean and maintain

4. Vehicles etc for the transport of processed food

5. Environmental contamination

6. Exclusion of animals

7. Pests

8. Hazardous substances

9. Use and storage of substances which could cause contamination

Division II — Hygiene requirements for processing

10. Measures to prevent contamination

11. Calibration of measuring instruments

12. Refrigeration chambers

13. Ingredients

14. Water must be potable

15. Microbial limits

16. Use of clean sea water

17. The supply of potable and non potable water

18. Steam

19. Compressed air and other gases

Division III — Personal hygiene and health requirements

20. Meaning of food handling area

21. Food borne diseases

22. Conditions

23. Personal cleanliness

24. Personal effects and clothing

25. Protective clothing

PART 2 — APPLICATION OF SCHEDULE: CATCHER BOATS

26. Catcher boats

Part 1 General requirements

Division I Hygiene controls for premises and equipment

Hygiene control program

1.1 A program of operational controls for the hygienic preparation of processed food must be documented and in place at premises used to prepare processed food.

Note 1 Premises includes a ship see section 3 of the Act.

Note 2 See the requirements in clause 2 of Schedule 2 for how the approved arrangement must document the controls used to ensure that the requirements of these Orders are met.

Standard of cleanliness

2.1 The premises must be maintained to a standard of cleanliness where there is no accumulation of:

(a) garbage, except in garbage containers; or

(b) recycled matter, except in recycling containers; or

(d) dirt; or

(e) grease; or

(f) other visible matter that could contaminate processed food.

2.2 Equipment used for the preparation of processed food must be maintained to a standard of cleanliness where there is no accumulation of:

(a) food waste; or

(b) dirt; or

(d) other visible matter that could contaminate processed food.

Note Equipment includes implements but does not include vehicles used to transport processed food, see order 8. For requirements for vehicles used to transport processed food see clause 4 of this Schedule.

Requirement to clean and maintain

3.1 The following must be cleaned and sanitised whenever it is necessary to do so to prevent the contamination of processed food:

(a) floors, walls, ceilings, other fixtures and fittings in the following areas:

(i) food handling areas; and

(ii) areas used for cleaning and sanitising equipment, vehicles and protective clothing;

(iii) personal hygiene amenities; and

(b) equipment and food contact surfaces.

3.2 Equipment used for killing, bleeding, skinning or eviscerating a crocodile or removing meat from its carcase must be cleaned and sanitised whenever necessary to ensure that there is no cross contamination between carcases and carcase parts from different crocodiles.

3.3 Subclauses 3.1 and 3.2 do not apply to a single-use item that is disposed of after use or when contaminated.

Note For the meaning of single-use item see order 8.

3.4 The surrounds of land based premises used to prepare processed food must be cleaned to the extent necessary to ensure the surrounds are not a source of contamination of processed food.

3.5 Premises and equipment must be maintained in a good state of repair and working order to the extent necessary to facilitate the hygienic preparation of the food.

Vehicles etc for the transport of processed food

4.1 The following must be cleaned and sanitised whenever it is necessary to do so to prevent the contamination of processed food:

(a) container system units, food carrying compartments and vehicles used for the transport of processed food; and

(b) equipment used to handle food during loading and transport.

Note For the meaning of container system unit, food carrying compartment, and vehicle see order 8.

4.2 The following must be maintained in a good state of repair and working order to the extent necessary to ensure the fitness for human consumption of processed food is not adversely affected during transport:

(a) container system units, food carrying compartments and vehicles used for the transport of processed food; and

(b) equipment used to handle food during loading and transport.

Environmental contamination

5.1 Effective measures must be taken to ensure processed food is not contaminated by environmental contamination (including air borne or water borne contamination).

Exclusion of animals

6.1 Live animals (other than animals for processing as processed food at the premises) must not be permitted to enter premises used for the preparation of processed food.

6.2 Subclause 6.1 does not apply to the entry of guard dogs in the perimeter area provided the area is not used:

(a) as a food handling area; or

(b) for cleaning and sanitising equipment or for personal hygiene.

Pests

7.1 To the extent practicable, the entry of pests into premises and equipment used for the preparation of processed food must be prevented.

7.2 The harbourage of pests in the premises and equipment must be prevented.

Hazardous substances

8.1 Hazardous substances must:

(a) not contaminate processed food; and

(b) be stored in containers that:

(i) are labelled with the name of the substance and a warning about its toxicity and use; and

(ii) are not used for any purpose other than the storage of hazardous substances.

Use and storage of substances which could cause contamination

9.1 Except when necessary for hygienic or preparation purposes, substances which could contaminate processed food must not be used or stored in food handling areas.

Division II Hygiene requirements for processing

Measures to prevent contamination

10.1 Effective measures must be taken to:

(a) prevent the contamination of processed food for export as food and its ingredients by any thing or activity; and

(b) minimise the growth in processed food for export as food and its ingredients of pathogens that could adversely affect the fitness for human consumption of the food given the conditions under which it is to be stored, handled and transported; and

(i) processed food for export as food; and

(ii) ingredients;

are not otherwise adversely affected.

Note 1 For the meaning of ingredient see order 8.

Note 2 Paragraph 10.1 (a) requires for example that processed food and ingredients not be contaminated by:

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

(b) cleaning, sanitising or maintenance activities; or

Note 3 Paragraph 10.1 (a) also requires for example that processed food and ingredients not be cross contaminated by animal food or processed food that is unfit for human consumption. See further Part 7 of Schedule 5.

10.2 Without limiting the generality of subclause 10.1 effective measures must be taken to prevent processed food that is not ready for human consumption contaminating processed food that is ready for human consumption.

Calibration of measuring instruments

11.1 Measuring instruments that are relevant to whether the requirements of these Orders are complied with must be accurately calibrated.

Refrigeration chambers

12.1 The approved arrangement must validate that refrigeration chambers achieve the applicable temperature controls for chilling, freezing and maintaining processed food, taking account of the maximum quantity of processed food to be chilled, frozen or maintained at any one time using the chamber.

Note 1 For the meaning of validate see order 8.

Note 2 For verification requirements see subclause 3.7 and clause 6 of Schedule 2.

Ingredients

13.1 Ingredients must:

(a) be fit for the purpose for which they are used; and

(b) be labelled, stored and handled in a way that ensures their identity can be ascertained.

Note For requirements for ingredients to comply with product standards see Schedule 6.

Water must be potable

14.1 All water used at premises used to prepare processed food (including reused water, recirculated water and ice) must be potable unless:

(a) the water is only used in circumstances where there is no risk of the water coming into contact with or contaminating processed food; and

(b) the approved arrangement expressly provides for the use of the non-potable water in the circumstances in which it is used.

Note 1 For the meaning of potable water see order 8.

Note 2 Paragraph 14.1 (a) covers a risk of water contaminating processed food even if it does not come into contact with the food.

Note 3 For requirements for potable water for handwashing facilities and amenities see subclauses 13.3 and 14.4 of Schedule 3.

Microbial limits

15.1 Water required under these Orders to be potable must not contain any Escherichia coli per 100 millilitres.

15.2 The examination of water for the purpose of verifying whether the requirements of subclause 15.1 are complied with must in the case of milk and milk products be performed by a laboratory accredited by NATA to perform the examination.

Note 1 For verification see subclause 3.7 and clause 6 of Schedule 2.

Note 2 For when the approved arrangement must identify any applicable importing country requirements for the examination of water, see paragraph 2.1 (c) of Schedule 2.

Note 3 For guidance see the Australian Drinking Water Guidelines 1996 jointly published by the National Health and Medical Research Council and the Agriculture and Resource Management Council of Australia and New Zealand. For these guidelines see the NHMRC website http://www.health.gov.au/nhmrc.

Note 4 For when the Secretary may give the occupier a notice enabling the use of another laboratory to perform the examination, see alternative compliance under order 86.

Note 5 For special requirements for water for depuration and for wet storage of live fish see Divisions IV and V of Part 1 of Schedule 5. For requirements for water used to cool canned product see clause 35 of Schedule 5.

Use of clean sea water

16.1 Notwithstanding subclause 14.1 of this Schedule clean sea water may be used at premises used to prepare fish (other than crocodiles) if the applicable approved arrangement expressly provides for the use of the clean sea water in the circumstances in which it is used.

16.2 The clean sea water must not adversely affect the fitness for human consumption of the fish.

Note 1 For special requirements for water for depuration and for wet storage of live fish see Divisions IV and V of Part 1 of Schedule 5.

Note 2 For verification see subclause 3.7 and clause 6 of Schedule 2.

The supply of potable and non potable water

17.1 The reticulation system must prevent the back siphonage of used or contaminated water.

17.2 Non potable water reticulation systems for an establishment must not contaminate the establishment’s potable and water reticulation systems.

Steam

18.1 Steam used in contact with processed food or food contact surfaces must be free from substances which may:

(a) be hazardous to health; or

(b) contaminate the food.

Note See Standard 1.3.3 of the Food Standards Code for requirements for processing aids and see further Schedule 6.

Compressed air and other gases

19.1 Compressed air or other processing gases that come into contact with processed food must be free from substances which may:

(a) be hazardous to health; or

(b) contaminate the food.

Note See Standard 1.3.3 of the Food Standards Code for requirements for processing aids and see further Schedule 6.

Division III Personal hygiene and health requirements

Meaning of food handling area

20.1 In this Division food handling area means an area (including a refrigeration chamber or storage area) used for exposed processed food or ingredients.

Note Contrast the meaning of food handling area in order 8.

Food borne diseases

21.1 A person known or suspected to be suffering from, or to be a carrier of a disease likely to be transmitted through processed food must not work in any food handling area in any capacity in which there is any risk of such a person directly or indirectly contaminating the food with pathogens.

21.2 A person known or suspected to be suffering from, or to be a carrier of a disease likely to be transmitted through processed food must immediately report their disease to a person in management or control of an establishment engaged in the preparation of processed food if:

(a) the person is at the establishment; or

(b) the person suspects that the disease may have resulted in the contamination of processed food at the establishment.

Note 1 For the meaning of person in management or control see order 8.

Note 2 For the occupier’s liability if the requirements of this Division are not complied with see suborder 39.1.

Conditions and injuries

22.1 A person who has a condition and who handles processed food must take all practical measures to prevent the condition resulting in contamination of processed food.

Note For the meaning of condition see order 8.

22.2 Coverings used for conditions must:

(a) be effective in preventing contamination of processed food; and

(b) be waterproof, firmly secured and conspicuous in colour.

Personal cleanliness

23.1 A person in a food handling area must:

(a) take all practicable measures to ensure his or her body, anything from his or her body and anything he or she is wearing does not contaminate processed food or food contact surfaces; and

(b) take all practicable measures to prevent unnecessary contact with processed food; and

(c) ensure his or her outer clothing is of a level of cleanliness that is appropriate for the handling of processed food that is being conducted.

23.2 A person in a food handling area must not engage in:

(a) behaviour which could result in contamination of processed food, such as eating, smoking, chewing, spitting, sneezing or coughing over unprotected processed food or food contact surfaces; or

(b) any other behaviour likely to adversely affect the fitness for human consumption of processed food.

Note 1 For guidance see Standard 3.2.2 of the Food Standards Code.

Note 2 A person in a food handling includes a visitor to the area.

23.3 A person engaged in handling food must wash (using a sanitising agent) and dry thoroughly his or her hands:

(a) on entering the food handling area; and

(b) immediately after using the toilet; and

(d) after handling contaminated material; and

(e) whenever necessary to avoid contaminating the food.

Note The wearing of gloves does not remove the obligation to wash hands.

23.4 A person engaged in skinning or eviscerating a crocodile or removing meat from its carcase must wash (using a sanitising agent) and dry thoroughly his or her hands between each crocodile carcase.

Personal effects and clothing

24.1 Personal effects and clothing must not be stored in food handling areas.

Note For storage facilities for personal effects and clothing see clause 11 of Schedule 3.

Protective clothing

25.1 A person in a food handling area must at all times wear protective clothing (including a hair covering) and footwear.

25.2 The protective clothing and footwear must:

(a) be suitable (including appropriately designed) to prevent anything from the person’s body contaminating processed food; and

(b) be maintained in good repair and in a clean and sanitary condition so as not to present a risk of contamination of processed food or food contact surfaces.

Part 2 Application of Schedule: catcher boats

Catcher boats

26.1 Part 1 of this Schedule does not apply to a catcher boat.

26.2 Despite subclause 26.1, Part 1 of this Schedule applies to a catcher boat if it is a registered fishing vessel.

26.3 At all times during the catching of fish for export as food and during the time the fish are on the catcher boat:

(a) the boat and equipment used on the catcher boat must be maintained to the extent necessary to ensure that the fitness for human consumption of fish is not adversely affected; and

(b) procedures must be in place to ensure that the fitness for human consumption of the fish is not adversely affected; and

(c) persons on the catcher boat must not engage in any behaviour which could result in the contamination of the fish; and

(d) to the extent practicable, measures must be taken to prevent the entry and harbourage of pests on the catcher boat; and

(e) live animals (other than fish caught by the catcher boat) must not be permitted to board.

Schedule 5 Preparation and transport

TABLE OF CONTENTS

Clause

PART 1 — HARVESTING, SOURCING, DEPURATION, WET STORAGE AND KILLING

Division I — General requirements

1. Presence of potentially harmful substances

2. Sourcing processed food

Division II — Sourcing and handling eggs

3. Sourcing eggs

4. Cracked eggs

5. Cleaning and cracking eggs

6. Whole eggs

7. Fertilised eggs

Division III — Harvest and sourcing fish

8. Dead or diseased fish and species affected by ciguatoxin

9. Shellfish harvest areas

10. Segregation of shellfish

11. Sourcing fish from establishments to which these Orders do not apply and catcher boats

12. Growing and harvesting at establishments to which these Orders apply

Division IV — Depuration of shellfish

13. When depuration is required

14. Shellfish for depuration

15. Water used for depuration

16. Depuration must be effective

Division V — Wet storage of shellfish

17. Wet storage

Division VI — Sourcing, killing and initial processing of crocodiles

18. Sourcing crocodiles and crocodile meat

19. Killing, skinning, evisceration and removal of meat

20. Post mortem controls

21. Diseased and condemned material

Division VII — Sourcing milk

22. Sourcing milk

PART 2 — CHILLING, FREEZING, THAWING AND TEMPERING

Division I — Chilling and freezing

23. Processed food must be placed under temperature controls

24. Chilling

25. Rate of chilling

26. Chilling crocodile meat exposed to sparganosis

27. Freezing

28. Storage, handling, loading and transport of chilled or frozen processed food

Division II — Thawing and tempering

29. Thawing and tempering

PART 3 — PRESERVING PROCESSED FOOD

Division I — General

30. Outcome for preservation processes

Division II — Thermal processing of canned processed food

31. Commercial sterility

32. Thermal process designed from simulated conditions

33. Canning must protect contents from contamination

34. Cooling and handling cans

35. Water used for cooling

36. Post processing controls

Division III — Eggs and egg products

37. When eggs and egg products must be pasteurised

38. Time and temperature controls for eggs

39. Validation of time and temperature controls

Division IV — Milk and milk products

40. Pasteurisation etc of milk and liquid milk products

41. Cheese

PART 4 — PACKAGING

42. Packaging materials and manner of packaging

PART 5 — STORAGE, HANDLING AND LOADING

43. Storage, handling and loading

44. Loading for transport

PART 6 — TRANSPORT

45. Processed food must be protected during transport

46. Official mark must be retained during transport

PART 7 — FITNESS FOR HUMAN CONSUMPTION

47. Evaluation of fitness for human consumption

48. Processed food not fit for human consumption

49. Manufacturing grade processed food

50. Processed food that must be dealt with as not for export as food

51. Processed food not for export as food

52. Animal food

53. Processed food for export to identified markets

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

Division I General requirements

Presence of potentially harmful substances

1.1 Processed food for export as food must not be sourced from or washed using water from areas where there are reasonable grounds to believe that any of the following are present and could result in unacceptable levels in the food:

(a) potentially harmful pathogens; or

(b) potentially harmful substances such as pesticides, fungicides, heavy metals, natural toxicants or other contaminants.

Sourcing processed food

2.1 Processed food for use in preparing processed food must be sourced only from:

(a) a registered establishment; or

(b) an unregistered establishment in relation to which an approval given by the Secretary in accordance with clause 8 of Schedule 1 has effect; or

(c) an establishment to which, under orders 23 to 26, these Orders do not apply or an unregistered establishment that is a catcher boat.

2.2 Subclause 2.1 applies only to processed food sourced from establishments in Australia.

Division II Sourcing and handling eggs

Sourcing eggs

3.1 Eggs sourced directly from an establishment engaged in the collection, storing and chilling of eggs (including an establishment to which these Orders do not apply) must be sourced only from an establishment with:

(a) disease management controls in place that ensure that only healthy flocks are used for laying; and

(b) effective measures in place that ensure:

(i) flocks for laying are not given feed or treated with a substance that could adversely affect the fitness for human consumption of eggs; and

(ii) the collection of eggs is done under conditions that ensure the fitness for human consumption of the eggs is not adversely affected; and

(iii) as soon as practicable after laying, the eggs are placed under temperature controls that minimise the growth of pathogens that could adversely affect the fitness for human consumption of the eggs.

Note For when these Orders do not apply to establishments engaged in storing and chilling of whole eggs at the premises at which the eggs are laid see order 23. For the application of these Orders see also the meaning of preparation in section 3 of the Act.

Cracked eggs

4.1 Cracked eggs must:

(a) be segregated from uncracked eggs; and

(b) not contaminate other eggs.

Note For the meaning of cracked egg see order 8.

4.2 If the membrane of a cracked egg is leaking, the contents of the egg must be dealt with as processed food that is not for export as food.

Note 1 For identification and segregation requirements for processed food that must be dealt with as not for export as food see clause 50 of this Schedule.

Note 2 Cracked eggs cannot be exported as a whole egg, see clause 6 of this Schedule.

Cleaning and cracking eggs

5.1 The cleaning and cracking of eggs must be done in a way that minimises the risk of contamination of their contents.

Whole eggs

6.1 Eggs for export as food as whole eggs must have shells that:

(a) are not cracked or broken; and

(b) are free from stain, dirt, blood, faecal matter and any foreign matter.

Note For the meaning of whole egg see order 8.

Fertilised eggs

7.1 Fertilised eggs must be dealt with as processed food that is not for export as food.

Note 1 For identification and segregation requirements for processed food that must be dealt with as not for export as food see clause 50 of this Schedule.

Note 2 For requirements for pasteurisation or other treatments for eggs see Division III of Part 3 of this Schedule.

Division III Harvesting and sourcing fish

Dead or diseased fish and species affected by ciguatoxin

8.1 Fish that:

(a) are dead at the time of harvest; or

(b) are diseased;

must not be prepared for export.

Note 1 For the meaning of diseased and fish see order 8.

Note 2 For notification if animals from which processed food is derived are suspected of being affected with a notifiable disease see clause 10 of Schedule 2.

Note 3 Fish that are crocodiles are treated separately see Division VI of this Part.

8.2 All practical measures for harvesting fish of a species that can be affected by ciguatoxin (being measures that are necessary to minimise the risk of the harvest and preparation for export of fish affected by ciguatoxin) must be taken.

Note Practical measures could for example include controls on fish size and location of harvest.

Shellfish harvest areas

9.1 Shellfish for export as food must not be harvested from:

(a) a Prohibited area for the purposes of the Australian Shellfish Quality Assurance Program — Export Standards; or

(b) any other area in contravention of a requirement for harvesting from that area that is specified under the Australian Shellfish Quality Assurance Program — Export Standards.

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

9.2 Subclause 9.1 does not apply to:

(a) scallops if the final product is only the adductor muscle; and

(b) shellfish harvested from off-shore locations;

unless the off-shore location is classified as an Off-shore harvesting area in accordance with the Australian Shellfish Quality Assurance Program — Export Standards.

Segregation of shellfish

10.1 Shellfish must:

(a) be identified by lot; and

(b) be kept separate from shellfish from any other lot.

10.2 Shellfish must not be held in the same storage tank as other fish.

10.3 In subclause 10.1:

lot means a single species of shellfish harvested from a particular harvesting area and designated by a single harvest record number.

Sourcing fish from establishments to which these Orders do not apply and catcher boats

11.1 Fish (other than crocodiles) for export as food that are sourced directly from:

(a) an establishment to which under order 24 these Orders do not apply; or

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

must be sourced only from an establishment:

(d) with effective measures in place to ensure:

(i) the fish are not given feed or treated with a substance that could adversely affect the fitness for human consumption of the fish; and

(ii) the harvesting, growing, relaying, killing, bleeding, gilling, heading, gutting, sorting, grading, washing and icing for transport of the fish is done under conditions that ensure the fitness for human consumption of the fish is not adversely affected; and

(iii) as soon as practicable after harvesting, the fish are placed under temperature controls that minimise the growth of pathogens that could adversely affect the fitness for human consumption of the fish; and

(e) in the case of shellfish — where the harvester is given approval by the relevant State or Territory authority responsible for regulating the growing and harvesting of the shellfish (however this is expressed).

Growing and harvesting at establishments to which these Orders apply

12.1 Fish harvested at an establishment to which these Orders apply must:

(a) be healthy at the time of harvest; and

(b) not be fed or treated with a substance that could adversely affect the fitness for human consumption of the fish; and

(c) be harvested, grown, held, killed and otherwise prepared under conditions that ensure the fitness for human consumption of the fish is not adversely affected; and

(d) in the case of shellfish — must be harvested only by a person who is given approval by the relevant State or Territory authority responsible for regulating the growing and harvesting of the shellfish (however this is expressed).

Note For the requirement to place the fish under temperature controls see Part 2 of this Schedule.

Division IV Depuration of shellfish

When depuration is required

13.1 Shellfish must be depurated unless they are sourced:

(a) from an area in an open status that is classified for the purposes of the Australian Shellfish Quality Assurance Program — Export Standards as:

(i) an Approved, Conditional Approved or Off-shore harvesting area; or

(ii) an Approved Remote area; or

(b) from a fishery located off-shore.

Note For the meaning of depuration and off-shore see order 8.

Shellfish for depuration

14.1 Shellfish for depuration must be clean and practically free of mud and weed.

14.2 Depurated shellfish must be kept separate from undepurated shellfish.

Water used for depuration

15.1 Water used for depuration must:

(a) be practically free from turbidity; and

(b) be of a salinity, temperature, dissolved oxygen level and pH necessary for the normal physiological functioning of the shellfish.

15.2 Unless water for depuration is sourced from an area in an open status that is classified for the purposes of the Australian Shellfish Quality Assurance Program — Export Standards as:

(a) an Approved or Conditional Approved harvesting area; or

(b) an Approved Remote area;

the water must be treated so that it does not contain detectable levels of the coliform group per 100ml.

Note This provision requires for example the treatment of water from an area that is classified for the purposes of the Australian Shellfish Quality Assurance Program — Export Standards as a Restricted or Conditional Restricted harvesting area when in an open status.

Depuration must be effective

16.1 The depuration of the shellfish must achieve an effective reduction of pathogens in the shellfish.

16.2 Subclause 16.1 is taken to be complied with if the Escherichia coli is reduced to the applicable level specified in Standard 1.6.1 of the Food Standards Code.

16.3 Subclause 16.2 does not preclude other methods of validation of compliance with subclause 16.1.

16.4 Shellfish must be depurated for at least 36 hours and if any interruption occurs, the process of depuration must be restarted.

16.5 Sufficient water must be provided in a manner that accomplishes effective depuration.

Division V Wet storage of shellfish

Wet storage

17.1 The fitness for human consumption of shellfish must be maintained during wet storage.

17.2 Shellfish must:

(a) be clean prior to being placed in a wet storage tank; and

(b) be handled and stored in such a manner that their physiological activity is not adversely affected prior to or during wet storage.

17.3 Unless water for the wet storage of shellfish is sourced from an area in an open status that meets the Approved classification criteria under Australian Shellfish Quality Assurance Program — Export Standards the water must be treated so that it does not contain detectable levels of the coliform group per 100ml.

Note The Approved classification criteria apply to the Approved or Conditional Approved harvest areas and the Approved Remote area. This provision requires for example the treatment of water from an area that is classified for the purposes of the Australian Shellfish Quality Assurance Program — Export Standards as a Restricted or Conditional Restricted harvesting area when in an open status.

17.4 Water used for the wet storage of shellfish must not result in the contamination of the shellfish.

17.5 If a multiple tank system with a common water supply is used for the wet storage, water from a tank containing fish other than shellfish must be effectively disinfected before entering a tank containing shellfish.

Division VI Sourcing, killing and initial processing of crocodiles

Sourcing crocodiles and crocodile meat

18.1 The following:

(a) crocodiles for slaughter for crocodile meat; and

(b) crocodile meat;

that are sourced directly from an establishment engaged in growing, killing or bleeding of crocodiles (including from an establishment to which these Orders do not apply) must be sourced only from an establishment with:

(d) effective measures in place to ensure:

(i) crocodiles are not given feed or treated with a substance that could adversely affect the fitness for human consumption of crocodile meat derived from the crocodiles; and

(ii) the killing of crocodiles and bleeding is done under conditions that ensure the fitness for human consumption of the crocodile meat is not adversely affected; and

(iii) as soon as practicable after killing the crocodile from which the crocodile meat is derived, the meat is placed under temperature controls that minimise the growth of pathogens that could adversely affect the fitness for human consumption of the meat.

Note 1 For the meaning of crocodile meat see order 8.

Note 2 For when these Orders do not apply to establishments engaged in killing and bleeding crocodiles see order 25.

Note 3 See also requirements for the killing of crocodiles in clause 19 of this Schedule and the temperature controls for crocodile meat in Part 2 of this Schedule.

Killing, skinning, evisceration and removal of meat

19.1 The following must not be killed for processed food for export as food:

(a) moribund or diseased crocodiles;

(b) crocodiles fed or treated with a substance referred to in subparagraph 18.1 (d) (i) of this Schedule;

Note For the meaning of diseased see order 8.

19.2 The killing, bleeding, skinning and evisceration of crocodiles and the removal of their meat must be done in accordance with procedures that minimise or eliminate the risk of contamination of crocodile meat.

Note For guidance on how to comply with this provision see the Australian Standard for Hygienic Production of Crocodile Meat For Human Consumption. For example feed should be withheld from crocodiles at least 2 days before they are killed. Localised abscesses encountered during skinning should be removed by trimming.

19.3 During skinning, evisceration and the removal of meat there must be no contact between the carcases and carcase parts of different crocodiles.

19.4 Crocodile meat for export as food must not be contaminated by:

(a) crocodile carcases and carcase parts that are not washed, skinned and eviscerated; or

(b) external crocodile skin surfaces or by the contents of the gut, oesophagus and cloaca; or

Post mortem controls

20.1 Effective measures must be taken to ensure:

(a) an accurate post mortem disposition can be applied to all crocodile carcases and carcase parts; and

(b) only crocodile carcases and carcase parts that are not diseased and are fit for human consumption are processed for human consumption.

20.2 Crocodile carcases and carcase parts must:

(a) be passed for human consumption; or

(b) be passed for animal food; or

in accordance with the criteria specified in the Australian Standard for Hygienic Production of Crocodile Meat For Human Consumption.

Note 1 For the meaning of animal food, Australian Standard for Hygienic Production of Crocodile Meat For Human Consumption and condemned see order 8.

Note 2 For identification requirements applying to animal food and to processed food not fit for human consumption see Part 7 of this Schedule.

Diseased and condemned material

21.1 Diseased crocodile carcases and carcase parts must be condemned or downgraded for animal food.

Note For the meaning of diseased see order 8.

21.2 Condemned crocodile carcases and carcase parts must:

(a) be identified as condemned; and

(b) be denatured or destroyed to prevent use as food or for animal food.

Division VII Sourcing milk

Sourcing milk

22.1 Milk sourced directly from an establishment engaged in milking and storing and chilling milk (including from an establishment to which these Orders do not apply) must be sourced only from an establishment with:

(a) disease management controls in place to ensure only healthy animals are used for milking; and

(b) effective measures in place to ensure:

(i) animals for milking are not given feed or treated with a substance that could adversely affect the fitness for human consumption of milk; and

(ii) the collection of milk is done under conditions that ensure the fitness for human consumption of the milk is not adversely affected; and

(iii) as soon as practicable after milking, the milk is placed under temperature controls that minimise the growth of pathogens that could adversely affect the fitness for human consumption of the milk.

Note 1 For when these Orders do not apply to establishments engaged in storing or chilling milk provided no part of the premises are used for any preparation of processed food other than storing and chilling milk, see order 26.

Note 2 For temperature controls for milk see Part 2 of this Schedule.

Part 2 Chilling, freezing, thawing and tempering

Division I Chilling and freezing

Processed food must be placed under temperature controls

23.1 Processed food must be placed under temperature controls:

(a) for eggs — as soon as practicable after laying; and

(b) for fish (other than crocodiles) — as soon as practicable after the fish are harvested; and

(d) for milk — as soon as practicable after milking.

Chilling

24.1 Processed food that is to be chilled must:

(a) be cooled:

(i) for whole eggs — to a temperature of 15°C or less; and

(ii) in any other case — to a temperature of 5°C or less; or

(b) be cooled in accordance with the alternative temperature controls specified for chilling the food in the applicable approved arrangement.

24.2 If paragraph 24.1 (b) applies, the applicable approved arrangement must validate that:

(a) achieving the alternative temperature controls; and

(b) the way in which the chilling is to be done;

minimises the growth of pathogens that could adversely affect the fitness for human consumption of the food given the conditions under which the food is to be stored, handled, loaded and transported.

Note 1 For the meaning of validate see order 8.

Note 2 For verification requirements see subclause 3.7 and clause 6 of Schedule 2.

Rate of chilling

25.1 The chilling of processed food must be performed with sufficient rapidity so as to minimise the growth of pathogens that could adversely affect the fitness for human consumption of the food given the conditions under which the food is to be stored, handled, loaded and transported.

25.2 The applicable approved arrangement must validate that the rate of chilling achieves the outcome specified in subclause 25.1.

Chilling crocodile meat exposed to sparganosis

26.1 In addition to clause 24.1 the meat of a crocodile exposed to or suspected of being infested by Spirometra erinacei (sparganosis) must:

(a) immediately after processing be placed in a refrigeration chamber; and

(b) be:

(i) rapidly dropped and held at a temperature of minus 12°C or cooler at the site of microbiological concern for a minimum of 5 days; or

(ii) subjected to such other temperature controls that achieve a reduction in the level of Spirometra erinacei (sparganosis) at the site of microbiological concern that is equivalent to that achieved under subparagraph 26.1 (b) (i).

Note For the meaning of site of microbiological concern see order 8.

26.2 If subparagraph 26.1 (b) (ii) applies, the applicable approved arrangement must validate that:

(a) achieving the alternative temperature controls; and

(b) the way in which the controls are to be applied;

achieves a reduction in the level of Spirometra erinacei (sparganosis) at the site of microbiological concern that is equivalent to that achieved under subparagraph 26.1 (b) (i).

Note 1 For the meaning of validate see order 8.

Note 2 For verification requirements see subclause 3.7 and clause 6 of Schedule 2.

Freezing

27.1 The freezing of processed food must achieve:

(a) a temperature at the site of microbiological concern of:

(i) for crocodiles — minus 15°C or cooler; and

(ii) in any other case — minus 18°C or cooler; or

(b) the alternative temperature specified for freezing the food in the applicable approved arrangement.

27.2 If paragraph 27.1 (b) applies, the applicable approved arrangement must validate that:

(a) achieving the alternative temperature controls; and

(b) the way in which the freezing is to be done;

minimises the growth of pathogens that could adversely affect the fitness for human consumption of the food given the conditions under which the food is to be stored, handled, loaded and transported.

27.3 The freezing of processed food must be performed with sufficient rapidity to minimise the growth of pathogens that could adversely affect the fitness for human consumption of the food given the conditions under which the food is to be stored, handled, loaded and transported.

27.4 The applicable approved arrangement must validate that the rate of freezing achieves the outcome specified in subclause 27.3.

Storage, handling, loading and transport of chilled or frozen processed food

28.1 Chilled and frozen processed food must be maintained during storage, handling, loading and transport at:

(a) temperatures specified for chilling or freezing the food in paragraph 24.1 (a) or paragraph 27.1 (a) (as the case may be) of this Schedule; or

(b) the alternative temperature specified for maintaining the food in the applicable approved arrangement.

Note For the meaning of chilled and frozen see order 8.

28.2 If paragraph 28.1 (b) applies the applicable approved arrangement must validate that:

(a) maintaining the food at the alternative temperature; and

(b) the way in which this is to be done;

minimises the growth of pathogens that could adversely affect the fitness for human consumption of the food given the conditions under which the food is to be stored, handled, loaded and transported.

Note 1 For the meaning of validate see order 8.

Note 2 For verification requirements see subclause 3.7 and clause 6 of Schedule 2.

Division II Thawing and tempering

Thawing and tempering

29.1 Frozen processed food must be thawed and tempered under temperature controls that minimise the growth of pathogens that could adversely affect the fitness for human consumption of the food.

29.2 The applicable approved arrangement must validate that the temperature controls for the thawing and tempering achieve the objective specified in subclause 29.1.

Note 1 For the meaning of validate see order 8.

Note 2 For verification requirements see subclause 3.7 and clause 6 of Schedule 2.

Part 3 Preserving processed food

Division I General

Outcome for preservation processes

30.1 Unless otherwise specified in this Part a process applied to processed food for the purpose of extending its shelf life must ensure the safety of the food by:

(a) destroying or preventing the growth of pathogens; or

(b) reducing their growth to a level that ensures the microbiological safety of the food is not adversely affected.

Note For microbiological limits for processed food see Schedule 6.

30.2 The applicable approved arrangement must validate that process controls for extending the shelf life of the food ensures that the objective specified in subclause 30.1 is met.

Note For guidance in validation see the microbial limits specified in Standard 1.6.1 of the Food Standards Code. For further guidance see the User Guide to Standard 1.6.1, July 2001 available at http://www.foodstandards.gov.au.

Division II Thermal processing of canned processed food

Commercial sterility

31.1 The canning of processed food must result in processed food that is commercially sterile.

31.2 An establishment must validate in its approved arrangement that its process controls for canning low acid canned processed food achieve the objective specified in subclause 31.1.

Note 1 For the meaning of canned, commercially sterile and validate see order 8.

Note 2 For verification requirements see subclause 3.7 and clause 6 of Schedule 2.

Thermal process designed from simulated conditions

32.1 If a thermal process used in canning processed food is designed from simulated manufacturing conditions, the results must be verified in the actual production of canned processed food using thermal processing equipment under commercial operating conditions before the thermal process is used to prepare processed food for export.

Canning must protect contents from contamination

33.1 The canning process and canning materials used must prevent contamination affecting the contents of the can.

33.2 Cans must be inspected and evaluated in accordance with Section 7.4.8 (‘Inspection of closures’) of Volume 1B of Codex entitled ‘Recommended International Code of Practice for Low-Acid and Acidified Low-Acid Canned Foods’ CAC/RCP 23-1979, Rev 2 (1993).

Note For requirements applying to all packaging materials including cans see Part 4 of this Schedule.

Cooling and handling cans

34.1 After thermal processing, the cans must be cooled and handled in a manner that prevents the introduction of pathogens that could affect the commercial sterility of the contents of the can.

Water used for cooling

35.1 Water used for cooling canned processed food must be potable.

35.2 The method used to make the water potable must be specified in the approved arrangement.

35.3 If water is made potable by chlorination the water must show a measurable free residual chlorine level after contact with the cans.

Post-processing controls

36.1 Cans that have undergone thermal processing must be identified and held separately from cans that have not undergone thermal processing.

Division III Eggs and egg products

When eggs and egg products must be pasteurised

37.1 Eggs and egg products must:

(a) be heated and cooled in accordance with clause 38 of this Schedule; or

(b) be heated and cooled to any other time and temperature combination or subjected to a treatment that:

(i) is specified in the applicable approved arrangement; and

(ii) ensures the resulting egg product meets the microbiological criteria specified for egg products in the Food Standards Code; or

(i) is specified in the applicable approved arrangement; and

(ii) ensures the resulting egg product meets the microbiological criteria specified for egg products in the Food Standards Code.

Note For the microbiological criteria see Standard 1.6.1 of the Food Standards Code.

37.2 Eggs that are to be exported as a whole egg need not comply with subclause 37.1.

Note For the meaning of whole egg see order 8. See also clause 6 of this Schedule.

Time and temperature controls for eggs

38.1 Liquid whole egg or a mixture of liquid egg yolk and liquid egg white must:

(a) be retained at a temperature of not less than 64°C for at least 2.5 minutes; and

(b) then immediately cooled to a temperature of not more than 5°C.

38.2 Liquid egg yolk must:

(a) be retained at a temperature of not less than 60°C for at least 3.5 minutes; and

(b) then immediately cooled to a temperature of not more than 5°C.

38.3 Liquid egg white must:

(a) be retained at a temperature of not less than 55°C for at least 9.5 minutes; and

(b) then immediately cooled to a temperature of not more than 5°C.

38.4 In this clause:

liquid egg white means the white of egg separated as efficiently as practicable from the yolk in liquid form.

liquid egg yolk means the white of egg separated as efficiently as practicable from the yolk in liquid form.

liquid whole egg means the whole egg removed from the shell and includes the product which is frozen or chilled, but does not include reconstituted dried egg.

Validation of time and temperature controls

39.1 If paragraphs 37.1 (b) or 37.1 (c) applies, the applicable approved arrangement must validate that:

(a) the heating or cooling or the treatment concerned; and

(b) the way it is done;

ensures that the resulting egg product meets the objectives specified in subparagraphs 37.1 (b) (ii) or 37.1 (c) (iii) (as the case may be) given the conditions under which the product is to be stored, handled, loaded and transported.

Note For the meaning of validate see order 8.

Division IV Milk and milk products

Pasteurisation etc of milk and liquid milk products

40.1 Milk must:

(a) be pasteurised by being heated to a temperature of not less than 72°C for not less than 15 seconds and immediately shock cooled to a temperature of 4.5°C or less; or

(b) be heated and cooled using any time and temperature combination that:

(i) is specified in the applicable approved arrangement; and

(ii) is of equal or greater lethal effect on the bacteria in the milk than would be achieved by the time and temperature controls specified in paragraph 40.1 (a); or

(i) is specified in the applicable approved arrangement; and

(ii) meets the objective specified in subparagraph 40.1 (b) (ii) or the objective specified in subclause 30.1 of this Schedule.

40.2 Liquid milk products must:

(a) be heated and cooled using any time and temperature combination that:

(i) is specified in the applicable approved arrangement; and

(ii) is of equal or greater lethal effect on the bacteria in the milk product than would be achieved by the time and temperature controls specified in paragraph 40.1 (a); or

(b) be subjected to any other treatment that:

(i) is specified in the applicable approved arrangement; and

(ii) meets the objective specified in subparagraph 40.2 (a) (ii) or the objective specified in subclause 30.1 of this Schedule.

Note For examples of verification of the pasteurisation of milk and milk products and for examples of equipment for pasteurisation see AS 3993-2003 Equipment for the pasteurization of milk and other liquid dairy products-Continuous flow systems.

40.3 If paragraph 40.1 (b) or paragraph 40.1 (c) or subclause 40.2 applies the applicable approved arrangement must validate that the time and temperature combination or other treatment achieves the objectives specified for subparagraphs 40.1 (b) (ii), 40.1 (c) (ii), 40.2 (a) (ii) or 40.2 (b) (ii) (as the case may be).

40.4 This clause does not apply to milk and liquid milk products used in the manufacture of cheese.

Cheese

41.1 Milk and liquid milk products used in the manufacture of cheese must:

(a) be heat treated by being held at a temperature of no less than 72°C for a period of not less than 15 seconds; or

(b) be heat treated using a time and temperature combination that is of equal or greater lethal effect on the bacteria in the milk and milk products than would be achieved by the time and temperature controls specified in paragraph 41.1 (a); or

(c) be heat treated by being held at a temperature of no less than 62°C for a period of no less than 15 seconds, and the cheese stored at a temperature of not less than 2°C at the site of microbiological concern for a period of no less than 90 days after the day the cheese is manufactured; or

(d) subjected to such other treatment that:

(i) is specified in the approved arrangement applying to the treatment of the cheese; and

(ii) ensures the cheese produced achieves a level of food safety equivalent to that achieved for cheese prepared from milk or liquid milk products that are treated in accordance with paragraph 41.1 (a).

Note 1 For the meaning of cheese and site of microbiological concern see order 8.

Note 2 For examples of verification of the pasteurisation of milk and milk products and for examples of equipment for pasteurisation see AS 3993-2003 Equipment for the pasteurization of milk and other liquid dairy products-Continuous flow systems.

41.2 If paragraph 41.1 (b) or paragraph 41.1 (d) applies, the applicable approved arrangement must validate that the treatment achieves the objective specified in paragraph 41.1 (b) or subparagraph 41.1 (d) (ii) (as the case may be).

Part 4 Packaging

Packaging materials and manner of packaging

42.1 Packaging materials, tags and labels used to package processed food must be fit for their intended use.

42.2 The manner in which processed food is packaged and the packaging materials, tags and labels used must:

(a) not adversely affect the fitness for human consumption of the food; and

(b) effectively protect the food from contamination in the conditions under which the food is to be stored, handled, loaded and transported.

Part 5 Storage, handling and loading

Storage, handling and loading

43.1 Processed food must be stored, handled and loaded in such a way that:

(a) it is protected from the likelihood of contamination; and

(b) the conditions (including humidity and atmosphere) under which it is stored, handled and loaded do not adversely affect the fitness for human consumption of the food.

Note For temperature controls applying to the storage, handling and loading of processed food see clause 28 of this Schedule.

Loading for transport

44.1 Processed food must not be loaded (included loaded for export) onto a vehicle, ship, aircraft or other means of transport unless:

(a) the vehicle (including the food carrying compartment) and the container system unit; and

(b) the equipment to be used in the food carrying compartment and the container system unit; and

comply with the applicable requirements of these Orders.

Note 1 For the meaning of container system unit, loaded for export and vehicle see order 8.

Note 2 The food carrying compartment is the part or area of the vehicle, ship, aircraft of other means of transport in which food is carried, see the meaning of food carrying compartment in order 8.

Note 3 For examples of the requirements of these Orders applying to the vehicle, food carrying compartment, container system unit and equipment referred to in this provision see clause 9 of Schedule 3 and clause 4 of Schedule 4.

Part 6 Transport

Processed food must be protected during transport

45.1 Processed food must be transported under temperature controls that ensure that:

(a) chilled or frozen processed food is maintained during transportation in accordance with the requirements of clause 28 of this Schedule; and

(b) live fish are maintained alive and in a healthy condition.

45.2 Processed food must be transported under such other conditions as are necessary to ensure that the fitness for human consumption of the food is not adversely affected during transport.

Note For example in order to meet subclause 45.2 processed food would need to be protected from pests and the likelihood of contamination during transport and should not be transported with live animals or any other thing that could contaminate the processed food.

Official mark must be retained during transport

46.1 During transport any official mark applied to the food must be retained intact.

Note See further clause 14 of Schedule 8.

46.2 In this clause:

official mark means a seal declared under section 13.11 of the Export Control (Prescribed Goods — General) Order 2005 to be an official mark.

Part 7 Fitness for human consumption

Evaluation of fitness for human consumption

47.1 Establishments preparing processed food must have procedures in place for evaluating the fitness for human consumption of:

(a) all processed food (including returned product) received at the establishment; and

(b) all ingredients received at the establishment; and

Note Paragraphs 47.1 (a) and 47.1 (b) apply to all processed food and ingredients received including processed food and ingredients sourced from unregistered establishments and establishments to which these Orders do not apply and including imported product.

Processed food not fit for human consumption

48.1 Processed food that is not fit for human consumption must:

(a) be clearly identified as not for export as food; and

(b) be segregated from and not contaminate processed food for export as food; and

48.2 Processed food that is not fit for human consumption must:

(a) be disposed of so that it does not contaminate processed food, ingredients or the water supply; or

(b) be treated to render it fit for human consumption.

48.3 Subclauses 48.1 and 48.2 do not apply to manufacturing grade processed food or to animal food.

Manufacturing grade processed food

49.1 Manufacturing grade processed food must:

(a) be clearly described as manufacturing grade and not fit for human consumption (or words of similar meaning); and

(b) be segregated from and not contaminate processed food for export as food.

Processed food that must be dealt with as not for export as food

50.1 Processed food that under these Orders must be dealt with as processed food that is not for export as food must:

(a) be clearly identified as not for export as food; and

(b) be segregated from and not contaminate processed food for export as food; and

Note For examples of processed food that under these Orders must not be exported as food see clauses 4 and 7 of this Schedule and clause 13 of Schedule 8.

50.2 If:

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

(b) the Secretary gives the occupier of establishment at which the food is located a written notice rejecting the food for export;

the food must:

(d) be segregated from and not contaminate processed food for export as food; and

(e) not be loaded for export.

Processed food not for export as food

51.1 Processed food not for export as food must:

(a) be clearly identified as not for export as food; and

(b) be segregated from and not contaminate processed food for export as food.

Animal food

52.1 Animal food must:

(a) be clearly identified as animal food and not for human consumption; and

(b) be segregated from and not contaminate processed food that is for food.

Processed food for export to identified markets

53.1 If processed food is not eligible for export to all markets the following must be readily ascertainable:

(a) the countries to which the processed food is intended for export; and

(b) whether the importing country requirements for each of those countries that are specified in the applicable approved arrangement are met.

Note For when the approved arrangement must document controls used to ensure compliance with importing country requirements see clause 2 of Schedule 2.

Schedule 6 Product standards

TABLE OF CONTENTS

Clause

PART 1 — PRODUCT STANDARDS FOR FOOD AND INGREDIENTS

1. Contaminants, natural toxicants, residues and food additives

2. Microbiological limits

3. Gene technology, irradiation and other processes

PART 2 — METHODS OF SAMPLING AND EXAMINATION

4. Microbiological sampling and examination

Part 1 Product standards for food and ingredients

Contaminants, natural toxicants, residues and food additives

1.1 Processed food for export as food and its ingredients must not contain any of the following:

(a) a metal or non metal contaminant or a natural toxicant in excess of the maximum level specified for the contaminant or toxicant in the Food Standards Code;

(b) an agricultural or veterinary chemical in an amount that contravenes the requirements of the Food Standards Code;

(c) a food additive, processing aid, vitamin, mineral, added nutrient, other matter or substance in contravention of the applicable requirements of the Food Standards Code.

Note 1 For the meaning of ingredient see order 8. See further the meaning of unsafe in order 10 and the meaning of unsuitable in order 11.

Note 2 For contaminants and natural toxicants see Standard 1.4.1 and Standard 1.4.4 of the Food Standards Code. For histamines see Standard 2.2.3 of the Food Standards Code.

Note 3 For residues see Standard 1.4.2 of the Food Standards Code.

Note 4 For food additives see Standards 1.3.1 to 1.3.4 of the Food Standards Code.

1.2 Processed food for export as food to a country and its ingredients need not comply with a requirement of subclause 1.1:

(a) as it applies to a contaminant or natural toxicant — if the importing country authority specifies a maximum level for the contaminant or natural toxicant for food of that kind or its ingredients (as the case may be) and the food or ingredients do not exceed that maximum level; and

(b) as it applies to an agricultural or veterinary chemical — if the importing country authority specifies a maximum limit for the chemical for food of that kind or its ingredients (as the case may be) and the food or ingredients do not exceed that limit; and

(c) as it applies to a food additive, processing aid, vitamin, mineral, added nutrient, other matter or substance for food — if the importing country authority specifies an alternative requirement for the food additive, processing aid, vitamin, mineral, added nutrient, other matter or substance for food of that kind or its ingredients as (the case may be) and the food or ingredient complies with the alternative requirement.

1.3 If paragraph 1.2 (a), 1.2 (b) or 1.2 (c) applies the applicable approved arrangement must:

(a) identify the maximum limit or alternative requirement concerned specified by the importing country authority; and

(b) document the controls used to ensure compliance with that maximum limit or alternative requirement.

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

Note 2 See further clause 53 of Schedule 5.

Microbiological limits

2.1 Processed food for export as food and its ingredients must meet the microbiological limits specified for food of that kind in the Food Standards Code.

Note See Standard 1.6.1 of the Food Standards Code.

2.2 Processed food for export as food to a country and its ingredients need not comply with subclause 2.1 if:

(a) the importing country authority specifies an alternative microbiological limit for food of that kind or its ingredients (as the case may be); and

(b) the food or its ingredients complies with the alternative microbiological limit.

2.3 If paragraph 2.2 (a) applies the applicable approved arrangement must:

(a) identify the alternative microbiological limit specified by the importing country authority; and

(b) document the controls used to ensure compliance with that alternative microbiological limit.

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

Note 2 See further clause 53 of Schedule 5.

Gene technology, irradiation and other processes

3.1 Processed food for export as food and its ingredients must not:

(a) be produced using gene technology; or

(b) be irradiated; or

in contravention of the applicable requirements of the Food Standards Code.

Note For gene technology see the Standard 1.5.2 of the Food Standards Code and for food irradiation see Standard 1.5.3 of the Food Standards Code.

3.2 Processed food for export as food to a country and its ingredients need not comply with subclause 3.1 if:

(a) the importing country authority specifies alternative requirements for the gene technology, irradiation or other process for food of that kind or its ingredients (as the case may be); and

(b) the alternative requirements are complied with in relation to the food or its ingredients.

3.3 If paragraph 3.2 (a) applies the applicable approved arrangement must

(a) identify the alternative requirements specified by the importing country authority; and

(b) document the controls used to ensure compliance with the alternative requirements.

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

Note 2 See further clause 53 of Schedule 5.

Part 2 Methods of sampling and examination

Microbiological sampling and examination

4.1 The sampling and examination of processed food and its ingredients for the purposes of demonstrating compliance with the microbiological limits of the Food Standards Code must comply with:

(a) the Australian Standards AS/NZS 1766 Methods for the Microbiological Examination of Food as at the day of commencement of this clause; or

(b) an equivalent method of examination in accordance with the Australian Standards AS/NZS 4659 Guide to Determining the Equivalence of Food Microbiology Test Methods as at the day of commencement of this clause.

4.2 The sampling and examination of processed food and ingredients for the purpose specified in subclause 4.1 must comply with any additional methods for their sampling and examination that are specified in the Food Standards Code.

4.3 The sampling and examination need not comply with subclause 4.1 and subclause 4.2 if:

(a) the importing country authority specifies an alternative method of sampling and examination for food of that kind or the ingredients; and

(b) the sampling and examination is done in accordance with the alternative method.

Note For general requirements for sampling and analysis see clause 9 of Schedule 2 and see also Division V of Part 9 of these Orders.

4.4 If paragraph 4.3 (a) applies the applicable approved arrangement must:

(a) identify the alternative method of sampling and examination specified by the importing country authority; and

(b) document the controls used to ensure compliance with that alternative method of sampling and examination.

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

Note 2 See further clause 53 of Schedule 5.

Schedule 7 Trade description

TABLE OF CONTENTS

Clause

PART 1 — REQUIREMENT TO HAVE A TRADE DESCRIPTION

1. When processed food must have a trade description

2. Unlabelled canned food and unwrapped bulk loaded food

3. Processed food identified as not for retail sale

PART 2 — CONTENTS OF THE TRADE DESCRIPTION

Division I — Information requirements

4. General requirement

5. Canned processed food

Division II — Description of food

6. Fish

Division III — Declaration of ingredients

7. List of ingredients must comply with the Food Standards Code

8. Compositional claims

Division IV — Identifying the establishment

9. Registration number

Division V — Identifying the producer, exporter etc

10. Name and address

11. Identifying the repacker

PART 3 — MISCELLANEOUS

12. Trade description must be accurate, legible, conspicuous and secure

13. Additional information applied to a trade description

14. Trade description applied to packaging material, liners, outer containers etc

15. Trade descriptions in a language other than English

16. When a trade description must not be altered or interfered with

Part 1 Requirement to have a trade description

When processed food must have a trade description

1.1 Processed food for export as food must have a trade description containing the information specified in clause 4 of this Schedule applied to its immediate container.

1.2 The trade description must be applied before the food leaves the establishment at which the food is last packed in its immediate container before being loaded for export.

Note 1 For the meaning of trade description see section 3 of the Act.

Note 2 For the meaning of immediate container and loaded for export see order 8.

Note 3 For identification and traceability requirements applying to outer containers see clause 6 of Schedule 8.

Unlabelled canned food and unwrapped bulk loaded food

2.1 Despite clause 1 of this Schedule a trade description containing the information specified in clause 4 of this Schedule need not be applied to:

(a) processed food despatched from an establishment in cans without labels provided the requirements of subclause 5.2 of this Schedule are met; and

(b) unwrapped processed food bulk loaded into container system units.

Note If a trade description containing the information specified in clause 4 of this Schedule is not applied to unlabelled canned processed food or unwrapped bulk loaded processed food, additional information needs to be provided to the consignee on despatch, see clause 9 of Schedule 8.

Processed food identified as not for retail sale

3.1 Despite clause 1 of this Schedule a trade description containing the information specified in clause 4 of this Schedule need not be applied to processed food if:

(a) the food is identified as not for retail sale; and

(b) the information specified in clause 4 of this Schedule is applied to the outer container containing the food before the outer container is loaded for export.

Part 2 Contents of the trade description

Division I Information requirements

General requirement

4.1 The trade description must contain:

(a) a description of the food; and

(b) for food containing more than one ingredient — a list of ingredients in accordance with the requirements of Division III of Part 2 of this Schedule; and

(d) the country of origin of the food; and

(e) the registration number of the establishment at which the food is last prepared (other than handled, loaded or stored) before being exported; and

(f) the name and address of the exporter or of the occupier of the establishment at which the food is last prepared (other than handled, loaded or stored) before being exported; and

(g) the identity of the lot for the food; and

(h) the directions for the use or storage of the food if the food is of a nature as to warrant such directions for reasons of food safety.

Note 1 For the meaning of lot and registration number see order 8.

Note 2 For accuracy of the trade description see clause 12 of this Schedule. See also section 15 of the Act for offences in relation to false trade descriptions.

Note 3 The Trade Practices Act 1974 contains prohibitions on engaging in conduct that is misleading or deceptive or is likely to mislead or deceive (eg see section 52) and prohibitions on making false or misleading representations, including about the country of origin of food (for example see section 53 and section 75AZC).

Note 4 Part V, Division 1AA of Trade Practices Act 1974 which provides defences that certain country of origin representations do not contravene section 52, paragraph 53 (a), paragraph 53 (eb) or subparagraph 75AZC (1) (a) or (i) of the Trade Practices Act 1974. See further sections 65AA to 65AN of the Trade Practices Act 1974. For further guidance on correctly describing the country of origin see the ACCC website http://www.accc.gov.au/.

Note 5 For example if the importing country authority specifies that it does not require a trade description requirement of this Schedule to be complied with (or specifies a less stringent requirement), the Secretary may, at the request of the occupier, give the occupier a notice specifying that the requirement of this Schedule does not apply, see order 87.

Canned processed food

5.1 If a can of processed food is not permanently marked with the complete trade description at the time of filling, the letters ‘EX’ followed by the registered number of the establishment at which the can is closed must be embossed or otherwise permanently marked on the can.

5.2 If processed food is to be despatched from an establishment in cans without labels the cans must be embossed or otherwise permanently marked at the time of filling with:

(a) a product cypher that can be used to identify the product; and

(b) the letters ‘EX’ followed by the registration number of the establishment at which the can is closed; and

(d) the identity of the lot for the food.

Note For the additional information to be provided to the consignee on despatch, see clause 9 of Schedule 8.

Division II Description of food

Fish

6.1 If the processed food is fish (other than crocodile) the description of the food referred to in paragraph 4.1 (a) of this Schedule must also include:

(a) the scientific name of the fish and/or the Australian Fish Name of the fish; and

(b) the cut and preservation type of the fish.

Note For the meaning of Australian Fish Name see order 8.

Division III Declaration of ingredients

List of ingredients must comply with the Food Standards Code

7.1 The trade description applied to processed food must meet each of the applicable requirements for the labelling and naming of ingredients and compound ingredients that are specified in Standard 1.2.4 of the Food Standards Code.

Note For example if the importing country authority specifies that it does not require a trade description requirement of this Schedule to be complied with (or specifies a less stringent requirement), the Secretary may, at the request of the occupier, give the occupier a notice specifying that the requirement of this Schedule does not apply, see order 87.

7.2 Without limiting the generality of subclause 7.1 the ingredients must be listed in the order specified in Standard 1.2.4 of the Food Standards Code.

7.3 For the purposes of paragraph 2 (d) of Standard 1.2.4 of the Food Standards Code a small package means a package with a total surface area of less than 100 cm2.

Note Paragraph 2 (d) of Standard 1.2.4 the Food Standards Code exempts small packages from the requirement to include a statement of ingredients.

7.4 For the purposes of complying with the requirements of Standard 1.2.4 of the Food Standards Code:

(a) ingredient does not have the meaning given in clause 1 of that Standard; and

(b) ingredient means any substance (including a food additive) that is a constituent of the food but does not include a processing aid.

Note For the meaning of processing aid see order 8.

Compositional claims

8.1 If a claim as to composition is made or implied regarding a processed food, a quantitative declaration supporting the claim must be included in the trade description.

Division IV Identifying the establishment

Registration number

9.1 For the purposes of paragraph 4.1 (e) of this Schedule the registration number of the establishment must be clearly distinguishable as being the registration number.

Division V Identifying the producer, exporter etc

Name and address

10.1 For the purposes of paragraph 4.1 (f) of this Schedule the address of:

(a) the exporter; or

(b) the occupier of the establishment at which the food is last packed in its immediate container before being exported;

must be the address in Australia at which the exporter or occupier conducts business in relation to the food.

10.2 For the purposes of paragraph 4.1 (f) of this Schedule, if:

(a) the name and address of the exporter is used; and

(b) the exporter is not a person who prepares the food;

the name must be preceded by the words ‘Packed for’ or a statement of similar meaning.

Identifying the repacker

11.1 In addition to any other trade description required by these Orders, imported processed food (other than milk and milk products) that is repacked in Australia without being altered by further processing in Australia must contain the words ‘Packed by’ followed by the name and registration number of the establishment at which the food is repacked.

Part 3 Miscellaneous

Trade description must be accurate, legible, conspicuous and secure

12.1 Information required under these Orders to be contained in the trade description must:

(a) be accurate; and

(b) be legible; and

(d) be securely applied.

Additional information applied to a trade description

13.1 Additional information or pictures applied to the processed food must not be inconsistent with information required under these Orders to be contained in the trade description.

Trade description applied to packaging material, liners, outer containers etc

14.1 A trade description applied to:

(a) packaging material such as carton liners, wraps or sheets within blocks to separate processed food; or

(b) an outer container containing a number of immediate containers of processed food;

must not be inconsistent with any part of the trade description required to be applied under these Orders.

Note For traceability and integrity requirements that may require information to be specified on outer containers see clause 6 of Schedule 8.

Trade descriptions in a language other than English

15.1 Any part of a trade description applied to processed food that appears in a language other than English must not be inconsistent with any part of the trade description in the English language.

Note For requirements to provide a translation of information applied to processed food or its packaging see order 84.

When a trade description must not be altered or interfered with

16.1 The trade description required under these Orders to be applied to processed food must not be altered or interfered with unless:

(a) the alteration or interference is done by an authorized officer; or

(b) an authorized officer gives written approval for the alteration or interference; or

(c) the applicable approved arrangement provides for the alteration and interference in the circumstances in which the alteration or interference is made.

Schedule 8 Identification, tracing systems, integrity and transfer

TABLE OF CONTENTS

Clause

PART I — GENERAL REQUIREMENTS

1. Identification, tracing systems, integrity and recall

2. Integrity of processed food for export as food

3. Species identification for fish

PART 2 — SUPPLY AND PREPARATION OF PROCESSED FOOD

4. Sourcing processed food

5. Production records

6. Identification of processed food

PART 3 — TRANSFER OF PROCESSED FOOD

7. The information to be provided on despatch

8. Additional requirements for shellfish

9. Unlabelled canned food and unwrapped bulk loaded food

10. Inter-company transfers

11. Requirements for declarations

12. Information must be given to the consignee

13. Receipt of processed food

14. Identification during transport

Part 1 General requirements

Identification, tracing systems, integrity and recall

1.1 Effective measures for tracing systems, for making records and retaining documents and for the identification of processed food must ensure that all processed food prepared at the establishment can be:

(a) identified; and

(b) traced; and

Integrity of processed food for export as food

2.1 The integrity of processed food for export as food must be maintained.

Note For meaning of integrity see order 8.

Species identification for fish

3.1 Fish for export as food must be derived from the species of fish they are purported to be derived from.

3.2 Fish are not of the species they are purported to be derived from if fish derived from another species are substituted wholly or partly for them.

Note For requirement for the trade description to include the scientific name and/or the Australian Fish Name see clause 6 of Schedule 7.

Part 2 Supply and preparation of processed food

Sourcing processed food

4.1 Processed food and ingredients must be sourced only from a supplier with traceability systems in place to ensure that the processed food and ingredients can be identified, traced and if necessary recalled.

Production records

5.1 A record must be made of all information necessary to ensure:

(a) trace-back to the individual lot of processed food prepared at an establishment; and

(b) trace-back to the supplier of the ingredients used in each lot and the date of supply of the ingredients.

Note For requirements relating to verification records and for requirements to keep documents see subclause 3.7 and clause 6 of Schedule 2. See further order 83.

5.2 For the purposes of complying with paragraph 5.1 (a) the record must in the case of shellfish include all information necessary to ensure trace-back to a single species of shellfish harvested from a particular harvesting area and designated by a single harvest record.

5.3 For the purposes of complying with subclause 5.1 (a) and without limiting the generality of subclause 5.1, for each lot of processed food prepared at an establishment a record must be made of:

(a) the description of the processed food; and

(b) the quantity of food in the lot; and

(d) the date of preparation of the food; and

(e) for processed food harvested by the establishment — the date and location of harvest.

Identification of processed food

6.1 The following information must be applied to the outer container of processed food before the container leaves the establishment at which the outer container is packed:

(a) a description of the food;

(b) the registration number of the establishment at which the outer container is packed;

(d) the lot identity of the food;

(e) the country of origin of the food.

Note For requirements for information to be applied to the immediate container see Schedule 7.

Part 3 Transfer of processed food

The information to be provided on despatch

7.1 For each consignment of processed food for export as food despatched from an establishment engaged in the preparation of processed food the following information must be given to the consignee:

(a) the name, address and registration number of the despatching establishment;

(b) a full description of the food;

(d) the quantity of the processed food in the consignment and the number and description of packages (if any) in which the food is packed;

(e) if the food is prepared in order to meeting the importing country requirements of one or more identified countries — the name of those countries;

(f) the name and address and registration number (if any) of the establishment to which the food is despatched;

(g) a declaration stating that:

(i) the requirements of these Orders, the applicable approved arrangement and the conditions of that arrangement; and

(ii) the importing country requirements identified in the approved arrangement;

that apply to and in relation to the processed food while it is at the establishment are complied with;

(h) a declaration stating that all the information given to the consignee for the purposes of complying with this clause is true and complete.

7.2 For each consignment of processed food for export for animal food despatched from an establishment engaged in the preparation of processed food for export as food the information specified in paragraphs 7.1 (a), (b), (d), (f), (g) and (h) must be given to the consignee.

Additional requirements for shellfish

8.1 For shellfish for export as food as live shellfish the information must also include:

(a) the name of the harvester; and

(b) the name of the harvesting area and the unique lease number given to the harvester by the relevant State or Territory authority responsible for the regulation of the harvest of the shellfish; and

Unlabelled canned food and unwrapped bulk loaded food

9.1 If processed food:

(a) is despatched from an establishment in cans without labels; or

(b) is unwrapped processed food bulk loaded into container system units;

any outstanding information required to comply with the requirements of clause 4 of Schedule 7 must also be given to the consignee.

Inter-company transfers

10.1 This Part does not apply to the despatch of processed food if both of the following apply:

(a) the same person is the occupier of the despatching and the receiving establishment; and

(b) the occupier’s approved arrangement documents the controls necessary to ensure that the requirements of clause 1 of this Schedule are complied with during the transfer.

Requirements for declarations

11.1 A declaration referred to in paragraphs 7.1 (g) and (h) of this Schedule must be signed and dated by the maker of the declaration.

Note For making declarations electronically see section 9 of the Electronic Transactions Act 1999 and for electronic signatures see section 10 of the Electronic Transactions Act 1999.

11.2 A declaration referred to in paragraphs 7.1 (g) and (h) of this Schedule must be made by a person who is:

(a) a person in management or control of operations at the despatching establishment; and

(b) designated in the despatching establishment’s approved arrangement as a person who may make such a declaration.

11.3 A declaration referred to in this Division must not:

(a) be false, misleading or incomplete; or

(b) be made if there is no sound basis for making it.

Note 1 For criminal penalties applying to false or misleading statements made by a person to a Commonwealth entity see the Criminal Code Act 1995 Part 7.4 (False or misleading statements).

Note 2 If a false or misleading statement is made the establishment’s approved arrangement may be suspended or revoked, see subclause 21.1 of Schedule 2.

Information must be given to the consignee

12.1 For the purpose of clauses 7 and 9 of this Schedule the information is taken to be given to the consignee if:

(a) it is in writing; and

(b) it is given to the consignee of the food at the time of despatch of the food or accompanies the food during despatch.

Note For when requirements to give information in writing can be complied with by an electronic communication see section 9 of the Electronic Transactions Act 1999.

Receipt of processed food

13.1 If:

(a) processed food is received by an establishment; and

(b) the establishment does not receive the information referred to in clauses 7 and 9 of this Schedule or the information does not accompany the food; or

the occupier must notify an authorized officer as soon as practicable on becoming aware that the information was not received or is inaccurate or incomplete.

13.2 If:

(a) processed food is received by an establishment; and

(b) a circumstance referred to in paragraphs 13.1 (b) or 13.1 (c) exists;

the food must:

(c) be held at the establishment under conditions of security and not dealt with further as processed food for export as food unless an authorized officer gives written approval for the food to be dealt with further; or

(d) be dealt with as processed food that is not for export as food.

Note For requirements for processed food that must be dealt with as not for export as food see clause 50 of Schedule 5.

Identification during transport

14.1 The identification of processed food for export as food must not be lost during transport.

Note For other transport requirements see clause 9 of Schedule 3, clause 4 of Schedule 4 and Parts 5 and 6 of Schedule 5.

Schedule 9 Export documentation

TABLE OF CONTENTS

Clause

PART 1 — EXPORT PERMITS

Division I — Application for an export permit

1. Making an application

2. Contents of the application

3. Exporter must have a declaration of compliance

4. Exporter’s declaration that information is correct and complete

Division II — Declaration of compliance made under an approved arrangement

5. When a declaration may be made

6. Contents of the declaration

7. Declaration must be correct and complete

Division III — Verification and inspection by an authorized officer

8. Verification

9. Inspections, examinations and sampling

Division IV — Permission to export

10. Explanation

11. Issue of export permits under an approved arrangement

12. Issue of export permits by an approved person

13. Automated export permits

14. Permits given by the Secretary in other circumstances

15. Approval etc of approved arrangements for issuing permits

16. Approval to issue permits

17. Restrictions on giving an export permit

18. Allocation of permit number

19. Variation and revocation of an export permit

20. When an export permit ceases to have effect

21. Discretion given by authorized officers prevails

PART 2 — GOVERNMENT CERTIFICATES

22. Application for a government certificate

23. Issue of government certificate

24. Restrictions on issuing a government certificate

PART 3 — GIVING INFORMATION OR DOCUMENTS ABOUT EXPORTS

25. Specifications for systems used in transmissions

26. If the system is inoperative

27. Specifications for transmissions to a person other than the Secretary

28. Authentication for transmissions to the Secretary

29. Requirements are specifications for the purposes of the Act

30. Allocation of user identifying code

Part 1 Export permits

Division I Application for an export permit

Making an application

1.1 An application for an export permit for processed food must:

(a) be in the form approved by the Secretary for making applications for the export of processed food of that kind; and

(b) be given to the Secretary.

Contents of the application

2.1 The application must contain the following information:

(a) the name and address in Australia of the person who intends to export the food;

(b) the registration number of the establishment at which the food is last prepared (other than merely stored, handled or loaded);

(d) if Australia is not the country of origin of the food — the country of origin of the food;

(e) the name and address of the consignee, or if a government certificate is not required — the words ‘to order’;

(f) the intended port of loading of the food;

(g) the intended date of departure of the ship or aircraft onto which the food is to be loaded;

(h) the airline flight number or the name of the ship and the voyage number;

(i) the intended port of discharge of the food;

(j) the country that is the intended final destination of the food;

(k) the net contents of the food and number and type of packages (if any) in which the food is packed;

(l) a full description of the food, include the type of product, the pack type and preservation (for example chilled, frozen or unrefrigerated);

(m) any other information required by the Secretary.

Note For the meaning of registration number see order 8.

Exporter must have a declaration of compliance

3.1 An application for an export permit for processed food must contain a declaration that the exporter is in possession of:

(a) a declaration that applies to the food and complies with the requirements of clause 6 of this Schedule and that is made by a person in management or control of operations at the establishment at which the processed food is last prepared (other than merely stored, handled or loaded); or

(b) a written verification for the food made by an authorized officer under clause 8 of this Schedule.

Note For the meaning of person in management or control see order 8.

3.2 Paragraph 3.1 (a) applies only if the food is prepared under an approved arrangement that provides for export inspection procedures that include the making of declarations of compliance for the food.

Exporter’s statement that information is correct and complete

4.1 An application for an export permit for processed food must contain a statement that all information given in the application is true and complete.

Note 1 For criminal penalties applying to persons who make false or misleading statements to a Commonwealth entity see the Criminal Code Act 1995 Part 7.4 (False or misleading statements).

Note 2 For the exporter’s obligations (including obligations in relation to making such declarations) see Part 5 of these Orders.

Division II Declaration of compliance made under an approved arrangement

When a declaration may be made

5.1 A person referred to in paragraph 3.1 (a) of this Schedule may make a declaration referred to in that paragraph only if the applicable approved arrangement:

(a) provides for export inspection procedures that include the making of declarations of compliance for the food; and

(b) designates the person as a person who may make such a declaration of compliance.

Contents of the declaration

6.1 A declaration of compliance for processed food referred to in paragraph 3.1 (a) of this Schedule must:

(a) identify the processed food and state that it relates to the compliance with the conditions and restrictions specified in Part 4 of these Orders at the time the processed food is last prepared (other than merely stored, handled or loaded); and

(b) declare that the conditions and restrictions specified in Part 4 of these Orders and applicable to and in relation to the food are complied with; and

(d) be signed by the maker of the declaration and dated.

Note 1 For making declarations electronically see section 9 of the Electronic Transactions Act 1999 and for electronic signatures see section 10 of the Electronic Transactions Act 1999.

Note 2 This declaration may be the one that is made for the purposes of the transfer of processed food (see Part 3 of Schedule 8) by the establishment at which the food is last prepared (other than merely stored, handled or loaded).

Declaration must be correct and complete

7.1 A declaration referred to in this Division must not:

(a) be false, misleading or incomplete; or

(b) be made if there is no sound basis for making it.

Note 1 For criminal penalties applying to false or misleading statements made by a person to a Commonwealth entity see the Criminal Code Act 1995 Part 7.4 (False or misleading statements).

Note 2 If a false or misleading statement is made the establishment’s approved arrangement may be suspended or revoked, see subclause 21.1 of Schedule 2.

Division III Verification and inspection by an authorized officer

Verification performed by an authorized officer

8.1 If:

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

(b) an authorized officer has reasonable grounds to believe that the conditions and restrictions on export specified in Part 4 of these Orders that must be satisfied before the food may be exported from Australia are complied with;

the officer may give a written verification of the matters referred to in paragraph 8.1 (b).

Note For suspension or revocation of the approved arrangement if the Secretary has reasonable grounds to believe that the conditions and restrictions specified in paragraphs 8.1 (b) are not complied with see paragraph 21.1 (a) of Schedule 2.

Inspections, examinations and sampling

9.1 An authorized officer may conduct such inspections, and examinations and take such samples as are necessary for the purposes of making a declaration referred to in clause 8 of this Schedule.

Division IV Permission to export

Explanation

10.1 This Division contains provisions for export permits.

10.2 Clause 11 describes the issuing of export permits on an ongoing basis under an approved arrangement.

10.3 Clause 12 describes the issue of export permits on an ongoing basis by persons approved by the Secretary to issue permits.

10.4 Clause 13 describes the fully automated system used to give export permits. In this case the computer is programmed so that it does not result in the giving of an export permit unless certain preconditions are met. A person may access the automated system to issue permits if the person has approval to do so under an approved arrangement or the person is given approval to do so by the Secretary.

10.5 Clause 14 describes the giving of permits in circumstances where clauses 11 to 13 do not apply and where the Secretary only gives an export permit where the Secretary has reasonable grounds to believe that certain preconditions are met.

10.6 The remaining clauses in this Division regulate the approval of arrangements for the issue of permits and the approval of persons who may issue permits.

Issue of export permits under an approved arrangement

11.1 This clause does not apply to export permits:

(a) generated as a result of the operation of a computer operating system specified in paragraph 25.1 (a) of this Schedule, or

(b) given by the Secretary under clause 14.

11.2 This clause applies if:

(a) the occupier of the establishment is also the exporter of processed food that is last prepared (other than merely stored, handled or loaded) at the establishment; and

(b) the occupier’s approved arrangement allows for the issue by a person referred to in subclause 11.3 of export permits for the ongoing export by the occupier of processed food of the kind referred to in paragraph 11.2 (a); and

(c) the occupier’s approved arrangement contains export inspection procedures that include the making of declarations referred to in paragraph 3.1 (a) of this Schedule for processed food of the kind referred to in paragraph 11.2 (a).

Note 1 For approval, variation, suspension and revocation of the approved arrangement as it relates to these matters see clause 15 of this Schedule.

11.3 An export permit may be issued by a person who:

(a) is designated in the occupier’s approved arrangement as person who may issue the permit; and

(b) is a person in management or control at the establishment.

Note 1 For the meaning of person in management or control see order 8.

Note 2 For fit and proper person requirements for persons in management or control see for example paragraph 4.04 (1) (i), sections 4.05 and 4.17 and paragraph 4.29 (1) (h) of the Export Control (Prescribed Goods — General) Order 2005.

11.4 Division 1 of this Schedule does not apply.

Note Division 1 contains requirements for applications for an export permit.

11.5 An export permit issued by a person referred to in subclause 11.3 must contain:

(a) all the information specified in clause 2 of this Schedule; and

(b) a declaration that applies to the food and complies with the requirements of clause 6 of this Schedule; and

Note 1 For the requirement for an export permit see order 53.

Note 2 The Criminal Code Act 1995 Part 7.4 (False or misleading statements) contains offences for false and misleading statements made to a Commonwealth entity.

Note 3 For the obligations relating to permits (including obligations in relation to the accuracy of information) see Part 5 of these Orders.

11.6 The occupier must give a copy of each permit issued by a person referred to in subclause 11.3 to the Secretary within 3 working days after the day the processed food identified in the permit is exported.

Issue of export permits by approved person

12.1 This clause does not apply to export permits:

(a) generated as a result of the operation of a computer operating system specified in paragraph 25.1 (a) of this Schedule, or

(b) issued by the Secretary under clause 14.

12.2 A person who is given approval by the Secretary under clause 16 (an approved export permit issuer) may issue an export permit for processed food of the kind described in the approval.

12.3 Division 1 of this Schedule does not apply.

Note Division 1 contains requirements for applications for an export permit.

12.4 An export permit issued by an approved export permit issuer must contain:

(a) all of the information specified in clause 2 of this Schedule; and

(b) a declaration that they are in possession of a declaration that:

(i) applies to the food; and

(ii) complies with the requirements of clause 6 of this Schedule; and

(iii) is made by a person in management or control of operations at the establishment at which the processed food is last prepared (other than merely stored, handled or loaded); and

Note 1 For the requirement for an export permit see order 53.

Note 2 The Criminal Code Act 1995 Part 7.4 (False or misleading statements) contains offences for false and misleading statements made to a Commonwealth entity.

Note 3 For permit issuer’s obligations (including obligations in relation to the accuracy of information) see Part 5 of these Orders.

12.5 An approved export permit issuer must ensure a copy of each permit he or she issues is given to the Secretary within 3 working days after the day the processed food identified in the permit is exported.

Automated export permits

13.1 This provision applies if the export permit is an electronic notice generated as a result of the operation of a computer operating system specified in paragraph 25.1 (a) of this Schedule.

13.2 If each of the circumstances in subclause 11.2 exist a person referred to in subclause 11.3 may access the computer operating system for the purpose of the issue of export permits.

13.3 An approved export permit issuer may access the computer operating system for the purpose of the issue of export permits.

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

13.4 The Secretary must take all reasonable steps to ensure that the computer system does not result in the issue of export permits for processed food unless there are reasonable grounds to believe that there are systems in place to ensure:

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

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

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

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

Note 1 For requirements for permits see order 53.

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

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

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

Permits given by the Secretary in other circumstances

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

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

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

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

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

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

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

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

Approval etc of approved arrangements for issuing permits

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

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

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

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

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

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

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

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

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

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

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

Approval to issue permits

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

16.2 The application must contain:

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

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

(d) any other information required by the Secretary.

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

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

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

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

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

(d) the applicant will comply with subclause 12.5.

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

16.7 The notice must:

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

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

16.8 The Secretary may:

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

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

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

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

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

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

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

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

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

(i) false, misleading, or incomplete; or

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

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

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

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

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

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

(a) the reasons for the revocation; and

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

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

Restrictions on giving an export permit

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

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

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

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

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

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

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

Allocation of permit number

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

Variation and revocation of an export permit

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

(a) correct any error; or

(b) update the information;

on the face of the permit.

Note For variation electronically see Part 3 of this Schedule.

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

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

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

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

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

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

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

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

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

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

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

When an export permit ceases to have effect

20.1 An export permit ceases to have effect:

(a) when it is revoked; or

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

Direction given by authorized officer prevails

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

Part 2 Government certificates

Application for a government certificate

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

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

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

Issue of government certificate

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

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

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

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

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

Restrictions on issuing a government certificate

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

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

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

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

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

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

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

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

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

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

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

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

Part 3 Giving information or documents about exports

Specifications for systems used in transmissions

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

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

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

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

Note For the Approved EXDOC Interface Software Suppliers see http://www.aqis.gov.au/EXDOC.

25.2 If the following are to be done electronically they must be done electronically by being transmitted using the systems specified in subclause 25.1:

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

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

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

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

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

(a) an application for a government certificate;

(b) a government certificate.

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

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

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

Note For the meaning of disability see order 8.

If the system is inoperative

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

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

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

Specifications for transmissions to a person other than the Secretary

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

Authentication for transmissions to the Secretary

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

Requirements are specifications for the purposes of the Act

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

Allocation of user identifying code

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

Schedule 10 Approved auditors

TABLE OF CONTENTS

Clause

PART 1 — APPROVED AUDITORS

Division I — Register of approved auditors

1. Secretary must keep a register

Division II — Approval of auditors

2. Application for approval

3. Request for information, documents or assessment

4. Decision by Secretary

5. Approval by Secretary

6. When the Secretary need not approve an auditor

7. Notice of decision

8. Approval may be subject to conditions

9. How long approval lasts

10. Assessing the competence of approved auditor

Division III — Revocation of approval of auditor

11. Revocation

Part 1 Approved auditors

Division I Register of approved auditors

Secretary must keep a register

1.1 The Secretary must keep a register of approved auditors.

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

(a) the auditor’s name; and

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

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

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

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

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

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

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

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

Division II Approval of auditors

Application for approval

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

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

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

Note An individual means a natural person and excludes a body politic, see subsection 22 (i) of the Acts Interpretation Act 1901. (See also section 13 of the Legislative Instruments Act 2003.)

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

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

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

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

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

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

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

(iii) all importing country requirements;

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

(b) must specify:

(i) the requirements; and

(ii) the aspects of preparation; and

(iii) the processed food; and

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

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

Request for information, documents or assessment

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

(a) provide further specified information or documents;

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

Decision by the Secretary

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

Approval by the Secretary

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

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

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

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

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

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

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

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

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

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

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

(b) must specify:

(i) the requirements; and

(ii) the aspects of preparation; and

(iii) the processed food; and

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

in relation to which the approval of is given.

When the Secretary need not approve an auditor

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

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

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

(i) false, misleading, or incomplete; or

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

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

Notice of decision

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

7.2 The notice must:

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

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

Approval may be subject to conditions

8.1 The Secretary may:

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

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

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

How long approval lasts

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

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

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

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

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

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

(b) when it is revoked;

which ever occurs first.

Note For revocation see clause 11 of this Schedule.

Assessing the competence of approved auditor

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

10.2 Without limiting suborder 10.1 the assessment may include:

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

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

Division III Revocation of approval of auditor

Revocation

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

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

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

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

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

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

(i) false, misleading, or incomplete; or

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

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

11.3 The revocation takes effect:

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

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

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

(a) the reasons for the revocation; and

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

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

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

Note 1

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

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

Table of Instruments

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

Table of Amendments

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

Note 2

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

[20] Order 99, Note 2

omit

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

substitute

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

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

Export Control (Dairy, Eggs and Fish) Orders 2005

Administered by Department of Agriculture

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