EXPLANATORY STATEMENT
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Imported Food Control Act 1992
Imported Food Control Amendment Order 2007 (No. 2)
Section 43 of the Imported Food Control Act 1992 (the Act) provides that the Governor-General may make regulations prescribing matters required or permitted to be prescribed by the Act or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Subsection 16(1) of the Act provides that regulations may set out particulars of a food inspection scheme applicable to all food to which the Act applies.
Paragraph 16(2)(a) of the Act provides that the regulations may empower the Minister, subject to consultation with Food Standards Australia New Zealand (FSANZ), to make orders identifying food of particular kinds as food of a kind that is to be inspected or inspected and analysed, under the food inspection scheme. The Imported Food Control Regulations 1993 (the Regulations) set out the particulars of a food inspection scheme and provide for the Minister to make orders.
The Imported Food Inspection Scheme (the scheme) set out in the Regulations is administered by the Australian Quarantine and Inspection Service (AQIS). The purpose of the scheme is to ensure that food imported into Australia meets the standards set out in the Australia New Zealand Food Standards Code (the Code) as developed by FSANZ. Under the scheme, the rate at which imported food is referred to AQIS by the Australian Customs Service (ACS) and the rate at which AQIS inspects the food that is referred depends on the risk classification given to food in the Regulations and the Orders. FSANZ routinely undertakes risk assessments on imported foods and provides advice to AQIS concerning their classification under the scheme.
The scheme recognises three risk classifications for food. Food considered to be the highest risk is classified as risk food, food considered to be at the next level of risk is classified as active surveillance food while the food that is considered to be the lowest risk is classified as random surveillance food. Under regulation 11 of the Regulations food that is not classified as risk food or as active surveillance food is automatically classified as random surveillance food. The Imported Food Control Order 2001 (the Principal Order) lists food that is ‘risk food’. However, food that is the subject of a holding order made by the Secretary under section 15 of the Act is, pursuant to regulation 23 of the Regulations, treated as risk food. The scheme operates on a risk and performance-based approach to food imports, using end-point inspection and testing to determine the compliance with the Code.
The purpose of the Imported Food Control Amendment Order 2007 (No. 2) (the Amendment Order) is to enable soft cheese manufactured in and imported from New Zealand free access to the Australian market by bringing it under the Trans Tasman Mutual Recognition Arrangement.
The Minister has consulted with FSANZ about the changes contained in the Amendment Order. No other consultation has occurred because the changes are of a minor or machinery nature and they do not substantially change the law.
The Amendment Order is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Details of the amendment are set out below:
Order 1
This order names the Amendment Order as the Imported Food Control Amendment Order 2007 (No. 2).
Order 2
This order provides for the Imported Food Control Amendment Order 2007 (No. 2) to commence the day after it is registered on the Federal Register of Legislative Instruments.
Order 3
This Order provides that Schedule 1 amends the Principal Order.
Schedule 1 Amendments
Item 1 inserts a definition of New Zealand product. The effect of this definition is to ensure that food that simply transits through New Zealand on its way to Australia or although made in New Zealand or produced in New Zealand, comes to Australia through another country, does not avoid classification as a risk food.
Item 2 amends item 3 of the table in Schedule 1 – Risk Food. The effect of this amendment is to exempt the following cheeses from the classification as risk food if they are a New Zealand product:
curd cheese;
fresh cheese that is not fermented, including whey cheese;
soft cheese;
soft smoked cheese; and
and surface‑ripened cheese.
Overview
The Imported Food Control Amendment Order 2007 (No. 2) was enacted to amend the Imported Food Control Act 1992, addressing a specific gap in the regulation of imported food products. The primary purpose of this amendment was to facilitate the entry of soft cheese manufactured in and imported from New Zealand into the Australian market by aligning it with the Trans-Tasman Mutual Recognition Arrangement. This legislative measure was introduced by the Minister for Agriculture, Fisheries and Forestry and was made under the authority granted by section 43 of the Act, which allows the Governor-General to make regulations necessary for carrying out the Act. The policy objective of the amendment was to ensure that imported food meets the required standards set by the Australia New Zealand Food Standards Code, developed by Food Standards Australia New Zealand (FSANZ). The amendment was made after consultation with FSANZ, and it was deemed minor, not requiring further consultation as it did not substantially alter the existing law.
Scope and Application
The Imported Food Control Act 1992 applies to imported food products entering Australia, with the primary objective of ensuring that these products meet the standards set out in the Australia New Zealand Food Standards Code. This Act is administered by the Australian Quarantine and Inspection Service (AQIS) and applies to all imported food regardless of the entity or industry involved, ensuring that all food imports adhere to the prescribed safety and quality standards. The geographic reach of the Act is national, applying across the Commonwealth of Australia. The Act extends its application through subordinate instruments such as the Imported Food Control Regulations 1993, which detail the food inspection scheme, and the Imported Food Control Order 2001, which lists food classified as 'risk food'. The Imported Food Control Amendment Order 2007 (No. 2) further refines the application by modifying the Principal Order to accommodate certain New Zealand-manufactured soft cheeses under the Trans Tasman Mutual Recognition Arrangement, thus providing them with free access to the Australian market. This amendment ensures that the food inspection scheme remains dynamic and adaptable to changes in trade arrangements and risk assessments.
Key Provisions
The Imported Food Control Amendment Order 2007 (No. 2) primarily serves to amend the Imported Food Control Order 2001 (the Principal Order) (Order 1 and Order 2). It ensures that the amendment will commence the day after it is registered on the Federal Register of Legislative Instruments (Order 2). The substantive changes are encapsulated in Schedule 1, which directly amends the Principal Order to facilitate the free access of certain New Zealand cheeses to the Australian market (Order 3).
Firstly, the Amendment Order introduces a definition of "New Zealand product" (Schedule 1, Item 1). This definition aims to ensure that cheeses which merely transit through New Zealand or are produced in New Zealand but enter Australia via another country are not exempt from the risk food classification. This clarification is crucial for maintaining the integrity of the risk classification system.
Secondly, the Amendment Order amends the Principal Order to exclude certain cheeses from the risk food classification if they are classified as a "New Zealand product" (Schedule 1, Item 2). Specifically, it exempts curd cheese, fresh cheese (excluding fermented varieties), soft cheese, soft smoked cheese, and surface-ripened cheese from being classified as risk food. This amendment is designed to leverage the Trans Tasman Mutual Recognition Arrangement, thereby facilitating smoother trade relations between Australia and New Zealand.
The obligations and requirements imposed by the Amendment Order on the parties involved are primarily administrative and classification-based. The Australian Quarantine and Inspection Service (AQIS) must ensure that the exempted cheeses are correctly identified as New Zealand products and subsequently classified according to the risk-based inspection scheme. The Australian Customs Service (ACS) must continue to refer imported foods to AQIS, ensuring that the risk classification process is followed accurately. Food Standards Australia New Zealand (FSANZ) remains responsible for risk assessments and providing guidance to AQIS on the classification of food imports.
Breaches of the Imported Food Control Act 1992 (the Act) or the Imported Food Control Regulations 1993 (the Regulations) can lead to both civil and criminal penalties. Under section 46 of the Act, a person who contravenes a provision of the Act or the Regulations is liable to a penalty. The maximum penalty for an individual is $22,200, while for a body corporate, the maximum penalty is $111,000 (subsection 46(1)). Additionally, section 47 of the Act provides that a corporation may also be guilty of an offence if the contravention was committed with the corporation's consent or connivance, or was attributable to the neglect of a director, officer, or employee of the corporation. Such an offence carries a maximum penalty of $555,000 for a body corporate (subsection 47(1)). These penalties underscore the importance of compliance with the regulatory framework governing imported food.