EXPLANATORY STATEMENT
Issued by the authority of the Minister for Agriculture, Fisheries and Forestry
Imported Food Control Act 1992
Imported Food Control Amendment Order 2009 (No. 1)
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.
Subsection 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 Inspection Scheme (the scheme) is established under Part 3 of the Imported Food Control Regulations 1993 (the Regulations) and sets out the particulars of the food inspection scheme and provides for the Minister to make orders. In part, regulation 7 permits the Minister to make orders identifying food of a particular kind as food of a kind that is required to be inspected, or inspected and analysed, under the Food Inspection Scheme. Regulation 8 permits the Minister to make orders classifying food of a particular kind to which the Act applies as either risk food, active surveillance food or random surveillance food.
The scheme as set out in the Regulations is administered by the Australian Quarantine and Inspection Service (AQIS). The purpose of the legislation is to provide for the compliance of food imported into Australia with Australian food standards and the requirements of public health and safety. Under the scheme, the rate at which imported food is referred to AQIS by the Australian Customs Service 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, and the food compliance history of the importer or producer. FSANZ routinely undertakes risk assessments on imported foods and provides advice to AQIS concerning their risk status.
The Imported Food Control Order 2001 (the Order) is made under regulations 7 and 8. Suborder 4(1) provides that a food of a kind mentioned in Schedule 1 is required to be inspected, or inspected and analysed, under the scheme as a risk food.
The Imported Food Control Amendment Order 2009 (No. 1) (the Amendment Order) inserts ‘cassava chips that are ready-to-eat’ into Schedule 1 as a risk food. FSANZ formally advised AQIS that levels of hydrocyanic acid in ready-to-eat cassava chips pose a medium to high risk, in particular to young children. The Amendment Order enables monitoring of these products for compliance with the maximum level of hydrocyanic acid for ready-to-eat cassava chips prescribed in the Standard 1.4.1 – Contaminants and Natural Toxicants, Australia New Zealand Food Standards Code. Listing ‘cassava chips that are ready-to-eat’ as a risk food means that imports of the product will be referred for inspection for the identified contaminant, hydrocyanic acid.
In accordance with the requirements of subsection 17(1) of the Act, the Minister 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.
AQIS convenes a range of consultative committees as the principal advisory fora for consultation with industry on quarantine and inspection issues. The peak industry bodies nominate industry representatives to their respective committees. The Imported Food Consultative Committee were advised of the proposed amendments at their meeting on 14th May 2009.
The Amendment Order is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Amendment Order commences on the day after it is registered on the Federal Register of Legislative Instruments.
Details of the amendments are set out below:
Order 1 provides that the name of the Amendment Order is the Imported Food Control Amendment Order 2009 (No.1).
Order 2 provides that the Order commences on the day after it is registered.
Order 3 provides that Schedule 1 amends the Imported Food Control Order 2001.
Schedule 1 – Amendments
Item 1 amends Order 3 by omitting the words ‘In this Order:’ and substituting them with ‘(1) In this Order:’. This reflects the insertion of a new subsection (2) (see Item 2).
Item 2 inserts the words ‘ready-to-eat: see subsection (2)’ after the definition of New Zealand product in Section 3. Item 2 also inserts a new subsection 2 which provides a definition for the term ‘ready-to-eat’ with the words ‘(2) Food is ready-to-eat if it is ordinarily consumed in the same state as that in which it is sold.’ The purpose of the definition is to clarify the meaning of the term, and provide consistency with the Australia New Zealand Food Standards Code. The definition makes it clear that ‘ready-to-eat’ refers to food that is ordinarily consumed in the same state as that in which it is sold.
Item 3 inserts a new item 2A ‘cassava chips that are ready-to-eat’ to the table contained in Schedule 1. Listing ‘cassava chips that are ready-to-eat’ as a risk food means that imports of the product are subject to a 100 per cent referral rate.
Overview
The Imported Food Control Amendment Order 2009 (No. 1) is a legislative instrument that amends the Imported Food Control Order 2001 to address the risk posed by hydrocyanic acid levels in ready-to-eat cassava chips, which have been identified as a potential hazard, particularly to young children. This amendment was enacted to align with the recommendations of Food Standards Australia New Zealand (FSANZ) and to ensure that Australian food standards and public health and safety requirements are met. The Minister for Agriculture, Fisheries and Forestry made this amendment under the authority granted by the Imported Food Control Act 1992, which allows for the prescription of matters necessary for carrying out or giving effect to the Act. The purpose of this amendment is to ensure that ready-to-eat cassava chips are subject to rigorous inspection protocols, thereby preventing the entry of potentially harmful food products into the Australian market.
The amendment was developed following consultation with FSANZ, which provided the necessary risk assessment and advice regarding the levels of hydrocyanic acid in the product. The Imported Food Control Amendment Order 2009 (No. 1) was registered and commenced on the day after its registration on the Federal Register of Legislative Instruments. The primary change introduced by this amendment is the addition of ready-to-eat cassava chips to the list of risk foods, necessitating a 100% referral rate for inspection by the Australian Quarantine and Inspection Service (AQIS). This amendment reflects the policy objective of maintaining high standards of food safety and public health by ensuring that all imported food products meet the stringent requirements set out in Australian food standards.
Scope and Application
The Imported Food Control Amendment Order 2009 (No. 1) applies to food imported into Australia, specifically targeting 'ready-to-eat cassava chips' as food requiring inspection under the Imported Food Inspection Scheme. This amendment seeks to ensure compliance with Australian food standards and public health and safety requirements, particularly in relation to contaminants such as hydrocyanic acid. The geographic reach of this legislation is national, applying across all states and territories of Australia. The Act and its amendments are designed to regulate the import of food and its inspection to ensure it meets the standards set by Australian food safety authorities. The legislation does not explicitly exclude any specific entities or industries, but it is tailored to the food import industry and those involved in the importation of food products. The enforcement and administration of these regulations are conducted by the Australian Quarantine and Inspection Service (AQIS), which operates under the Imported Food Inspection Scheme. Any exclusions or exemptions from these regulations would typically be detailed within the specific provisions of the Imported Food Control Regulations 1993, which the Order references and supplements. The scope of the Act and its amendments can be further extended or restricted through additional subordinate instruments, allowing for adjustments in response to emerging risks or changes in food safety standards.
Key Provisions
The Imported Food Control Amendment Order 2009 (No. 1) primarily amends the Imported Food Control Order 2001, specifically within Schedule 1, to classify 'cassava chips that are ready-to-eat' as a risk food (Items 1-3). This amendment is made under the authority granted by section 16(2)(a) of the Imported Food Control Act 1992, which allows the Minister to designate certain foods for inspection or analysis based on risk assessments conducted by Food Standards Australia New Zealand (FSANZ). By inserting 'cassava chips that are ready-to-eat' into Schedule 1, the Amendment Order ensures that these products will be subject to a 100 per cent referral rate for inspection by the Australian Quarantine and Inspection Service (AQIS). This heightened scrutiny is due to the identified medium to high risk of hydrocyanic acid levels in these chips, which pose a particular threat to young children.
The Amendment Order imposes several obligations on entities involved in the importation and distribution of food products in Australia. Importers and producers must ensure that 'cassava chips that are ready-to-eat' comply with the maximum level of hydrocyanic acid set out in Standard 1.4.1 – Contaminants and Natural Toxicants of the Australia New Zealand Food Standards Code. This requirement is integral to maintaining public health and safety standards. Additionally, importers must be prepared for their shipments of these products to be referred to AQIS for inspection. AQIS, in turn, is obligated to inspect these products thoroughly to verify compliance with the specified standards.
Failure to comply with the requirements set forth in the Amendment Order can lead to several legal consequences. Under the Imported Food Control Act 1992, non-compliance may result in civil or criminal penalties. The specific penalties depend on the nature and severity of the breach, but the Act allows for substantial fines and, in some cases, imprisonment. For instance, contravening the Act can result in fines of up to $330,000 for individuals and $1.65 million for corporations, along with potential imprisonment terms. The enforcement of these penalties is crucial to maintaining the integrity of Australia's food safety framework and ensuring that imported food products meet the necessary health and safety standards.