REVISIED Explanatory Statement
Issued by Authority of the Secretary of the Department of Agriculture
Imported Food Control Act 1992
Imported Food Control (Recordkeeping) Determination 2019
Legislative Authority
Subsection 28(1) of Part 3A of the Imported Food Control Act 1992 (the Act) provides that if food to which this Act applies is imported into Australia, the owner of the food at the time of the importation must keep records containing the information determined in an instrument under subsection 28(2). Subsection 28(2) of the Act provides that the Secretary may, by legislative instrument, determine the information that must be contained in records under this section.
Purpose
The purpose of the Imported Food Control (Recordkeeping) Determination 2019 (the Determination) is to:
- require the owner of imported food at the time of importation to keep records containing:
- the name or a description of the food that is sufficient to indicate the true nature of the food;
- either the lot code or batch code for the food;
- certain contact details for both the producer of the food and the person(s) to whom the owner dispatches the food;
- the dates the owner received the food from the producer or supplier and the dates the owner dispatched the food to another person or persons; and
- the volume or quantity of the food dispatched.
These records will ensure that imported food is traceable and can be efficiently and effectively recalled if required.
Background
The Imported Food Control Amendment Act 2018 (Amendment Act) strengthened the current risk‑based management approach to imported food safety to better protect the health of consumers while reducing the regulatory burden for compliant food importers. The majority of the amendments to the Act made by the Amendment Act commenced on 21 September 2018.
Part 6 of the Amendment Act inserted new Part 3A into the Act, concerning record-keeping requirements for imported food. Under new Part 3A, if food to which the Act applies is imported into Australia, the owner of the food at the time of the importation must keep records of information determined by the Secretary. These records must be retained for 5 years and may need to be produced to the Secretary.
Part 6 of the Amendment Act commenced on 21 September 2019.
Impact and Effect
The Determination will protect the health of consumers by ensuring that imported food to which the Act applies can be easily traced and quickly recalled if necessary.
Consultation
Extensive consultation was undertaken for the making of the Amendment Act. The Office of Best Practice Regulation (OBPR) advised that a full Regulatory Impact Assessment (RIS) was required (ID 19384). The rule-maker was satisfied that due to the extensive consultation undertaken for the RIS and the Amendment Act, further consultation for the making of the Determination was not required.
Formal and public consultation occurred during the drafting of the Amendment Act and the preparation of the RIS with imported food industry representatives, state and territory food authorities, trading partners, consumers, and relevant Commonwealth government agencies and statutory authorities, including the Department of Health and Food Standards Australia New Zealand.
The department met its mandatory obligations, consulting extensively with industry regarding the policy objectives and requirements contained in the Determination. This consultation included:
- The broader consultations leading to the introduction into Parliament of the Amendment Act;
- Formal and informal formal food sector consultation through the Imported Food Consultative Committee (IFCC) and industry roundtables;
- Targeted consultation with imported food businesses.
The broader consultations associated with the Amendment Act included:
- a full RIS consultation process which included two World Trade Organisation notifications;
- public exposure draft consultation prior to tabling of the Amendment Act.
The department formally consults with the food sector through the IFCC. The IFCC reflects the structure of the imported food sector and the professional requirements for managing imported food safety. Membership includes:
- Seafood Importers Association of Australia
- Manassen Food Australia
- Scalzo Food Industries
- Imports of France
- The Food and Beverage Importers Association
- The Australian Institute of Food Science and Technology
- The Australian Food and Grocery Council
- Australian Horticultural Exporters and Importers Association
- Coles Supermarkets
- National Measurement Institute
The IFCC meets twice a year and out of session as required. The IFCC was briefed on the package of amendments proposed in the Amendment Act in meetings held during 2016 – 2018. One of these meetings included a specific briefing on the traceability requirement.
The Industry Roundtables are open information sharing forums allowing food importers to ask questions on food importing issues. The first Industry Roundtable was held in Sydney in November 2017 with subsequent roundtables held in Melbourne and Brisbane in 2018, and another Sydney roundtable held in June 2019. The roundtables provided specific information sessions on each of the changes to the Imported Food Control Act 1992, including on the traceability requirement.
In addition, the department targeted small, medium and large food business. The intent was to broaden coverage beyond established mechanisms. Around 140 corporate entities were briefed on the traceability requirement. These organisations included:
- 121 small, medium and large businesses operating in the imported food sector, including importers, brokers and certification bodies;
- 16 peak bodies representing consumers and health advocates; farmers and specialty meat producers; vegetable growers, transportation and storage; and restaurants and catering.
Details/ Operation
Details of the Determination are set out in the Attachment A.
Other
The Determination is compatible with the human rights and freedoms recognised or declared under section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. A full statement of compatibility is set out in Attachment B.
The Determination is a legislative instrument for the purposes of the Legislation Act 2003.
Attachment A
Details of the Imported Food Control (Recordkeeping) Determination 2019
Section 1 – Name
This section provides that the name of the instrument is the Imported Food Control (Recordkeeping) Determination 2019 (the Determination).
Section 2 – Commencement
This section provides for the Determination to commence the day after it is registered.
Section 3 – Authority
This section provides that the Determination is made under the Imported Food Control Act 1992 (the Act).
Section 4 – Definitions
This section defines terms that are used throughout the Determination.
Act means the Imported Food Control Act 1992.
The note to this section states that a number of expressions used in the instrument are defined in the Act, including food and owner.
Food is defined in section 3A of the Act.
Section 3 of the Act defines owner in relation to food, to include any person (other than an officer of Customs or an authorised officer) being or holding himself or herself out to be the owner, importer, consignee, agent or person having control of, a beneficial interest in, or the power of disposition over, the food.
Regulations means the Regulations made under the Act, that is, the Imported Food Control Regulations 1993.
The expressions batch and lot have the same meaning as in the Regulations.
Section 3 of the Regulations defines batch to mean food of a particular kind made or packaged in a distinct manner which may include one or more lots.
Section 3 of the Regulations defines lot to mean a quantity of food of a particular kind prepared or packaged under essentially the same conditions (ordinarily from a particular preparation or package unit and during a particular time usually not exceeding 24 hours).
Section 5 – Information that must be contained in records
This section provides that if food to which the Act applies is imported into Australia, the owner of the food at the time of importation (the owner) must maintain records containing information specified in the section.
Paragraph 5(1)(a) provides that that the records kept by the owner must include the contact details specified in subsection 5(2) for the producer of the food and the person or persons to whom the owner dispatches the food.
Paragraph 5(1)(b) provides that that the record kept by the owner must include the contact details at subsection 5(3) for each of the persons mentioned in paragraph (a) (that is, the producer of the food and the person(s) to whom the owner dispatches the food, but only if those contact details are known to the owner).
Paragraph 5(1)(c) provides that that the record kept by the owner must include a name or a description of the food that is sufficient to indicate the true nature of the food.
Paragraph 5(1)(d) provides that the record kept by the owner must include the date that the food was received by the owner from the producer or supplier of the food, and the date the owner dispatches the food to each person to whom the owner dispatches it.
Paragraph 5(1)(e) provides that the record kept by the owner must include either the lot code or the batch code as it applies to the food.
Paragraph 5(1)(f) provides that the record kept by the owner must include the volume or quantity of the food that the owner dispatches to each person to whom the owner dispatches it.
Subsection 5(2) provides further contact details to be kept by an owner for the producer of the food and the person(s) to whom the owner dispatches the food. These details are:
- the name of the person;
- any business name used by the person; and
- the person’s street address.
Subsection 5(3) provides further contact details to be kept by an owner for the producer of the food and the person(s) to whom the owner dispatches the food (if these are known to the owner). These details are:
- the person’s telephone number; and
- the person’s email address.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Imported Food Control (Recordkeeping) Determination 2019
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
The purpose of the Imported Food Control (Recordkeeping) Determination 2019 (the Determination) is to:
- require the owner of imported food at the time of importation to keep records containing:
- the name or a description of the food that is sufficient to indicate the true nature of the food;
- either the lot code or batch code for the food;
- certain contact details for both the producer of the food and the person(s) to whom the owner dispatches the food;
- the dates the owner received the food from the producer or supplier and the dates the owner dispatched the food to another person or persons; and
- the volume or quantity of the food dispatched.
The Determination will protect the health of consumers by ensuring that imported food to which the Act applies can be easily traced and quickly recalled if necessary.
Human rights implications
This Legislative Instrument does not engage any of the applicable rights or freedoms.
The Determination engages the right to health (Article 12) in the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The Determination engages and promotes the right to health in Article 12 of the ICESCR by requiring the owners of imported food maintain records will ensure that imported food is traceable and can be efficiently and effectively recalled if required.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Daryl Quinlivan
Secretary of the Department of Agriculture