IMPORTED FOOD CONTROL ACT 1992 No. 221, 1992
IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - TABLE OF PROVISIONS
TABLE OF PROVISIONS PART 1-PRELIMINARY Section 1. Short title 2. Commencement 3. Interpretation 4. Application of Act to certain external Territories 5. Crown to be bound 6. Saving of other laws 7. Food to which Act applies PART 2-CONTROL Division 1-Controls on the importation and movement of food 8. Importation offence 9. Dealing offences 10. Certain provisions of the Customs Act may be expressed to be subject to this Act 11. Application for food control certificate 12. Issue of food control certificate 13. Form of food control certificate 14. Imported food inspection advice 15. Holding orders for certain food Division 2-The Food Inspection Scheme 16. Food Inspection Scheme 17. Making, publication and disallowance of orders 18. Foreign government certificates 19. Quality assurance certificates Division 3-Treatment, destruction or re-exportation of failing food 20. Treatment, destruction or re-exportation of failing food PART 3-ENFORCEMENT 21. Interpretation 22. Identity cards 23. Searches to monitor compliance with Act etc. with occupier's consent 24. Monitoring warrants 25. Offence powers-entry and search of premises with occupier's consent 26. Offence-related warrants 27. Warrants may be granted by telephone etc. 28. Seizures without offence-related warrant in emergency situations 29. Discovery of evidence 30. Power to require persons to answer questions etc. 31. Consent 32. Persons to assist authorised officers 33. Conduct by directors, servants and agents 34. Evidence of analyst 35. Publishing of information PART 4-MISCELLANEOUS 36. Fees for certain services 37. Certain moneys are a debt due to the Commonwealth 38. Exemption from suit 39. Compensation for destroyed food 40. Authorised officers 41. Delegation by Secretary 42. Review of decisions 43. Regulations PART 5-CONSEQUENTIAL AMENDMENTS OF OTHER ACTS Division 1-Amendments of the Customs Act 1901 44. Principal Act 45. Customs control of goods Division 2-Amendments of the Customs Administration Act 1985 46. Principal Act 47. Breaches of confidence IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - LONG TITLE
An Act to provide for the inspection and control of food imported into Australia, and for related purposes IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - PART 1 PART 1-PRELIMINARY
IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 1 Short title
(Assented to 24 December 1992) 1. This Act may be cited as the Imported Food Control Act 1992. (Minister's second reading speech made in- Senate on 25 November 1992 House of Representatives on 18 December 1992 a.m.) IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 2 Commencement
2.(1) Subject to subsection (2), the provisions of this Act commence on a day or days to be fixed by Proclamation.
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(2) If a provision of this Act does not commence within 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 3 Interpretation
3.(1) In this Act, unless the contrary intention appears: "applicable standard", in relation to particular food, or a particular matter affecting food, at a particular time, means the national standard in force in relation to that food or matter at that time; "AQIS" means the operating group within the Department having responsibility in relation to the administration of this Act and of the Quarantine Act 1908; "authorised officer", in relation to a provision of this Act, means the Secretary or an officer of AQIS who is appointed by the Secretary under section 40 to be an authorised officer for the purposes of this provision; "Customs" means the Australian Customs Service; "Customs Act" means the Customs Act 1901; "Customs control", in relation to food, means Customs control within the meaning of section 30 of the Customs Act; "deal with", in relation to food, includes: (a) moving, altering or interfering with in any physical manner whatsoever; and (b) entering into a transaction whereby the ownership of the food, or of any beneficial interest in the food, passes from one person to another; "examinable food" means: (a) food of a kind that is the subject of an order under paragraph 16(2)(a); or (b) food of a kind that is the subject of a holding order; or (c) particular food that, despite the fact that it is not food of a kind that is the subject of an order under paragraph 16(2)(a) or of a holding order, is nevertheless required to be inspected, or inspected and analysed, under the Food Inspection Scheme; or (d) particular food, other than food of a kind referred to in paragraph (a) or (b) or food referred to in paragraph (c): (i) that an authorised officer has reasonable grounds to believe may be failing food; and (ii) in respect of which the officer has notified that belief to an owner; "failing food" means examinable food, that: (a) as a result of an inspection, or inspection and analysis, under the Food Inspection Scheme, is found to be: (i) food that does not meet the applicable standards for that food; or (ii) food that poses a risk to human health; or (b) is taken, under the provisions of the Scheme, to be such food; "food" includes: (a) any substance or thing of a kind used or capable of being used as food or drink by human beings; or (b) any substance or thing of a kind used or capable of being used as an ingredient or additive in, or substance used in the preparation of, a substance or thing referred to in paragraph (a); or (c) any other substance or thing that is prescribed; whether or not it is in a condition fit for human consumption, but does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989; "food control certificate" means a certificate issued under section 12; "Food Inspection Scheme" means the inspection scheme established by regulations made under section 16; "Food Standards Code" means the code known by that name published in the Gazette on 27 August 1987 together with any amendments of the standards contained in that code: (a) that were approved by the National Food Standards Council before the National Food Authority Act 1991 commenced and that are or were published in the Gazette as forming part of that code; or (b) that are made under that Act; "forging", in relation to a certificate of the kind referred to in subsection 18(1) or 19(2), has the same meaning as in section 63 of the Crimes Act 1914; "holding order" means an order made by the Secretary under section 15; "imported food inspection advice" means an advice issued under section 14; "inspection" includes the taking of samples; "national standard", in relation to a particular food or a particular matter affecting food, means a standard relating to that food or matter: (a) that is in force as a standard adopted by the National Food Standards Council; or (b) that is included in the Food Standards Code; "owner", in relation to food, includes 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; "prohibited food" means food the importation of which is prohibited under the Customs Act;
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"recognised foreign government certificate" means a certificate covered by a determination in force under subsection 18(1); "recognised quality assurance certificate" means a certificate covered by a determination in force under subsection 19(2); "Secretary" means the Secretary to the Department; "State" includes the Australian Capital Territory and the Northern Territory; "this Act" includes regulations and orders made under this Act; "treatment", in relation to food, includes repackaging or relabelling; "uttering", in relation to a certificate referred to in subsection 18(1) or 19(2), has the same meaning as in section 64 of the Crimes Act 1914. (2) For the purposes of this Act, food poses a risk to human health if: (a) it contains: (i) pathogenic micro-organisms or their toxins; or (ii) micro-organisms indicating poor handling; or (iii) non-approved chemicals or chemical residues; or (iv) approved chemicals, or chemical residues, at greater levels than permitted; or (v) non-approved additives; or (vi) approved additives at greater levels than permitted; or (vii) any other contaminant or constituent that may be dangerous to human health; or (b) it has been manufactured or transported under conditions which render it dangerous or unfit for human consumption. (3) In subsection (2): (a) a reference to approved chemicals, approved chemical residues or approved additives is a reference to chemicals, chemical residues or additives approved in a standard: (i) adopted by the National Food Standards Council under the National Food Authority Act 1991; or (ii) included in the Food Standards Code within the meaning of that Act; and (b) a reference to permitted levels in relation to such approved standards, approved chemical residues, or approved additives is a reference to levels of those chemicals, chemical residues or additives permitted in such a standard; and (c) a reference to non-approved chemicals, non-approved chemical residues or non-approved additives is a reference to chemicals, chemical residues or additives that are not approved in such a standard. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 4 Application of Act to certain external Territories
4.(1) This Act does not extend to the Territory of Christmas Island unless regulations made for the purposes of this subsection provide that the Act is to extend to that Territory. (2) This Act does not extend to the Territory of Cocos (Keeling) Islands unless regulations made for the purposes of this subsection provide that the Act is to extend to that Territory. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 5 Crown to be bound
5.(1) This Act binds the Crown in all its capacities.
(2) Nothing in this Act renders the Crown liable to be prosecuted. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 6 Saving of other laws
6. This Act is to be construed as being in addition to, and not in derogation of or in substitution for: (a) the Quarantine Act 1908; or (b) any other law of the Commonwealth, or any law of a State, whether passed or made before or after the commencement of this Act, that can operate concurrently with this Act; or (c) any law of an external Territory to which this Act extends because of regulations made for the purpose of section 4, whether passed or made before or after the making of those regulations, that can operate concurrently with this Act. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 7 Food to which Act applies
7.(1) This Act applies to all food imported into Australia other than: (a) prohibited food; or (b) food that is imported for private consumption; or (c) food that is ship's stores or aircraft's stores, within the meaning of section 130C of the Customs Act. (2) Food of a particular kind is taken to have been imported for private consumption: (a) as to food that is in liquid form-if it has a volume of less than 10 litres or such lesser volume (if any) as is prescribed in the regulations in respect of food of that kind; or (b) as to food that is not in liquid form-if it has a weight of less than 10 kilograms or such lesser weight (if any) as is prescribed in the regulations in respect of food of that kind. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - PART 2 PART 2-CONTROL
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IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - DIVISION 1 Division 1-Controls on the importation and movement of food
IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 8 Importation offence
8.(1) A person must not import into Australia food to which this Act applies that the person knows: (a) does not meet applicable standards; or (b) poses a risk to human health. Penalty: Imprisonment for 10 years. (2) For the purposes of establishing a contravention of subsection (1), if, having regard to: (a) a person's abilities, experience, qualifications and other attributes; and (b) all the circumstances surrounding the alleged contravention of that subsection; the person ought reasonably to have known that the food did not meet applicable standards or posed a risk to human health, the person is taken to have known that the food did not meet those standards or posed that risk. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 9 Dealing offences
9.(1) A person (other than an officer of Customs, or an authorised officer, acting in the course of his or her duties) must not deal in any manner with examinable food that the person knows: (a) has been imported into Australia; and (b) is food in respect of which a food control certificate has not been issued; unless the person is authorised by an authorised officer to deal with the food in that manner. Penalty: Imprisonment for 10 years. (2) A person (other than an officer of Customs, or an authorised officer, acting in the course of his or her duties) must not deal in any manner with examinable food that the person knows: (a) has been imported into Australia; and (b) is food in respect of which a food control certificate has been issued; and (c) has been identified in an imported food inspection advice as failing food; unless the owner of the food: (d) obtains the approval of an authorised officer to deal with the food in that manner; or (e) is permitted or required, in accordance with the advice, to deal with the food in that manner. Penalty: Imprisonment for 10 years. (3) For the purposes of establishing a contravention of subsection (1) or (2), if, having regard to: (a) a person's abilities, experience, qualifications and other attributes; and (b) all the circumstances surrounding the alleged contravention of that subsection; the person ought reasonably to have known of the matters referred to in paragraphs (1)(a) and (b) or (2)(a), (b) and (c), as the case requires, the person is taken to have known of those matters. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 10 Certain provisions of the Customs Act may be expressed to be subject to this Act
10.(1) If: (a) a person applies under section 69 of the Customs Act for permission to deliver like customable goods within the meaning of that section into home consumption without entering them for home consumption; and (b) an officer of Customs reasonably believes that the like customable goods are, or include, food; a permission granted under that section in respect of that food may be expressed, under subsection (4) of that section, to be subject to the condition that a food control certificate in respect of the food is presented to the person having possession of the food. (2) If: (a) a person applies under section 70 of the Customs Act for permission to deliver special clearance goods within the meaning of that section into home consumption without entering them for home consumption; and (b) an officer of Customs reasonably believes that the special clearance goods are, or include, food; a permission granted under that section in respect of the goods may be expressed, under subsection (5) of that section, to be subject to the condition that a food control certificate in respect of the food is presented to the person having possession of the food. (3) If: (a) a person enters goods for home consumption or warehousing under section 71A of the Customs Act; and (b) an officer of Customs reasonably believes, on the basis of information supplied by authorised officers in respect of the Food Inspection Scheme and
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information supplied by the owner in respect of those particular goods, that the goods may be, or may include, examinable food; an authority to deal with the food under section 71B of that Act by delivering it into home consumption, or into the warehouse specified in the entry, as the case requires, may be expressed, under subsection (6) of that section, to be subject to the condition that a food control certificate in respect of the food is presented to the person having possession of the food. (4) The granting under the Customs Act of a permission referred to in subsection (1) or (2), or the issue under that Act of an authority referred to in subsection (3), is not to be taken to affect any person's obligations under this Act in any way. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 11 Application for food control certificate
11.(1) An application for a food control certificate must: (a) be made in a manner prescribed by the regulations; and (b) be made by an owner of the food to which the application relates; and (c) be given or communicated to an authorised officer; and (d) contain such information as the regulations provide. (2) The regulations may provide that an entry of goods under section 71A of the Customs Act for home consumption or warehousing that is communicated to Customs by computer is to be taken, to the extent that that entry relates to examinable food, to be an application for a food control certificate for the purposes of subsection (1).
(3) If the regulations make provision in accordance with subsection (2) in relation to a computer entry under the Customs Act, the application so made is taken to have been communicated to an authorised officer at the time when it is taken to have been communicated to Customs under the Customs Act. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 12 Issue of food control certificate
12. Subject to subsections 20(13) and 36(8), if an application for a food control certificate is made under section 11, an authorised officer must, as soon as practicable after deciding whether or not the examinable food to which the application relates is required to be inspected, or inspected and analysed, under the Food Inspection Scheme, give the applicant a food control certificate for presentation to the person having possession of the food. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 13 Form of food control certificate
13.(1) A food control certificate must be in a form approved, in writing, by the Secretary for the purposes of this section.
(2) The Secretary may approve more than one form of food control certificate.
(3) Without limiting subsection (1), a food control certificate must: (a) if the examinable food to which the certificate relates is not required to be inspected, or inspected and analysed, under the Food Inspection Scheme-state that the food is not required to be inspected, or inspected and analysed, under the Scheme; or (b) if the food is required to be inspected, or inspected and analysed, under that Scheme: (i) state that the food is required to be so inspected or so inspected and analysed; and (ii) require the food to be dealt with in a specified manner, or as directed by an authorised officer, pending that inspection, or inspection and analysis. (4) If: (a) a food control certificate is issued in respect of food; and (b) the food to which the certificate relates will not, on presentation to the person having possession of the food, cease to be under Customs control; then: (c) an authorised officer must give a copy of the certificate to an officer of Customs having responsibility under section 71E of the Customs Act for the movement of goods under Customs control; and (d) the officer of Customs must authorise the food to be dealt with as if an application had been made under that section by the owner of the food in the terms of the requirement contained in the certificate. (5) The fact that particular food is described in a food control certificate as not required to be inspected, or inspected and analysed, under the Food Inspection Scheme does not imply that an authorised officer who has reasonable grounds to believe that the food may be failing food may not inspect, or inspect and analyse, that food under the Scheme. Note: "Customs control" is defined in subsection 3(1). IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 14 Imported food inspection advice
14.(1) After food that is required to be inspected, or inspected and analysed, has been so inspected, or inspected and analysed, an authorised officer must issue a written advice: (a) to the owner of the food; and (b) if the food is under Customs control-to the person having possession of the food at the time; stating: (c) whether the whole or a part of the food dealt with in the advice is
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identified as failing food; and (d) in respect of food that is so identified-how the food is to be dealt with. (2) Without limiting subsection (1), an advice issued under this section may indicate that food identified as failing food: (a) must be destroyed in accordance with the requirements of section 20; or (b) must either be destroyed or re-exported from Australia in accordance with the requirements of that section; or (c) must, if not treated by the owner in accordance with the requirements of that section: (i) be destroyed; or (ii) be destroyed or re-exported from Australia; in accordance with the requirements of that section. (3) Despite subsections (1) and (2), the owner of food identified in an advice under subsection (1) as failing food may, in the circumstances specified in the Food Inspection Scheme, apply, in writing, to an authorised officer for the issue of a further imported food inspection advice in respect of a part of that food.
(4) Neither: (a) the fact that food identified as failing food under an imported food inspection advice may be the subject of an application for a further such advice; nor (b) the making of an application for a further such advice in respect of the food; causes the food to cease to be failing food on the basis of the original advice but, if the original advice indicates that the food must be treated, destroyed or re-exported, the food is not required to be so treated, destroyed or re-exported unless: (c) the circumstances permitting the application for the further advice cease to exist; or (d) an application is made and rejected. (5) If the owner of food identified in an advice as failing food makes an application for the issue of a further imported food inspection advice in respect of a part of the food, the person must, if the food to which the application relates is under Customs control, inform the person having possession of the food that he or she had made that application.
(6) If an application is made under subsection (3), an authorised officer must: (a) if he or she is not satisfied that the application is made in accordance with the requirements of the Food Inspection Scheme-reject the application and give notice to the applicant of that rejection and of the reasons for the rejection; and (b) in any other case-consider the application and issue to the applicant a further imported food inspection advice in respect of the food the subject of the application. (7) If, under subsection (6), an authorised officer is required to inform an applicant either of the rejection of an application or to issue to the applicant a further imported food inspection advice in respect of food that is under Customs control, the authorised officer must inform the person having possession of the food of the rejection of the application or of the particulars of the further advice, as the case requires.
(8) If a further advice is issued in respect of the food the subject of an application, this Act has effect as if: (a) that further advice were substituted for the initial advice issued in respect of that food under subsection (1); and (b) subsection (3) were not included. (9) A failure by an authorised officer to comply with the requirements of subsection (7) in relation to an application for a further imported food inspection advice does not invalidate the rejection of that application or the issue of that further advice, as the case requires. IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - SECT 15 Holding orders for certain food
15.(1) If: (a) an inspection, or inspection and analysis, of examinable food of a particular kind indicates the food, or a part of the food, to be failing food; or (b) the Secretary is satisfied that there are reasonable grounds for believing that food of a particular kind would, on inspection, or inspection and analysis, be so identified; the Secretary may, by writing, make a holding order: (c) stating that, until the revocation of the order, food of that kind that is imported into Australia after the making of the order must be held in a place to be approved by an authorised officer, until an inspection, or inspection and analysis, required under the Food Inspection Scheme, has been completed; and (d) specifying the circumstances in which the order will be revoked. (2) If the Secretary is satisfied, in respect of a holding order, that the circumstances specified for its revocation have occurred, the Secretary must, by writing, immediately revoke the holding order.
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IMPORTED FOOD CONTROL ACT 1992 No. 221 of 1992 - DIVISION 2