Commonwealth: Imported Food Control Act 1992 (Cth)

Imported Food Control Act 1992 No. 221, 1992 Compilation No. 29 Compilation date: 14 October 2024 Includes amendments: Act No. 39, 2024 About this compilation This compilation This is a compilation of the Imported Food Control Act 1992 that shows the text of the law as amended and in force on 14 October 2024 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Part 1—Preliminary 1 Short title 2 Commencement 2A Object of Act 3 Interpretation 3A Definition of food 4 Application of Act to certain external Territories 5 Crown to be bound 6 Saving of other laws 6A Application of the Criminal Code 7 Food to which Act applies Part 2—Control Division 1A—Introduction 7A Simplified outline of this Part Division 1—Controls on the importation and movement of food 8 Importation offences 8A Labelling offences 9 Offences relating to dealing with examinable food 9A Civil penalties relating to importing, labelling and dealing with food 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 Consultation with Food Standards Australia New Zealand 18 Foreign government certificates 18A Food safety management certificates 19 Quality assurance certificates 19A Forging and uttering Division 3—Treatment, destruction or re‑exportation of failing food 20 Treatment, destruction or re‑exportation of failing food Division 4—Other matters 20A Computerised decision‑making Part 3—Enforcement Division 1—Introduction 21 Simplified outline of this Part Division 2—Monitoring 22 Monitoring powers Division 3—Investigation 23 Investigation powers Division 4—Civil penalties 24 Civil penalty provisions Division 5—Infringement notices 25 Infringement notices Division 6—Enforceable undertakings 26 Enforceable undertakings Part 3A—Record‑keeping 27 Simplified outline of this Part 28 Keeping and retaining records 29 Production of records 30 Secretary may inspect and copy records 31 Secretary may retain records 32 Self‑incrimination Part 4—Other matters 32A Simplified outline of this Part 33 Conduct by directors, employees and agents 34 Evidence of analyst 34A Power to require information or documents 35 Publishing of information about overseas food processing operations 35A Compliance agreements 35B Making of orders or determinations 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 42A Use and disclosure of information 43 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history An Act to provide for the inspection and control of food imported into Australia, and for related purposes Part 1—Preliminary 1 Short title This Act may be cited as the Imported Food Control Act 1992. 2 Commencement (1) Subject to subsection (2), the provisions of this Act commence on a day or days to be fixed by Proclamation. (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. 2A Object of Act The object of this Act is to provide for the compliance of food imported into Australia with Australian food standards and the requirements of public health and safety. 3 Interpretation (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. Australia New Zealand Food Standards Code has the same meaning as in the Food Standards Australia New Zealand Act 1991. authorised officer means: (a) the Secretary; or (b) an APS employee in the Department appointed by the Secretary under subsection 40(1); or (c) a person appointed by the Secretary under subsection 40(2). civil penalty provision has the same meaning as in the Regulatory Powers Act. compliance agreement means a compliance agreement entered into under section 35A. Customs Act means the Customs Act 1901. customs control, in relation to food, means customs control under 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 made for the purposes of 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 made for the purposes of 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 has the meaning given by section 3A. food control certificate means a certificate issued under section 12. Food Inspection Scheme means the inspection scheme established by regulations made under section 16. holding order means an order made by the Secretary under section 15. Immigration and Border Protection Department means the Department administered by the Minister administering Part XII of the Customs Act. imported as a trade sample, in relation to food, has the meaning given by subsection 7(3). imported food inspection advice means an advice issued under section 14. inspection includes the taking of samples. label means any tag, brand, mark or written statement, any representation or design, or any descriptive matter, attached to, used in connection with, or accompanying, any food or package containing food. national standard means: (a) a standard that is included in the Australia New Zealand Food Standards Code; or (b) the Country of Origin Food Labelling Information Standard 2016, as in force from time to time. Note: The Country of Origin Food Labelling Information Standard 2016 is an information standard made under section 134 of the Australian Consumer Law (see Schedule 2 to the Competition and Consumer Act 2010). officer of Customs has the same meaning as in the Customs Act 1901. 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. package includes any container or wrapper in or by which food is wholly or partly encased, covered, enclosed, contained or packaged and, in respect of food that is in more than one package, includes each such package. prohibited food means food the importation of which is prohibited under the Customs Act. recognised food safety management certificate means: (a) a recognised foreign government certificate; or (b) a certificate covered by a determination in force under subsection 18A(1). 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). Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014. Secretary means the Secretary of 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. (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 produced, processed, manufactured, stored, packed, packaged 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) made under the Food Standards Australia New Zealand Act 1991 after the commencement of Part 1 of Schedule 1 to the Australia New Zealand Food Authority Amendment Act 2001; or (ia) adopted by the Australia New Zealand Food Standards Council under Australia New Zealand Food Authority Act 1991 before the commencement of Part 1 of Schedule 1 to the Australia New Zealand Food Authority Amendment Act 2001; or (ii) included in the Australia New Zealand Food Standards Code; 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. 3A Definition of food (1) Food includes: (a) any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared); and (b) any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a); and (c) any substance used in preparing a substance or thing referred to in paragraph (a); and (d) chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; and (e) any substance or thing declared to be a food under a declaration in force under section 6 of the Food Standards Australia New Zealand Act 1991. (It does not matter whether the substance, thing or chewing gum is in a condition fit for human consumption.) (2) However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989. (3) To avoid doubt, food may include live animals and plants. 4 Application of Act to certain external Territories (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. (3) This Act does not extend to Norfolk Island unless regulations made for the purposes of this subsection provide that the Act is to extend to that Territory. 5 Crown to be bound (1) This Act binds the Crown in all its capacities. (2) Nothing in this Act renders the Crown liable to be prosecuted. 6 Saving of other laws This Act is to be construed as being in addition to, and not in derogation of or in substitution for: (a) the Biosecurity Act 2015; 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. 6A Application of the Criminal Code Chapter 2 (other than Part 2.5) of the Criminal Code applies to all offences against this Act. Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility. 7 Food to which Act applies (1) This Act applies to all food imported into Australia other than: (aa) food that is imported from New Zealand and is of a kind that is specified by the regulations to be food to which this Act does not apply; or (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; or (d) food that is imported as a trade sample. (2) Food of a particular kind is taken to have been imported for private consumption if it has not been imported as a trade sample and: (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. (3) Food of a particular kind is imported as a trade sample if: (a) the food is imported for the purposes of scientific or commercial evaluation; and (b) the food is not imported for consumption by any person (except a person carrying out the scientific or commercial evaluation); and (c) the food is: (i) in liquid form and has a volume of less than 20 litres or such lesser volume (if any) as is prescribed by the regulations in respect of food of that kind; or (ii) not in liquid form and has a weight of 20 kilograms or such lesser weight (if any) as is prescribed by the regulations in respect of food of that kind. Part 2—Control Division 1A—Introduction 7A Simplified outline of this Part • Consistent with the object of this Act, there are importation, labelling and dealing offences and civil penalties in relation to food to which this Act applies. • Under the regulations, there is a food inspection scheme for food to which this Act applies. • Food control certificates and imported food inspection advices are able to be issued by authorised officers. • The Secretary may make orders requiring food to be held at certain places if the Secretary considers that the food does not meet applicable standards or considers that the food poses a serious risk to human health. • Food identified as failing food may be required to be treated, destroyed or re‑exported from Australia. • Decisions in relation to the issue of food control certificates and imported food inspection advices and the manner for dealing with food that has been identified as failing food may be made by computer programs. Division 1—Controls on the importation and movement of food 8 Importation offences Food does not meet applicable standards (1) A person commits an offence if: (a) the person imports food into Australia; and (b) this Act applies to the food; and (c) the food does not meet applicable standards; and (d) those standards do not relate to information on labels for packages containing food. Penalty: Imprisonment for 10 years. (2) A person commits an offence of strict liability if: (a) the person imports food into Australia; and (b) this Act applies to the food; and (c) the food does not meet applicable standards; and (d) those standards do not relate to information on labels for packages containing food. Penalty: 60 penalty units. Food poses a risk to human health (3) A person commits an offence if: (a) the person imports food into Australia; and (b) this Act applies to the food; and (c) the person knows that the food poses a risk to human health. Penalty: Imprisonment for 10 years. (4) A person commits an offence of strict liability if: (a) the person imports food into Australia; and (b) this Act applies to the food; and (c) the food poses a risk to human health. Penalty: 60 penalty units. Imputed knowledge (5) For the purposes of establishing a contravention of subsection (3), the person is taken to have known that the food posed a risk to human health if the person ought reasonably to have known that the food posed that risk, having regard to: (a) the person's abilities, experience, qualifications and other attributes; and (b) all the circumstances surrounding the alleged contravention. 8A Labelling offences Fault‑based offence (1) A person commits an offence if: (a) food is imported into Australia; and (b) this Act applies to the food; and (c) the person deals with the food; and (d) the food does not meet applicable standards relating to information on labels for packages containing food. Penalty: Imprisonment for 10 years. Strict liability offence (2) A person commits an offence of strict liability if: (a) food is imported into Australia; and (b) this Act applies to the food; and (c) the person deals with the food; and (d) the food does not meet applicable standards relating to information on labels for packages containing food. Penalty: 60 penalty units. Exception (3) Subsection (1) or (2) does not apply to a dealing with food for the purpose of altering or replacing the label on the package containing the food in order to meet applicable standards relating to information on labels for packages containing food. Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code. 9 Offences relating to dealing with examinable food Dealing with food where no food control certificate (1) A person commits an offence if: (a) the person deals with food in a particular manner; and (b) the food is examinable food; and (c) the person knows that the food has been imported into Australia; and (d) the person knows that a food control certificate has not been issued in respect of the food; and (e) the person has not obtained the approval of an authorised officer to deal with the food in that manner; and (f) the person is not dealing with the food in that manner in accordance with a compliance agreement; and (g) the person is neither an officer of Customs, nor an authorised officer, acting in the course of his or her duties. Penalty: Imprisonment for 10 years. (2) A person commits an offence of strict liability if: (a) the person deals with food in a particular manner; and (b) the food is examinable food; and (c) the food has been imported into Australia; and (d) a food control certificate has not been issued in respect of the food; and (e) the person has not obtained the approval of an authorised officer to deal with the food in that manner; and (f) the person is not dealing with the food in that manner in accordance with a compliance agreement; and (g) the person is neither an officer of Customs, nor an authorised officer, acting in the course of his or her duties. Penalty: 60 penalty units. Dealing with food where no imported food inspection advice (3) A person commits an offence if: (a) the person deals with food in a particular manner; and (b) the food is examinable food; and (c) the person knows that the food has been imported into Australia; and (d) the person knows that a food control certificate has been issued in respect of the food; and (e) the person knows that an imported food inspection advice has not been issued in respect of the food; and (f) the person has not obtained the approval of an authorised officer to deal with the food in that manner; and (g) the person is not dealing with the food in that manner in accordance with a compliance agreement; and (h) the person is neither an officer of Customs, nor an authorised officer, acting in the course of his or her duties. Penalty: Imprisonment for 10 years. (4) A person commits an offence of strict liability if: (a) the person deals with food in a particular manner; and (b) the food is examinable food; and (c) the food has been imported into Australia; and (d) a food control certificate has been issued in respect of the food; and (e) an imported food inspection advice has not been issued in respect of the food; and (f) the person has not obtained the approval of an authorised officer to deal with the food in that manner; and (g) the person is not dealing with the food in that manner in accordance with a compliance agreement; and (h) the person is neither an officer of Customs, nor an authorised officer, acting in the course of his or her duties. Penalty: 60 penalty units. (5) Subsection (3) or (4) does not apply to a dealing with food for the purpose of altering or replacing the label on the package containing the food in order to meet applicable standards relating to information on labels for packages containing food. Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code. Dealing with failing food (6) A person commits an offence if: (a) the person deals with food in a particular manner; and (b) the food is examinable food; and (c) the person knows that the food has been imported into Australia; and (d) the person knows that a food control certificate has been issued in respect of the food; and (e) the person knows that the food has been identified in an imported food inspection advice as failing food; and (f) the person has not obtained the approval of an authorised officer to deal with the food in that manner; and (g) the person is neither permitted nor required, in accordance with the imported food inspection advice, to deal with the food in that manner; and (h) the person is neither an officer of Customs, nor an authorised officer, acting in the course of his or her duties. Penalty: Imprisonment for 10 years. (7) A person commits an offence of strict liability if: (a) the person deals with food in a particular manner; and (b) the food is examinable food; and (c) the food has been imported into Australia; and (d) a food control certificate has been issued in respect of the food; and (e) the food has been identified in an imported food inspection advice as failing food; and (f) the person has not obtained the approval of an authorised officer to deal with the food in that manner; and (g) the person is neither permitted nor required, in accordance with the imported food inspection advice, to deal with the food in that manner; and (h) the person is neither an officer of Customs, nor an authorised officer, acting in the course of his or her duties. Penalty: 60 penalty units. Imputed knowledge (8) For the purposes of establishing a contravention of subsection (1), (3) or (6), the person is taken to have known of the matter referred to in paragraph (1)(c) or (d), (3)(c), (d) or (e) or (6)(c), (d) or (e) if the person ought reasonably to have known of the matter, having regard to: (a) the person's abilities, experience, qualifications and other attributes; and (b) all the circumstances surrounding the alleged contravention. 9A Civil penalties relating to importing, labelling and dealing with food Importing food (1) A person is liable to a civil penalty if: (a) the person imports food into Australia; and (b) this Act applies to the food; and (c) the food does not meet applicable standards; and (d) those standards do not relate to information on labels for packages containing food. Civil penalty: 120 penalty units. (2) A person is liable to a civil penalty if: (a) the person imports food into Australia; and (b) this Act applies to the food; and (c) the food poses a risk to human health. Civil penalty: 120 penalty units. Labelling of food (3) A person is liable to a civil penalty if: (a) food is imported into Australia; and (b) this Act applies to the food; and (c) the person deals with the food; and (d) the food does not meet applicable standards relating to information on labels for packages containing food. Civil penalty: 120 penalty units. (4) Subsection (3) does not apply to a dealing with food for the purpose of altering or replacing the label on the package containing the food in order to meet applicable standards relating to information on labels for packages containing food. Note: A person bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act. Dealing with food (5) A person is liable to a civil penalty if: (a) the person deals with food in a particular manner; and (b) the food is examinable food; and (c) the food has been imported into Australia; and (d) a food control certificate has not been issued in respect of the food; and (e) the person has not obtained the approval of an authorised officer to deal with the food in that manner; and (f) the person is not dealing with the food in that manner in accordance with a compliance agreement; and (g) the person is neither an officer of Customs, nor an authorised officer, acting in the course of his or her duties. Civil penalty: 120 penalty units. (6) A person is liable to a civil penalty if: (a) the person deals with food in a particular manner; and (b) the food is examinable food; and (c) the food has been imported into Australia; and (d) a food control certificate has been issued in respect of the food; and (e) an imported food inspection advice has not been issued in respect of the food; and (f) the person has not obtained the approval of an authorised officer to deal with the food in that manner; and (g) the person is not dealing with the food in that manner in accordance with a compliance agreement; and (h) the person is neither an officer of Customs, nor an authorised officer, acting in the course of his or her duties. Civil penalty: 120 penalty units. (7) Subsection (6) does not apply to a dealing with food for the purpose of altering or replacing the label on the package containing the food in order to meet applicable standards relating to information on labels for packages containing food. Note: A person bears an evidential burden in relation to the matter in this subsection: see section 96 of the Regulatory Powers Act. (8) A person is liable to a civil penalty if: (a) the person deals with food in a particular manner; and (b) the food is examinable food; and (c) the food has been imported into Australia; and (d) a food control certificate has been issued in respect of the food; and (e) the food has been identified in an imported food inspection advice as failing food; and (f) the person has not obtained the approval of an authorised officer to deal with the food in that manner; and (g) the person is neither permitted nor required, in accordance with the imported food inspection advice, to deal with the food in that manner; and (h) the person is neither an officer of Customs, nor an authorised officer, acting in the course of his or her duties. Civil penalty: 120 penalty units. 10 Certain provisions of the Customs Act may be expressed to be subject to this Act (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 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. 11 Application for food control certificate (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 or 71DH of the Customs Act for home consumption or warehousing that is communicated to the Immigration and Border Protection Department 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 the Immigration and Border Protection Department under the Customs Act. 12 Issue of food control certificate 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. 13 Form of food control certificate (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. 14 Imported food inspection advice (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 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. 15 Holding orders for certain food Failing food on inspection or inspection and analysis (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, the following food must be held in a place to be approved by an authorised officer in writing, until an inspection, or inspection and analysis, required under the Food Inspection Scheme has been completed: (i) food of that kind that is imported into Australia after the making of the order; (ii) if the Secretary states that the order is being made in connection with the end of another order under subsection (3)—food of that kind that is being held immediately before the end of the other order; and (d) specifying the circumstances in which the order will be revoked. Note: See section 35B for how an order may refer to a kind of food. (2) If the Secretary is satisfied, in respect of a holding order made under subsection (1), that the circumstances specified for its revocation have occurred, the Secretary must, by writing, immediately revoke the holding order. Food posing a serious risk to human health (3) If: (a) the Secretary is satisfied that there are reasonable grounds for believing that food of a particular kind may pose a risk to human health; and (b) the Secretary is satisfied that the risk is serious; the Secretary may, by writing, make a holding order: (c) stating that, until the order ends, 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 in writing; and (d) stating that the order ends at the earlier of the following times: (i) at the end of the period of 28 days beginning on the day the order is made or, if that period is extended, the end of the extended period; (ii) the time when the order is revoked; and (e) specifying the circumstances in which the order will be revoked. Note: See section 35B for how an order may refer to a kind of food. (4) The Secretary may, in writing, extend the 28‑day period referred to in subparagraph (3)(d)(i) by a further period of up to 28 days. The Secretary may make more than one extension. (5) Before making an extension, the Secretary must review the appropriateness of the order. (6) If the Secretary is satisfied, in respect of a holding order made under subsection (3), that the circumstances specified for its revocation have occurred, the Secretary must, by writing, immediately revoke the holding order. Approvals (7) Subsection (1) or (3) does not prevent an authorised officer from giving a person an approval to deal with food of a kind covered by an order under that subsection while the order is in force. Status of instruments (8) The following are not legislative instruments: (a) an order under subsection (1) or (3); (b) an instrument under subsection (2), (4) or (6). Publication of instruments (9) The Secretary must publish the following on the Department's website: (a) an order under subsection (1), except where the order is made in connection with applicable standards relating to information on labels for packages containing food; (b) an instrument under subsection (2) that is made in relation to an order covered by paragraph (a) of this subsection; (c) an order under subsection (3); (d) an instrument under subsection (4) or (6). Division 2—The Food Inspection Scheme 16 Food Inspection Scheme (1) The regulations may set out particulars of a food inspection scheme (Scheme) applicable to all food to which this Act applies. (2) Without limiting subsection (1), the regulations setting out particulars of the Scheme may: (a) empower the Minister, subject to section 17, to make orders: (i) identifying food of particular kinds as food of a kind that is required to be inspected, or inspected and analysed, under the Scheme; or (ii) identifying food of particular kinds as food that must be covered by a recognised foreign government certificate; or (iia) identifying food of particular kinds as food that must be covered by a recognised food safety management certificate; or (iii) classifying food of particular kinds into particular categories; and (aa) specify the percentage of food classified into a particular category that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; and (ab) empower the Secretary to make an order, in respect of food that is classified into a particular category and is of a particular kind, specifying the percentage of food of that kind that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; and (ac) empower the Minister to make an order in respect of food classified into a particular category imported from a country specified in the order: (i) specifying the percentage of all such food that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; or (ii) specifying the percentage of all such food, except food of a particular kind, that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; or (iii) specifying the percentage of food of a particular kind that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; and (b) specify the manner and incidence of inspection, or inspection and analysis, attaching to various kinds of food identified by the Minister in orders made for the purposes of paragraph (a); and (ba) empower the Secretary to make an order, in respect of food that is classified into a particular category and is of a particular kind: (i) specifying the incidence of inspection, or inspection and analysis, attaching to food of that kind; and (ii) specifying the rate at which samples must be taken for inspection from food of that kind; and (bb) empower the Minister to make an order in respect of food classified into a particular category imported from a country specified in the order: (i) specifying the percentage of all such food that must be inspected, or inspected and analysed, under the Scheme; or (ii) specifying the percentage of all such food, except food of a particular kind, that must be inspected, or inspected and analysed, under the Scheme; or (iii) specifying the percentage of food of a particular kind that must be inspected, or inspected and analysed, under the Scheme; and (c) specify the manner and incidence of the inspection, or inspection and analysis, of food of a kind that is subject to a holding order; and (d) specify the manner and incidence of the inspection, or inspection and analysis, of particular food, other than food of a kind that is identified by the Minister in an order made under paragraph (a) or that is subject to a holding order, that is imported into Australia; and (e) set out the circumstances in which authorised officers may exercise powers to inspect, or inspect and analyse, particular food that is not: (i) food of a kind that is identified by the Minister in an order under paragraph (a) or that is subject to a holding order; or (ii) food that is required to be inspected in accordance with regulations made for the purposes of paragraph (d); and (f) specify powers of authorised officers to inspect, or inspect and analyse, food required or permitted to be inspected, or inspected and analysed, under this Scheme; and (fa) specify circumstances in which food is taken to be failing food; and (g) specify circumstances in which food is to be taken to be failing food because of its relationship to food that is found to be failing food; and (h) set out the circumstances in which food, other than food that is the subject of a holding order, is to be held pending the outcome of an inspection, or inspection and analysis; and (i) permit variation in the incidence of inspection, or inspection and analysis, of food if: (i) a recognised foreign government certificate or a recognised quality assurance certificate covering the food is given to an authorised officer and the officer has no reason to doubt the authenticity or reliability of the certificate; or (ii) a compliance agreement applies in respect of the food; and (j) set out the circumstances in which, and procedures by which, the reliability of certificates referred to in paragraph (i) will be tested. (2A) A percentage mentioned in paragraph (2)(ac) or (bb) that is specified in an order made by the Minister must be less than 5% (including zero). (2B) The Minister may make an order for the purposes of paragraph (2)(ac) or (bb) in relation to a particular country only if the Minister is satisfied: (a) that there is in force an agreement between Australia and that country; and (b) that the agreement is based on an assessment of the food safety systems of Australia and that country which concluded that: (i) Australia and that country have equivalent food safety systems; and (ii) Australia and that country conduct equivalent monitoring of the food they regulate. (3) Without limiting the factors that may affect the incidence of inspection, or inspection and analysis, of food, the regulations may provide for the incidence to differ according to whether the food is supplied by an overseas processing operation that has previously supplied food of that kind and the results of any analysis of food so supplied. (4) If: (a) food is held pending the outcome of an inspection, or inspection and analysis, under the Scheme, whether because the food is subject to a holding order or not; and (b) that food, or a part of that food, is identified in an imported food inspection advice as failing food; then, without limiting subsection (1), the regulations may: (c) in the circumstances and within the period set out in the regulations, permit the owner of the food to make application for a further imported food inspection advice in respect of part only of the food so identified; and (d) specify the part of the food so identified in respect of which the application may be made. (5) An order made by the Minister for the purposes of paragraph (2)(a), (ac) or (bb) is a legislative instrument. Note: The order may be varied or revoked by the Minister in the same way as it is made, and subject to the same conditions (see subsection 33(3) of the Acts Interpretation Act 1901). (6) An order made by the Secretary for the purposes of paragraph (2)(ab) or (ba) is not a legislative instrument. Note 1: Under the regulations, the order made by the Secretary is of a temporary nature. Note 2: For revocation of the order, see subsection 33(3) of the Acts Interpretation Act 1901. (7) The Secretary must publish the following on the Department's website: (a) an order made by the Secretary for the purposes of paragraph (2)(ab) or (ba); (b) a revocation of the order. 17 Consultation with Food Standards Australia New Zealand The Minister must not make an order for the purposes of paragraph 16(2)(a) without first consulting Food Standards Australia New Zealand. Note: The order may be varied or revoked by the Minister in the same way as it is made, and subject to the same conditions (see subsection 33(3) of the Acts Interpretation Act 1901). 18 Foreign government certificates (1) The Secretary may determine, in writing, that a certificate issued by an instrumentality of a specified foreign government stating that food of a specified kind meets applicable standards and does not pose a risk to human health is a recognised foreign government certificate. Note: See section 35B for how a determination may refer to a kind of food. (2) The Secretary may revoke a determination under subsection (1) if the Secretary has reason to doubt the continued reliability of a statement made in any certificate to which the determination relates. Offence (3) A person must not forge, or utter, knowing it to be forged, a certificate of the kind referred to in subsection (1). Penalty: Imprisonment for 10 years. Status of instruments (4) A determination under subsection (1), or a revocation under subsection (2), is not a legislative instrument. Definitions (5) For the purposes of this section, forge and utter have the meanings given by section 19A. 18A Food safety management certificates (1) The Secretary may determine, in writing, that, for food of a specified kind, a specified certificate issued by a specified person or specified body is a recognised food safety management certificate. Note 1: The regulations deal with when food of such a kind is taken to be failing food because the food is not covered by a recognised food safety management certificate. Note 2: See section 35B for how a determination may refer to a kind of food. Note 3: For variation and revocation of the determination, see subsection 33(3) of the Acts Interpretation Act 1901. Note 4: For specification by class, see subsection 33(3AB) of the Acts Interpretation Act 1901. (2) The Secretary must, in writing, make guidelines that the Secretary must have regard to before making a determination under subsection (1). Note: For variation and revocation of the guidelines, see subsection 33(3) of the Acts Interpretation Act 1901. Offence (3) A person must not forge, or utter, knowing it to be forged, a certificate of the kind referred to in subsection (1). Penalty: Imprisonment for 10 years. Status of instruments (4) The following are not legislative instruments: (a) a determination under subsection (1); (b) guidelines under subsection (2). Publication of instruments (5) The Secretary must publish the following on the Department's website: (a) a determination under subsection (1); (b) guidelines under subsection (2). Definitions (6) For the purposes of this section, forge and utter have the meanings given by section 19A. 19 Quality assurance certificates (1) The Secretary may, on behalf of the Commonwealth, enter into an arrangement with the person conducting an overseas food processing operation providing for the periodic inspection and evaluation of that operation, at the expense of the person, to decide whether the Secretary should exercise his or her powers under subsection (1A). (1A) The Secretary may: (a) approve a food processing operation mentioned in subsection (1) for the purposes of this Part; or (b) revoke any such approval. (2) If an overseas food processing operation is subject to a current approval under subsection (1A), the Secretary may determine, in writing, to the effect that, while the determination remains in force, each certificate issued by the person purportedly in charge of that operation stating that particular food processed in that operation meets applicable standards and does not pose a risk to human health is a recognised quality assurance certificate. (3) The Secretary may revoke a determination under subsection (2) if: (a) the Secretary has reason to doubt the reliability of any statement made in any certificate to which the determination relates; or (b) the approval of the overseas food processing operation concerned is revoked. Offence (4) A person must not forge, or utter, knowing it to be forged, a certificate of the kind referred to in subsection (2). Penalty: Imprisonment for 10 years. Status of instruments (5) The following are not legislative instruments: (a) an arrangement under subsection (1); (b) an approval, or a revocation, under subsection (1A); (c) a determination under subsection (2); (d) a revocation under subsection (3). Definitions (6) For the purposes of this section, forge and utter have the meanings given by section 19A. 19A Forging and uttering Forging (1) For the purposes of this Division, a person is taken to have forged a document if the person: (a) makes a document which is false, knowing it to be false; or (b) without authority, alters a genuine document in a material particular; with intent that: (c) the false or altered document may be used, acted on, or accepted, as genuine, to the prejudice of another person; or (d) another person may, in the belief that it is genuine, be induced to do or refrain from doing an act, whether in Australia or elsewhere. (2) For the purposes of this Division, if a person: (a) makes a document which is false, knowing it to be false; or (b) without authority, alters a genuine document in a material particular; with intent that a computer, a machine or other device should respond to the false or altered document as if it were genuine: (c) to the prejudice of another person; or (d) with the result that another person would be induced to do or refrain from doing an act, whether in Australia or elsewhere; the first‑mentioned person is taken to have forged the document. Uttering (3) For the purposes of this Division, a person is taken to utter a forged document if the person: (a) uses or deals with it; or (b) attempts to use or deal with it; or (c) attempts to induce another person to use, deal with, act upon, or accept it. Division 3—Treatment, destruction or re‑exportation of failing food 20 Treatment, destruction or re‑exportation of failing food (1) This section applies to food that: (a) has been identified in an imported food inspection advice as failing food; and (b) is required, under that advice, to be treated, destroyed or re‑exported from Australia. (2) If an imported food inspection advice, given in respect of food to which this section applies, permits the treatment of the food so as to bring it into compliance with this Act or to enable its use for a purpose other than human consumption, an authorised officer may, by notice in writing given to the owner of the food: (a) require the owner to treat the food in a specified manner or in a manner to be agreed between the owner and the authorised officer so as to enable it to be brought into compliance with the Act or to be so used; or (b) if the owner is unable or unwilling so to treat the food, require either: (i) the destruction of the food in a manner specified in the notice or to be agreed between the owner and the authorised officer; or (ii) the destruction of the food in a manner specified in the notice or agreed between the owner and the authorised officer or the re‑exportation of the food. (3) If an imported food inspection advice requires the destruction of food to which this section applies, an authorised officer may, by notice in writing given to the owner of the food, require its destruction in a manner specified in the notice or in a manner to be agreed between the owner and the authorised officer. (4) If an imported food inspection advice requires the destruction or re‑exportation of food to which this section applies, an authorised officer may, by notice in writing given to the owner of the food, require either: (a) its destruction in a manner specified in the notice or a manner to be agreed between the owner and the authorised officer; or (b) its re‑exportation. (5) A permission to treat or a requirement to destroy or re‑export failing food in a notice under subsection (2), (3) or (4) must specify a period (having regard to the reasons why the food has been identified as failing food and to any difficulties associated with arranging for its treatment, destruction or re‑exportation) within which that treatment, destruction or re‑exportation is to be completed. (6) If the owner of food arranges for a treatment, destruction or re‑exportation in accordance with a notice under subsection (2), (3) or (4), that treatment, destruction or re‑exportation may be supervised by an authorised officer. (7) If the owner of food that is required in a notice under subsection (2), (3) or (4) to be destroyed or re‑exported refuses or fails to arrange for the destruction or re‑exportation of the food in accordance with the notice, the food to which the notice relates is forfeited to the Commonwealth. (8) The owner of food that is required in a notice under subsection (2), (3) or (4) to be destroyed or re‑exported must not intentionally refuse or fail to comply with the requirement to destroy or re‑export that food. Penalty: 200 penalty units. (8A) Subsection (8) does not apply if the person has a reasonable excuse. Note: The defendant bears an evidential burden in relation to the matter in subsection (8A). See subsection 13.3(3) of the Criminal Code. (9) If the food is forfeited to the Commonwealth under subsection (7), an authorised officer may: (a) enter the premises at which the food is held; and (b) seize the food and arrange for its destruction or other disposal. (10) If food is forfeited to the Commonwealth under subsection (7) the Commonwealth is not liable to meet any charge associated with the storage of that food between the time of its forfeiture and the time when the food is destroyed or disposed of in accordance with subsection (9). (11) If food is seized and destroyed or otherwise disposed of under subsection (9), the authorised officer who destroys the food must notify the owner of the food, within 21 days after the destruction or disposal takes place, that the food has been so destroyed or disposed of. (12) The owner of food seized and destroyed or disposed of under subsection (9) is liable to reimburse the Commonwealth the costs reasonably incurred in seizing and destroying or disposing of the food. (13) If the owner of food that is required in a notice under subsection (2), (3) or (4) to be destroyed or re‑exported fails to comply with the requirement to destroy or re‑export the food, the Secretary may direct, in writing, that authorised officers should not issue a food control certificate in respect of any other food imported into Australia by that owner. (14) In this section: owner, in relation to food that is permitted to be treated or required to be destroyed or re‑exported, means a person having a beneficial interest in the food other than a person who has such an interest only because he or she has been given a mortgage or charge, or has a lien over the goods. Division 4—Other matters 20A Computerised decision‑making (1) The Secretary may arrange for the use, under the Secretary's control, of computer programs for any purposes for which an authorised officer may or must: (a) make a decision under section 12, subsection 14(1) or subsection 20(2), (3) or (4); or (b) exercise any power or comply with any obligation related to making a decision referred to in paragraph (a); or (c) do anything else related to making a decision referred to in paragraph (a), or related to exercising a power or complying with an obligation referred to in paragraph (b). (2) The Secretary is taken to have: (a) made a decision; or (b) exercised a power or complied with an obligation; or (c) done something else related to the making of a decision or exercise of a power or compliance with an obligation; that was made, exercised, complied with or done by the operation of a computer program under an arrangement made under subsection (1). (3) The Secretary must take reasonable steps to ensure that decisions (electronic decisions) made by the operation of a computer program under an arrangement made under subsection (1) are consistent with the object of this Act. (4) The Secretary must take reasonable steps to ensure that an electronic decision is based on grounds on the basis of which an authorised officer could have made that decision. However, an electronic decision may be made without any state of mind being formed in relation to a matter to which the decision relates. (5) An authorised officer may make a decision in substitution for an electronic decision if an authorised officer is satisfied that: (a) the electronic decision is not consistent with the object of this Act; or (b) another decision is more appropriate in the circumstances. (6) An electronic decision made in relation to food is of no effect to the extent that it is inconsistent with an earlier decision (other than an electronic decision) made in relation to the food by an authorised officer under this Act. Part 3—Enforcement Division 1—Introduction 21 Simplified outline of this Part • The Regulatory Powers Act is triggered to allow a range of enforcement actions in relation to this Act. • Authorised officers are permitted to enter premises under a monitoring warrant or with consent of the occupier and to exercise monitoring powers under that Act for the purposes of determining: (a) whether this Act or a compliance agreement has been, or is being, complied with; or (b) whether information given in compliance or purported compliance with this Act is correct. • Authorised officers are permitted to enter premises under an investigation warrant or with consent of the occupier and to exercise investigation powers under that Act for the purposes of gathering material relating to the contravention of offence and civil penalty provisions in this Act. • A civil penalty provision of this Act is enforceable under that Act. A relevant court may order a person contravening such a provision to pay to the Commonwealth a pecuniary penalty. • Infringement notices may be issued for suspected contraventions of strict liability offences and civil penalty provisions under this Act. Such a notice allows a person to pay an amount as an alternative to having court proceedings brought against the person for the contravention. • Undertakings to comply with this Act may be accepted and enforced under that Act. If a person gives an undertaking, the undertaking may be enforced by a court order. Division 2—Monitoring 22 Monitoring powers Provi