Commonwealth of Australia Bills Commonwealth of Australia Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
2016-2017
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Imported Food Control Amendment Bill
2017
No. , 2017
(Agriculture and Water Resources)
A Bill for an Act to amend the Imported Food
Control Act 1992, and for related purposes
No. , 2017
Imported Food Control Amendment Bill 2017
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Food safety management certificates
3
Imported Food Control Act 1992
3
Part 2--Holding orders
5
Imported Food Control Act 1992
5
Part 3--Classification of food
8
Imported Food Control Act 1992
8
Part 4--Recognition of foreign country's food safety system
10
Imported Food Control Act 1992
10
Part 5--Enforcement
12
Imported Food Control Act 1992
12
Part 6--Record-keeping
35
Imported Food Control Act 1992
35
Part 7--Making of orders or determinations
38
Imported Food Control Act 1992
38
Part 8--Use and disclosure of information
39
Imported Food Control Act 1992
39
Part 9--Other amendments
41
Imported Food Control Act 1992
41
No. , 2017
Imported Food Control Amendment Bill 2017
1
A Bill for an Act to amend the Imported Food
1
Control Act 1992, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the Imported Food Control Amendment Act 2017.
5
2 Commencement
6
(1) Each provision of this Act specified in column 1 of the table
7
commences, or is taken to have commenced, in accordance with
8
column 2 of the table. Any other statement in column 2 has effect
9
according to its terms.
10
11
2
Imported Food Control Amendment Bill 2017
No. , 2017
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Part 1
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 12 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
3. Schedule 1,
Parts 2 to 4
The day after this Act receives the Royal
Assent.
4. Schedule 1,
Part 5
The 28th day after this Act receives the
Royal Assent.
5. Schedule 1,
Part 6
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 12 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
6. Schedule 1,
Parts 7 to 9
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
Food safety management certificates Part 1
No. , 2017
Imported Food Control Amendment Bill 2017
3
Schedule 1--Amendments
1
Part 1--Food safety management certificates
2
Imported Food Control Act 1992
3
1 Subsection 3(1)
4
Insert:
5
recognised food safety management certificate means:
6
(a) a recognised foreign government certificate; or
7
(b) a certificate covered by a determination in force under
8
subsection 18A(1).
9
2 After subparagraph 16(2)(a)(ii)
10
Insert:
11
(iia) identifying food of particular kinds as food that must be
12
covered by a recognised food safety management
13
certificate; or
14
3 After paragraph 16(2)(f)
15
Insert:
16
(fa) specify circumstances in which food is taken to be failing
17
food; and
18
4 After section 18
19
Insert:
20
18A Food safety management certificates
21
(1) The Secretary may determine, in writing, that, for food of a
22
specified kind, a specified certificate issued by a specified person
23
or specified body is a recognised food safety management
24
certificate.
25
Note 1:
The regulations deal with when food of such a kind is taken to be
26
failing food because the food is not covered by a recognised food
27
safety management certificate.
28
Note 2:
See section 35B for how a determination may refer to a kind of food.
29
Schedule 1 Amendments
Part 1 Food safety management certificates
4
Imported Food Control Amendment Bill 2017
No. , 2017
Note 3:
For variation and revocation of the determination, see
1
subsection 33(3) of the Acts Interpretation Act 1901.
2
Note 4:
For specification by class, see subsection 33(3AB) of the Acts
3
Interpretation Act 1901.
4
(2) The Secretary must, in writing, make guidelines that the Secretary
5
must have regard to before making a determination under
6
subsection (1).
7
Note:
For variation and revocation of the guidelines, see subsection 33(3) of
8
the Acts Interpretation Act 1901.
9
Offence
10
(3) A person must not forge, or utter, knowing it to be forged, a
11
certificate of the kind referred to in subsection (1).
12
Penalty: Imprisonment for 10 years.
13
Status of instruments
14
(4) The following are not legislative instruments:
15
(a) a determination under subsection (1);
16
(b) guidelines under subsection (2).
17
Publication of instruments
18
(5) The Secretary must publish the following on the Department's
19
website:
20
(a) a determination under subsection (1);
21
(b) guidelines under subsection (2).
22
Definitions
23
(6) For the purposes of this section, forge and utter have the meanings
24
given by section 19A.
25
5 Paragraph 42(2)(b)
26
Omit "(other than food that is or may be the subject of an application
27
for a further imported food advice)".
28
Amendments Schedule 1
Holding orders Part 2
No. , 2017
Imported Food Control Amendment Bill 2017
5
Part 2--Holding orders
1
Imported Food Control Act 1992
2
6 Before subsection 15(1)
3
Insert:
4
Failing food on inspection or inspection and analysis
5
7 Paragraph 15(1)(c)
6
Repeal the paragraph, substitute:
7
(c) stating that, until the revocation of the order, the following
8
food must be held in a place to be approved by an authorised
9
officer in writing, until an inspection, or inspection and
10
analysis, required under the Food Inspection Scheme has
11
been completed:
12
(i) food of that kind that is imported into Australia after the
13
making of the order;
14
(ii) if the Secretary states that the order is being made in
15
connection with the end of another order under
16
subsection (3)--food of that kind that is being held
17
immediately before the end of the other order; and
18
8 At the end of subsection 15(1)
19
Add:
20
Note:
See section 35B for how an order may refer to a kind of food.
21
9 Subsection 15(2)
22
After "a holding order", insert "made under subsection (1)".
23
10 At the end of section 15
24
Add:
25
Food posing a serious risk to human health
26
(3) If:
27
Schedule 1 Amendments
Part 2 Holding orders
6
Imported Food Control Amendment Bill 2017
No. , 2017
(a) the Secretary is satisfied that there are reasonable grounds for
1
believing that food of a particular kind may pose a risk to
2
human health; and
3
(b) the Secretary is satisfied that the risk is serious;
4
the Secretary may, by writing, make a holding order:
5
(c) stating that, until the order ends, food of that kind that is
6
imported into Australia after the making of the order must be
7
held in a place to be approved by an authorised officer in
8
writing; and
9
(d) stating that the order ends at the earlier of the following
10
times:
11
(i) at the end of the period of 28 days beginning on the day
12
the order is made or, if that period is extended, the end
13
of the extended period;
14
(ii) the time when the order is revoked; and
15
(e) specifying the circumstances in which the order will be
16
revoked.
17
Note:
See section 35B for how an order may refer to a kind of food.
18
(4) The Secretary may, in writing, extend the 28-day period referred to
19
in subparagraph (3)(d)(i) by a further period of up to 28 days. The
20
Secretary may make more than one extension.
21
(5) Before making an extension, the Secretary must review the
22
appropriateness of the order.
23
(6) If the Secretary is satisfied, in respect of a holding order made
24
under subsection (3), that the circumstances specified for its
25
revocation have occurred, the Secretary must, by writing,
26
immediately revoke the holding order.
27
Approvals
28
(7) Subsection (1) or (3) does not prevent an authorised officer from
29
giving a person an approval to deal with food of a kind covered by
30
an order under that subsection while the order is in force.
31
Status of instruments
32
(8) The following are not legislative instruments:
33
(a) an order under subsection (1) or (3);
34
Amendments Schedule 1
Holding orders Part 2
No. , 2017
Imported Food Control Amendment Bill 2017
7
(b) an instrument under subsection (2), (4) or (6).
1
Publication of instruments
2
(9) The Secretary must publish the following on the Department's
3
website:
4
(a) an order under subsection (1), except where the order is made
5
in connection with applicable standards relating to
6
information on labels for packages containing food;
7
(b) an instrument under subsection (2) that is made in relation to
8
an order covered by paragraph (a) of this subsection;
9
(c) an order under subsection (3);
10
(d) an instrument under subsection (4) or (6).
11
11 Saving provision
12
The amendments made by this Part do not affect the validity of a
13
holding order made under section 15 of the Imported Food Control Act
14
1992 before the commencement of this item.
15
Schedule 1 Amendments
Part 3 Classification of food
8
Imported Food Control Amendment Bill 2017
No. , 2017
Part 3--Classification of food
1
Imported Food Control Act 1992
2
12 Subsection 3(1)
3
Insert:
4
officer of Customs has the same meaning as in the Customs Act
5
1901.
6
13 Paragraph 16(2)(a)
7
Repeal the paragraph, substitute:
8
(a) empower the Minister, subject to section 17, to make orders:
9
(i) identifying food of particular kinds as food of a kind
10
that is required to be inspected, or inspected and
11
analysed, under the Scheme; or
12
(ii) identifying food of particular kinds as food that must be
13
covered by a recognised foreign government certificate;
14
or
15
(iii) classifying food of particular kinds into particular
16
categories; and
17
(aa) specify the percentage of food classified into a particular
18
category that must be referred by an officer of Customs for
19
inspection, or inspection and analysis, under the Scheme; and
20
(ab) empower the Secretary to make an order, in respect of food
21
that is classified into a particular category and is of a
22
particular kind, specifying the percentage of food of that kind
23
that must be referred by an officer of Customs for inspection,
24
or inspection and analysis, under the Scheme; and
25
14 After paragraph 16(2)(b)
26
Insert:
27
(ba) empower the Secretary to make an order, in respect of food
28
that is classified into a particular category and is of a
29
particular kind:
30
(i) specifying the incidence of inspection, or inspection and
31
analysis, attaching to food of that kind; and
32
Amendments Schedule 1
Classification of food Part 3
No. , 2017
Imported Food Control Amendment Bill 2017
9
(ii) specifying the rate at which samples must be taken for
1
inspection from food of that kind; and
2
15 At the end of section 16
3
Add:
4
(6) An order made by the Secretary for the purposes of
5
paragraph (2)(ab) or (ba) is not a legislative instrument.
6
Note 1:
Under the regulations, the order made by the Secretary is of a
7
temporary nature.
8
Note 2:
For revocation of the order, see subsection 33(3) of the Acts
9
Interpretation Act 1901.
10
(7) The Secretary must publish the following on the Department's
11
website:
12
(a) an order made by the Secretary for the purposes of
13
paragraph (2)(ab) or (ba);
14
(b) a revocation of the order.
15
16 Transitional provision
--orders
16
(1)
An order that was in force under regulation 7 or 8 of the Imported Food
17
Control Regulations 1993 immediately before the commencement of
18
this item continues to be in force under that regulation as in force on or
19
after that commencement.
20
(2)
Subitem (1) does not prevent the variation or revocation of the order on
21
or after the commencement of this item.
22
Schedule 1 Amendments
Part 4 Recognition of foreign country's food safety system
10
Imported Food Control Amendment Bill 2017
No. , 2017
Part 4--Recognition of foreign country's food safety
1
system
2
Imported Food Control Act 1992
3
17 Before paragraph 16(2)(b)
4
Insert:
5
(ac) empower the Minister to make an order in respect of food
6
classified into a particular category imported from a country
7
specified in the order:
8
(i) specifying the percentage of all such food that must be
9
referred by an officer of Customs for inspection, or
10
inspection and analysis, under the Scheme; or
11
(ii) specifying the percentage of all such food, except food
12
of a particular kind, that must be referred by an officer
13
of Customs for inspection, or inspection and analysis,
14
under the Scheme; or
15
(iii) specifying the percentage of food of a particular kind
16
that must be referred by an officer of Customs for
17
inspection, or inspection and analysis, under the
18
Scheme; and
19
18 Before paragraph 16(2)(c)
20
Insert:
21
(bb) empower the Minister to make an order in respect of food
22
classified into a particular category imported from a country
23
specified in the order:
24
(i) specifying the percentage of all such food that must be
25
inspected, or inspected and analysed, under the Scheme;
26
or
27
(ii) specifying the percentage of all such food, except food
28
of a particular kind, that must be inspected, or inspected
29
and analysed, under the Scheme; or
30
(iii) specifying the percentage of food of a particular kind
31
that must be inspected, or inspected and analysed, under
32
the Scheme; and
33
Amendments Schedule 1
Recognition of foreign country's food safety system Part 4
No. , 2017
Imported Food Control Amendment Bill 2017
11
19 After subsection 16(2)
1
Insert:
2
(2A) A percentage mentioned in paragraph (2)(ac) or (bb) that is
3
specified in an order made by the Minister must be less than 5%
4
(including zero).
5
(2B) The Minister may make an order for the purposes of
6
paragraph (2)(ac) or (bb) in relation to a particular country only if
7
the Minister is satisfied:
8
(a) that there is in force an agreement between Australia and that
9
country; and
10
(b) that the agreement is based on an assessment of the food
11
safety systems of Australia and that country which concluded
12
that:
13
(i) Australia and that country have equivalent food safety
14
systems; and
15
(ii) Australia and that country conduct equivalent
16
monitoring of the food they regulate.
17
20 Subsection 16(5)
18
After "paragraph (2)(a)", insert ", (ac) or (bb)".
19
Schedule 1 Amendments
Part 5 Enforcement
12
Imported Food Control Amendment Bill 2017
No. , 2017
Part 5--Enforcement
1
Imported Food Control Act 1992
2
21 Subsection 3(1) (paragraph (c) of the definition of
3
authorised officer)
4
Omit "when used in a provision of this Act other than section 24, 25,
5
26, 27, 28, 29, 30 or 32--".
6
22 Subsection 3(1)
7
Insert:
8
civil penalty provision has the same meaning as in the Regulatory
9
Powers Act.
10
Regulatory Powers Act means the Regulatory Powers (Standard
11
Provisions) Act 2014.
12
23 Sections 8 to 9
13
Repeal the sections, substitute:
14
8 Importation offences
15
Food does not meet applicable standards
16
(1) A person commits an offence if:
17
(a) the person imports food into Australia; and
18
(b) this Act applies to the food; and
19
(c) the food does not meet applicable standards; and
20
(d) those standards do not relate to information on labels for
21
packages containing food.
22
Penalty: Imprisonment for 10 years.
23
(2) A person commits an offence of strict liability if:
24
(a) the person imports food into Australia; and
25
(b) this Act applies to the food; and
26
(c) the food does not meet applicable standards; and
27
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
13
(d) those standards do not relate to information on labels for
1
packages containing food.
2
Penalty: 60 penalty units.
3
Food poses a risk to human health
4
(3) A person commits an offence if:
5
(a) the person imports food into Australia; and
6
(b) this Act applies to the food; and
7
(c) the person knows that the food poses a risk to human health.
8
Penalty: Imprisonment for 10 years.
9
(4) A person commits an offence of strict liability if:
10
(a) the person imports food into Australia; and
11
(b) this Act applies to the food; and
12
(c) the food poses a risk to human health.
13
Penalty: 60 penalty units.
14
Imputed knowledge
15
(5) For the purposes of establishing a contravention of subsection (3),
16
the person is taken to have known that the food posed a risk to
17
human health if the person ought reasonably to have known that
18
the food posed that risk, having regard to:
19
(a) the person's abilities, experience, qualifications and other
20
attributes; and
21
(b) all the circumstances surrounding the alleged contravention.
22
8A Labelling offences
23
Fault-based offence
24
(1) A person commits an offence if:
25
(a) food is imported into Australia; and
26
(b) this Act applies to the food; and
27
(c) the person deals with the food; and
28
(d) the food does not meet applicable standards relating to
29
information on labels for packages containing food.
30
Schedule 1 Amendments
Part 5 Enforcement
14
Imported Food Control Amendment Bill 2017
No. , 2017
Penalty: Imprisonment for 10 years.
1
Strict liability offence
2
(2) A person commits an offence of strict liability if:
3
(a) food is imported into Australia; and
4
(b) this Act applies to the food; and
5
(c) the person deals with the food; and
6
(d) the food does not meet applicable standards relating to
7
information on labels for packages containing food.
8
Penalty: 60 penalty units.
9
Exception
10
(3) Subsection (1) or (2) does not apply to a dealing with food for the
11
purpose of altering or replacing the label on the package containing
12
the food in order to meet applicable standards relating to
13
information on labels for packages containing food.
14
Note:
A defendant bears an evidential burden in relation to the matter in this
15
subsection: see subsection 13.3(3) of the Criminal Code.
16
9 Offences relating to dealing with examinable food
17
Dealing with food where no food control certificate
18
(1) A person commits an offence if:
19
(a) the person deals with food in a particular manner; and
20
(b) the food is examinable food; and
21
(c) the person knows that the food has been imported into
22
Australia; and
23
(d) the person knows that a food control certificate has not been
24
issued in respect of the food; and
25
(e) the person has not obtained the approval of an authorised
26
officer to deal with the food in that manner; and
27
(f) the person is not dealing with the food in that manner in
28
accordance with a compliance agreement; and
29
(g) the person is neither an officer of Customs, nor an authorised
30
officer, acting in the course of his or her duties.
31
Penalty: Imprisonment for 10 years.
32
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
15
(2) A person commits an offence of strict liability if:
1
(a) the person deals with food in a particular manner; and
2
(b) the food is examinable food; and
3
(c) the food has been imported into Australia; and
4
(d) a food control certificate has not been issued in respect of the
5
food; and
6
(e) the person has not obtained the approval of an authorised
7
officer to deal with the food in that manner; and
8
(f) the person is not dealing with the food in that manner in
9
accordance with a compliance agreement; and
10
(g) the person is neither an officer of Customs, nor an authorised
11
officer, acting in the course of his or her duties.
12
Penalty: 60 penalty units.
13
Dealing with food where no imported food inspection advice
14
(3) A person commits an offence if:
15
(a) the person deals with food in a particular manner; and
16
(b) the food is examinable food; and
17
(c) the person knows that the food has been imported into
18
Australia; and
19
(d) the person knows that a food control certificate has been
20
issued in respect of the food; and
21
(e) the person knows that an imported food inspection advice has
22
not been issued in respect of the food; and
23
(f) the person has not obtained the approval of an authorised
24
officer to deal with the food in that manner; and
25
(g) the person is not dealing with the food in that manner in
26
accordance with a compliance agreement; and
27
(h) the person is neither an officer of Customs, nor an authorised
28
officer, acting in the course of his or her duties.
29
Penalty: Imprisonment for 10 years.
30
(4) A person commits an offence of strict liability if:
31
(a) the person deals with food in a particular manner; and
32
(b) the food is examinable food; and
33
(c) the food has been imported into Australia; and
34
Schedule 1 Amendments
Part 5 Enforcement
16
Imported Food Control Amendment Bill 2017
No. , 2017
(d) a food control certificate has been issued in respect of the
1
food; and
2
(e) an imported food inspection advice has not been issued in
3
respect of the food; and
4
(f) the person has not obtained the approval of an authorised
5
officer to deal with the food in that manner; and
6
(g) the person is not dealing with the food in that manner in
7
accordance with a compliance agreement; and
8
(h) the person is neither an officer of Customs, nor an authorised
9
officer, acting in the course of his or her duties.
10
Penalty: 60 penalty units.
11
(5) Subsection (3) or (4) does not apply to a dealing with food for the
12
purpose of altering or replacing the label on the package containing
13
the food in order to meet applicable standards relating to
14
information on labels for packages containing food.
15
Note:
A defendant bears an evidential burden in relation to the matter in this
16
subsection: see subsection 13.3(3) of the Criminal Code.
17
Dealing with failing food
18
(6) A person commits an offence if:
19
(a) the person deals with food in a particular manner; and
20
(b) the food is examinable food; and
21
(c) the person knows that the food has been imported into
22
Australia; and
23
(d) the person knows that a food control certificate has been
24
issued in respect of the food; and
25
(e) the person knows that the food has been identified in an
26
imported food inspection advice as failing food; and
27
(f) the person has not obtained the approval of an authorised
28
officer to deal with the food in that manner; and
29
(g) the person is neither permitted nor required, in accordance
30
with the imported food inspection advice, to deal with the
31
food in that manner; and
32
(h) the person is neither an officer of Customs, nor an authorised
33
officer, acting in the course of his or her duties.
34
Penalty: Imprisonment for 10 years.
35
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
17
(7) A person commits an offence of strict liability if:
1
(a) the person deals with food in a particular manner; and
2
(b) the food is examinable food; and
3
(c) the food has been imported into Australia; and
4
(d) a food control certificate has been issued in respect of the
5
food; and
6
(e) the food has been identified in an imported food inspection
7
advice as failing food; and
8
(f) the person has not obtained the approval of an authorised
9
officer to deal with the food in that manner; and
10
(g) the person is neither permitted nor required, in accordance
11
with the imported food inspection advice, to deal with the
12
food in that manner; and
13
(h) the person is neither an officer of Customs, nor an authorised
14
officer, acting in the course of his or her duties.
15
Penalty: 60 penalty units.
16
Imputed knowledge
17
(8) For the purposes of establishing a contravention of subsection (1),
18
(3) or (6), the person is taken to have known of the matter referred
19
to in paragraph (1)(c) or (d), (3)(c), (d) or (e) or (6)(c), (d) or (e) if
20
the person ought reasonably to have known of the matter, having
21
regard to:
22
(a) the person's abilities, experience, qualifications and other
23
attributes; and
24
(b) all the circumstances surrounding the alleged contravention.
25
24 Before section 10
26
Insert:
27
9A Civil penalties relating to importing, labelling and dealing with
28
food
29
Importing food
30
(1) A person is liable to a civil penalty if:
31
(a) the person imports food into Australia; and
32
(b) this Act applies to the food; and
33
Schedule 1 Amendments
Part 5 Enforcement
18
Imported Food Control Amendment Bill 2017
No. , 2017
(c) the food does not meet applicable standards; and
1
(d) those standards do not relate to information on labels for
2
packages containing food.
3
Civil penalty:
120 penalty units.
4
(2) A person is liable to a civil penalty if:
5
(a) the person imports food into Australia; and
6
(b) this Act applies to the food; and
7
(c) the food poses a risk to human health.
8
Civil penalty:
120 penalty units.
9
Labelling of food
10
(3) A person is liable to a civil penalty if:
11
(a) food is imported into Australia; and
12
(b) this Act applies to the food; and
13
(c) the person deals with the food; and
14
(d) the food does not meet applicable standards relating to
15
information on labels for packages containing food.
16
Civil penalty:
120 penalty units.
17
(4) Subsection (3) does not apply to a dealing with food for the
18
purpose of altering or replacing the label on the package containing
19
the food in order to meet applicable standards relating to
20
information on labels for packages containing food.
21
Note:
A person bears an evidential burden in relation to the matter in this
22
subsection: see section 96 of the Regulatory Powers Act.
23
Dealing with food
24
(5) A person is liable to a civil penalty if:
25
(a) the person deals with food in a particular manner; and
26
(b) the food is examinable food; and
27
(c) the food has been imported into Australia; and
28
(d) a food control certificate has not been issued in respect of the
29
food; and
30
(e) the person has not obtained the approval of an authorised
31
officer to deal with the food in that manner; and
32
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
19
(f) the person is not dealing with the food in that manner in
1
accordance with a compliance agreement; and
2
(g) the person is neither an officer of Customs, nor an authorised
3
officer, acting in the course of his or her duties.
4
Civil penalty:
120 penalty units.
5
(6) A person is liable to a civil penalty if:
6
(a) the person deals with food in a particular manner; and
7
(b) the food is examinable food; and
8
(c) the food has been imported into Australia; and
9
(d) a food control certificate has been issued in respect of the
10
food; and
11
(e) an imported food inspection advice has not been issued in
12
respect of the food; and
13
(f) the person has not obtained the approval of an authorised
14
officer to deal with the food in that manner; and
15
(g) the person is not dealing with the food in that manner in
16
accordance with a compliance agreement; and
17
(h) the person is neither an officer of Customs, nor an authorised
18
officer, acting in the course of his or her duties.
19
Civil penalty:
120 penalty units.
20
(7) Subsection (6) does not apply to a dealing with food for the
21
purpose of altering or replacing the label on the package containing
22
the food in order to meet applicable standards relating to
23
information on labels for packages containing food.
24
Note:
A person bears an evidential burden in relation to the matter in this
25
subsection: see section 96 of the Regulatory Powers Act.
26
(8) A person is liable to a civil penalty if:
27
(a) the person deals with food in a particular manner; and
28
(b) the food is examinable food; and
29
(c) the food has been imported into Australia; and
30
(d) a food control certificate has been issued in respect of the
31
food; and
32
(e) the food has been identified in an imported food inspection
33
advice as failing food; and
34
Schedule 1 Amendments
Part 5 Enforcement
20
Imported Food Control Amendment Bill 2017
No. , 2017
(f) the person has not obtained the approval of an authorised
1
officer to deal with the food in that manner; and
2
(g) the person is neither permitted nor required, in accordance
3
with the imported food inspection advice, to deal with the
4
food in that manner; and
5
(h) the person is neither an officer of Customs, nor an authorised
6
officer, acting in the course of his or her duties.
7
Civil penalty:
120 penalty units.
8
25 Sections 21 to 32
9
Repeal the sections, substitute:
10
Division 1--Introduction
11
21 Simplified outline of this Part
12
•
The Regulatory Powers Act is triggered to allow a range of
13
enforcement actions in relation to this Act.
14
•
Authorised officers are permitted to enter premises under a
15
monitoring warrant or with consent of the occupier and to
16
exercise monitoring powers under that Act for the purposes of
17
determining:
18
(a)
whether this Act or a compliance agreement has been, or
19
is being, complied with; or
20
(b)
whether information given in compliance or purported
21
compliance with this Act is correct.
22
•
Authorised officers are permitted to enter premises under an
23
investigation warrant or with consent of the occupier and to
24
exercise investigation powers under that Act for the purposes
25
of gathering material relating to the contravention of offence
26
and civil penalty provisions in this Act.
27
•
A civil penalty provision of this Act is enforceable under that
28
Act. A relevant court may order a person contravening such a
29
provision to pay to the Commonwealth a pecuniary penalty.
30
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
21
•
Infringement notices may be issued for suspected
1
contraventions of strict liability offences and civil penalty
2
provisions under this Act. Such a notice allows a person to
3
pay an amount as an alternative to having court proceedings
4
brought against the person for the contravention.
5
•
Undertakings to comply with this Act may be accepted and
6
enforced under that Act. If a person gives an undertaking, the
7
undertaking may be enforced by a court order.
8
Division 2--Monitoring
9
22 Monitoring powers
10
Provisions subject to monitoring
11
(1) A provision is subject to monitoring under Part 2 of the Regulatory
12
Powers Act if it is a provision of this Act.
13
Note:
Part 2 of the Regulatory Powers Act creates a framework for
14
monitoring whether this Act has been complied with. It includes
15
powers of entry and inspection.
16
(2) Despite section 8 of the Regulatory Powers Act, a provision of a
17
compliance agreement is also subject to monitoring under Part 2 of
18
that Act.
19
Information subject to monitoring
20
(3) Information given in compliance or purported compliance with a
21
provision of this Act is subject to monitoring under Part 2 of the
22
Regulatory Powers Act.
23
Note:
Part 2 of the Regulatory Powers Act creates a framework for
24
monitoring whether the information is correct. It includes powers of
25
entry and inspection.
26
Related provisions
27
(4) For the purposes of Part 2 of the Regulatory Powers Act, as that
28
Part applies in relation to the provisions mentioned in
29
subsections (1) and (2) and the information mentioned in
30
subsection (3), there are no related provisions.
31
Schedule 1 Amendments
Part 5 Enforcement
22
Imported Food Control Amendment Bill 2017
No. , 2017
Authorised applicant and authorised person
1
(5) For the purposes of Part 2 of the Regulatory Powers Act, an
2
authorised officer is both an authorised applicant and an authorised
3
person in relation to the provisions mentioned in subsections (1)
4
and (2) and the information mentioned in subsection (3).
5
(6) However, an authorised officer appointed under subsection 40(2)
6
of this Act is not an authorised applicant or an authorised person
7
for the purposes of section 24 or 32 of the Regulatory Powers Act,
8
as that section applies in relation to the provisions mentioned in
9
subsections (1) and (2) of this section and the information
10
mentioned in subsection (3) of this section.
11
Issuing officer
12
(7) For the purposes of Part 2 of the Regulatory Powers Act, a
13
magistrate is an issuing officer in relation to the provisions
14
mentioned in subsections (1) and (2) and the information
15
mentioned in subsection (3).
16
Relevant chief executive
17
(8) For the purposes of Part 2 of the Regulatory Powers Act, the
18
Secretary is the relevant chief executive in relation to the
19
provisions mentioned in subsections (1) and (2) and the
20
information mentioned in subsection (3).
21
(9) The Secretary may, in writing, delegate to an SES employee, or
22
acting SES employee, in the Department the Secretary's powers
23
and functions under Part 2 of the Regulatory Powers Act in relation
24
to the provisions mentioned in subsections (1) and (2) and the
25
information mentioned in subsection (3).
26
(10) A person exercising powers or performing functions under a
27
delegation under subsection (9) must comply with any directions of
28
the Secretary.
29
Relevant court
30
(11) For the purposes of Part 2 of the Regulatory Powers Act, each of
31
the following courts is a relevant court in relation to the provisions
32
mentioned in subsections (1) and (2) and the information
33
mentioned in subsection (3):
34
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
23
(a) the Federal Court of Australia;
1
(b) the Federal Circuit Court of Australia;
2
(c) a court of a State or Territory that has jurisdiction in relation
3
to matters arising under this Act.
4
Additional monitoring powers
5
(12) For the purposes of Part 2 of the Regulatory Powers Act, the
6
additional powers mentioned in subsection (13) are also taken to be
7
monitoring powers for the purposes of determining:
8
(a) whether a provision mentioned in subsection (1) or (2) has
9
been, or is being, complied with; or
10
(b) the correctness of information mentioned in subsection (3).
11
(13) The additional monitoring powers are the powers to take and keep
12
samples of any thing at any premises entered under section 18 of
13
the Regulatory Powers Act, as that section applies in relation to the
14
provisions mentioned in subsections (1) and (2) or the information
15
mentioned in subsection (3).
16
Person assisting
17
(14) An authorised officer may be assisted by other persons in
18
exercising powers or performing functions or duties under Part 2 of
19
the Regulatory Powers Act in relation to the provisions mentioned
20
in subsections (1) and (2) and the information mentioned in
21
subsection (3).
22
Use of force in executing a warrant
23
(15) In executing a monitoring warrant under Part 2 of the Regulatory
24
Powers Act, as that Part applies in relation to the provisions
25
mentioned in subsections (1) and (2) and the information
26
mentioned in subsection (3):
27
(a) an authorised officer may use such force against things as is
28
necessary and reasonable in the circumstances; and
29
(b) a person assisting an authorised officer may use such force
30
against things as is necessary and reasonable in the
31
circumstances.
32
Schedule 1 Amendments
Part 5 Enforcement
24
Imported Food Control Amendment Bill 2017
No. , 2017
Extension to external Territories
1
(16) Part 2 of the Regulatory Powers Act, as that Part applies in relation
2
to the provisions mentioned in subsections (1) and (2) and the
3
information mentioned in subsection (3), extends to any external
4
Territory to which this Act extends because of regulations made for
5
the purpose of section 4.
6
Division 3--Investigation
7
23 Investigation powers
8
Provisions subject to investigation
9
(1) A provision is subject to investigation under Part 3 of the
10
Regulatory Powers Act if it is:
11
(a) an offence against this Act; or
12
(b) a civil penalty provision of this Act; or
13
(c) an offence against the Crimes Act 1914 or the Criminal Code
14
that relates to this Act.
15
Note:
Part 3 of the Regulatory Powers Act creates a framework for
16
investigating whether a provision has been contravened. It includes
17
powers of entry, search and seizure.
18
Related provisions
19
(2) For the purposes of Part 3 of the Regulatory Powers Act, as that
20
Part applies in relation to evidential material that relates to a
21
provision mentioned in subsection (1), there are no related
22
provisions.
23
Authorised applicant and authorised person
24
(3) For the purposes of Part 3 of the Regulatory Powers Act, each of
25
the following authorised officers is both an authorised applicant
26
and an authorised person in relation to evidential material that
27
relates to a provision mentioned in subsection (1):
28
(a) the Secretary;
29
(b) an APS employee in the Department appointed by the
30
Secretary under subsection 40(1).
31
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
25
Issuing officer
1
(4) For the purposes of Part 3 of the Regulatory Powers Act, a
2
magistrate is an issuing officer in relation to evidential material
3
that relates to a provision mentioned in subsection (1).
4
Relevant chief executive
5
(5) For the purposes of Part 3 of the Regulatory Powers Act, the
6
Secretary is the relevant chief executive in relation to evidential
7
material that relates to a provision mentioned in subsection (1).
8
(6) The Secretary may, in writing, delegate to an SES employee, or
9
acting SES employee, in the Department the Secretary's powers
10
and functions under Part 3 of the Regulatory Powers Act in relation
11
to evidential material that relates to a provision mentioned in
12
subsection (1).
13
(7) A person exercising powers or performing functions under a
14
delegation under subsection (6) must comply with any directions of
15
the Secretary.
16
Relevant court
17
(8) For the purposes of Part 3 of the Regulatory Powers Act, each of
18
the following courts is a relevant court in relation to evidential
19
material that relates to a provision mentioned in subsection (1):
20
(a) the Federal Court of Australia;
21
(b) the Federal Circuit Court of Australia;
22
(c) a court of a State or Territory that has jurisdiction in relation
23
to matters arising under this Act.
24
Additional investigation powers
25
(9) For the purposes of Part 3 of the Regulatory Powers Act, the
26
additional powers mentioned in subsection (10) are also taken to be
27
investigation powers in relation to evidential material that relates to
28
a provision mentioned in subsection (1).
29
(10) The additional investigation powers are the powers to take and
30
keep samples of any thing at any premises entered under section 48
31
of the Regulatory Powers Act, as that section applies in relation to
32
Schedule 1 Amendments
Part 5 Enforcement
26
Imported Food Control Amendment Bill 2017
No. , 2017
evidential material that relates to a provision mentioned in
1
subsection (1).
2
Person assisting
3
(11) An authorised officer may be assisted by other persons in
4
exercising powers or performing functions or duties under Part 3 of
5
the Regulatory Powers Act in relation to evidential material that
6
relates to a provision mentioned in subsection (1).
7
Use of force in executing a warrant
8
(12) In executing an investigation warrant under Part 3 of the
9
Regulatory Powers Act, as that Part applies in relation to evidential
10
material that relates to a provision mentioned in subsection (1):
11
(a) an authorised officer may use such force against things as is
12
necessary and reasonable in the circumstances; and
13
(b) a person assisting the authorised officer may use such force
14
against things as is necessary and reasonable in the
15
circumstances.
16
Extension to external Territories
17
(13) Part 3 of the Regulatory Powers Act, as that Part applies in relation
18
to the provisions mentioned in subsection (1), extends to any
19
external Territory to which this Act extends because of regulations
20
made for the purpose of section 4.
21
Division 4--Civil penalties
22
24 Civil penalty provisions
23
Enforceable civil penalty provisions
24
(1) Each civil penalty provision of this Act is enforceable under Part 4
25
of the Regulatory Powers Act.
26
Note:
Part 4 of the Regulatory Powers Act allows a civil penalty provision to
27
be enforced by obtaining an order for a person to pay a pecuniary
28
penalty for the contravention of the provision.
29
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
27
Authorised applicant
1
(2) For the purposes of Part 4 of the Regulatory Powers Act, the
2
Secretary is an authorised applicant in relation to the civil penalty
3
provisions of this Act.
4
Relevant court
5
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of
6
the following courts is a relevant court in relation to the civil
7
penalty provisions of this Act:
8
(a) the Federal Court of Australia;
9
(b) the Federal Circuit Court of Australia;
10
(c) a court of a State or Territory that has jurisdiction in relation
11
to matters arising under this Act.
12
Extension to external Territories
13
(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation
14
to the civil penalty provisions of this Act, extends to any external
15
Territory to which this Act extends because of regulations made for
16
the purpose of section 4.
17
Liability of Crown
18
(5) Part 4 of the Regulatory Powers Act, as that Part applies in relation
19
to the civil penalty provisions of this Act, does not make the
20
Crown liable to be subject to civil proceedings for a contravention
21
of a civil penalty provision.
22
Division 5--Infringement notices
23
25 Infringement notices
24
Provisions subject to an infringement notice
25
(1) The following provisions are subject to an infringement notice
26
under Part 5 of the Regulatory Powers Act:
27
(a) a strict liability offence against this Act;
28
(b) a civil penalty provision of this Act.
29
Note:
Part 5 of the Regulatory Powers Act creates a framework for using
30
infringement notices in relation to provisions.
31
Schedule 1 Amendments
Part 5 Enforcement
28
Imported Food Control Amendment Bill 2017
No. , 2017
Infringement officer
1
(2) For the purposes of Part 5 of the Regulatory Powers Act, each of
2
the following authorised officers is an infringement officer in
3
relation to the provisions mentioned in subsection (1):
4
(a) the Secretary;
5
(b) an APS employee in the Department appointed by the
6
Secretary under subsection 40(1).
7
Relevant chief executive
8
(3) For the purposes of Part 5 of the Regulatory Powers Act, the
9
Secretary is the relevant chief executive in relation to the
10
provisions mentioned in subsection (1).
11
(4) The Secretary may, in writing, delegate to an SES employee, or
12
acting SES employee, in the Department the Secretary's powers
13
and functions under Part 5 of the Regulatory Powers Act in relation
14
to the provisions mentioned in subsection (1).
15
(5) A person exercising powers or performing functions under a
16
delegation under subsection (4) must comply with any directions of
17
the Secretary.
18
Extension to external Territories
19
(6) Part 5 of the Regulatory Powers Act, as that Part applies in relation
20
to the provisions mentioned in subsection (1), extends to any
21
external Territory to which this Act extends because of regulations
22
made for the purpose of section 4.
23
Liability of Crown
24
(7) Part 5 of the Regulatory Powers Act, as that Part applies in relation
25
to the provisions mentioned in subsection (1), does not make the
26
Crown liable to be given an infringement notice.
27
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
29
Division 6--Enforceable undertakings
1
26 Enforceable undertakings
2
Enforceable provisions
3
(1) A provision is enforceable under Part 6 of the Regulatory Powers
4
Act if it is:
5
(a) an offence against this Act; or
6
(b) a civil penalty provision of this Act.
7
Note:
Part 6 of the Regulatory Powers Act creates a framework for accepting
8
and enforcing undertakings relating to compliance with provisions.
9
Authorised person
10
(2) For the purposes of Part 6 of the Regulatory Powers Act, the
11
Secretary is an authorised person in relation to the provisions
12
mentioned in subsection (1).
13
Relevant court
14
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of
15
the following courts is a relevant court in relation to the provisions
16
mentioned in subsection (1):
17
(a) the Federal Court of Australia;
18
(b) the Federal Circuit Court of Australia;
19
(c) a court of a State or Territory that has jurisdiction in relation
20
to matters arising under this Act.
21
Extension to external Territories
22
(4) Part 6 of the Regulatory Powers Act, as that Part applies in relation
23
to the provisions mentioned in subsection (1), extends to any
24
external Territory to which this Act extends because of regulations
25
made for the purpose of section 4.
26
26 Before section 33
27
Insert:
28
Schedule 1 Amendments
Part 5 Enforcement
30
Imported Food Control Amendment Bill 2017
No. , 2017
Part 4--Other matters
1
2
32A Simplified outline of this Part
3
•
This Part deals with various matters, such as evidence of
4
analysts of food, the making of compliance agreements and
5
the use, disclosure and publication of information obtained
6
under this Act.
7
27 After section 34
8
Insert:
9
34A Power to require information or documents
10
(1) If the Secretary believes on reasonable grounds that a person has
11
information or documents relevant to the operation of this Act, the
12
Secretary may, by written notice, require the person:
13
(a) to give an authorised officer specified in the notice the
14
information specified in the notice within the period specified
15
in the notice; or
16
(b) to produce to an authorised officer specified in the notice the
17
documents specified in the notice within the period specified
18
in the notice.
19
(2) The period specified in the notice must be at least 14 days after the
20
notice is given under subsection (1).
21
(3) However, the Secretary may specify a shorter period if the
22
Secretary considers it necessary to do so because the information
23
or documents relate to food that the Secretary is satisfied may pose
24
a risk to human health and the Secretary is satisfied that the risk is
25
serious.
26
(4) A notice under subsection (1) must set out the effect of the
27
following provisions:
28
(a) subsection (5);
29
(b) section 137.1 of the Criminal Code (about giving false or
30
misleading information);
31
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
31
(c) section 137.2 of the Criminal Code (about producing false or
1
misleading documents).
2
(5) A person commits an offence of strict liability if:
3
(a) the person is given a notice under subsection (1); and
4
(b) the person fails to comply with the notice.
5
Penalty: 60 penalty units.
6
Authorised officer may inspect and copy documents
7
(6) An authorised officer may:
8
(a) inspect a document produced under paragraph (1)(b); and
9
(b) make and retain copies of the whole or a part of the
10
document.
11
Authorised officer may retain documents
12
(7) An authorised officer may take, and retain for as long as is
13
reasonably necessary, possession of a document produced under
14
paragraph (1)(b).
15
Certified copy of documents
16
(8) The person otherwise entitled to possession of a document
17
produced under paragraph (1)(b) is entitled to be supplied, as soon
18
as practicable, with a copy certified by the Secretary to be a true
19
copy.
20
(9) The certified copy must be received in all courts and tribunals as
21
evidence as if it were the original.
22
(10) Until a certified copy is supplied, the Secretary must, at such times
23
and places as the Secretary thinks appropriate, permit the person
24
otherwise entitled to possession of the document, or a person
25
authorised by that person, to inspect and make copies of the
26
document.
27
28 Section 35 (heading)
28
Repeal the heading, substitute:
29
Schedule 1 Amendments
Part 5 Enforcement
32
Imported Food Control Amendment Bill 2017
No. , 2017
35 Publishing of information about overseas food processing
1
operations
2
29 Part 4 (heading)
3
Repeal the heading.
4
30 Subsection 40(2)
5
Omit "all the provisions of this Act other than sections 24, 25, 26, 27,
6
28, 29, 30 and 32", substitute "this Act".
7
31 Application provisions
--offences and civil penalties
8
(1)
The repeal and substitution of sections 8 to 9 of the Imported Food
9
Control Act 1992 made by this Part applies in relation to food imported
10
into Australia on or after the commencement of this Part.
11
(2)
Section 9A of the Imported Food Control Act 1992, as inserted by this
12
Act, applies in relation to food imported into Australia on or after the
13
commencement of this Part.
14
32 Saving provision
--identity cards
15
Despite the repeal of section 22 of the Imported Food Control Act 1992
16
made by this Part, that section, as in force immediately before the
17
commencement of this Part, continues to apply on and after that
18
commencement in relation to a person who ceased to be an authorised
19
officer before that commencement.
20
33 Application and saving provisions
--monitoring and
21
investigation
22
(1)
Part 2 of the Regulatory Powers (Standard Provisions) Act 2014, as that
23
Part applies under Division 2 of Part 3 of the Imported Food Control
24
Act 1992, applies in relation to:
25
(a) determining whether a provision mentioned in
26
subsection 22(1) or (2) of the Imported Food Control Act
27
1992 has been complied with before, on or after the
28
commencement of this Part; or
29
(b) determining whether information mentioned in
30
subsection 22(3) of the Imported Food Control Act 1992
31
given before, on or after the commencement of this Part is
32
correct.
33
Amendments Schedule 1
Enforcement Part 5
No. , 2017
Imported Food Control Amendment Bill 2017
33
(2)
Part 3 of the Regulatory Powers (Standard Provisions) Act 2014, as that
1
Part applies under Division 3 of Part 3 of the Imported Food Control
2
Act 1992, applies in relation to evidential material that relates to a
3
provision mentioned in subsection 23(1) of the Imported Food Control
4
Act 1992, if the suspected contravention of the provision occurred
5
before, on or after the commencement of this Part.
6
(3)
Part 3 of the Imported Food Control Act 1992, as in force immediately
7
before the commencement of this Part, continues to apply on and after
8
that commencement in relation to the following:
9
(a) an application for a warrant made, but not decided, under that
10
Part before the commencement of this Part;
11
(b) a warrant issued, or completed and signed, under that Part
12
before, on or after the commencement of this Part as a result
13
of an application made before that commencement;
14
(c) powers exercised, rights created and duties imposed, under
15
that Part before, on or after the commencement of this Part in
16
relation to:
17
(i) an entry onto premises before that commencement with
18
the consent of the occupier of the premises; or
19
(ii) an entry onto premises before, on or after that
20
commencement as a result of a warrant referred to in
21
paragraph (b);
22
(d) things secured or seized under that Part before, on or after the
23
commencement of this Part;
24
(e) a requirement made under section 30 of that Act before, on or
25
after the commencement of this Part;
26
(f) a request made under section 32 of that Act before, on or
27
after the commencement of this Part.
28
34 Application provision
--civil penalties
29
Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, as that
30
Part applies under Division 4 of Part 3 of the Imported Food Control
31
Act 1992, applies in relation to contraventions of civil penalty
32
provisions occurring on or after the commencement of this Part.
33
Schedule 1 Amendments
Part 5 Enforcement
34
Imported Food Control Amendment Bill 2017
No. , 2017
35 Application provision
--infringement notices
1
Part 5 of the Regulatory Powers (Standard Provisions) Act 2014, as that
2
Part applies under Division 5 of Part 3 of the Imported Food Control
3
Act 1992, applies in relation to alleged contraventions of provisions
4
mentioned in subsection 25(1) of the Imported Food Control Act 1992
5
occurring on or after the commencement of this Part.
6
36 Application provision
--enforceable undertakings
7
Part 6 of the Regulatory Powers (Standard Provisions) Act 2014, as that
8
Part applies under Division 6 of Part 3 of the Imported Food Control
9
Act 1992, applies in relation to undertakings given on or after the
10
commencement of this Part.
11
Amendments Schedule 1
Record-keeping Part 6
No. , 2017
Imported Food Control Amendment Bill 2017
35
Part 6--Record-keeping
1
Imported Food Control Act 1992
2
37 After Part 3
3
Insert:
4
Part 3A--Record-keeping
5
6
27 Simplified outline of this Part
7
•
If food to which this Act applies is imported into Australia,
8
the owner of the food at the time of the importation must keep
9
records of information determined by the Secretary.
10
•
Records must be retained for 5 years and may need to be
11
produced to the Secretary.
12
28 Keeping and retaining records
13
Keeping of records
14
(1) If food to which this Act applies is imported into Australia, the
15
owner of the food at the time of the importation must keep records
16
containing the information determined in an instrument under
17
subsection (2).
18
(2) The Secretary may, by legislative instrument, determine the
19
information that must be contained in records under this section.
20
Retention of records
21
(3) The owner must retain the records for a period of 5 years.
22
Offence
23
(4) A person commits an offence of strict liability if:
24
(a) the person is subject to a requirement under this section; and
25
Schedule 1 Amendments
Part 6 Record-keeping
36
Imported Food Control Amendment Bill 2017
No. , 2017
(b) the person contravenes the requirement.
1
Penalty for contravention of this subsection: 60 penalty units.
2
29 Production of records
3
(1) The Secretary may, by written notice given to a person who is
4
required to keep records under section 28, require the person to
5
produce to the Secretary, within the period and in the manner
6
specified in the notice, such of those records as are specified in the
7
notice.
8
(2) The period specified in a notice given under subsection (1) must be
9
at least 14 days after the notice is given.
10
(3) However, the Secretary may specify a shorter period if the
11
Secretary considers it necessary to do so because the records relate
12
to food that the Secretary is satisfied may pose a risk to human
13
health and the Secretary is satisfied that the risk is serious.
14
(4) A notice under subsection (1) must set out the effect of the
15
following provisions:
16
(a) subsection (5);
17
(b) section 137.1 of the Criminal Code (about giving false or
18
misleading information);
19
(c) section 137.2 of the Criminal Code (about producing false or
20
misleading documents).
21
Offence
22
(5) A person commits an offence if:
23
(a) the person is given a notice under subsection (1); and
24
(b) the person fails to comply with the notice.
25
Penalty for contravention of this subsection: Imprisonment for 6
26
months.
27
30 Secretary may inspect and copy records
28
The Secretary may inspect a record produced under this Part and
29
may make and retain copies of the whole or a part of the record.
30
Amendments Schedule 1
Record-keeping Part 6
No. , 2017
Imported Food Control Amendment Bill 2017
37
31 Secretary may retain records
1
(1) The Secretary may take, and retain for as long as is reasonably
2
necessary, possession of a record produced under this Part.
3
(2) The person otherwise entitled to possession of the record is entitled
4
to be supplied, as soon as practicable, with a copy certified by the
5
Secretary to be a true copy.
6
(3) The certified copy must be received in all courts and tribunals as
7
evidence as if it were the original.
8
(4) Until a certified copy is supplied, the Secretary must, at such times
9
and places as the Secretary thinks appropriate, permit the person
10
otherwise entitled to possession of the record, or a person
11
authorised by that person, to inspect and make copies of the record.
12
32 Self-incrimination
13
(1) A person is not excused from producing a record under this Part on
14
the ground that the production of the record might tend to
15
incriminate the person or expose the person to a penalty.
16
(2) However, in the case of an individual:
17
(a) the record; and
18
(b) producing the record; and
19
(c) any information, document or thing obtained as a direct or
20
indirect consequence of producing the record;
21
are not admissible in evidence against the individual in criminal
22
proceedings other than:
23
(d) proceedings for an offence against subsection 28(4) or 29(5);
24
or
25
(e) proceedings for an offence against section 137.1 or 137.2 of
26
the Criminal Code that relates to this Part.
27
38 Application provision
28
Section 28 of the Imported Food Control Act 1992, as inserted by this
29
Part, applies in relation to food imported into Australia on or after the
30
commencement of this item.
31
Schedule 1 Amendments
Part 7 Making of orders or determinations
38
Imported Food Control Amendment Bill 2017
No. , 2017
Part 7--Making of orders or determinations
1
Imported Food Control Act 1992
2
39 At the end of subsection 18(1)
3
Add:
4
Note:
See section 35B for how a determination may refer to a kind of food.
5
40 After section 35A
6
Insert:
7
35B Making of orders or determinations
8
(1) An order or determination under this Act or the regulations may
9
refer to a kind of food by reference to any one or more of the
10
following:
11
(a) the country of origin of the food;
12
(b) the place of origin of the food;
13
(c) the manner in which the food has been produced, processed,
14
manufactured, stored, packed, packaged, labelled or
15
transported;
16
(d) the producer, processor, manufacturer, storer, packer,
17
packager, supplier or transporter of the food;
18
(e) the importer of the food;
19
(f) the period within which the food is imported into Australia;
20
(g) the physical properties of the food;
21
(h) the constituents of the food;
22
(i) the brand name of the food.
23
(2) Subsection (1) does not limit the way in which an order or
24
determination under this Act or the regulations may refer to a kind
25
of food.
26
41 Application provision
27
Section 35B of the Imported Food Control Act 1992, as inserted by this
28
Part, applies in relation to an order or determination made on or after
29
the commencement of this item.
30
Amendments Schedule 1
Use and disclosure of information Part 8
No. , 2017
Imported Food Control Amendment Bill 2017
39
Part 8--Use and disclosure of information
1
Imported Food Control Act 1992
2
42 Section 41
3
After "this Act", insert "(except the power under subsection 42A(5))".
4
43 After section 42
5
Insert:
6
42A Use and disclosure of information
7
Use of information
8
(1) An APS employee in the Department may use information
9
(including personal information) obtained under this Act for any
10
purpose of this Act.
11
Disclosure of information
12
(2) The Secretary may disclose information (including personal
13
information) obtained under this Act to:
14
(a) a department of the Commonwealth, a State or a Territory; or
15
(b) an agency, authority or instrumentality of the
16
Commonwealth, a State or a Territory; or
17
(c) a local government body;
18
if the Secretary is satisfied that the disclosure of the information to
19
that department, agency, authority, instrumentality or body is
20
necessary for that department, agency, authority, instrumentality or
21
body to perform or exercise any of its functions, duties or powers.
22
(3) The Secretary may disclose information (including personal
23
information) obtained under this Act to:
24
(a) a department of the government of a foreign country; or
25
(b) an agency, authority or instrumentality of the government of
26
a foreign country;
27
if the Secretary is satisfied that the disclosure of the information to
28
that department, agency, authority or instrumentality is necessary
29
Schedule 1 Amendments
Part 8 Use and disclosure of information
40
Imported Food Control Amendment Bill 2017
No. , 2017
for that department, agency, authority or instrumentality to perform
1
or exercise any of its functions, duties or powers.
2
(4) The Secretary must not disclose information under subsection (3)
3
unless the Secretary is satisfied that the disclosure is in connection
4
with food imported into Australia that the Secretary is satisfied
5
may pose a risk to human health.
6
(5) The Secretary must, in writing, make guidelines that the Secretary
7
must have regard to before disclosing information under
8
subsection (3).
9
Note:
For variation and revocation of the guidelines, see subsection 33(3) of
10
the Acts Interpretation Act 1901.
11
(6) Before making the guidelines, the Secretary must consult the
12
Information Commissioner.
13
(7) The guidelines are not a legislative instrument.
14
(8) The Secretary must publish the guidelines on the Department's
15
website.
16
Interpretation
17
(9) For the purposes of this section, if an application is taken to have
18
been communicated to an authorised officer as mentioned in
19
subsection 11(3), information contained in the application is taken
20
to be information obtained under this Act.
21
(10) This section does not limit section 35 (about publishing of
22
information about overseas food processing operations).
23
(11) This section does not limit the use or disclosure of information
24
(including personal information) obtained under this Act.
25
(12) In this section:
26
personal information has the same meaning as in the Privacy Act
27
1988.
28
44 Application provision
29
Section 42A of the Imported Food Control Act 1992, as inserted by this
30
Part, applies in relation to information obtained before, on or after the
31
commencement of this item.
32
Amendments Schedule 1
Other amendments Part 9
No. , 2017
Imported Food Control Amendment Bill 2017
41
Part 9--Other amendments
1
Imported Food Control Act 1992
2
45 Subsection 3(1) (definition of food)
3
Repeal the definition, substitute:
4
food has the meaning given by section 3A.
5
46 Paragraph 3(2)(b)
6
Omit "manufactured or transported", substitute "produced, processed,
7
manufactured, stored, packed, packaged or transported".
8
47 After section 3
9
Insert:
10
3A Definition of food
11
(1) Food includes:
12
(a) any substance or thing of a kind used, capable of being used,
13
or represented as being for use, for human consumption
14
(whether it is live, raw, prepared or partly prepared); and
15
(b) any substance or thing of a kind used, capable of being used,
16
or represented as being for use, as an ingredient or additive in
17
a substance or thing referred to in paragraph (a); and
18
(c) any substance used in preparing a substance or thing referred
19
to in paragraph (a); and
20
(d) chewing gum or an ingredient or additive in chewing gum, or
21
any substance used in preparing chewing gum; and
22
(e) any substance or thing declared to be a food under a
23
declaration in force under section 6 of the Food Standards
24
Australia New Zealand Act 1991.
25
(It does not matter whether the substance, thing or chewing gum is
26
in a condition fit for human consumption.)
27
(2) However, food does not include a therapeutic good within the
28
meaning of the Therapeutic Goods Act 1989.
29
(3) To avoid doubt, food may include live animals and plants.
30
Schedule 1 Amendments
Part 9 Other amendments
42
Imported Food Control Amendment Bill 2017
No. , 2017
48 Paragraph 7(3)(b)
1
After "person", insert "(except a person carrying out the scientific or
2
commercial evaluation)".
3
49 Before Division 1 of Part 2
4
Insert:
5
Division 1A--Introduction
6
7A Simplified outline of this Part
7
•
Consistent with the object of this Act, there are importation,
8
labelling and dealing offences and civil penalties in relation to
9
food to which this Act applies.
10
•
Under the regulations, there is a food inspection scheme for
11
food to which this Act applies.
12
•
Food control certificates and imported food inspection advices
13
are able to be issued by authorised officers.
14
•
The Secretary may make orders requiring food to be held at
15
certain places if the Secretary considers that the food does not
16
meet applicable standards or considers that the food poses a
17
serious risk to human health.
18
•
Food identified as failing food may be required to be treated,
19
destroyed or re-exported from Australia.
20
50 Before subsection 18(3)
21
Insert:
22
Offence
23
51 At the end of section 18
24
Add:
25
Amendments Schedule 1
Other amendments Part 9
No. , 2017
Imported Food Control Amendment Bill 2017
43
Status of instruments
1
(4) A determination under subsection (1), or a revocation under
2
subsection (2), is not a legislative instrument.
3
Definitions
4
(5) For the purposes of this section, forge and utter have the meanings
5
given by section 19A.
6
52 Before subsection 19(4)
7
Insert:
8
Offence
9
53 At the end of section 19
10
Add:
11
Status of instruments
12
(5) The following are not legislative instruments:
13
(a) an arrangement under subsection (1);
14
(b) an approval, or a revocation, under subsection (1A);
15
(c) a determination under subsection (2);
16
(d) a revocation under subsection (3).
17
Definitions
18
(6) For the purposes of this section, forge and utter have the meanings
19
given by section 19A.
20
54 Application provision
21
The amendment of paragraph 7(3)(b) of the Imported Food Control Act
22
1992 made by this Part applies in relation to food imported into
23
Australia on or after the commencement of this item.
24