Imported Food Control Amendment Bill 2017 [2017] AUSStaCSBSD 169 (14 June 2017)

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Purpose	This bill seeks to amend the Imported Food Control Act 1992 to: • require documentary evidence from importers to demonstrate that they have effective internationally recognised food safety controls in place throughout the supply chain for certain types of food; • amend Australia's emergency powers to allow food to be held at the border where there is uncertainty about the safety of a particular food and where the scientific approach to verify its safety is not established; • provide additional powers to monitor and manage new and emerging risks; • recognise an entire foreign country's food safety regulatory system where it is equivalent to Australia's food safety system; • align the definition of 'food' with other Commonwealth legislation; • establish differentiated enforcement provisions to enable a graduated approach to non‑compliance; • require all importers of food to be able to trace food one step forward and one step backward; and • make minor technical amendments
Portfolio	Agriculture and Water Resources
Introduced	House of Representatives 1 June 2017
Scrutiny principles	Standing Order 24(1)(a)(ii), (iv) and (v)

1.79 Proposed subsection 18A will enable the Secretary to determine, in writing, that for food of a specified kind, a specified certificate issued by a specified person or body is a recognised food safety management certificate. Proposed subsection 18A(2) provides that the Secretary must make guidelines that the Secretary must have regard to before making a determination under proposed subsection 18A(1). Proposed subsection 18A(4) provides that determinations made under subsection 18A(1) and guidelines made under 18A(2) are not legislative instruments for the purposes of the Legislation Act 2003. The explanatory memorandum justifies this provision on the basis that neither of these instruments would fall within the substantive definition of legislative instruments under the Legislation Act 2003, as the determination and guidelines:

1.80 Although it may be accepted that a determination that a specified certificate is a recognised food safety management certificate is one of an administrative rather than a legislative character, it is less clear why guidelines made under subsection 18A(2) should not be considered to be decisions of a legislative character and therefore subject to parliamentary oversight and accountability.

1.81 Insofar as the guidelines operate as mandatory relevant considerations, i.e. considerations that must be taken into account when the Secretary makes determinations under subsection 18A(1), the guidelines do appear to alter the content of the law and have general application.

1.82 Given the important role that the guidelines have in the making of determinations about recognised food safety management certificates, the committee requests the Minister's advice as to why the guidelines are not to be included in a disallowable legislative instrument (and therefore subject to parliamentary scrutiny).

Broad discretionary power^[60]

1.83 Item 10 of the bill proposes making amendments to enable the Secretary to make a holding order that states certain food imported into Australia is to be held in an approved place, on the basis that the Secretary is satisfied there are reasonable grounds for believing food of that kind may pose a risk to human health. The order can last for up to 28 days and may be extended more than once. There is no provision for merits review of the decision but the explanatory memorandum provides a detailed explanation as to why access to merits review would be inappropriate in the circumstances.^[61]

1.84 The explanatory memorandum states that the requirement in proposed subsection 15(4) to enable the Secretary to extend the 28 day period by a further period of up to 28 days (with no limits on the number of extensions) 'has been inserted to enable continued protection of human health until the appropriate testing regime on the food for the particular hazard and/or adequate risk management strategies can be implemented in relation to the food'. It continues:

1.85 The committee notes that this safeguard will presumably be facilitated through delegating the relevant powers reposed in the Secretary to different or multiple decision-makers. However, there appears nothing on the face of the legislation to require that a different decision-maker exercise the power to extend an order.

1.86 The committee suggests that it may be appropriate for the bill to be amended to ensure that it is a legislative requirement that the decision to extend the period of a holding order is made by a different decision-maker to that who made the original holding order, and seeks the Minister's response in relation to this.

Broad delegation of administrative power^[63]

1.87 Proposed sections 22 and 23 trigger the monitoring and investigation powers under the Regulatory Powers (Standard Provisions) Act 2014 in relation to provisions of the Imported Food Control Act 1992. Proposed subsections 22(14) and 23(11) provide that an authorised officer may be assisted 'by other persons' in exercising powers or performing functions or duties in relation to monitoring and investigation. The explanatory memorandum does not explain the categories of 'other persons' who may be granted such powers, other than to explain that this 'preserves the effect of current section 32 of the Act' (which is being repealed).^[64]

1.88 However, current section 32 of the Imported Food Control Act 1992 provides that an authorised officer may request the occupier of any premises entered to provide reasonable assistance to the officer. As such, the current provision is limited to the occupier of the premises providing assistance to the authorised officer. Whereas the proposed new provisions apply to any 'other persons' providing assistance. The powers granted to 'other persons' could be coercive, including entering premises, inspecting documents, operating electronic equipment, etc.^[65] The bill also proposes to grant such 'other persons' the power to use such force against things as is necessary and reasonable in the circumstances.^[66]

1.89 There is no explanation in the explanatory memorandum of the need to confer these powers on 'other persons' and the bill does not confine who may exercise the powers by reference to any particular expertise or training.

1.90 The committee therefore requests the Minister's advice as to why it is necessary to confer monitoring and investigatory powers on any 'other person' to assist an authorised officer and whether it would be appropriate to amend the bill to require that any person assisting an authorised officer be confined to the occupier of the relevant premises (as is currently required by the Imported Food Control Act 1992) or require the person assisting have specified skills, training or experience.

Adequacy of parliamentary oversight^[67]

1.91 Proposed section 42A provides that the Secretary may disclose information, including personal information, obtained under the Imported Food Control Act 1992, to a wide range of Commonwealth, State, Territory, local and foreign government departments and agencies. Subsection 42A(5) provides that the Secretary must, in writing, make guidelines that the Secretary must have regard to before disclosing information to foreign countries. Subsection 42A(6) provides that before making such guidelines the Secretary must consult with the Information Commissioner and subsection 42A(7) provides the guidelines are not a legislative instrument. The explanatory memorandum states the guidelines will be made in consultation with the Australian Information Commissioner, will be published on the Department's website and when developing the guidelines 'consideration will be given to principles and guidelines established by Codex Alimentarius Commission' (which appears to be a Food Code).^[68]

1.92 However, it is unclear to the committee why the guidelines, which become a mandatory consideration for exercising a power that affects the right to privacy, should not be a legislative instrument and, therefore, subject to parliamentary scrutiny and disallowance. It is also unclear why the development of the guidelines is limited to the exercise of the Secretary's power in disclosing information to a foreign country, and not in relation to disclosing information to other Commonwealth agencies and State, Territory or local governments.

[58] Item 4, proposed subsection 18A. The committee draws Senators' attention to this provision pursuant to principle 1(a)(iv) of the committee's terms of reference.

[60] Schedule 1, item 10. The committee draws Senators' attention to this provision pursuant to principle 1(a)(ii) of the committee's terms of reference.

[63] Schedule 1, item 25, proposed subsections 22(14) and 23(11). The committee draws Senators' attention to these provisions pursuant to principle 1(a)(ii) of the committee's terms of reference.

[67] Schedule 1, item 43. The committee draws Senators' attention to this provision pursuant to principle 1(a)(v) of the committee's terms of reference.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests