Updating Australia's law for Imported Foods, 2016-2018

By Joe Lederman (Managing Principal, FoodLegal) and John Thisgaard (FoodLegal Consultant)

© Lawmedia Pty Ltd, August 2017

Following the introduction of the Biosecurity Act in June 2016, the Australian Federal Government Department of Agriculture and Water Resources (formerly known as the Department of Agriculture, Fisheries and Forestry or “DAFF”) has continued a program to develop legislative changes for streamlining and improving the regulatory framework for foods being imported into Australia. This article provides an overview of the recent developments and proposed changes, as well as some implications for food importers.

Australia’s food import regulatory landscape

The centrepiece of Australia’s regulation of imports is the Biosecurity Act.  The Biosecurity Act came into force on 16 June 2016, replacing the Quarantine Act which had been in place for over a century.  The Biosecurity Act operates to ensure that items coming into Australia do not present any risk to health and safety.  The Biosecurity Act has always conferred on its biosecurity officers very wide powers, including the powers to search and detain goods.  The changes brought about by the Biosecurity Act, were explored in a June 2016 FoodLegal Bulletin article, “Australia’s new biosecurity legislation: What does it change?

Imported food is also subject to the Imported Food Control Act, which requires food imported into Australia to be compliant with the Australia New Zealand Food Standards Code (Food Standards Code).  The inspection regime of imported food depends on whether the food is classified as “surveillance” or “risk”.  The risk classification of a particular food is based on information provided by Food Standards Australia New Zealand (FSANZ).  Consignments of most foods (“surveillance foods”) are subject to a five percent chance of inspection, while consignments of “risk foods” initially have a 100 percent inspection rate, which decreases with continued compliance.  This system was examined in greater detail in a February 2017 FoodLegal Bulletin article, “Fast-tracking compliance possibilities for some food imports into Australia”.

More changes to the risk classification of foods

The following foods have also been classified as “risk foods”:

  • Histamine-susceptible fish and fish products including tuna, mackerel, sardines, anchovy, herrings, and bluefish (from 4 January 2017)
  • Ready to eat processed finfish (from 2 November 2016)
  • Raw milk cheese (from 9 May 2016)

A move from “surveillance food” to “risk food” therefore means that these foods are regarded as presenting a medium to high safety risk and must initially face a 100 percent rate of inspection upon entry into Australia.  Any non-compliance with the Food Standards Code would be more likely to result in the product being held at the border.

Additionally, the Department of Agriculture is currently considering whether to increase the rate of inspection for the following foods:

  • Foods containing bivalve molluscs
  • Foods containing cooked prawns
  • Plants and fungi listed in Schedule 23 of the Food Standards Code

The Department of Agriculture is also currently considering whether to decrease the rate of inspection for cooked crustaceans (other than prawns) and to reduce the scope for dried coconut, spices, sesame seeds and sesame seed products that need to be inspected.

Changes to the inspection and holding protocols

The Federal Government is implementing further changes to the protocols for imported food over the coming months.  Some of these changes require legislative backing, while others are able to be made by further Government executive orders.

Legislative changes

The Imported Food Control Amendment Bill was introduced into the Federal Parliament on 1 June 2017, and contains a number of proposed changes to the Imported Food Control Act.  These changes include the following new provisions:

  • A holding order will be able to be issued under Section 15 for food that poses a “serious risk to human health”.  There must be reasonable grounds for believing that the food poses a serious health risk.  The holding order prevents the food from being distributed within Australia and applies for 28 days, but may be extended for a further 28 days.

  • Food Inspection Schemes created under Section 16 will now be able to specify the percentage of food that must be inspected, and can empower the Secretary to determine the incidence of inspection and rate at which samples must be taken for particular foods. 

  • The responsible Minister will also be able to make orders regarding food that is subject to an agreement between Australia and another country that confirms that Australia and the second country have equivalent food safety systems and conduct equivalent monitoring of the particular food.

  • Offences for non-compliant foods will change.  If a food poses a risk to human health, does not meet an applicable standard, or does not meet labelling standards, there will be both a strict liability offence and fault-based offence.  Separate strict liability and fault-based offences have also been established for dealing with food where there is no food control certificate or imported food inspection advice, and for dealing with failing food.  A strict liability offence may be proven without establishing any mental culpability, or intention to commit the offence, and will result in a fine.  A fault-based offence requires the offender to have intended to contravene the Act, and has a maximum penalty of up to 10 years’ imprisonment.

  • Civil penalties have been introduced for the above conduct.  Civil penalties may be imposed by a Court resulting from civil action taken by the Department of Agriculture, without the need to launch prosecutory action.

  • The owner of food at the time of importation will have to keep and maintain records for five years.  The Secretary will have the power to determine the further records that must be maintained.  Records may include documentation of food safety controls throughout the supply chain. 

At the time of publication (August 2017), the amendments were still before the Federal House of Representatives.  The Department of Agriculture was expecting that the changes will become operative by approximately July 2018, with provisions relating to supply chain assurance and traceability to take effect 12 months later.

Policy changes

The remaining changes represent changes to Government policy and include:

  • The number of importers operating under a Food Import Compliance Agreement (FICA) will be increased.  A FICA is an arrangement between the Department of Agriculture and an importing firm, whereby the importing firm undertakes its own inspection and quality control procedures in lieu of inspections undertaken by biosecurity officers.

  • Increasing the number of foreign government certification arrangements in place.  Such arrangements involve the Australian government accepting a certificate from the government of the exporting country that ensures the quality of the food that is imported into Australia.

  • Increased communication with State and Territory food regulators to determine new and emerging food safety risks.

The Department of Agriculture was expected to have implemented these changes throughout 2017.

Imported Food Control Regulations

The Imported Food Control Regulations contain additional rules and details that supplement the Imported Food Control Act.  The Regulations are due to cease operation (sunset) on 1 October 2018.  Recommendations regarding new regulations were made to the Department of Agriculture in May 2017.  The Department of Agriculture expects to seek public comments on new draft regulations during September 2017, and to implement the new regulations early in 2018.

This is general information rather than legal advice and is current as of 13 Oct 2017. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.