Export Control (Milk and Milk Products) Rules 2021

Part 1—Preliminary

1‑1 Name

This instrument is the Export Control (Milk and Milk Products) Rules 2021.

1‑3 Authority

This instrument is made under the Export Control Act 2020.

1‑4 Simplified outline of this instrument

General

This instrument prescribes matters and makes other provision in relation to certain milk and milk products (prescribed milk and milk products) for the purposes of the Export Control Act 2020 (the Act).

Prescribed milk or milk products must not be exported from Australian territory unless the conditions prescribed by this instrument (prescribed export conditions) are complied with. A person may commit an offence or be liable to a civil penalty if prescribed milk or milk products are exported in contravention of prescribed export conditions (see Division 4 of Part 1 of Chapter 2 of the Act).

This instrument prescribes other matters and makes other provision in relation to the export of milk and milk products, including in relation to the following:

(a) exemptions;

(b) government certificates;

(c) registered establishments;

(d) approved arrangements;

(e) export permits;

(f) trade descriptions;

(g) official marks and official marking devices;

(h) audits;

(i) assessments;

(j) functions and powers of authorised officers;

(k) records;

(l) samples;

(m) damaged or destroyed milk or milk products.

Structure of this instrument and Chapter numbering

This instrument is arranged in Chapters that have the same number and name as the corresponding Chapters in the Act. For example, the provisions of this instrument that are made for the purposes of Chapter 5—Approved arrangements of the Act are included in Chapter 5—Approved arrangements of this instrument. This means there are gaps in the Chapter numbering because there are no provisions for the purposes of some Chapters of the Act.

Part 2—Interpretation

1‑5 Definitions

Note: A number of expressions used in this instrument are defined in the Act, including the following:

(a) Australian territory;
(b) authorised officer;
(c) export;
(d) export operations;
(e) integrity;
(f) prepare;
(g) prescribed agriculture law;
(h) Regulatory Powers Act.

In this instrument:

Act means the Export Control Act 2020, and includes:

(a) legislative instruments made under the Export Control Act 2020; and
(b) the Regulatory Powers Act as it applies in relation to the Export Control Act 2020.

amenities includes toilets, showers, locker rooms, change rooms, canteens and kitchens.

animal food means milk or milk products that are not fit for human consumption and are for use as feed for animals.

applied, in relation to an official mark, has the meaning given by subsection 8‑14(1).

Note: For applied, in relation to a trade description, see section 247 of the Act.

approved assessor means an individual who is approved under subsection 281(1) of the Act to carry out assessments of milk or milk products under Part 2 of Chapter 9 of the Act.

approved auditor means an individual who is approved under subsection 273(1) of the Act to conduct an audit referred to in section 9‑1 of this instrument.

bovine animal means an animal of the Bos taurus species.

bulk‑loaded: milk or milk products are bulk‑loaded if the milk or milk products are loaded directly into a container system unit, or directly into the hold of a vessel, unpackaged (but they may be boxed or drummed and palletised).

can means an immediate container made of metal, glass or other material suitable as a hermetically sealed container.

canned means thermally processed and enclosed in a hermetically sealed can.

cheese means a ripened or unripened solid or semi‑solid product that may be coated and in which the whey protein‑to‑casein ratio does not exceed that of milk, obtained by either or both of the following processes:

(a) coagulating wholly or partly the protein of milk, skimmed milk, cream, whey cream or butter milk, or any combination of these materials, through the action of rennet and other suitable coagulating agents and by partially draining the whey resulting from the coagulation;
(b) processing techniques involving coagulation of the protein of milk that give an end product with similar physical, chemical and organoleptic characteristics as the product referred to in paragraph (a).

Codex means the Codex Alimentarius issued by the body known as the Codex Alimentarius Commission of the Food and Agriculture Organization of the United Nations and the World Health Organisation, as in force from time to time.

Note: The Codex Alimentarius could in 2021 be viewed on the website of the Food and Agriculture Organization of the United Nations (http://www.fao.org).

commercially sterile, in relation to milk or milk products, means free of pathogens that are capable of growing under the conditions the milk or milk products are likely to encounter during storage and distribution at ambient temperature.

construction, in relation to an establishment or equipment, includes design, installation, assembly, layout and the materials of which the establishment and equipment are made.

container system unit means a container designed for use as a unit of cargo handling equipment in the transport of goods by aircraft or vessel.

critical control point, in relation to a hazard, means a step during the production of food at which control can be applied that is essential to prevent or eliminate the hazard or reduce its occurrence to an acceptable level.

critical limit, in relation to a hazard, means the limit to which the hazard must be controlled to prevent or eliminate it or reduce its occurrence to an acceptable level.

disease, in relation to an animal, means a disease suffered by or carried by the animal that is likely to be transmitted through milk or milk products.

equipment includes any implement for the preparation of food, but does not include a vehicle used to transport food.

essential services includes:

(a) water, gas and electricity; and
(b) sewerage, drainage and waste disposal systems.

exporter of prescribed milk or milk products means:

(a) the applicant for an export permit for the milk or milk products; or
(b) if an export permit has been issued for the milk or milk products—the holder of the export permit.

floors includes stairs, platforms and like areas.

food carrying compartment, of a conveyance, means the part or area of the conveyance in which milk or milk products are carried.

food contact surface means a surface that is likely to come into contact with exposed milk, milk products or their ingredients.

Note: Example: Milk or milk products that are being prepared but have not been packaged are exposed.

food handler means a person who directly handles milk, milk products or their ingredients or who handles food contact surfaces.

food handling area means:

(a) in Part 2 of Chapter 5—an area of a registered establishment (including a refrigeration chamber or storage area) used for exposed prescribed milk or milk products or their ingredients; or
(b) in any other provision—an area (including a refrigeration chamber or storage area) where milk, milk products or their ingredients are prepared or where packaging materials are stored.

Food Standards Code means the Australia New Zealand Food Standards Code.

HACCP means the hazard analysis and critical control point system for food safety management set out in the annex to CAC/RCP 1‑1969 (General Principles of Food Hygiene), adopted by the Codex.

HACCP plan means a document prepared in accordance with the principles of HACCP to ensure control of hazards that are significant for food safety in relation to milk or milk products.

hazard means a biological, chemical or physical agent in, or a condition of, food that has the potential to cause harm to human health.

IANZ means the accreditation scheme known as International Accreditation New Zealand maintained by the Accreditation Council under section 35 of the Standards and Accreditation Act 2015 of New Zealand as in force at the commencement of this instrument.

ice cream means a frozen food product that is made from cream or milk products, or both, and is generally aerated.

immediate container, in relation to milk or milk products, means the primary covering in which the milk or milk products are packed.

ingredient means a substance (including a food additive) that is a constituent of milk or milk products (including raw materials).

installed: a resources industry structure is installed in an area at a time if, assuming that the structure were a sea installation within the meaning of the Sea Installations Act 1987 and the area were part of an adjacent area within the meaning of that Act, the structure would be taken under section 6 of that Act to be installed in an adjacent area at the time.

loaded for export has the meaning given by section 1‑6.

lot, in relation to milk or milk products, means a quantity of milk or milk products of the same kind processed or packed under essentially the same conditions during a particular time interval, usually not exceeding 24 hours, and usually from a particular processing or packing line or other identifiable processing or packing unit.

low acid means a pH value of greater than 4.6 and water activity greater than 0.85 aw.

major component: milk or milk products are the major component in a milk product if the milk or milk products comprise the largest proportion of the milk product (by weight or volume).

manufacturing grade, in relation to milk or milk products, means milk or milk products that are not fit for human consumption but are suitable for further processing to make them fit for human consumption.

medical condition:

(a) means a medical condition that could affect the fitness for human consumption of milk or milk products; and
(b) includes an injury, an infected skin lesion or a discharge from the ear, nose or eye.

MICoR means the Manual of Importing Country Requirements published by the Department.

Note: MICoR could in 2021 be viewed on the Department’s website (http://www.awe.gov.au), but access to the document requires a password.

milk means the lacteal secretion obtained from an animal.

milk product means a product containing milk or containing an ingredient derived from milk.

Note: Example: A product containing milk powder, whey powder, milk fat or milk proteins is a milk product.

Note: A milk product that does not have milk or milk products as a major component is not a prescribed milk product unless subsection 2‑1(2) applies in relation to the milk product (see paragraph 2‑1(3)(e)).

monitor, in relation to a critical control point and a hazard, means conduct a planned sequence of observations or measurements to assess whether each critical limit in relation to that hazard is under control.

NATA means the National Association of Testing Authorities.

notifiable disease means a disease the presence or suspected presence of which must be notified or reported (however expressed) under a law of the State or Territory where the disease is, or is suspected of being, present.

pest includes an insect, arachnid, bird, reptile, rodent and other vermin.

potable, in relation to water, means water that is acceptable for human consumption.

Note: For guidance, see the Australian Drinking Water Guidelines (2011) developed by the National Health and Medical Research Council. The Guidelines could in 2021 be viewed on the National Health and Medical Research Council’s website (http://www.nhmrc.gov.au).

prescribed milk means milk that is prescribed goods under Division 1 of Part 1 of Chapter 2.

prescribed milk and milk products means milk and milk products that are prescribed goods under Division 1 of Part 1 of Chapter 2.

prescribed milk or milk products means milk or milk products that are prescribed goods under Division 1 of Part 1 of Chapter 2.

prescribed milk products means milk products that are prescribed goods under Division 1 of Part 1 of Chapter 2.

processing aid, in relation to milk or milk products, means a substance used in the processing of the milk or milk products or their ingredients to fulfil a technological purpose relating to treatment or processing, but that does not perform a technological function in the final food.

refrigeration chamber includes a chiller, freezer and coolroom.

registered, in relation to an establishment, means registered under Chapter 4 of the Act.

registered establishment means an establishment that is registered for a kind of export operations in relation to prescribed milk or milk products.

relevant importing country authority means the authority or body that is responsible for regulating the importation of milk or milk products into that country from Australian territory.

resources industry structure means:

(a) a resources industry fixed structure (within the meaning of the Sea Installations Act 1987); or
(b) a resources industry mobile unit (within the meaning of that Act) that is not a vessel.

sanitise a surface means apply a process (including using heat or chemicals) to the surface so that the number of pathogens on the surface is reduced to a level that:

(a) does not compromise the safety of milk or milk products that may come into contact with the surface; and
(b) does not permit the transmission of a condition or disease.

shelf‑stable, in relation to milk or milk products, means the milk or milk products can be safely stored and handled at ambient temperature.

single use item means an instrument, apparatus, utensil or other thing intended to be used only once in connection with food handling.

site of microbiological concern, in relation to milk or milk products, means:

(a) if a site for the milk or milk products where pathogens are likely to be located is known—that site; or
(b) in any other case—the thermal centre of the milk or milk products.

storage area means an area used for the storage of milk, milk products, ingredients or packaging materials.

substance includes an organism or any other matter.

thermal centre, of milk or milk products or an immediate container of milk or milk products, means the last point in the milk or milk products, or container, at which a change in temperature occurs.

thermal process, in relation to milk or milk products, means the heat sterilisation process in which milk or milk products, or immediate containers of milk or milk products, are exposed to a defined heating medium at a specified temperature for a specified time for the purpose of making the milk or milk products commercially sterile.

Note: Examples of heating mediums are air, steam and water.

Timor Sea Maritime Boundaries Treaty means the Treaty between Australia and the Democratic Republic of Timor‑Leste Establishing their Maritime Boundaries in the Timor Sea done at New York on 6 March 2018, as in force at the commencement of this instrument.

Note: The Treaty is in Australian Treaty Series 2019 No. 16 ([2019] ATS 16) and could in 2021 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

validate, in relation to a system of controls, means obtain evidence to demonstrate the effectiveness of the system of controls.

verify means apply methods, procedures, tests and other evaluations in addition to monitoring to determine whether a requirement has been, or is being, complied with.

1‑6 Meaning of loaded for export

Milk or milk products are loaded for export if the milk or milk products: (a) are placed into a container system unit at a registered establishment for export; or (b) are loaded into or onto an aircraft or a vessel for export without first being placed into a container system unit.

Chapter 2—Exporting goods