Imported Food Charges (Imposition—Customs) Regulation 2015

The central concept is the imported food matter, defined as a matter connected with the administration of the Imported Food Control Act 1992. The charges attach to the administration and ongoing management of relevant arrangements or agreements, which are either approved arrangements under the Biosecurity Act 2015 or compliance agreements under the Imported Food Control Act 1992.

A compliance agreement is a statutory arrangement under section 35A of the Imported Food Control Act 1992 that allows an importer to manage food safety compliance under a tailored agreement with the regulator. An approved arrangement is defined by the Biosecurity Act 2015 and covers biosecurity risk management, often held by importers, brokers or logistics operators.

A Class 19 Arrangement is a specific subtype of approved arrangement under which the person covered assesses documents to manage biosecurity risks associated with containerised sea freight, and does not require the person to carry out biosecurity activities at a particular place. This distinction matters because item 4 of the fee table gives different amounts depending on whether the first arrangement in a financial year is a Class 19 Arrangement. A person holding a Class 19 Arrangement plus other arrangements may pay a lower fee than a person whose first arrangement is a different type.

The regulatory scheme distinguishes between charges imposed as customs duties and those imposed as general taxes. Section 4 states that the instrument prescribes charges only so far as they are duties of customs under section 55 of the Constitution. Any leftover charges that are not customs duties or excise duties are dealt with in the companion General regulation. This bifurcation avoids constitutional invalidity. The note to section 4 makes clear that the charges in this instrument are imposed as taxes.

Indexation is another key concept. Section 6A provides that on each 1 July from 2024, dollar amounts in the table are multiplied by an indexation factor derived from the CPI for the December quarter immediately before the indexation day, divided by the index number for the last December quarter before that. The result is rounded to the nearest whole dollar. However, the indexation day of 1 July 2025 does not apply to items 2, 3 and 4, freezing those fees for the 2025-26 financial year.

Exemptions are defined by cross-reference to specific items in the Biosecurity Charges Imposition regulations. For example, a person who has paid the biosecurity charge under item 13 of the Customs or General Biosecurity Charges Regulation for a financial year is not liable for the charge under item 2 of this regulation for the same period. This prevents double charging for the same administrative activity performed across two regulatory regimes.

The primary persons affected are importers of food who choose to enter into compliance agreements or who are already covered by approved arrangements under the Biosecurity Act. The regulation also covers customs brokers, freight forwarders, and logistics firms that hold approved arrangements to handle biosecurity documents for containerised sea freight.

Specifically, the person liable to pay the charge for applying for a compliance agreement (item 1) is the applicant. For items 2, 3 and 4, the liable person is the person covered by the relevant arrangement or agreement. This means that if a business holds multiple arrangements in its own name, it will be charged the applicable fee for that financial year. The note to section 7 warns that an agent of the liable person is jointly and severally liable under the Imported Food Charges (Collection) Regulation 2015, meaning customs brokers or other intermediaries may be pursued for unpaid charges even if they are not the principal.

The fee structure creates differing burdens for different types of operators. A small importer who holds only a single compliance agreement and no approved arrangement will pay $2,857 per year (or half if the agreement starts after 1 January). A larger operator that holds both a compliance agreement and an approved arrangement will pay $3,316 per year under item 2 if those arrangements were in place before the start of the financial year. If the approved arrangement is a Class 19 Arrangement and additional non-Class 19 arrangements come into force at different points during the year, the fee can vary between $1,086 and $2,744.

Entities that already pay biosecurity charges under item 13 or 13AB of the Biosecurity Charges Regulations are exempt from the corresponding charges under this regulation. This means that importers who already hold approved arrangements and pay the biosecurity administration charge will not face a double levy, but only if they have actually paid the biosecurity charge for that financial year. The exemption is conditional on payment, not merely on being covered by the biosecurity regime.

The regulation does not affect individuals or businesses that do not use compliance agreements or approved arrangements. Importers who import food under standard inspection clearance without any arrangement are not liable for any charge under this instrument.

The primary duty is to pay the prescribed charge for the imported food matter that applies. Section 6 imposes a liability to pay the amount set out in the table for each item. The duty arises in relation to a financial year or part of a financial year for ongoing management charges, and at the time of application for the application charge.

The person liable has the right to claim an exemption under section 8. For item 1 (application fee), a person is exempt if they are already a party to another compliance agreement or are covered by an approved arrangement. This prevents a person from being charged for a new compliance agreement application when they are already within the regulatory system under another arrangement. For items 2 and 4, the exemption applies if the person has already paid the biosecurity charge under item 13 or 13AB of the Biosecurity Charges Regulations for that financial year. This avoids sequential charging by two different regulatory frameworks for functionally similar administrative activity.

The regulation also gives the person a right to have charges calculated accurately according to the complex tiering of item 4. The classification into sub-paragraphs (a) through (e) depends on whether the first relevant arrangement or agreement is a Class 19 Arrangement, and whether further arrangements commence before or after 1 January. Where the person has paid the correct charge, they are entitled to rely on the exemption framework to avoid double payment.

There is no discretion under the regulation for the regulator to waive or reduce charges. The amounts are fixed by the table as indexed. If the person believes a charge has been incorrectly assessed, the regulation itself does not provide a review mechanism, but the enabling Act or general administrative law may apply. The regulation also does not specify a due date for payment; that is left to the Collection Regulation.

The indexation provision gives rise to a duty to be aware of annual CPI adjustments that increase the charge amounts. However, for the 2025 indexation day, items 2, 3 and 4 are frozen, so persons liable for those charges will not face a CPI increase in that year. Item 1 (application fee) will still be indexed.

This regulation does not create its own penalty provisions. It is a taxing instrument that prescribes amounts and liability. Enforcement of non-payment is handled through the Imported Food Charges (Collection) Regulation 2015, which is referenced in the note to section 7. That regulation provides that an agent of a person liable is jointly and severally liable with that person to pay the charge. This means the Commonwealth may pursue either the importer or its agent for unpaid amounts.

Non-payment is not an offence under this instrument. The charge is a tax, so if it is not paid it becomes a debt due to the Commonwealth, recoverable through civil proceedings. The enabling Act, the Imported Food Charges (Imposition,Customs) Act 2015, contains provisions for collection and recovery, but those are not detailed in this regulation.

The regulation also contains no explicit penalty for false statements made in connection with charges, but general fraud or tax offences under the Criminal Code or Taxation Administration Act could apply if a person deliberately misrepresents their arrangement status to avoid a higher charge or claim an exemption to which they are not entitled. Given that the exemption in section 8 requires that the person has paid the biosecurity charge, fraud would involve claiming the exemption without having paid that charge.

The practical enforcement consequence for an importer or broker is that if they fail to pay the charge, their compliance agreement or approved arrangement could be cancelled or suspended under the relevant legislation, which would disrupt their ability to import. This regulatory risk is likely more significant than the debt itself, because losing an arrangement can halt imports and damage business reputation.

Cost recovery enforcement is straightforward: the Commonwealth can issue invoices and pursue debt through standard mechanisms. The amounts involved are modest (hundreds to a few thousand dollars per year) so the risk of litigation is low unless the debtor refuses to pay in bad faith.

This regulation operates within a web of interconnected statutes and regulations. Its enabling Act is the Imported Food Charges (Imposition,Customs) Act 2015, which gives the power to prescribe charges by regulation. The charges are imposed under that Act, and this regulation fills in the amounts, liable persons and exemptions.

The regulation interacts directly with the Imported Food Control Act 1992, which is the primary food safety legislation. The term compliance agreement is defined by reference to that Act, and the administration and ongoing management of compliance agreements is the subject of the charges. The Imported Food Control Act also governs when a compliance agreement can be entered into, varied or cancelled, but this regulation does not affect those substantive rules.

The Biosecurity Act 2015 is also central, because approved arrangement and Class 19 Arrangement are defined under it. A person who holds an approved arrangement for biosecurity purposes may also hold a compliance agreement for food safety purposes, and the charge structure accounts for those combined holdings through item 2 (multiple arrangements) and item 4 (mixed arrangements including Class 19). The exemption provisions cross-reference the Biosecurity Charges Imposition (Customs) Regulation 2016 and the Biosecurity Charges Imposition (General) Regulation 2016. Specifically, item 13 and item 13AB of those regulations are the triggers for exemption. This means the regulation is carefully coordinated with the biosecurity charging regime to prevent double charging for what is essentially the same administrative function.

There is also a companion General regulation: the Imported Food Charges (Imposition,General) Regulation 2015. This regulation deals with charges that are not duties of customs or excise. The split is constitutionally driven: section 55 of the Constitution requires laws imposing duties of customs to deal only with such duties. So the Customs version covers charges that can be characterised as customs duties, while the General version covers the rest. A person affected should check both instruments to understand their total liability, because the same imported food matter could have a portion of charge under each if part of the administrative activity falls inside the customs power and part outside.

Finally, the Imported Food Charges (Collection) Regulation 2015 governs how the charges are collected, including the joint and several liability of agents mentioned in the note to section 7.

The regulation as presented includes amendments up to and including the Imported Food Charges (Imposition,Customs) Amendment (2025 Measures No. 1) Regulations 2025. The original instrument was the Imported Food Charges (Imposition,Customs) Regulation 2015, which commenced in 2015. Part 3 of the current consolidated version contains application provisions for the 2025 amendment, specifically section 9, which states that the amendments of Part 2 made by that 2025 amendment regulation apply to financial years beginning on or after 1 July 2025.

The 2025 amendment appears to have introduced or clarified the indexation provision in section 6A, including the carve-out in subsection (1A) that the indexation does not apply to items 2, 3 and 4 on the indexation day of 1 July 2025. This freeze suggests a policy decision to hold those charges at existing levels for the 2025-26 financial year, possibly in response to industry concerns about cumulative fee increases. The table itself does not show the pre-amendment amounts, but the application provision confirms that the current version incorporates the 2025 changes for financial years from 1 July 2025.

Earlier amendments are not detailed in the source. The indexation mechanism itself was likely inserted by an earlier amendment, as the original 2015 instrument may not have had automatic CPI adjustment. The fact that section 6A now exists and has a subsection (1A) that specifically exempts 1 July 2025 suggests the indexation provision was added before 2025, then modified by the 2025 Measures No. 1 amendment.

The regulation also likely had amendments to the fee amounts over time by way of indexation or occasional legislative increases. However, the source does not provide a complete history. The key takeaway is that the 2025 amendment is the most recent change and its effect is to freeze certain charges for one year while allowing indexation of the application fee to continue.

The source text contains no reference to any court proceedings or litigation involving this regulation. There are no cases cited, no notes about judicial interpretation, and no indication that any provision has been challenged. This is not surprising for a subordinate legislative instrument that sets administrative fees rather than substantive legal rules. The charges are relatively small amounts and fall under the enabling Act, which provides a clear power to impose them.

It is possible that there have been challenges to the constitutional basis of similar charges imposed under the Imported Food Charges regime, but if so, they are not recorded in this instrument. The note in section 4 about the division between customs duties and general charges suggests that the drafters were careful to ensure the regulation stays within constitutional bounds. A challenge might be mounted on the ground that a particular charge is not truly a duty of customs, but no such challenge appears in the instrument itself.

Given the lack of case law in the source, a user should assume that the regulation has not been litigated in any reported decision. The absence of litigation history does not imply the law is immune from future challenge, but it does suggest that the industry has accepted the charges as a cost of doing business rather than mounting legal objections.

The regulation also interacts with the Biosecurity Charges regime, and there may be litigation on that side that affects the interpretation of cross-referenced provisions, but that is speculative and not grounded in this source.

The fee table in section 6 is deceptively complex, particularly item 4 with its five sub-paragraphs (a) through (e) that depend on whether the first relevant arrangement or agreement is a Class 19 Arrangement and whether further arrangements come into force before or after 1 January. A person holding a mix of approved arrangements including a Class 19 Arrangement could easily misapply the fee if they do not track the precise timing of when each arrangement was in force. The definition of first relevant arrangement or agreement is not always intuitive: it is the first arrangement that covers the person in the financial year, not necessarily the one with the earliest start date per se.

Another trap is the interaction between items 2 and 3. Item 2 applies only if at least two of the arrangements covered the person immediately before the start of the financial year. If a person acquires a second arrangement during the year, item 2 may not apply, and they may fall into item 3 or item 4 instead, with different charges. The timing of entering into arrangements becomes critical for cost planning.

The exemption provisions in section 8 are tied to the person having paid the biosecurity charge under item 13 or 13AB of the Biosecurity Charges Regulations. The phrase has paid suggests the exemption does not apply merely because the person is covered by an approved arrangement; the payment must have been made. If the biosecurity charge is billed after the food charge is due, the exemption may not be available unless the person can demonstrate payment. This creates a cash flow risk: a person might need to pay both charges and then seek a refund, though the regulation does not provide a refund mechanism.

Joint and several liability of agents is another hidden risk. The note in section 7 warns that an agent is jointly and severally liable with the person to pay the charge. Customs brokers and freight forwarders who act as agents for importers could be pursued directly by the Commonwealth for unpaid charges, even if the importer is solvent. The agent should ensure that they have appropriate indemnities or payment arrangements in place.

The indexation freeze on 1 July 2025 for items 2, 3 and 4 creates a one-year disparity: item 1 (application fee) will be indexed, but the ongoing management charges will not. This could lead to the application fee approaching the management fees over time, especially if the freeze is extended or becomes permanent. The regulation does not indicate whether the freeze will continue beyond 2025.

To comply with this regulation, a person must first identify whether they hold any relevant arrangement or agreement that triggers liability. If they apply for a compliance agreement, a $194 application fee is due at the time of application, unless they already hold another compliance agreement or an approved arrangement, in which case an exemption applies. If they hold a compliance agreement only and no approved arrangement, the charge for that financial year is $2,857 if the agreement was in force before 1 January, or $1,428.50 if it came into force on or after that date.

If the person holds two or more arrangements including at least one compliance agreement, and at least two of them were in place before the start of the financial year, they are liable for the $3,316 charge under item 2. If they hold a compliance agreement and an approved arrangement but do not meet the immediate start condition, they fall under item 4, where the fee varies from $229 to $2,744 depending on the first arrangement type and the timing of additional arrangements.

The person should keep records of which arrangements they hold, the dates those arrangements commenced, and whether they are Class 19 Arrangements. They should also maintain evidence of payment of any biosecurity charges under item 13 or 13AB of the Biosecurity Charges Regulations, so they can claim the exemption if applicable. The exemption must be claimed; the regulation does not make it automatic. A person who qualifies for an exemption but does not alert the regulator may still be invoiced and must either pay or dispute.

All charges are indexed on 1 July each year from 2024, except that items 2, 3 and 4 are not indexed on 1 July 2025. The person should use the most recent fee schedule available from the regulator, or apply the CPI formula themselves if they want to forecast future charges. The indexation factor is based on the December quarter CPI for the weighted average of eight capital cities, published by the Australian Statistician. The person should monitor the CPI release in late January each year and apply the increase to their budget.

Where an agent is involved, the agent should ensure they have a clear agreement with the principal regarding payment of charges and potential joint liability. The agent may need to pay the charge on the principal’s behalf and seek reimbursement, or obtain an indemnity. The agent should also maintain records of payments to prove that charges have been satisfied.

Finally, the person should consult the companion Imported Food Charges (Imposition,General) Regulation 2015 to ensure they are liable only for the customs-duty portion under this regulation and not missing any additional charges imposed under the general power. If the regulator assesses a charge that seems to fall outside the customs duty definition, the person should raise that issue and request the correct basis.