Imported Food Control Act 1992

The Act applies to:

• Importers of food into Australia, who must ensure food meets applicable standards and must not deal with food under customs control without a food control certificate.
• Customs brokers and freight forwarders who handle imported food on behalf of importers.
• Owners of food that is held under a holding order or identified as failing food, who must comply with treatment, destruction, or re-exportation requirements.
• Persons who deal with food under customs control without authorisation, including warehouse operators and distributors who may handle imported food before it is released.
• Foreign exporters and manufacturers, whose products are subject to the Scheme's inspection requirements and who may seek recognised foreign government certificates or food safety management certificates.
• Analysts and laboratories who carry out analysis under the Scheme.
• The Secretary and authorised officers who administer the regime.

Section 8 (importation offences): A person must not import food that does not meet applicable standards, or food that they know (or ought reasonably to know) poses a risk to human health. Fault-based offence: imprisonment up to 10 years. Strict liability offence: 60 penalty units. The fault-based offence carries an imputed knowledge test under section 8(5): a person is taken to have known food posed a risk if they ought reasonably to have known, having regard to their role and experience in the food industry.

Section 8A (labelling offences): A person must not deal with food that does not meet applicable standards relating to information on labels. Fault-based: 10 years. Strict liability: 60 penalty units. Exception for dealing with food for the purpose of re-labelling to bring it into compliance.

Section 9 (dealing with examinable food): A person must not deal with examinable food that has been imported without a food control certificate having been issued, without the approval of an authorised officer, or without acting under a compliance agreement. Fault-based: 10 years. Strict liability: 60 penalty units.

Section 20 (treatment, destruction, or re-exportation of failing food): Owners of food identified as failing food in an imported food inspection advice must comply with notices requiring treatment (to bring into compliance or enable non-human use), destruction, or re-exportation. If an owner fails to comply, an authorised officer may arrange for the treatment, destruction, or re-exportation at the owner's expense. The owner must pay the costs of destruction.

Part 3A (record-keeping, sections 28 to 32): Importers and certain other persons must keep records about their food import operations. The Secretary may require production of records. Failure to keep or produce records is an offence.

Section 15 (holding orders): The Secretary may make a holding order directing that particular food not be dealt with. A holding order remains in force until revoked or until an inspection outcome is known.

Section 16 (Food Inspection Scheme): Regulations may set out a Scheme empowering the Minister to make orders classifying food into categories and specifying inspection rates. The Secretary may also make orders varying the percentage of particular kinds of food to be inspected. The Scheme can specify that food of a particular category from a particular country must be covered by a recognised foreign government certificate.

Section 18 (foreign government certificates): The Secretary may determine that a certificate issued by a foreign government authority is a recognised foreign government certificate for food of a specified kind. Food covered by such a certificate may be treated differently under the Scheme.

Section 18A (food safety management certificates): The Secretary may determine that a certificate issued by a specified person or body is a recognised food safety management certificate. These certificates allow food covered by them to be channelled differently through the Scheme.

Section 19 (quality assurance certificates): The Secretary may approve a system of quality assurance for a food importer and issue a quality assurance certificate. Food covered by an approved QA system may be treated more favourably under inspection arrangements.

Section 22 (monitoring powers) and section 23 (investigation powers): These sections apply the standard Regulatory Powers Act monitoring and investigation framework to the Act. Authorised officers have powers to enter premises, inspect food, examine documents, and take samples. Entry to residential premises requires consent or a warrant.

Section 34A (power to require information or documents): The Secretary may, by written notice, require a person to give information or documents in relation to the importation of food. Non-compliance is an offence.

Section 35 (publishing information about overseas food processing operations): The Secretary may publish information about overseas food processing or manufacturing operations, including compliance failures. This is a reputational and transparency power.

Section 35A (compliance agreements): The Secretary may enter compliance agreements with importers setting out approved procedures, record-keeping, and monitoring arrangements. Compliance agreement holders get regulatory certainty in exchange for accepting oversight and monitoring.

Section 41 (delegation): The Secretary may delegate powers and functions under the Act to authorised officers.

Section 42 (review): Certain decisions of the Secretary are reviewable. Initial decisions (issuance of inspection-required food control certificates, identification of food as failing, refusal of further inspection advice) may be reviewed internally and then by the Administrative Review Tribunal under the Administrative Review Tribunal Act 2024.

Criminal offences:

• Section 8(1) and (3): Fault-based importation offences: 10 years imprisonment.
• Section 8(2) and (4): Strict liability importation offences: 60 penalty units.
• Section 8A(1): Fault-based labelling offence: 10 years imprisonment.
• Section 8A(2): Strict liability labelling offence: 60 penalty units.
• Section 9(1): Fault-based dealing offence: 10 years imprisonment.
• Section 9(2): Strict liability dealing offence: 60 penalty units.
• Section 19A: Forging or uttering foreign government certificates, food safety management certificates, or quality assurance certificates: criminal penalties.

Civil penalties (section 9A): The Act also provides civil penalty versions of the importation, labelling, and dealing obligations. The Secretary (as authorised applicant under section 24) may apply to the Federal Court or Federal Circuit and Family Court for civil penalty orders.

Infringement notices (section 25): The Regulatory Powers Act infringement notice framework applies.

Enforceable undertakings (section 26): The Regulatory Powers Act enforceable undertakings framework applies.

Compensation (section 39): Where food is destroyed by an authorised officer under the Act, the owner may be entitled to compensation from the Commonwealth in prescribed circumstances.

Costs recovery (section 37): Certain monies owed to the Commonwealth under the Act (such as costs of destruction) are a debt due to the Commonwealth.

Importing and clearing food:

1. Food arrives and enters customs control.
2. The importer applies for a food control certificate under section 11. The application is made in the form approved by the Secretary.
3. If the food is examinable food, an officer of Customs refers it for inspection under the Scheme at the relevant percentage rate.
4. Inspection (and, if required, analysis) is conducted.
5. An imported food inspection advice is issued under section 14 identifying the food as either compliant (cleared) or failing.
6. If the food is cleared, the food control certificate is issued and the importer may deal with the food.
7. If the food is failing food, the advice specifies required treatment, destruction, or re-exportation.
8. The owner may apply for a further imported food inspection advice after treatment.

Review: Initial decisions are subject to internal review and then ART review under section 42. The section 42 definitions refer to the Administrative Review Tribunal Act 2024.

Holding orders: May be made by the Secretary at any time to prevent dealing with food pending inspection or investigation. Orders are revocable.

Customs Act 1901: The Act operates in close conjunction with the Customs Act. Section 10 provides that provisions of the Customs Act may be expressed to be subject to the Imported Food Control Act. Food under customs control cannot be dealt with without a food control certificate. The definitions of "customs control" and "officer of Customs" are imported from the Customs Act.

Australia New Zealand Food Standards Code: Defines "applicable standards" throughout the Act. The Code sets out safety and labelling requirements for food in Australia and New Zealand and is made under the Food Standards Australia New Zealand Act 1991.

Food Standards Australia New Zealand Act 1991: Section 17 requires the Secretary to consult with Food Standards Australia New Zealand before the Minister makes orders identifying food types for inclusion in or exclusion from the Scheme. The FSANZ Act also provides the definition of "Australia New Zealand Food Standards Code" imported by this Act.

Regulatory Powers (Standard Provisions) Act 2014: The monitoring, investigation, civil penalty, infringement notice, and enforceable undertakings frameworks in Parts 3 to 6 of that Act are applied by sections 22, 23, 24, 25, and 26 of this Act respectively.

Administrative Review Tribunal Act 2024: Section 42 now refers to the ART Act for review of certain decisions, replacing earlier AAT references.

Criminal Code Act 1995: Section 6A applies the Criminal Code, including the general principles of criminal responsibility in Part 2.2, to all offences in this Act.

Strict liability for importers regardless of knowledge: The strict liability versions of the importation and labelling offences (sections 8(2), 8(4), 8A(2)) do not require knowledge that food is non-compliant. An importer who imports food that turns out to fail applicable standards commits a strict liability offence even if they did not know and had no reason to know. The maximum penalty is 60 penalty units, not 10 years, but criminal liability attaches without fault.

Imputed knowledge for fault-based offences: For the fault-based importation offence (section 8(3)), the person is taken to have known food posed a risk to human health "if the person ought reasonably to have known" having regard to their role and experience in the food industry. This is broader than actual knowledge. Experienced importers carry a higher deemed knowledge burden.

Dealing with food without a certificate: The section 9 offence catches not just importers but any person who deals with examinable food imported into Australia without a food control certificate. This includes warehouse operators, distributors, and retailers who may not know the food has not been cleared.

Costs of destruction fall on the owner: If an authorised officer arranges for the destruction of failing food, the costs are recoverable from the owner as a debt (section 37). This can be significant for large consignments.

Compliance agreements give certainty but require ongoing compliance: Entering a compliance agreement allows dealing with food under its terms without a food control certificate for each consignment. However, the Secretary can cancel, vary, or suspend the agreement on written notice. Loss of a compliance agreement restores the default certification requirement immediately.

Source text duplication: The source text for this Act in the TrackLaw database is ~1.5M chars but the unique content is approximately 108,000 chars - the Act is repeated approximately 14 times. This is a known data pattern for some compiled Commonwealth Acts in the corpus.

Example 1 - Consignment of tinned fish fails microbiological standard: An importer brings in a container of tinned tuna from Thailand. The customs system refers the consignment for inspection under the Scheme based on the country-of-origin percentage. Analysis finds microbial counts exceeding the applicable standard in the Food Standards Code. An imported food inspection advice is issued identifying the food as failing food. The authorised officer issues a notice requiring destruction. The importer must destroy the food at their own cost, and the costs are a debt to the Commonwealth if the Commonwealth arranges destruction.

Example 2 - Labelling violation after release from customs: An importer clears a batch of herbal supplements. After release, it is discovered the labelling does not meet the Food Standards Code requirements for required declarations. The importer has committed a strict liability labelling offence under section 8A(2) (60 penalty units) and may also face the fault-based offence if they dealt with the food knowing of the non-compliance.

Example 3 - Compliance agreement holder dealing without inspection: A large food importer holds a compliance agreement with the Secretary for a particular product category. Under the agreement, they apply agreed procedures including pre-export testing. They may deal with that food on arrival without each consignment needing a food control certificate, as long as they comply with the agreement's procedures. If the Secretary cancels the agreement, they must revert to the standard certificate process.

Example 4 - Foreign government certificate for Japanese seafood: A Japanese government agency issues certificates attesting that seafood meets Australian standards. The Secretary determines under section 18 that the Japanese agency's certificates are recognised foreign government certificates. Importers who obtain those certificates for their Japanese seafood consignments may face a lower rate of random inspection under the Scheme.

Example 5 - Strict liability and due diligence defence: An importer argues that they exercised all due diligence to ensure their Chinese-manufactured biscuits met the Food Standards Code. They have independent testing records, contracts requiring compliance, and factory audits. Under the strict liability framework, due diligence is not a defence to the offence itself, but section 9.2 of the Criminal Code provides that a defendant bears an evidential burden to point to evidence of mistake of fact. This is a different (and harder) pathway than a general due diligence defence.