16Food Inspection Scheme

#### 16 Food Inspection Scheme (1) The regulations may set out particulars of a food inspection scheme (Scheme) applicable to all food to which this Act applies. (2) Without limiting subsection (1), the regulations setting out particulars of the Scheme may: (a) empower the Minister, subject to section 17, to make orders: (i) identifying food of particular kinds as food of a kind that is required to be inspected, or inspected and analysed, under the Scheme; or (ii) identifying food of particular kinds as food that must be covered by a recognised foreign government certificate; or (iia) identifying food of particular kinds as food that must be covered by a recognised food safety management certificate; or (iii) classifying food of particular kinds into particular categories; and (aa) specify the percentage of food classified into a particular category that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; and (ab) empower the Secretary to make an order, in respect of food that is classified into a particular category and is of a particular kind, specifying the percentage of food of that kind that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; and (ac) empower the Minister to make an order in respect of food classified into a particular category imported from a country specified in the order: (i) specifying the percentage of all such food that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; or (ii) specifying the percentage of all such food, except food of a particular kind, that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; or (iii) specifying the percentage of food of a particular kind that must be referred by an officer of Customs for inspection, or inspection and analysis, under the Scheme; and (b) specify the manner and incidence of inspection, or inspection and analysis, attaching to various kinds of food identified by the Minister in orders made for the purposes of paragraph (a); and (ba) empower the Secretary to make an order, in respect of food that is classified into a particular category and is of a particular kind: (i) specifying the incidence of inspection, or inspection and analysis, attaching to food of that kind; and (ii) specifying the rate at which samples must be taken for inspection from food of that kind; and (bb) empower the Minister to make an order in respect of food classified into a particular category imported from a country specified in the order: (i) specifying the percentage of all such food that must be inspected, or inspected and analysed, under the Scheme; or (ii) specifying the percentage of all such food, except food of a particular kind, that must be inspected, or inspected and analysed, under the Scheme; or (iii) specifying the percentage of food of a particular kind that must be inspected, or inspected and analysed, under the Scheme; and (c) specify the manner and incidence of the inspection, or inspection and analysis, of food of a kind that is subject to a holding order; and (d) specify the manner and incidence of the inspection, or inspection and analysis, of particular food, other than food of a kind that is identified by the Minister in an order made under paragraph (a) or that is subject to a holding order, that is imported into Australia; and (e) set out the circumstances in which authorised officers may exercise powers to inspect, or inspect and analyse, particular food that is not: (i) food of a kind that is identified by the Minister in an order under paragraph (a) or that is subject to a holding order; or (ii) food that is required to be inspected in accordance with regulations made for the purposes of paragraph (d); and (f) specify powers of authorised officers to inspect, or inspect and analyse, food required or permitted to be inspected, or inspected and analysed, under this Scheme; and (fa) specify circumstances in which food is taken to be failing food; and (g) specify circumstances in which food is to be taken to be failing food because of its relationship to food that is found to be failing food; and (h) set out the circumstances in which food, other than food that is the subject of a holding order, is to be held pending the outcome of an inspection, or inspection and analysis; and (i) permit variation in the incidence of inspection, or inspection and analysis, of food if: (i) a recognised foreign government certificate or a recognised quality assurance certificate covering the food is given to an authorised officer and the officer has no reason to doubt the authenticity or reliability of the certificate; or (ii) a compliance agreement applies in respect of the food; and (j) set out the circumstances in which, and procedures by which, the reliability of certificates referred to in paragraph (i) will be tested. (2A) A percentage mentioned in paragraph (2)(ac) or (bb) that is specified in an order made by the Minister must be less than 5% (including zero). (2B) The Minister may make an order for the purposes of paragraph (2)(ac) or (bb) in relation to a particular country only if the Minister is satisfied: (a) that there is in force an agreement between Australia and that country; and (b) that the agreement is based on an assessment of the food safety systems of Australia and that country which concluded that: (i) Australia and that country have equivalent food safety systems; and (ii) Australia and that country conduct equivalent monitoring of the food they regulate. (3) Without limiting the factors that may affect the incidence of inspection, or inspection and analysis, of food, the regulations may provide for the incidence to differ according to whether the food is supplied by an overseas processing operation that has previously supplied food of that kind and the results of any analysis of food so supplied. (4) If: (a) food is held pending the outcome of an inspection, or inspection and analysis, under the Scheme, whether because the food is subject to a holding order or not; and (b) that food, or a part of that food, is identified in an imported food inspection advice as failing food; then, without limiting subsection (1), the regulations may: (c) in the circumstances and within the period set out in the regulations, permit the owner of the food to make application for a further imported food inspection advice in respect of part only of the food so identified; and (d) specify the part of the food so identified in respect of which the application may be made. (5) An order made by the Minister for the purposes of paragraph (2)(a), (ac) or (bb) is a legislative instrument. > Note: The order may be varied or revoked by the Minister in the same way as it is made, and subject to the same conditions (see subsection 33(3) of the Acts Interpretation Act 1901). (6) An order made by the Secretary for the purposes of paragraph (2)(ab) or (ba) is not a legislative instrument. > Note 1: Under the regulations, the order made by the Secretary is of a temporary nature. > Note 2: For revocation of the order, see subsection 33(3) of the Acts Interpretation Act 1901. (7) The Secretary must publish the following on the Department’s website: (a) an order made by the Secretary for the purposes of paragraph (2)(ab) or (ba); (b) a revocation of the order.