39Compensation for destroyed food

#### 39 Compensation for destroyed food (1) If food is destroyed in accordance with section 20, the Secretary may approve the payment of compensation in respect of the food if: (a) a claim for compensation is made by or on behalf of the owner in an approved form accompanied by such documents as are required by the form to accompany the claim; and (b) the Secretary is satisfied, on reasonable grounds, that the food was destroyed as a result of a mistake of fact or of law. (1A) The Secretary may approve the payment of compensation in respect of food if: (a) the Secretary is satisfied, on reasonable grounds, that the food is no longer suitable for the purpose for which it was imported as a result of an inspection, or inspection and analysis, of the food under the Food Inspection Scheme; and (b) a claim for compensation is made by or on behalf of the owner in an approved form accompanied by such documents as are required by the form to accompany the claim. (2) Compensation approved under this section must: (a) if there is only one owner of the food at the time of its destruction—be paid to that owner; or (b) if there are two or more owners of the food at that time—be divided among those owners in accordance with their interests. (3) The compensation payable under subsection (1) in respect of food is the amount agreed between the Secretary and the owner or owners of the food as being the market value of the food immediately before its destruction. (3A) The compensation payable under subsection (1A) in respect of food is the amount agreed between the Secretary and the owner or owners of the food as being the difference between the market value of the food immediately before it became unsuitable for the purpose for which it was imported and the amount (if any) for which the food is sold by the owner or owners. (4) If the Secretary and the owner or owners of the food at the time referred to in subsection (3) or (3A), as the case requires, do not agree on the market value of the food at that time, the market value must be determined by a person agreed on by the Secretary and the owner or owners. (5) If the Secretary approved the payment of compensation under this section in respect of food, the compensation payable in respect of that food is payable by the Commonwealth to the owner or owners and may be recovered by action against the Commonwealth in a court of competent jurisdiction. (6) In this section: > owner, in relation to food, means a person having a beneficial interest in the food other than a person who has such an interest only because he or she has been given a mortgage or charge, or has a lien over the goods.