Food imports and the Biosecurity Act: What’s changed

In brief 6 min read

We report on recent changes to the law relating to the importation of food into Australia, introduced by the commencement of the Biosecurity Act 2015 (Cth).

How does it affect you?

• When an import permit is required, it is now vital that it is obtained prior to the goods entering Australia.
• A larger class of goods may now be imported into Australia without a permit being obtained.
• Quarantine Approved Premises and Compliance Agreements are being replaced with a single, streamlined, Approved Arrangements system.
• Those seeking an Approved Arrangement or import permit will need to satisfy a 'fit and proper person' test, and the background of the applicant's 'Associates' may be taken into account.

The background

Australia's geographic isolation has allowed its agricultural industry to be free of many of the pests that plague other nations. Rules ensuring pests are not inadvertently introduced into the Australian ecosystem were put in place through the Quarantine Act 1908 (Cth). The replacement of the Quarantine Act with the Biosecurity Act 2015 (Cth), which took force on 16 June 2016, has made the applicable rules clearer and more flexible in application.

The new legislative regime includes two notable changes relating to the importation of goods into Australia: import permits will no longer be required for a wider class of goods if stipulated conditions are met, and the granting of Quarantine Approved Premises and Compliance Agreements is being replaced by a single, more streamlined process of Approved Arrangements.

A further welcome simplification from the prior law is that the provisions of the Biosecurity Act relating to the importation of goods expressly exclude the operation of any state or territory laws on this topic, providing importers with a simpler and more certain process.¹

Import Permits

Along with the introduction of the Biosecurity Act, the Quarantine Proclamation 1998 is being replaced by the new Biosecurity (Prohibited and Conditionally Non-prohibited Goods) Determination 2016 (the Determination), which takes effect from the same day as the Biosecurity Act. The Department of Agriculture and Water Resources (the Department) has stated that it intends for the new Determination to impose the same import conditions as previously existed for most goods, so for now, major changes should not be expected. The updated regulatory regime features two general categories of goods:

• Prohibited goods, which must not be imported into Australia; and
• Conditionally non-prohibited goods, which may be imported if certain stipulated requirements are satisfied.

Most conditionally non-prohibited goods will require a permit to be imported into Australia, but the new regime allows for a wider class of goods to be imported permit free than was previously possible. For those goods, importers will now be able to meet specified conditions as an alternative to acquiring a permit. For example, a permit won't be required for the import of fruit, vegetables, leaves or herbs, if they have been adequately treated or processed.² Further, some species of fruit, vegetables, leaves or herbs will now be importable without a permit in an unprocessed form.³

A list of the new products that will no longer require a permit, when specified conditions are met, is provided by the Department on their website.

The new regime also allows for the Department to seek a security or bond for those seeking to import conditionally non-prohibited goods, or from those seeking an Approved Arrangement (as discussed below).⁴ Importers of goods who have had dealings with the Department which have resulted in the Department being financially burdened when managing or responding to the importer's associated biosecurity risks should be conscious that a security may be required from them.

According to the new law, goods from overseas automatically become subject to biosecurity control once they enter Australian territory, which includes the 12 nautical mile area around Australia, Christmas Island, Cocos (Keeling) Islands, and any other prescribed external territory. There was a concern that the new provisions of the Biosecurity Act would now impose import restrictions on fishing activities carried out outside the 12 nautical mile zone but within the exclusive economic zone of Australia. However, the Determination expressly excludes, from the definition of conditionally non-prohibited goods:⁵

Goods sourced from the ocean, or the ocean floor, within the exclusive economic zone of Australia that have not left the exclusive economic zone of Australia before being brought or imported into Australian territory.

Biscuits, breads, and certain non-dairy cooked cakes are also expressly excluded from the requirement for an import permit or compliance with substantive import conditions.⁶ The Australian Biosecurity Import Conditions website (BICON) states that importers of cooked versions of these goods will need to provide, on a food product label, 'importer declaration', 'manufacturer's declaration' or invoice, evidence that all fillings and toppings were cooked with the biscuits, bread or cake.

As emphasised by the Department in their Biosecurity Advice 2016-20, importers will need to apply for a permit prior to the arrival of goods in Australia. This advice acknowledges that in the past the Department facilitated imports that landed without a permit, allowing importers to subsequently apply for one. Under the new Biosecurity Act, the Department has expressly stated that this will no longer be the case. It further states that, where the biosecurity risk cannot be managed post arrival, 'the goods will be subject to export or destruction'.

The BICON website will remain the gateway used for checking import conditions and for making permit applications.

Approved Arrangements

The new legislative regime consolidates approvals for Quarantine Approved Premises and Compliance Agreements under a single Approved Arrangements system. In order to transition to the new regulatory scheme, operators of Quarantine Approved Premises were required to apply for, and receive, approval to be registered as an Approved Arrangement by 30 June 2016, or have their certification lapse on that date. Holders of existing Compliance Agreements will need to renew their transitional arrangements, or apply for new ones, prior to December 2017. Current approvals for registered export establishments are not affected by the introduction of the Biosecurity Act. However, due a separate legislative development, exporters of livestock should be aware that they will need an Approved Arrangement to export from 1 January 2017.

Holders of Approved Arrangements will be referred to as Biosecurity Industry Participants. To reduce the regulatory burden, all Approved Arrangements obtained prior to 29 June 2022 will be set to expire on 30 June 2022, meaning that renewal will not need to be carried out annually, although annual levies will continue to apply.

The Department's website sets out the requirements that need to be met before approval of an Approved Arrangement can be given.

Fit and proper test

Those seeking an Approved Arrangement, or an import permit, will now need to satisfy a fit and proper person test.⁷ Matters that can be taken into account include breaches by the applicant or an 'Associate' of the Quarantine Act, the Customs Act 1901 (Cth), certain breaches of the Australian Criminal Code or the Crimes Act 1914 (Cth), or debts owing to the Commonwealth. Consideration can also be given to whether the applicant or their Associates have had an application for an import permit, or Approved Arrangement (or the prior equivalents), rejected, suspended or revoked. Of further relevance is if the applicant is convicted of an offence against, or ordered to pay a pecuniary penalty under, any Australian law.

Applicants should be particularly conscious of the impact the background of their 'Associates' can have. The term Associates may encompass a very large group of people, that goes beyond bodies corporate, including those that are concerned in, or have influence over, a business or undertaking of the applicant, or of 'a corporation of which the first person is an officer or employee, or in which the first person holds shares'.⁸ As a result, corporate entities that share directors or employees with other corporations will be deemed Associates.

Conclusion

The Biosecurity Act provides a long overdue clean-up of state and Federal legislation and provides a unitary scheme for the regulation of imports. Many changes should make it easier to comply without significantly disrupting current practices.