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1998-1999-2000-2001
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
AUSTRALIA NEW ZEALAND FOOD
AUTHORITY
AMENDMENT BILL
2001
EXPLANATORY MEMORANDUM
Circulated by authority of the Parliamentary Secretary to the Minister for Health and Aged Care, Senator the Hon Grant Tambling
ISBN: 0642 465606
AUSTRALIA NEW ZEALAND FOOD
AUTHORITY
AMENDMENT BILL
2001
The Australia New Zealand Food Authority Amendment
Bill 2001 amends the Australia New Zealand Food Authority Act 1991 (the
Act) to implement those aspects of the new food regulatory system agreed to by
all Australian jurisdictions that require immediate Commonwealth legislative
change. The Bill reflects the arrangements for the new system that are set out
in the Inter-governmental Food Regulation Agreement agreed to by members of the
Council of Australian Governments (COAG) on 3 November 2000.
The new food regulatory system was
developed by a Senior Officials’ Working Group of COAG, and is in response
to recommendations of the Food Regulation Review Committee that was chaired by
Dr Bill Blair, OAM, and reported in August 1998. This Committee was tasked with
recommending to Government on how to reduce the regulatory burden on the food
sector and improve the clarity, certainty and efficiency of the current food
regulatory arrangements whilst, at the same time, protecting public health and
safety.
The Agreement establishes a new
Ministerial Council, the Australia and New Zealand Food Regulation Ministerial
Council. The new Ministerial Council will develop domestic food regulation
policy as well as policy guidelines for setting domestic food standards.
Recognising the primacy of public health and safety considerations in developing
such policy, the Australia and New Zealand Food Regulation Ministerial Council
will be based on the existing Council of Health Ministers (ANZFSC), but can be
complemented by other Ministers nominated by individual jurisdictions covering
portfolios such as primary or processed food production, or trade. Each
jurisdiction will have only one vote on all
resolutions.
The Bill will establish a new
statutory authority, Food Standards Australia New Zealand (the Authority), to be
based upon the existing Australia New Zealand Food
Authority.
The prime function of the
Authority will be to develop domestic food standards that are to be adopted
nationally. These standards are to be developed based on scientific and
technical criteria and in accordance with the objectives set out in section 10
of the Act. The standards will be approved by the Food Standards Australia New
Zealand Board and notified to the Ministerial Council. The Council will be able
to direct the Authority to review any standard, and can reject any proposed
draft standard.
The Bill sets out the
process for the development of food standards that takes into account the role
of the Ministerial Council. The Bill also makes provision for the transition
from the Australia New Zealand Food Authority (ANZFA) and other amendments that
are consequential on the re-naming of the Act and the creation of the new
Authority.
The new system provided for in
this Bill strengthens the focus on public health and safety. The Authority will
eventually be able to develop all domestic food standards that are to be adopted
nationally and with New Zealand, including those that under current arrangements
are or would be established by the (Ministerial) Agriculture and Resource
Management Council of Australia and New Zealand. The arrangements for the
development of these primary product standards will be developed by the new
Ministerial Council and may require further legislation. New Zealand has
indicated that it will not be adopting these primary product food standards
because it has other systems in place for their
development.
Regulation is an integral part
of any system designed to achieve safe food in that it provides the overarching
framework and legal obligation for food businesses to produce food that is safe
and suitable for human consumption. To be effective, this framework must apply
across the whole food supply chain.
The new
food regulatory arrangements will strengthen Ministerial authority and
accountability. The requirement of the Ministerial Council to develop policy
guidelines enables it to direct, rather than react to, proposals by the
Authority.
All policy guidelines determined
by the Council must be consistent with the objectives of the Act, of which
protection of public health and safety remains the highest priority. The Bill
provides that all policy guidelines be made
public.
The Ministerial Council will also
determine the arrangements to provide for high level consultation with key
stakeholders.
The new arrangements are
designed to enable food standards to be developed more quickly, if agreed by the
members of the Ministerial Council. All standards (except those urgent standards
that must commence immediately to protect public health and safety) will
commence if the Council has informed the Authority that it does not intend to
request a review of a draft standard approved by the Authority, if a period of
60 days has expired without the Council requesting the Authority to conduct such
a review, or, in relation to an approved draft standard that has already been
reviewed twice, the Council does not reject the draft
standard.
Because of the proposed capacity
of the Authority to eventually develop all domestic food standards to be adopted
nationally, the Board will be able to have a wider range of expertise than does
ANZFA (for example, the Bill enables the appointment of members with expertise
in primary food production and small
business).
There are other key elements of
the new food regulatory system that do not require legislative change. First, a
Food Regulation Standing Committee will support the Council. The membership of
this Committee consist of heads of health departments, and heads of other
government departments that reflect the membership of the Council, as well as a
senior representative from the Australian Local Government Association. The
Committee is to be chaired by the Commonwealth Department of Health and Aged
Care. Secondly, the Council will establish a mechanism for the provision of
stakeholder advice by representatives of the interests of consumers, small
business, industry and public health. It will be able to provide this advice to
the Council itself, the Standing committee, the new Authority, and an
implementation committee to be established by the Standing Committee to assist
it in the performance of its functions.
FINANCIAL IMPACT
The financial impact of this Bill will be low. The Department of Health and Aged Care will establish and fund a secretariat to provide administrative support for the Ministerial Council and related committees. There will be some minor expense associated with establishing the statutory authority Food Standards Australia New Zealand and the new standards setting process.
REGULATION IMPACT
STATEMENT
The current food regulatory system includes a
number of food regulatory agencies. The Australian Quarantine and Inspection
Service (AQIS) has responsibility for developing and enforcing export food
regulations and standards. The Australia New Zealand Food Authority (ANZFA)
develops domestic food standards for adoption by the Australia New Zealand Food
Standards Council (ANZFSC). Other agencies, such as the National Registration
Authority (NRA) and the Therapeutic Goods Administration (TGA) also have a role
in relation to food standards
development.
There are currently three
Ministerial Councils with responsibility for food regulatory policy (Health,
Agriculture and Fisheries). Under this arrangement, as noted above, national
domestic food standards are developed by ANZFA and are considered for national
approval by Commonwealth, State and Territory Health Ministers who constitute
ANZFSC. However, food safety related standards in relation to the primary
industry sector may also be developed by Agriculture and Fisheries Ministers.
For example, national domestic meat food standards are developed and approved
through processes established by the Agriculture and Resource Management Council
of Australia and New Zealand (ARMCANZ).
The
Food Regulation Review (the Blair Review) was established by the Prime Minister
in 1997 to make recommendations to government on how to reduce the regulatory
burden on the food sector and improve the clarity, certainty and efficiency of
the current food regulatory arrangements while, at the same time, protecting
public health and safety. The Blair review found that, while the current system
is effective at producing safe food, its efficiency could be
improved.
State and Territory Governments
have taken the Blair Report recommendations into account in rationalising their
individual food regulatory arrangements in ways that accommodate their
particular jurisdictional circumstances. Some of these arrangements are already
in place.
The major concerns highlighted by industry during
the course of the Review relate to the significant and unwarranted costs
of:
• having to deal with the large
number of food laws;
• inappropriate food
laws and regulations, that is, they are too prescriptive, costly to comply with,
unenforceable or ambiguous;
• duplication
of effort between regulatory
agencies;
• the inconsistency of
regulatory approaches between States/Territories and local governments, not only
in terms of the regulations, but also in their interpretation and
enforcement.
These broader concerns include
more specific concerns
regarding:
• the lack of clarity and
consistency in agency roles and
responsibilities;
• inefficient food
standards setting
processes;
• inappropriate food standards
and regulation; and
• insufficient
consultation with industry in government decision
making.
Decisions made by Health Ministers
(ANZFSC) in relation to the adoption of food standards in the interests of
public health and safety can have an adverse impact on industry if industry
concerns or existing food safety related standards or regulations which are the
responsibility of other areas of government (such as primary industry, trade and
small business) have not been adequately taken into account in the standards
development process. This has, in some cases, resulted in industry and
governments both bearing the costs of meeting or enforcing duplicated and
overlapping regulations/standards.
The
requirement for ANZFSC to adopt food standards that are then to be adopted
nationally means that the standards development process is sometimes influenced
by factors other than those that are science-based. As a result, industry may
have to bear the costs of meeting requirements that do not contribute to the
improvement of the protection of public health and safety, while government may
bear the cost of enforcing them.
ANZFSC
approval of a food standard currently involves a formal and lengthy process.
Industry may lose market advantage or suffer market disadvantage because of the
time it takes for a standard to be
approved.
It is not surprising that the
Blair Report found that the food industry views the current food regulatory
decision making arrangements as complex and fragmented, and that the general
industry perception is that its views are not sufficiently represented in the
decision making process.
These problems,
noted by industry through the Blair Review process, result from inefficiencies
in Government processes and structures related to the development,
administration and enforcement of food laws, that is, institutional failure.
For example, the costs to Government of maintaining separate and independent
national food regulatory policy decision making and standards development
processes may be avoidable. Similarly, a rationalisation and simplification of
national food standards setting processes could provide cost savings to
Government. Therefore, the problem will not be solved through the operation of
the market alone and some kind of Government action will be necessary to address
the problem.
The Government’s objectives are to improve
the efficiency of the food regulatory system by ensuring
that:
• the regulatory framework
maintains public health and safety by ensuring the production of safe and
suitable food;
• there is national
consistency in the interpretation, administration and enforcement of food
regulation:
• the regulatory framework is
appropriate, is the minimum necessary to be effective and that it operates
efficiently by reducing costs to industry, government and consumers;
and
• consumers have sufficient
information to make informed choices.
In
particular, it seeks to improve the timeliness, responsiveness and transparency
of food standards setting processes.
Three possible options have been identified for
achieving the government’s objectives.
The food regulatory model recommended by the Blair
Report proposes amalgamation of at least the food export policy development
function, and possibly the food export regulatory function, of AQIS with those
of the current ANZFA. The functions of other Commonwealth agencies such as the
National Registration Authority (for agricultural and veterinary chemicals) and
the Therapeutic Goods Administration could also be amalgamated with ANZFA into a
single national agency responsible for developing all food
regulations/standards, operating within the Commonwealth Health
portfolio.
ANZFA would continue to operate
as a separate “unit” of the Health and Aged Care portfolio and would
report to a new Council of Food Ministers. ANZFSC membership would be expanded
to include representation from agriculture portfolios, that is, Agriculture and
Fisheries Ministers. The Food Ministerial Council would make nationally agreed
decisions on food regulatory policy proposals and proposals for the adoption of
food regulations and standards developed by ANZFA.
The food regulatory model recommended by SOWG
proposes a new, single Ministerial Council responsible for developing nationally
agreed domestic food regulatory policy. The Ministerial Council would also
develop policy guidelines for the setting of all domestic food standards. In
addition to Health Ministers, jurisdictions would be able to nominate other
Ministers with a portfolio responsibility for food regulation, for example, in
the areas of primary industry, trade and small business, as members of the
Ministerial Council. Local Government would also be represented on the Council.
Formal, inclusive and cooperative consultative processes would be established by
the Ministerial Council to facilitate coordination and streamlining of domestic
and export food regulatory functions, including compliance and enforcement
functions, and the harmonisation of export and domestic food
standards.
Export food regulatory functions
will remain with AQIS, in recognition of the different drivers for export
regulation and standards and of the importance of the high international profile
of AQIS. A single new, national domestic food standards development agency,
Food Standards Australia New Zealand (FSANZ), based on the food standards
development related functions of ANZFA and incorporating model best practice in
food regulation, would replace ANZFA. COAG agreed that FSANZ would develop all
domestic food standards, including those currently developed by ARMCANZ, in
accordance with any developed Ministerial Council guidelines.
However, COAG did not specify details as to
how these standards are to be developed. As primary production legislation is
the responsibility of various State and Territory portfolios, there will need to
be extensive discussions with Australian jurisdictions and relevant stakeholders
including consumer and food industry representatives before the new Ministerial
Council can decide upon a development process for these standards.
Accordingly, the expertise of the current
members of ANZFA would be expanded to include expertise in the field of primary
food production, small business, trade, government, and the administration of
food. In keeping with its whole-of-chain responsibility for the development of
food standards, FSANZ would operate as an independent agency whilst remaining
under the Commonwealth Health and Aged Care
portfolio.
There would be no formal
Ministerial Council approval process. Instead, in recognition of Ministerial
accountability for public health and safety, the Ministerial Council would,
within a set timeframe, request the review of existing or proposed standards and
ultimately reject a proposed standard if a jurisdiction represented on the
Council considers that it does not meet certain specified criteria. This would
occur where the jurisdiction considers that the standard is not consistent with
the Council’s policy guidelines or the objectives of the legislation
establishing FSANZ, or that the standard does not protect public health and
safety, promote consistency between domestic and international food standards
that are at variance, or provide adequate information to make informed choices.
The Council would also request a standard be reviewed if a jurisdiction
considers that it is difficult to enforce or comply with in practical or
resource terms or places an unreasonable cost burden on industry or
consumers.
In addition to existing
consultative processes for food standards development, a new stakeholder
consultative council or equivalent consultative mechanism established by the
Council would provide the opportunity for stakeholder involvement in high level
strategic decision making processes, including food regulatory policy and food
standards development.
A formal, inclusive
consultative and cooperative process (the Food Standards Implementation
Sub-Committee) would be established under the new Council to progress the
rationalisation of food regulatory functions, improvement of clarity and
consistency of food regulatory approaches and harmonisation of domestic and
export food standards and regulations.
The current food regulatory system would continue
to operate under the current inter-governmental agreement between the
Commonwealth, States and Territories to develop nationally uniform food
standards which is reflected in the 1996 Treaty with New Zealand to develop
joint food standards. ANZFA and ANZFSC would continue to carry out their
functions in accordance with the Australia New Zealand Food Authority Act
1991 (the ANZFA Act). ANZFA would continue to develop and make
recommendations to the Council on national domestic food standards and
regulations for Australia and New Zealand and ANZFSC would continue to make
decisions on the adoption of food standards and regulations. AQIS would
continue to exercise its export food regulatory functions.
The groups likely to be significantly affected by
the regulatory initiative
include:
• government –
Commonwealth, State and Territory and local and the Government of New
Zealand
• food industry businesses
– primary food producers, food manufacturers, food retailers, and food
service providers supplying either the domestic or export
market
• consumers/the general
community.
The significant benefits to government
relate to efficiencies achieved through improved coordination and interaction
between Commonwealth, State and Territory and local government and the
integration of food regulatory agency functions and food standards setting
processes.
Business would benefit
from cost savings and market advantages of a reduced food regulatory burden
achieved by a simplified, integrated food regulatory system and food standards
setting process.
Consumers and the
community in general would also benefit from the passing down of these cost
savings to business and from improved clarity and access to information on food
regulation and food safety provided by a single national food regulatory
agency.
The cost to government of making the
necessary and fundamental changes to Commonwealth portfolio structures,
functions and agencies to implement the system would be high. Once the new
system is in place, the costs to government of retaining the formal Ministerial
Council process of food standards approval would remain. Given the degree of
change proposed by this option, implementation of the new system will take some
time and will disrupt well established communication and operational networks
between business, consumers and government, resulting in increased costs to
government.
Business would bear
increased costs and market disadvantage from the disruption of established
information networks and to government operations. In moving the food export
certification function from AQIS to ANZFA business would experience increased
costs and market disadvantage due to uncertainty and delay caused by the
disruption of the export certification arrangements. Overseas governments and
business have a high level of confidence in AQIS export certification which
could be undermined by this move. This would have a longer term impact on trade
and therefore on food export
businesses.
Given that export standards are
developed to meet the requirements of overseas countries, integration of export
and domestic food regulatory functions would not, of itself, reduce the costs of
meeting different export and domestic food standards. Developing food standards
could continue to involve the current costs and market disadvantages in relation
to the time it takes for standards to be approved and the need to take into
account broader considerations unrelated to public health and safety or economic
impacts.
Consumers and the community in
general would continue to bear the public health and safety impact of the
time taken to set standards and the setting of inappropriate standards, as well
as the impact of the costs of the standard setting process on business. The
impact on government and business of the disruption of information networks and
government operations during the transition period would therefore also be felt
by consumers.
The benefits to government relate to the
efficiencies achieved through improved coordination and cooperation between
Commonwealth, State/Territory and local government and industry and improved
responsiveness delivered by the streamlining of the domestic food standards
setting process.
Cost savings would also be
derived from the simplification of food regulatory structures and increased
transparency and improved decision making through the direct involvement of the
proposed stakeholder consultative council in high level decision making
processes and the greater focus on technical and economic factors in the
standards development process achieved by the removal of the formal Ministerial
Council approval process. The operation of the food standards development
agency as an independent statutory authority would provide both business and
government with further assurance that all interests are taken into account in
the standards setting
process.
Business would benefit
directly from cost savings and market advantages achieved by a streamlined, more
responsive food standards setting process. Cost benefits would also be gained
from more appropriate food standards and regulations achieved by stakeholder
input into high level food regulatory policy and standards development decision
making processes, the cooperative and consultative process for rationalising
food regulatory agency functions and harmonising export and domestic food
standards, and the removal of the formal Ministerial Council approval of
standards. An independent national domestic food standards agency would give
primary producers more confidence that food standards relating to their
operations will be reasonable and
appropriate.
Consumers and the community
in general would benefit from these cost savings to business and government
and improved public health and safety outcomes delivered by a more responsive
and technically focussed food standards setting process, the transparency
provided by the increased involvement of consumers in high level strategic
decision making processes and the increased clarity provided by a simplified
food regulatory system.
Implementation of the SOWG model would be largely
achieved by agreed formal and inclusive consultative and co-operative processes,
together with some minimal structural changes. At Commonwealth level,
government would bear the costs of establishing the secretariat and
formal consultative processes supporting the operation of the Ministerial
Council and the costs of establishing FSANZ as an independent authority with the
increased responsibility for developing all domestic food
standards.
Business, consumers and
the community in general would bear to some extent the costs to government
in effecting these changes. Those businesses which also export food would
continue to bear the costs of dealing with two food regulatory agencies and
different requirements for export and domestic product.
Retaining the current food regulatory system will
not require any government action and will generate no additional costs to
government, business or the community in general.
Government, business and the community will
continue to bear the costs of the current inefficiencies of the current food
regulatory system.
Extensive public consultation was undertaken with
all stakeholders (government, industry, business, consumers and the community in
general) in the process of developing the Food Regulation Review Report and its
recommendations, which provide the basis for the development of the model for
the new food regulatory system.
The model for
the new food regulatory system referred to in option 2 was developed through a
formal process established by COAG Senior Officials to develop a
whole-of-government response to the Blair Report recommendations and involved
consultation with all relevant Commonwealth and State/Territory Government
Departments. This process included the consideration of submissions from the
Agriculture, Fisheries and Health Ministerial Councils and from the Governments
of all jurisdictions. The New Zealand Government was consulted in relation to
New Zealand involvement in the new food regulatory system and implications for
the Treaty between Australia and New Zealand. Key food industry organisations,
representing all parts of the food supply, chain consumer and public health
groups were informally consulted during the process of developing the
model.
Option 1 involves a high establishment cost
to government. Its implementation will disrupt food regulatory arrangements
that will generate further costs for government, as well as to business and
consumers and the community in general. However, once it is in place, the new
system would achieve a more efficient food standards setting process that would
result in cost savings to government. In particular, it will increase the
clarity and consistency in agency roles and responsibilities and improve the
efficiency of the food standard setting process by integrating all domestic and
export food standards setting arrangements under a single agency and single
Ministerial Council system.
It will reduce
the duplication and overlap of food standards and regulations. It will not,
however, keep food standards development focussed on economic and technical
considerations. Because of this, option 1 will contribute to the inclusion of
some inappropriate requirements in food standards which do nothing to enhance
the protection of public health and safety. It depends on the simplified
structure to ensure more inclusive consultation in government decision making,
for example, by including primary industry Ministers on the Ministerial Council
and by an industry-wide consultation network that ensures that all parts of the
food supply chain will have the opportunity to provide their views in the
development of food standards.
Option
2 is the preferred option. It proposes an approach to food regulatory
reform which will achieve a more efficient, transparent and responsive food
standards setting process over time and, as such, it involves a small
establishment cost to government compared with option 1 and will cause minimal
disruption to food regulatory processes and hence to government, business and
the community in general.
Like option 1,
option 2 proposes a single Ministerial Council, but in this case it is more
representative of food regulatory interests (it provides opportunity for primary
industry, trade and small business interests to be included). It integrates
domestic food standard development processes by incorporating primary industry
food standard development under a single national domestic agency responsible
for domestic food standards development across the whole food supply chain. In
addition, it further improves the efficiency of the standards setting process by
replacing the formal and lengthy Ministerial Council approval process with a
review/reject mechanism that operates within a set
timeframe.
Rather than integrate all food
regulatory functions as a way of improving the efficiency of the food regulatory
system, it proposes the establishment of formal and accountable consultative and
co-operative mechanisms to improve the clarity, transparency and consistency of
food regulatory approaches, progress the rationalisation of compliance and
enforcement arrangements and facilitate the harmonisation of domestic and export
food standards. In this way, for example, it recognises that the export food
regulatory functions of AQIS are different and have different drivers and the
importance to business and government of preserving the high international
profile of AQIS. It also takes into account the rationalisation of food
regulatory structures already being put in place by the States and Territories
in their response to the Blair Report
recommendations.
Option 2 includes a formal
consultative process with all stakeholders in high level strategic decision
making, in addition to the consultation process in relation to the development
of standards, to ensure greater opportunity for involvement of industry,
business and consumers in food regulatory policy, food standards development and
enforcement and compliance decision making
processes.
The proposals put forward in
option 2 will improve the transparency, responsiveness and timeliness of the
food standard setting process. They will do it over time and, therefore, with
minimal disruption. By integrating domestic food standards setting processes,
changing the role of the Ministerial Council in the standards setting process
and introducing inclusive consultative and co-operative mechanisms, option 2
would be more effective in improving the clarity and consistency in agency roles
and responsibilities, the efficiency of the food standards setting process,
ensuring appropriate food standards and regulations are made and increasing the
transparency of decision making processes. Option 2 will, however, retain
ministerial oversight of the standards-setting process as Ministers will be able
to seek review of any standard that does not satisfy specified criteria and
ultimately to reject such standards.
Option 3 will not change the food
regulatory system. It will, therefore, not achieve the efficiencies which would
be achieved under options 1 or 2.
Option 2
will improve the transparency, timeliness and responsiveness of the food
standards setting process with minimal cost impact and disruption and is,
therefore, the recommended option.
Option 2 will be implemented in four
ways:
• by the Food Regulatory Agreement
of 3 November 2000 between the
Commonwealth,
States and Territories under which COAG has agreed to the new food regulatory
system developed in response to the Report of the Food Regulation (Blair) Review
(the IGA);
• by this amending Bill that
will establish the new statutory authority Food Standards Australia New Zealand
and the new development process for standards other than primary product
standards;
• by amendment of the Treaty
between Australia and New Zealand establishing a System for the Development of
Joint Food Standards made on 5 December 1995;
and
• by the Ministerial Council
developing the process for the development of standards relating to primary
products in consultation with all relevant stakeholders. This may involve the
need for further legislation.
Under the IGA,
the Commonwealth has agreed to introduce legislation to make changes to the
Australia New Zealand Food Authority Act 1991. The IGA includes
provision for the Commonwealth, States and Territories to jointly conduct a
review of the effectiveness of the agreement within 5 years of the agreement
being signed.
AMENDMENT BILL 2001
Clause 1
The first clause of the Bill provides a short title for the legislation.
Clause 2 provides for the commencement of the legislation. Clause 1 (the short title), clause 2 (the commencement provision itself), clause 3 (the commencement of the schedules to the Bill) and Part 3 of Schedule 1 (other technical corrections) will all commence on the day the Bill receives Royal Assent.
Part 2 of Schedule 2 makes a technical correction to fix up a minor incorrect reference to a provision of the Act that was made by the Australia New Zealand Food Authority Amendment Act 1999. It will be taken to have commenced immediately after that amending Act commenced.
The amendments to the Act (Part 1 of Schedule 1 to the
Bill), and the consequential amendments to other Acts (Schedule 3 to the Bill),
will commence on the day on which amendments to the Treaty between Australia and
New Zealand made on
5 December 1995
establishing a system for the development of joint food standards (“the
Treaty amendments”) enter into force. As soon as possible thereafter, the
Minister will notify the public of this date by a notice in the
Gazette.
The amendments to the Act must be linked to the commencement of the Treaty amendments because The Treaty establishes an “Australia New Zealand Food Standards System” and under the Treaty both countries have agreed to adopt only food standards that have been developed under this system. The Treaty provides that the Australia New Zealand Food Standards System is “based on an extension of the existing Australian system”. The “existing Australian system” is the current Australian food standards system. Under this system the Australia New Zealand Food Standards Council, upon the recommendation of the Australia New Zealand Food Authority, must adopt standards before they are adopted by all jurisdictions.
If the commencement of the legislation is not so linked, and the Treaty is not amended, both countries would be in breach of their obligations under the Treaty if they adopt standards developed under the new food regulatory system to be implemented by this legislation. COAG therefore agreed that those aspects of the new food regulatory system to be implemented under this legislation cannot commence until the Treaty is amended or replaced.
Australia and New Zealand have agreed that it would be preferable to amend the current Treaty to reflect the new food regulatory arrangements rather than replace the whole Treaty.
Clause 3
This clause provides that the Australia New Zealand Food Authority Act 1991 and the other Acts specified are amended in accordance with their respective Schedules to the Bill.
SCHEDULE 1 – AMENDMENT OF THE AUSTRALIA NEW ZEALAND FOOD AUTHORITY ACT 1991
Item 1
This item amends the long title of the Act to replace the reference to “an Australia New Zealand Food Authority” with “a body to be known as Food Standards Australia New Zealand”. This is because the Bill establishes a new statutory authority, Food Standards Australia New Zealand, in place of the Australia New Zealand Food Authority (see item 20).
Item 2
This
item amends the short title of the Act so that it will be cited in the future as
the “Food Standards Australia New Zealand Act 1991”.
Section 2A specifies the object of the Act as being to ensure a high standard of public health protection throughout Australia and New Zealand by means of the establishment and operation of a joint Food Authority to achieve specified goals. This item replaces the reference to “a joint Food Authority” in section 2A with a reference to a “joint body to be known as Food Standards Australia New Zealand.”
This item replaces the reference to the
“Council” in the definition of “Australia New Zealand Food
Standards Code” (“the Code”) with a reference to the term
“former Council”. This will ensure that a standard approved by the
former National Food Standards Council or the Australia New Zealand Food
Standards Council will still be a standard within the Code that may be amended
in accordance with the procedure set out in the Act.
This item inserts a definition of “Australia
New Zealand Joint Food Standards Agreement” into the Act. It is defined to
mean the Treaty (see item 2).
This item substitutes a new definition of “Authority” into the Act. All references to “the Authority” in the Act will now mean Food Standards Australia New Zealand, not the Australia New Zealand Food Authority.
The name of the new Authority does not include the word ‘authority’ because the name Food Standards Australia New Zealand was specifically agreed to by COAG. There is precedent for this - other statutory bodies have been established that do not have the type of body included in their name, for example, Air Services Australia.
Unlike ANZFA, the so-called “board members” of which are actually members of the Authority itself, FSANZ will have a formally established Board to conduct the affairs of the Authority. The arrangement is similar to that which applies to the Australian National Library and the Australian National Gallery. It implements the structure for FSANZ that was agreed to by COAG under the Food Regulation Agreement 2000.
This item inserts a definition of “business day” into the Act. The term is used in section 25 regarding urgent applications and proposals (see item 81).
This item inserts a new definition of “Council” into the Act. The “Council”, for the purposes of the Act, will now mean the Australia and New Zealand Food Regulation Ministerial Council instead of the Australia New Zealand Food Standards Council. The Australia and New Zealand Food Regulation Ministerial Council is the new Council established by the Food Regulation Agreement 2000 (see Outline).
This item inserts a definition of “develop” into the Act. A function of the new Authority is to develop standards and variations of standards. This definition explains what this means.
This item deletes the definition of “Food Advisory Committee” from the Act. The Australia New Zealand Food Authority Advisory Committee will no longer exist under the new food regulatory arrangements. Under the new system, there will be a Standing Committee on Food Regulation to provide advice to the Ministerial Council in undertaking its policy development role. There will also be an implementation committee to assist the Food Regulation Standing Committee (see Outline). The implementation committee will develop guidelines on food regulations and standards enforcement activities aimed at achieving a consistent approach across jurisdictions to the way regulations and standards are interpreted and enforced.
Section 43 of the Act also provides the Authority with the capacity to establish other committees to assist it in carrying out its functions, to be exercised in accordance with any directions of the Ministerial Council (see item 132).
This item inserts a definition of “Food
Regulation Agreement 2000” into the Act. This is the Inter-Governmental
Agreement signed by COAG on 3 November 2000 that sets out the framework for the
new food regulatory system.
This item inserts a definition of “former Council” into the Act. A “former Council” means either the former Australia New Zealand Food Standards Council or the former National Food Standards Council. The term is used in the definition of “Australia New Zealand Food Standards Code”.
Item 14
This item substitutes the word “Board” for the word “Authority” in the definition of “member” in the Act. A reference to a “member” in the Act will now be to a member of the Food Standards Australia New Zealand Board, not to a member of ANZFA.
Item 15
This item inserts a definition of “New Zealand lead Minister on the Council” into the Act. This definition is necessary because it is this Minister who nominates the New Zealand members of the Board (see item 118).
Item 16
This item includes in the definition of “standard” a standard made under the Act after the commencement of this Schedule. This is necessary to include as “standards” within the meaning of the Act any standards that are made under the new food regulatory arrangements, that is, standards that are not adopted by a former Council, and standards that will not be included in the Australia New Zealand Food Standards Code.
Item 17
This item changes the reference to the “Council” in the definition of “standard” to a reference to the “former Council”.
This item substitutes a new subsection for subsection 3(2). It makes clear that the reference to the “amendment of the standards in (the Code)” in the definition of the “Australia New Zealand Food Standards Code” has always enabled the insertion, revocation or substitution of a standard in that Code. It also makes clear that the capacity to vary a food regulatory measure (that is, a standard or a code of practice) has always included the capacity to revoke such a food regulatory measure.
This item makes a very minor change to the heading
to Part 2.
This item amends subsection 6(1) to deal with the transition from the current corporate governance arrangements to the new corporate governance arrangements. The body known as ANZFA will be continued in existence as Food Standards Australia New Zealand. This approach, which involves “recycling” the corporate shell of ANZFA, is much simpler to create legally than a new body corporate. It is also considerably less expensive. Food Standards Australia New Zealand will have a different corporate structure to ANZFA.
A note will also be inserted into the Bill referring to section 25B of the Acts Interpretation Act. That section sets out the effect of an alteration by an Act to the name of a body and to the constitution of a body.
Item 21
This item amends the function specified in paragraph 7(1)(a) of the Act to make clear that a function of the Authority is to develop standards and also to review standards. This amendment is necessary because under the new food regulatory arrangements the Authority is charged with developing food standards, not with the development of draft standards for adoption by a Ministerial Council as is ANZFA under the current system. The amendment also reflects the fact that the new Authority must review proposed or existing standards if requested by the new Council.
This item omits the word “draft” wherever it occurs in paragraph 7(1)(b). The new Authority will not be developing ‘drafts’ of codes of practice; it will be developing codes of practice.
This item provides the Authority with a new function: such other functions as are conferred upon it by the Act.
This item inserts a new subparagraph 9(1)(a)(ia). That part of current paragraph 9(1)(b) that provides that a matter that may be included in standards and variations of standards is the maximum or minimum amounts of additives that must or may be used in the preparation of food fits better within subsection 9(1)(a), as that paragraph deals with the composition of food, and additives are components of food.
This item amends paragraph 9(1)(b) to delete “additives” as a matter about which standards may be made, as that matter will be included in new subparagraph 9(1)(a)(ia).
This item omits the references to “dealing
with” in paragraphs 9(1)(e), (f) and (g) because the accepted terminology
within the domestic food regulatory industry is that food is
“handled”, not “dealt with”. The definition of
“dealing” will therefore be deleted (see item 32 below). The current
term “dealing” causes confusion as it is currently defined to
incorporate matters that are usually thought of as part of the handling of
food.
These items replace all the references to dealing
with food within paragraphs (i)(i), (i)(ii), (j) and (m) of subsection 9(1),
with references to handling food, for the reason given in item 27 above.
This item substitutes a new subsection for
subsection 9(3). It replaces the definition of the term “dealing”
with a definition of the term “handle”. “Handle” is
defined to mean, in relation to food, as including produce, collect, receive,
store, serve, display, package, transport, dispose or recall food. This
definition captures the matters set out in the definition of
“handle” in the Model Food Bill which was part of the
Intergovernmental Agreement signed by COAG. An editorial note is also included
under this definition to remind the reader that “produce” is defined
in subsection 3(1) as including “prepare” and “prepare”
as including “process, manufacture and treat”. The Macquarie
Dictionary definition of the term “package” ensures that it includes
“pack”.
This inclusive
definition is designed to ensure that all aspects of handling food are matters
about which the Authority may develop standards. The inclusion of the term
“collect” in the definition does not exclude other similar
activities being part of the “handling of food”, for example,
harvesting, gathering or slaughtering. This term was chosen as representative of
that aspect of the food supply chain. In addition, the inclusive nature of the
term is also designed to ensure that the natural meaning of the term
‘handle’ is preserved.
This item is a transitional provision that makes
clear that the above amendments to the matters about which standards may be made
do not affect the validity of standards or codes of practice in force
immediately before the commencement of the transitional provision.
The item also amends the heading to section 10
accordingly.
This item makes a minor amendment by omitting
“food.” in paragraph 10(1)(d) and substituting “food;”.
This item includes an additional matter to which
the Authority must have regard when developing food regulatory measures and
variations of food regulatory measures - any written policy guidelines
formulated by the Council that it notifies to the Authority. This is an
important provision as it implements the COAG decision that the Council is to
develop policy guidelines for the development of food standards. ANZFA does not
have to have regard to ministerial guidelines.
Although the Food Regulation Agreement 2000
provides that Food Standards Australia New Zealand is to develop standards
“in accordance with” any policy guidelines set down by the Council,
it was decided that the Bill should provide that the Authority must “have
regard to” such policy guidelines. This is because guidelines, by their
very nature, can only be “guides” to decisions. They are not
directions as to how particular decisions are to be made. In addition, if the
Authority had to develop standards that were exactly “in accordance
with” policy guidelines, development of such guidelines would be very
difficult as they would have to be entirely accurate and capable of dealing with
all possible circumstances.
The Government has received legal advice to the effect
that the Council will not be able to formulate any policy guidelines for the
purposes of paragraph 10(2)(e) that are inconsistent with the remaining
objectives specified in that subsection. It will, however, be able to include in
those guidelines as additional matters to which the Authority must have regard
when developing standards the matters specified in subparagraphs 3(e)(vi) and
(vii) of the Food Regulation Agreement 2000. These matters are that the standard
or variation is not difficult to enforce or comply with in both practical or
resource terms, and that it cannot place an unreasonable cost burden on industry
or consumers.
This item inserts a new Division 1 into the Act
before current Division 1 of
Part 3 (current
Division 1 of Part 3 will become new Division 2 of Part 3 – see
Item 39). New Division 1 consists of two
sections only – sections 11A and 11B. Section 11A will set out a
simplified explanation of the process for the development or variation of
standards. Section 11B inserts relevant definitions of terms used in Part
3.
This item substitutes a new heading for Division 1
of Part 3 of the Act.
The new heading indicates
that this Division (to now be Division 2) sets out the process to be used for
the development and variation of food regulatory measures as a result of both
applications and proposals.
New Division 2
merges the processes currently used by ANZFA to develop food regulatory measures
as a result of an application by a body or a person, or as a result of a
proposal raised by ANZFA itself. At present, the processes are set out in
separate Divisions in Part 3 – Division 1 and Division 2. Current Division
2 will be deleted (see item 81).
As the
process is substantially the same, the current separation into two Divisions is
not necessary. The new Authority will follow the process set out in the one
Division (Division 2) for the development of these measures, whether or not the
impetus for their development is an application or a proposal.
This item omits the word “preliminary”
from subparagraph 12(2)(c) and replaces it with the word “initial”.
This has the effect of changing the reference to “the preliminary
assessment” to a reference to “the initial assessment”. A
number of similar changes have been made elsewhere to references in other
sections to this and other stages of the food regulatory measure development
process.
This is because the names of the
three stages of development of food regulatory measures and variations of those
measures will be changed. ANZFA has consulted with stakeholders and the result
of that consultation is that the following terms more accurately describe the
actual stages of the process:
• “Initial Assessment”
instead of “Preliminary
Assessment”
• “Draft
Assessment” instead of “Full
Assessment”
• “Final
Assessment” instead of “Inquiry”.
This item inserts a new section 12AA after section
12. The new section provides that the Authority may prepare a proposal for the
development or variation of a food regulatory measure, and that the proposal
must be in writing. This new section is similar to current section
21.
This item amends section 12A to make clear that the
application that an applicant may withdraw is the applicant’s own
application.
This item repeals paragraphs 12A(1)(a) and (b) and
substitutes new paragraphs. The changes are necessary because the Authority,
unlike ANZFA, will not be making recommendations to the Council that it adopt,
adopt with amendments, or reject a draft standard or variation. Instead, Food
Standards Australia New Zealand will be approving standards itself, and the
Council will be able to have them reviewed by the Authority, or reject them, if
it considers they do not meet the criteria specified in the Food Regulation
Agreement 2000.
This item changes the reference to “the full
assessment” in paragraph 12B(2)(a) to a reference to “the draft
assessment” (see item 40).
This item replaces the reference to “holding
an inquiry” in paragraph 12B(2)(e) with a reference to “making a
final assessment” (see item 40).
This item replaces the references to
“preliminary” in section 13 with references to
“initial”. A note is inserted also altering the heading in the same
way (see item 40).
This item amends section 13A by replacing the word
“preliminary” with the word “initial”, and makes similar
changes to the heading to that section (see item 40).
This item amends paragraph 13A(2)(b) by replacing
the word “preliminary” with the word “initial” (see item
40).
This item amends paragraph 14(3)(b) by replacing
the words “a preliminary” with the word “an initial” and
changes the heading to section 14 to make clear that it deals with the Authority
inviting submissions about applications.
This item amends paragraph 14(3)(c) to replace the
word “full” with the word “draft” (see item
40).
This item inserts a new section 14A after section
14. The new section is similar to current section 22 except that it refers to a
“draft assessment” instead of to a “full assessment”
(see item 40). It has been included in new Division 2 because that Division will
set out the development process for food regulatory measures that are a result
of both applications and proposals.
This item replaces the word “full”
wherever it occurs in section 15 with the word “draft” and makes
similar changes to the heading to that section (see item 40).
This item inserts new section 15AA after section
15. The new section is similar to section 23, except that it refers to a
“draft assessment”, not a “full assessment” (see item
40), and does not include an equivalent to subsection 23(3), as that is
positioned beneath the equivalent provision in relation to applications (see
item 55 below).
This item replaces the word “full”
wherever it occurs in section 15A(1) with the word “draft” and makes
similar changes to the heading to that section (see item 40).
This item inserts a new subsection 15B after
section 15A. The new section is equivalent to current subsection
23(3).
This item amends paragraph 16(1)(a) to make clear
that section 16 only applies to draft food regulatory measures prepared as a
result of an application. It is necessary because new Division 2 will apply to
both applications and proposals (see item 39) and a distinction needs to be made
that the Authority can only charge for applications. A similar amendment is made
to the heading to section 16.
These items amend various paragraphs that refer to
the holding of an inquiry so that they refer instead to the making of a final
assessment (see item 40).
This item amends paragraph 17(1)(a) in a similar
way to the amendment made by item 56 to paragraph 16(1)(a) and for the same
reasons.
These items amend various paragraphs that refer to
the holding of an inquiry so that they refer instead to the making of a final
assessment (see item 40).
This item inserts a new section 17AA after section
17. The new section is
similar to current
section 24. It is necessary because new Division 2 will now apply to both
applications and proposals (see item 39).
This item inserts a new section 17AB after section
17A that is equivalent to section 25 (see item 39).
This item amends subsection 17B(1) so that it
refers to the making of a final assessment instead of to holding an inquiry (see
item 40).
This item amends paragraph 17B(3)(a) to make clear
that the Authority need only notify the applicant of its decision in relation to
a code of practice if the relevant draft code of practice was the result of an
application.
This item inserts after paragraph 17B(3)(c) a new
paragraph (aa) that ensures that the Authority must provide the Council with
written notice of its decision to approve or reject a code of
practice.
This item inserts a reference to section 14A into
paragraph 17B(3)(c). This insertion ensures that the Council, when approving or
rejecting a code of practice, must also notify any body or person who made a
submission in response to a notice inviting submissions about a proposal to
develop such a code. Section 17 will now deal with notification in relation to
decisions made about codes of practice developed as a result of both
applications and proposals. This is necessary because the current section 25A
will no longer exist as current Division 2 will be deleted (see item 81).
This item repeals section 18 and substitutes a new
section 18. The new section 18 provides that after the Authority has made a
final assessment in relation to a draft standard or variation of a standard, it
must approve the draft, approve it subject to amendments, or reject the draft.
This process is different to the current
process whereby ANZFA recommends to the Council that it adopt a draft standard
or variation that ANZFA has prepared, adopt it with amendments, or reject it.
Under the new process, the Authority itself will develop and approve standards
and variations of standards. The Council will be able to request up to two
reviews of such a food regulatory measure, and will then be able to reject it,
provided it considers that the standard or variation as finally approved by the
Authority still does not meet at least one of the criteria specified in item
3(e) of the
Food Regulation Agreement
2000.
The item also inserts a note that
reminds readers that the Board cannot delegate its powers to act on behalf of
the Authority under this important section.
This item amends subsection 19(1) so that it refers
to the making of a final assessment instead of the holding of an inquiry, and
makes similar changes to the heading to that section (see item
40).
This item amends paragraph 19(1)(a) to make clear
that the Authority need only give notice of the outcome of a final assessment to
an applicant if the relevant draft standard or variation was the result of an
application by the applicant.
This item amends paragraphs 19(1)(c) and (d) so
that they refer to sections 16, 17 and 17AA. This amendment is necessary so that
bodies or persons other than an applicant or appropriate government agencies who
made submissions to final assessments made in relation to a draft standard or
variation that was the result of a proposal are notified. Section 19 will now
deal with notification in relation to the outcome of final assessments
concerning standards and variations of standards developed as a result of both
applications and proposals. This is necessary because the current section 27
(regarding notification of the outcome of proposals) will no longer exist as
current Division 2 of Part 3 will be deleted (see item 81).
This item amends paragraph 19(2)(a) to take account
of the fact that the Authority will no longer be making recommendations to a
Ministerial Council, but instead will be notifying the Council of decisions it
makes in relation to the approval or rejection of draft
standards.
This item amends paragraph 19(2)(b) to refer to a
“decision” of the Authority instead of a recommendation of the
Authority (see reasoning at item 78).
This item substitutes a new section for section 20.
The new section lists the things that the Authority must provide to the Council
if it approves a draft standard or variation when it notifies the Council of
that approval.
The notification provided by
the Authority to the Council will act as a ‘trigger’ for the Council
to examine the draft to see if it wishes to request a review. Under the Food
Regulation Agreement 2000, the Council must request FSANZ to review a proposed
standard (including a variation) or an existing standard if any jurisdiction
represented on the Council considers that one or more of the criteria specified
in item 3(e) of that Agreement applies to the standard. Under new subsection
21(5) (see item 81 below) the Authority must accede to the
request.
The Council may direct the
Authority to provide it with additional information to enable it to make a
decision about the draft. The direction does not have to be in writing but may
only be made if the Council has made a resolution to make the direction.
The Authority must also publish on the
internet a copy of all draft standards or variations that it has approved and
has notified, or will shortly notify, to the Council together with an
explanation of how the Council may deal with the approved standard. This will
enable interested persons to follow the progress of the standard or variation
through the Council process.
This item repeals current Divisions 1A, 2 and 2A of
Part 3 of the Act, and substitutes new Divisions 3, 4 and 5.
New Division 3 sets out what is
to happen if the Council requests a review of any draft standard or variation
approved by the Authority.
New Section 21
sets out the process described in the Food Regulation Agreement 2000 as to how
the Council can request a review of an approved draft standard or variation. The
Council will be able, within 60 days of being notified of the approval by the
Authority of a draft standard or variation (with or without amendments), to
request a review of the draft. If it does so, it must inform the Authority of
its concerns with the draft.
An additional
power has also been provided to the Council under the legislation that does not
appear in the Food Regulation Agreement 2000: that the Council can also inform
the Authority that it does not intend to request the Authority to review a draft
standard or variation. This will enable a standard with which the Council is
satisfied to enter into force without undue delay.
Any review requested by the Council
(including a second review) is to be conducted by the Authority in any way it
considers appropriate, subject to any directions provided by the Council, and
within three months unless the Council specifies another period. The Council
could, for example, direct the Authority to consult in a particular way (for
example, by holding a public hearing) or with certain
stakeholders.
The Authority, after
completing the review, can decide to re-affirm its approval of the draft,
re-affirm it with amendments, or withdraw its approval.
Subsection 21(7) means that the Council can
only request a review if a member of the Council considers one or more of the
criteria specified in the Food Regulation Agreement 2000 applies to the standard
or variation. The Council will also request a review if the New Zealand lead
minister considers either those criteria, or the two additional criteria
specified in the Treaty as amended, apply to the standard or variation.
New Section 22 specifies what happens if
the Council requests a second review. The process is the same.
Under new section 23A (see below), if the
Council does not request the Authority to review a draft within the 60 days, the
Authority can proceed to publish the standard in the Gazettes of Australia and
New Zealand.
New section 23 provides that if
the Council rejects a draft standard or variation after a second review, it must
prepare a notice setting out its decision, and the reasons for that decision. It
must then provide a copy of the notice to the Authority and publish it on the
Internet.
New Division 4 sets out
how a standard or variation is to be
published.
New section 23A provides
that a standard or variation that is not subject to review at the request of the
Council is to be published by the Authority as soon as practicable. It also
provides that if the Council does not request the Authority to review a draft
within the 60 days, the Authority can proceed to publish the standard in the
Gazettes of Australia and New Zealand (see also above in relation to section
21).
New subsection 23(4) sets out the
requirements for gazettal, and also provides that in addition the Authority must
publish the standard on the Internet along with notice of its date of effect.
New subsections 23(4) and 23(5) are
explanatory provisions. The first explains what is meant by “made under
this Act” and the second explains the effect of the use of the phrase
“draft as so amended” on other sections. Subsection 23(5) is also
replicated in subsection 26(5) in relation to standards developed
urgently.
New Division 5 sets out the
procedure to be followed in relation to urgent applications and proposals. This
procedure replaces the procedure currently followed by ANZFA in relation to the
development of standards or variations to be developed as a matter of urgency
(the “section 37 standards”).
It
was considered appropriate that the only type of standards or variations that
should be able to be developed by the new Authority under the shortened process
specified in Division 5 should be those that are necessary to be developed
urgently in order to protect public health and safety. The wording of new
section 24 therefore differs from the current section 37, which provides that
standards developed under that section can be developed “in order to avoid
compromising the objectives set out in section 10”. Safeguards are built
into the Division to ensure that adequate consultation is still to be undertaken
in relation to these standards (see below).
New section 24 provides that if the
Authority considers it appropriate to do so to protect public health and safety,
it can declare that a specified application or proposal is urgent and therefore
the provisions of Division 5, and not most of those of the other Divisions of
Part 3, apply to its development. Such a declaration is to be published by the
Authority on the Internet.
New section 25
sets out how a draft standard or variation is to be prepared in relation to an
urgent application or proposal. It also provides that the Authority must publish
on the Internet a copy of the draft and a notice inviting interested persons to
make written submissions to the Authority in relation to the draft.
The Internet is the primary source of
information for industry and consumer bodies regarding the development of food
standards by ANZFA. It is expected that this will continue to be the case for
standards developed by FSANZ. The ANZFA website is visited regularly by these
and other stakeholders. FSANZ is to conduct an information exercise to remind
stakeholders that they should visit this website regularly, and to inform them
that any declarations FSANZ makes in relation to urgency standards, and related
notices inviting submissions, will be published on the
Internet.
Interested persons will have 10
business days to make submissions, unless the Authority specifies a shorter
period. The Authority would generally only specify a shorter period in
circumstances where a shorter period is necessary to enable the standard to
commence very quickly in order to protect public health and
safety.
New section 26 provides that the
Authority must give due regard to any written submissions it receives about the
draft before approving, amending or rejecting it. It then specifies how the
Authority is to gazette the draft and make it available to the public, including
on the Internet.
New section 27 provides
that the Authority, after preparing an urgent standard or variation, must
complete a final assessment in relation to that draft as soon as practicable,
and in any event within twelve months. This provision is similar to the current
system under which ANZFA must complete an inquiry into a previously adopted
standard that was developed as a matter of urgency. However, it differs from
that system in that it mandates a timeframe for completion of that stage of
consultation.
New section 28 provides that
after completing a final assessment in relation to an urgent standard or
variation, the Authority must decide to re-affirm the standard or variation,
prepare a proposal for a variation, or further variation of the standard, or a
replacement standard. In the meantime, the urgent standard or variation will
remain in force, until it is varied or replaced following completion of the
usual proposal process.
The Council may
direct the Authority to provide it with additional information to enable it to
make a decision about the draft. The direction does not have to be in writing
but may only be made if the Council has made a resolution to make the direction.
New sections 28A and 28B deal with a
request by the Council for a first review of a re-affirmed urgent standard or
variation, and a second review of such a standard or variation, respectively.
The normal processes for a first review request also apply to a second review
request.
Two notes are inserted after both
these sections that make it clear that the Board cannot delegate its powers
under these subsections, and noting the existence of section 28D that deals with
the situation where the Authority does not re-affirm the standard or variation
but decides to raise a proposal instead.
New
section 28C provides that the Council may revoke or amend an urgent standard or
variation after a second review has been completed by the Authority. The process
is the same as if the Council had decided to revoke a non-urgent standard or
variation after a second review, except that, because the Council is able to
amend an urgent standard or variation at this stage, the Council is to provide
the Authority with an opportunity to submit to the council a draft of the text
of any amendment to be made by the Council. The Council does not have to agree
to that proposed text.
The opportunity for
the Authority to provide such text will ensure that any Council approved
amendments to an urgent standard or variation will be consistent with the
language and style of the remainder of the Code. It will also enable the Council
to take account of other relevant matters in the Code that may have an impact on
the draft concerning which the Council may not be aware. The reason why the
Authority does not have this opportunity in relation to a non-urgent standard or
variation is that the Authority does not re-affirm any of the drafts of those
standards, it only approves them. The Council can therefore only request a
review of them, or reject them, but not amend
them.
Section 28C also provides that if the
Council revokes or amends a draft standard or variation after a second review,
it must prepare a notice setting out its decision, and the reasons for that
decision. It must then provide a copy of the notice to the Authority and publish
it on the Internet.
New section 28D sets
out how alternative variations and replacement standards are developed by the
Authority as result of a decision it makes to prepare a proposal for a variation
of an urgent standard, or a replacement standard. The full proposal process does
not have to be followed. Instead, the Authority only has to conduct a round of
consultation, prepare a draft based on the consultation, approve the draft and
prepare a notice. This is because there has already been two rounds of
consultation in relation to the standard or variation – the ten business
days round, and a final assessment following the standard or variation’s
entry into force. However, this shortened process is only to be followed if the
Authority is still of the view that the matter is urgent.
This item substitutes a new heading for Division 3
of Part 3: “Division 6 – Miscellaneous”.
See discussion at item 40.
This item inserts a new subsection (3) into section
30A to make it clear that the requirements of section 30A in relation to
notification do not apply to notices that the Authority is to provide to the
Council in relation to the approval of standards.
This item repeals section 31. This is because under
the new food regulatory system the Council will not be able to return a draft
standard to the Authority for reconsideration. Instead, it may request the
Authority to review a standard, or eventually reject a standard.
This item repeals section 32. This is because under
the new food regulatory system the Council will not be adopting draft standards
or variations, and the procedure for publication of the standards and variations
of standards approved by the Authority is dealt with in new Division 4 of Part
3.
These items amend section 33, which deals with the
review of food regulatory measures. The new section implements the requirement
of the Food Regulatory Agreement 2000 that the Council can request the Authority
to review an existing standard. An existing standard means a standard in the
Code as at the time of the request.
The
procedure for review of such a standard is the same as the procedure for a
review requested by the Council of a proposed standard or variation. After
completing the review, the Authority may decide to prepare a proposal for the
development of a food standard or variation. The Council can only request one
review of an existing standard.
See discussion at item 40.
This item amends subsections 35(1) and (1A) so that
they refer to decisions under section 18 instead of to “recommendation to
the Council”. This is because, unlike ANZFA, the Authority will not be
making recommendations to the Council.
This item makes a minor amendment to the work plan
arrangements for FSANZ in relation to the time limit for FSANZ to deal with
certain applications allocated in the work plan. This amendment rectifies an
unintended consequence made by the current wording of this section.
This item omits the reference to making a
recommendation in subsection 35(2) as the Authority, unlike ANZFA, will not be
making recommendations to the Council.
See discussion at item 40.
This item substitutes the reference to section 21
in paragraph 36(1)(b) with a reference to section 12AA. Proposals will now be
prepared under that section as both applications and proposals will be prepared
in accordance with the process specified in Division 2 of Part 3.
These items substitute references to certain
sections that have been repealed with references to their equivalent sections
under the new food regulatory system set out in the legislation.
This section repeals section 37 that sets out how
ANZFA develops “urgency standards”. A new system for the
development of these standards is set out in new Division 5 (see item 81).
This item substitutes references to members of the
Authority with references to a “member of the Board” (see discussion
at item 7).
This item amends paragraph 39(4)(c) to enable the
Chief Executive Officer of the Authority to disclose confidential commercial
information to bodies as well as persons to whom he or she thinks is expressly
or impliedly authorised to obtain that information. This would enable the CEO,
for example, to disclose it to committees that may be established to assist
ANZFA, but only if the CEO thinks that they are authorised to obtain it.
This item repeals the definition of
“committee” in subsection 39(11) because the Food Advisory Committee
will no longer exist in the new food regulatory system (see discussion at item
11).
This item substitutes a new heading for the heading
to Part 4. The new heading refers to the Board instead of to the Authority. This
reflects the structure of FSANZ, which has a different structure to ANZFA (see
discussion at item 7 and item 20).
This item substitutes a new heading for the heading
to Division 1 of Part 4 to refer to the Board, not to meetings of the Authority
(see discussion at item 7).
This item inserts a new section 39 into the Act. The
new section establishes a Board of the Authority. Unlike ANZFA, the so-called
“board members” of which are actually members of the Authority
itself, FSANZ will have a formally established Board to conduct the affairs of
the Authority. The arrangement is similar to that which applies to the
Australian National Library and the Australian National Gallery. It implements
the structure for FSANZ that was agreed to by COAG under the Food Regulation
Agreement 2000.
This item amends subsection 40(1) and the heading
to section 40 to refer to the Board, not the Authority (see discussion at item
116).
This item amends section 40 to implement the COAG
decision reflected in the Food Regulation Agreement 2000 that the Board will
have a maximum of ten members.
The Board of
the Authority will have no more than ten members, including the Chairperson, the
Chief Executive Officer of the Authority, two members nominated by the New
Zealand lead Minister on the Council and a member who has a background in
consumer rights. The requirement to retain the latter member reflects the
current arrangement for the membership of ANZFA under which a member with this
background must be on the Board.
The
current mandatory requirement that one of the members of the Board be an officer
of a State or Territory authority with responsibility for matters relating to
public health has been removed. The membership of the Food Regulation Standing
Committee, and the Implementation Sub-Committee (see Outline), will ensure these
authorities have adequate input into the new food regulatory system, and that
public health views are adequately considered by the Ministerial Council and the
Authority. This does not prevent one of the remaining five members of the Board
from having expertise in this area. The Board will have not fewer than one, but
not more than five, other members. The new Board will not have special purpose
members.
This item deletes subsection 40(2) and inserts new
subsections into section 40. The new subsections provide that the Minister is to
appoint all members of the Board except for the Chief Executive Officer, who is
to be appointed by the Board (see item 146 below). The Minister is only to
appoint these persons (except the two persons nominated by the New Zealand lead
minister) with the agreement of the Council. The appointments of the two New
Zealand members of the Board do not have to be agreed to by the Council. This is
because New Zealand wished the current arrangements, whereby the New Zealand
members of ANZFA are simply appointed by the Australian Minister on the
nomination of the New Zealand Health Minister, to be reflected in the new
arrangements.
New subsection 40(2)
ensures, however, that the Minister must consult the Council in relation to
the proposed appointments of the New Zealand members of the
Board.
Item 120
This item repeals subsections 40(3) and
40(4) and inserts new subsection 40(3). New subsection 40(3) ensures that the
Board of the new Authority will have a wider range of expertise than do the
current members of ANZFA because over time it will be dealing with a wider range
of food standards. Additional areas of expertise that currently do not have to
be represented on ANZFA but that may be included on the new Board are
government, the food industry, food regulation, primary food production, small
business and international trade. The current reference to
“experience” has been removed because the Food Regulation Agreement
2000 only refers to
“expertise”.
This reflects the
make-up of the Board agreed to by COAG under the Food Regulation Agreement 2000.
This item makes a minor amendment to subsection
40(5) to refer to a new paragraph.
This item repeals subsection 40(6) as there will
not be special purpose members on the Board.
This item substitutes the word “Board”
for the word “Authority” wherever it appears in subsections 40(9)
(see discussion at item 116).
This item is a transitional provision for the new
Board. It terminates the appointments of the current members of ANZFA.
Appointments will be made in accordance with the new
requirements.
These items delete the references in subsections
41(1) and 41(2) respectively to special purpose members. The new Board will not
have special purpose members.
This item repeals subsection 41(3) as it deals with
the appointment of special purpose members and the new Board will not have
special purpose members.
This item adds a new subsection (5) at the end of
section 41 that will allow the Board to have a full complement of members in
cases where there may be a delay in appointing a new member, or extending the
appointment of a current member. The provision enables a current member of the
Board to continue in office for a maximum period of six months after his period
of appointment is completed. The provision could be used, for example, if it
takes some time for the Ministerial Council to agree to an appointment. The new
subsection ensures that the member can only continue in office after the expiry
of the period of his or her appointment for a maximum of six months, that is,
until the Minister makes a decision regarding the reappointment of the member.
This item repeals section 42. Section 42 deals with
the Australia New Zealand Food Authority Advisory Committee. This Committee will
no longer exist under the new food regulatory arrangements (see discussion at
item 11).
This item substitutes the references in section 43
to the Authority with a reference to the Board. The Board will decide whether or
not to establish committees to assist it in carrying out its functions.
This item amends the heading to section 43 to no
longer refer to the Food Advisory Committee (otherwise known as the Australia
New Zealand Food Authority Advisory Committee).
This item includes new subsections at the end of
section 43. The effect of these subsections is that the Council may provide
directions to the Authority in relation to its exercise of powers regarding the
establishment of committees under section 43, and the directions it may give to
those committees.
If the Ministerial
Council directs the Authority to give a committee a certain direction, the
Authority must comply with that direction. For example, the Ministerial Council
may direct the Authority not to establish, or to abolish, a particular
committee. It may also direct it to direct a committee as to the meeting
procedure it is to follow, or the particular matters it is to deal with. The
purpose of this section is to enable the Council to ensure the integrity of the
new food regulatory committee system is retained.
This item abolishes any existing committees
established by the Authority under section 43. This means that ANZFAAC will be
abolished (see item 11).
This item amends subsection 44(1) so that it
applies only to members of the Board and of other committees, but not to members
of the Food Advisory Committee. That Committee will no longer exist (see item
11).
This item omits the reference in subsection 46(2) to
special purpose members. The new Board will not have special purpose
members.
This item amends section 47 to substitute the
references to the Authority with references to the Board. The section as amended
will refer to meetings of the Board.
This item omits the reference in subsection 47(4)
to special purpose members. The new Board will not have special purpose
members.
These items amend sections 47 and 48 respectively
to substitute for the references to the Authority references to the Board. The
section as amended will refer to meetings of the
Board.
Item
140
At present, section 50 of the Act
obliges members of ANZFA to notify the Minister of any “direct or indirect
pecuniary interest” they have in a matter being considered, or about to be
considered, by ANZFA. Under the Commonwealth Authorities and Companies Act
1997 they are also obliged to notify of “material personal
interest” they have in a matter. The current requirement of the Act that
they notify of any “direct or indirect pecuniary interest” they may
have was placed upon them before the Commonwealth Authorities and Companies
Act 1997 commenced, and the two obligations causes some confusion. To
clarify the obligations of the new Board, this item amends section 50 so that
Board members need only notify of any “material personal interest”
that they have in a matter. This would include pecuniary interests. They would
then be subject to the same obligations as directors of other Commonwealth
authorities.
Item
141
This item amends section 50 to refer
to the “Board” and not to the Authority.
This item amends paragraph 52(2)(d) to omit the
mention of a special purpose member.
This item substitutes the reference to the
Authority in paragraph 52(2)(d) with a reference to the Board.
These items amend subsection 52(2) to omit the
reference to special purpose members.
This item replaces the reference to the Minister
with a reference to the Board in subsection 52A(2) as, in accordance with the
Food Regulation Agreement 2000, it will be the Board who appoints the Chief
Executive Officer under the new arrangements.
This item is a transitional provision. It provides
that the person who is Chief Executive Officer of ANZFA when Part 1 of Schedule
1 of the Bill commences will remain as Chief Executive Officer of FSANZ for six
months, or until the Board re-appoints that person to that office, or until the
Board appoints another person to that office, whichever first happens. This is
to ensure an orderly transition to the new arrangements. It may take some time
for the Board to make a decision regarding the Chief Executive Officer
appointment.
This item substitutes the reference to the
Authority in subsection 52B(2) with a reference to the Board. It means that the
Chief Executive Officer of the Authority is subject to the direction of the
Board when administering the Authority and controlling its
operations.
This item adds a new subsection (3) to section 52B.
The new subsection lists matters that the Board cannot delegate to the Chief
Executive Officer.
These items amend sections 52D, 52E and 52F
respectively to refer to the Board and not to the Minister. This is because the
new Board will be responsible for determining the remuneration of the Chief
Executive Officer (in the absence of a determination by the Remuneration
Tribunal), as well as any other terms and conditions of that office. It will
also accept any resignation by the Chief Executive Officer.
This item is a transitional provision. It carries
over the terms and conditions of the current CEO for the CEO of FSANZ, until the
Board makes a new determination in respect of these matters.
This item substitutes the reference to the Minister
in section 52G with a reference to the Board. The Board, and not the Minister,
is to appoint any acting Chief Executive Officer of the Board.
This item is a transitional provision. It ensures
that if someone is acting as Chief Executive Officer of ANZFA during a vacancy
immediately before the commencement of Part 1 of Schedule 1 of the Bill, that
person will continue as acting Chief Executive Officer of FSANZ for six months,
or until the Board terminates that person’s appointment, or the Board
appoints that person or another person to the office of Chief Executive Officer,
whichever first happens. This is to ensure an orderly transition to the new
arrangements.
This item is also a transitional provision. It
makes parallel arrangements to those referred to in item 155 for persons acting
as CEO during the absence of the CEO, or because for any reason, the CEO is
unable to perform the duties of this office. This is to ensure an orderly
transition to the new arrangements.
These items substitute the references to “an
inquiry” in section 61 and 62(1) with a reference to a final assessment
(see discussion at Item 40).
This item substitutes the reference to a
“member of the Authority” in subsection 62(2) with a reference to a
“member of the Board” (see discussion at item 116).
This item amends subparagraph 63(1)(a)(ii) to
provide that a decision by the Authority to reject an application for a standard
to be developed urgently is a decision that is reviewable by the Administrative
Appeals Tribunal.
This item substitutes the reference to the New
Zealand Minister in section 65A(1) with a reference to the New Zealand lead
Minister on the Council. This means that the New Zealand lead Minister on the
Council is the minister who is to agree to the fees the Authority may charge for
services provided to New Zealand.
This item repeals subsection 65A(2). The definition
of New Zealand Minister is no longer necessary.
This item is a transitional provision. It ensures
the continuation of the latest agreement made under section 65A in relation to
the fees for services provided to New Zealand, until a new agreement is agreed
to by the Authority and the New Zealand lead Minister on the
Council.
This item substitutes the reference to
“adoption” in paragraph 66(9)(a) with a reference to “coming
into effect”. This is because under the new regulatory arrangements
standards will no longer be adopted by a Ministerial Council.
This item repeals section 67. It substitutes a new
section 67 that lists the matters that the Board cannot delegate to a member of
the Board or to a member of the staff of the Authority. The amendment ensures
that all the important decisions that the Act provides must be made by the
Authority (for example, to approve standards) are to be made by the Board
itself. If the Board decides to delegate any of its remaining delegable powers
to an Authority staff member, it can only delegate it to a person who is
performing the duties of an Executive Level 2 position, or a more senior
position.
These item amends section 68 to provide that an
action or proceeding may not be taken against a member of the Board, rather than
of the Authority, in relation to the performance of its functions.
This item amends subsection 68(2) to take account
of the new arrangements whereby standards will no longer be adopted by a
Ministerial Council, but instead will be approved by the
Authority.
This item is a transitional provision. It ensures
that members of FSANZ are still exempt from suit after the new arrangements
commence.
This item changes the reference to a particular
section to refer to the new, equivalent section.
This item includes a number of new matters about
which particulars must be included in the Annual Report, including policy
guidelines formulated by the Council and notified to the Authority. Also to be
included is information regarding the numbers of reviews requested by the
Council, and the numbers of occasions when a standard or variation was revoked
or amended by the Council. Additional matters that are specified in the
regulations may also be included. This will enable additional matters to be
included as necessary, to take account of the new regulatory
arrangements.
These items are transitional provisions. They make
it clear that the new Board is responsible for completing the Annual Report of
ANZFA if it is not completed by ANZFA before the commencement of the new
arrangements.
This item is a transitional provision. It deals
with how FSANZ is to deal with the situation where ANZFA has made a
recommendation to the Australia New Zealand Food Standards Council (ANZFSC) in
relation to a standard or variation, but ANZFSC has not yet made a decision in
relation to that recommendation before FSANZ commences operation.
Such standards or variations are to be
dealt with as if the Authority had approved the draft, or approved it with any
amendments it had recommended the Council make to it, and had notified the
Council that it had approved the draft, or draft as amended. The Council may
then either notify the Authority that it does not intend to request that the
approved draft be reviewed, or request that the Authority review the draft, or
reject the draft, in accordance with the usual Council review procedures set out
in the new Act.
If 60 days pass after Part
1 of Schedule 1 to the Bill commences, and the Council has does none of these
things, the Authority is to publish the standard or variation in accordance with
the usual publication requirements. Under those requirements, it will commence
on the date specified in the gazettal notice.
FSANZ is to provide a list of these
outstanding draft standards or variations for the Council as soon as item 174
commences so that the Council will be made aware of these transitional
arrangements.
This item is a transitional provision. It deals
with applications pending immediately before Part 1 of Schedule 1 to the Bill
commences. The transitional arrangements for these applications are “start
over” arrangements. However, the Authority will be able to omit to redo
those stages in the standards development process that have already been done by
ANZFA, provided it reviews them having regard to any new submissions it receives
and any new policy guidelines made by the Ministerial Council for the purposes
of section 10(2)(e).
This transitional arrangements are for
“live” applications, that is, applications received by ANZFA that
have not been withdrawn, and if in relation to which a draft has been prepared,
a recommendation relating to that draft has not been made to
ANZFSC.
Such
applications will lapse at the time Part 1 of Schedule 1 to the Bill commences,
and the Authority is not to action them except in accordance with item 175. This
means that even if, for example, the application was at the inquiry stage, it is
to be dealt with as “fresh application” in accordance with item 175
as if it had just been received. However, item 175 makes provision for the new
Authority to still have regard to all submissions that had been made in relation
to the application under the current Act, and provides the applicant with an
opportunity to give the Authority additional information to support the
application. The additional time allowed for the applicant to provide such
information (28 days) will not be included in the time period for processing of
the application.
The normal timeframe of 12
months for the processing of an application from the receipt of the application
to the time of making a recommendation to Council will be extended a further
three months for such “fresh applications”. This additional time
applies whether or not the applicant has requested the Authority to defer making
a decision whether or not to accept the application to enable the applicant to
provide more information.
Notices seeking
submissions at the draft and final assessment stages for the processing of
“fresh applications” will explain that the Authority will have
regard to submissions previously received by ANZFA.
This item also sets out what is to happen
in relation to charges paid for services that have already been paid by
applicants under the Act as in force before the commencement of this item. If
the charge was in relation to a service that has already been provided, the
applicant will be deemed to have paid the Authority the charge for the
corresponding service in relation to the fresh application. If the service has
not already been provided, the Authority is to refund the amount paid unless the
applicant elects to treat the payment as fully discharging the applicant’s
liability to pay the Authority the charge fixed for the corresponding service in
relation to the fresh application.
This item is a transitional provision. It parallels
item 175 except that it deals with proposals.
This item enables regulations to be made for
matters of a transitional nature relating to any of the amendments made by Part
1 of Schedule 1.
This item makes a technical correction to
subsection 7(2) to remedy an incorrect reference made by the last amending Bill.
The reference to paragraph (1)(n) in that paragraph will now correctly refer to
“paragraph (1)(o).”
This item makes a technical correction by adding at
the end of section 3 an explanation of what is meant by an
“amendment” of the standards in the Australia New Zealand Food
Standards Code, and clarifies that a “variation of a food regulatory
measure” includes, and always has included, the revocation of a food
regulatory measure.
This item substitutes the correct reference in
paragraph 12B(2)(b) to the section under which a draft assessment is
made.
These items make five minor technical corrections
to remedy some minor drafting errors.
This item inserts the correct reference to the date
of the Public Service Act (1999) in subsection 2(4) of that amending
Bill.
This item substitutes the reference in subsection
7(2) of the Agricultural and Veterinary Chemicals Act 1994 to the Australia New
Zealand Food Authority Act 1991 with a reference to the new name of that Act,
the Food Standards Australia New Zealand Act 1991 (see item 2 of Part 1 of
Schedule 1).
This item repeals paragraph 138(5)(b) of the Gene
Technology Act 2000 and substitutes a new paragraph that refers to the new name
of the Act, the Food Standards Australia New Zealand 1991(see item 2 of Part 1
of Schedule 1).
This item substitutes the definition of
“Australia New Zealand Food Standards Code” in subsection 3(1) of
the Imported Food Control Act 1992 with a new definition that provides that it
has the same meaning as in the Food Standards Australia New Zealand Act 1991.
Item 4 of Part 1 of Schedule 1 amends the definition of the Australia New
Zealand Food Standards Code in that Act. This amendment will ensure that the
Imported Food Control Act 1992 picks up that change.
This item substitutes a new subparagraph 3(3)(a)(i)
in the Imported Food Control Act 1992 so that it refers to standards made under
the new food regulatory reforms as well as those adopted by the Australia New
Zealand Food Standards Council.
This item makes a minor amendment to subparagraph
3(3)(a)(ii) of the Imported Food Control Act 1991 to omit an unnecessary
reference.
This item amends the definition of “food
additive” in subsection 7(1) of the Industrial Chemicals (Notification and
Assessment) Act 1989 to update the current reference to the Food Standards Code
so that it refers to the Australia New Zealand Food Standards
Code.
This item substitutes the reference to the
Australia New Zealand Food Authority Act 1991 in the definition of “food
additive” in subsection 7(1) of the Industrial Chemicals (Notification and
Assessment) Act 1989 with a reference to the new name of the Act, the Food
Standards Australia New Zealand Act 1991 (see item 2 of Part 1 of Schedule
1).
This item substitutes the reference to the
Australia New Zealand Food Authority Act 1991 in the definition of
“therapeutic goods” in subsection 3(1) of the Therapeutic Goods Act
1989 with a reference to the new name of the Act, the Food Standards Australia
New Zealand Act 1991 (see item 2 of Part 1 of Schedule 1).