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CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
Australia and New Zealand Food Authority Amendment Bill
1999 [No.2]
Date Introduced: 14 October 1999
House: House of Representatives
Portfolio: Health and Aged Care
Commencement: With the exception of
Item 13 the legislation commences on Royal Assent.
Item 13, which states that a food standard may
relate to a type of food generally or a particular brand of food,
will be taken to have commenced on 30 July 1998.
This Bill
proposes amendments to the Australia New Zealand Food Authority
Act 1991 based upon recommendations from the Food Regulation
Review, the National Competition Policy Review of the
Australian New Zealand Food Authority Act 1991 (the Act)
and the Review of the State and Territory Food Acts. The Bill
introduces an objectives section for the Act and recasts the
objectives of ANZFA. While health, safety and the protection of the
community remain priorities, the Authority will be required to
explicitly consider the costs and benefits of regulation. The Bill
streamlines the consultation process for minor amendments to
standards and allows ANZFA to decline to refer draft food standards
to the Ministerial Council where they deal with issues of minor
significance. This power is subject to the Council's capacity to
overrule these decisions. The Bill also allows ANZFA to charge for
services in certain circumstances.
This Bill is identical to the Australian and New
Zealand Food Authority Amendment Bill 1999 that was introduced into
the Senate on 31 March this year. The Bill was examined by the
Senate Community Affairs Legislation Committee (SCALC) which
reported in August.(1) The Committee split 3-3 with the Opposition
and the Democrats recommending a number of amendments to the Bill.
None of these recommendations have been taken up.
Australian and New Zealand Food
Authority
The Australia New Zealand Food Authority (ANZFA)
is primarily responsible for developing, varying and reviewing
standards for food available in Australia and New Zealand. Food
standards may prescribe a range of matters including: food
composition, use of additives, production, storage, handling,
maximum levels of environmental contamination including heavy
metals and pesticide residues, labelling and advertising.(2) ANZFA
also has responsibility for: co-ordinating national food
surveillance and recall systems, conducting research, assessing
policies about imported food and developing codes of practice with
industry.
ANZFA does not have responsibility for the
implementation or enforcement of food standards. Recommendations
made by ANZFA on draft food standards or draft variations of
standards and the implementation and operation of uniform standards
are considered by the Australia New Zealand Food Standards Council
(ANZFSC). The Council is composed of Health Ministers from the
Commonwealth, States and Territories as well as the New Zealand
Health Minister. ANZFSC may adopt, amend or reject ANZFA's
recommendations or return them for reconsideration. Under the
scheme, once a standard has been adopted by ANZFSC it is adopted by
reference under State, Territory and New Zealand legislation.
(3)
Item 1 amends the title of the
Act to state that ANZFA has functions relating to food regulatory
measures. This replaces the narrower formulation of 'food
standards' and reflects the Bill's promotion of voluntary codes of
practice as an alternative to prescriptive standards.
Item 2 inserts a new section
which outlines the objects of the Act. This follows from a
recommendation of the National Competition Policy (NCP) Review. The
review argued that the inclusion of an 'objects' clause in
legislation provides the following benefits.
Public transparency to ensure the content of
regulation is consistent with the objectives which in turn should
reflect the nature of problems being addressed by the
regulation
A concise statement to the administering agency
of its role which provides guidance in administering each of its
particular functions
A basis for an administering agency to develop
benchmarks against which it can measure its performance and
A level of public accountability by
administering bodies.(4)
The proposed objects inserted by Item
2 include that:
-
- people enjoy the benefit of equivalent public health protection
in relation to food throughout Australia and New Zealand
-
- adequate information relating to food is provided to enable
consumers to make informed choices about food
-
- decisions of the business community are not distorted, and
markets are not fragmented, by variations in the laws in force in
Australia and New Zealand in relation to standards
-
- a framework for minimum but effective regulation of food is
provided, and
-
- consistency between domestic and international food regulatory
measures is promoted.
The are some distinctions between these objects
and those recommended by the NCP review. Significantly, the Bill
provides that the ANZFA Act should ensure that 'a framework for
minimum but effective regulation of food is provided'. In addition,
the Bill substitutes the objective of promoting consistency between
domestic and international food regulatory measures for the
Review's suggestion that the Act give effect to 'Australia's and
New Zealand's international treaty obligations and national
co-operative arrangements in relation to food.' It may be argued
that the objective in the Bill is more vague and less onerous than
that suggested by the review.
Item 8 inserts a new definition
of food based on the recommendation of the Review of State and
Territory Food Acts in 1998. The definition of food is a
demarcation line between the jurisdiction of ANZFA and the
Therapeutic Goods Administration. The proposed definition
includes:
-
- any substance or thing capable of being used for human
consumption
-
- any substance or thing capable of being used as an ingredient
or additive in an item used for human consumption
-
- a substance used in preparing something for human
consumption
-
- chewing gum and
-
- a substance declared by the Minister to be food under
proposed section 3B.
Ministerial declarations are subject to
Parliamentary Disallowance. Food does not include therapeutic goods
within the meaning of the Therapeutic Goods Act 1989.
Item 9 implements a rewrite of
ANZFA's functions by inserting proposed subsection
7(1). The NCP Review stated that the existing section 7
does not reflect the importance that should be given to alternative
regulatory measures such as codes of practice as a means to reduce
the regulatory burden.(5) Proposed section 7 makes
it clear that Codes of Practice will not be referred to ANZFSC for
approval. This is because codes of practice are not legally
binding.
The NCP Review found that while the introduction
of the ANZFA Act has achieved uniformity of food standards,
differing interpretation by State and Territory agencies is adding
unnecessarily to compliance costs.(6) In order to deal with this
issue, proposed section 7 provides ANZFA with
responsibility for developing guidelines to assist the
interpretation of the Australia and New Zealand Food Standards Code
and a specific function to harmonise State and Territory food
standards.
The Bill rejects NCP Review Recommendation 27
that a new section 7A be inserted to guide ANZFA in the performance
of its functions. The recommended section would have stated that
'in carrying out its regulatory functions contained in section 7,
the authority must consider whether the benefits to the community
as a whole will outweigh the costs and whether there are not
alternatives which are more cost-effective in achieving such
benefits.' The effect of not proceeding with this amendment is
probably minimal as a similar phrase is contained in the
proposed section 10 which deals with ANZFA's
objectives in developing standards (see below).
Section 8 outlines the powers of ANZFA.
Item 11 amends the section by changing 'standards'
to 'food regulatory measures' reflecting the new emphasis on ANZFA
responsibilities in relation to codes of practice.
Section 9 contains a list of matters that may be
included in food standards. These matters are greatly expanded by
Item 12 to include standards relating to:
-
- the knowledge, skill, health and hygiene requirements for
people dealing with food
-
- the responsibilities of businesses that are dealing with food
relating to any hygiene requirements
-
- the design, construction, maintenance and cleanliness of:
-
- premises (including fittings and fixtures) at which food is
dealt with; or
-
- equipment (including single use items) used to deal with food;
or
-
- vehicles used to transport food
-
- the information that a business that deals with food may be
required to give about the business to State or Territory
authorities
-
- restrictions on the premises at which, and the persons by whom,
particular food may be sold or otherwise supplied
-
- requirements relating to animals and pests at premises in which
food is dealt with, or in vehicles in which food is transported,
and
-
- such other public health matters relating to food as are
prescribed.
Proposed section 9A provides
that codes may only deal with matters that may be the subject of
standards. According to the Explanatory Memorandum this is
to ensure that ANZFA only makes codes of practice in relation to
its areas of expertise.(7) It may also be argued that the fact that
codes and standards deal with the same subject matter encourages
ANZFA (and others) to view the two types of food regulatory
measures as substitutes.
Item 16 provides for a rewrite
of ANZFA's objectives in the use of its powers in developing
standards and codes. Under the proposed section 10
ANZFA's top priority will remain the protection of public health
and safety. A secondary objective will be the prevention of
misleading and deceptive conduct. Several matters(8) which formerly
were objectives in setting standards are now matters to be taken
into account developing food standards but are no longer objectives
in their own right. There is an apparent incongruity between the
objectives of ANZFA under proposed section 10 and
those in proposed section 2A which sets out the
objects of the Act. It is an object of the Act to ensure that, by
means of the establishment and operation of ANZFA, adequate
information relating to food is provided to enable consumers to
make informed choices about food. However this is not an objective
of ANZFA in developing food regulatory measures under new
section 10. It is merely a matter to which ANZFA must have
regard.
Part 3 of the Act deals with
the development and variation of standards. Standards may be
developed as a result of an application to ANZFA (Part 3 -Division
1) or on ANZFA's initiative (Part 3 -Division 2). Amendments to
Part 3 ensure that codes are subject to the same
processes during their development as standards.
The Food Regulation Review recommended that
ANZFA and ANZFSC should 'streamline its standards-setting process,
wherever possible, without compromising its ability to consult
appropriately on the impacts of new and amended standards'.(9)
Item 20 amends section 12 of
the Act providing that applications for the development or
variation of a food regulatory measure must be accompanied by
charges fixed under section 66 of the Act. Charges may cover
preliminary assessment of the application and notices given in
relation to the application.
Proposed section 13 states that
ANZFA must make a preliminary assessment of matters in a food
regulatory measure. The Authority is required to perform a
cost-benefit analysis of the proposed measure and determine whether
other measures (available to the Authority or not) would be more
cost effective. After making this preliminary assessment, the
Authority must accept or reject the application. Applicants must be
notified in writing. A charge paid in relation to an application
must under proposed section 13A be refunded if it
is rejected.
Proposed Section 14 requires
that if an application is accepted the Authority must publicly
invite submissions. The present notice
requirements require the authority place advertisements in the
Gazette and the New Zealand Gazette. In contrast, under
new section 14 the Authority can
decide the appropriate manner of providing public notice.(10)
Proposed section 15 deals with
the manner of assessing applications received by ANZFA. It largely
repeats the existing provisions with the exception that it provides
that no assessment should be made without payment of a charge fixed
under section 66. Proposed subsection 15(3)
provides that in making an assessment of an application, ANZFA must
have regard to submissions, the list of objectives in section 10
and also, for the first time, whether the costs that would arise
from a food regulatory measure would outweigh the benefits to the
public and whether any alternatives to regulation would be cost
effective.
Under proposed section 15A,
ANZFA must refund fees paid by persons who unsuccessfully apply to
have a standard made. Several submissions to the Senate Committee
argued that this requirement had the potential to undermine ANZFA's
independence by creating perceptions that the Authority may be
influenced by the need to secure its funding.(11)
Proposed section 17B is
designed to streamline the development of codes. It provides that
following an inquiry, ANZFA must approve or reject a draft code of
practice or an amendment to a draft code. As codes of practice are
not legally binding, it is not considered necessary to refer them
to ANZFSC.(12)
The Bill also contains provisions which enable
ANZFA to make determinations which were previously the preserve of
the Council (see proposed Division 1A). Under
proposed section 20A ANZFA may deal with less
significant applications for draft standards or variations where
the draft standard raises issues of minor significance or
complexity and the Council has approved a general approach to apply
in such cases. Such standards will, under proposed
section 20C, be taken to have been adopted by the
Council if no member objects within 28 days of ANZFA giving the
Council written notice of its decision.
Division 2 deals with proposals by ANZFA for the
development and variation of food regulatory measures. In assessing
such proposals ANZFA must, under proposed section
15, consider whether the costs that would arise from a
food regulatory measure would outweigh the benefits to the public
and whether any alternatives to regulation would be cost
effective.
Proposed section 25 provides
that ANZFA must approve or reject codes of practice.
Item 34 inserts new
Division 2A. The new division mirrors proposed
Part 3 Division 1A where the Authority is
empowered to deal with less significant proposals for draft
standards. Proposed section 28A covers situation
where the Authority has developed a draft standard. After holding
an inquiry to consider the draft standard, ANZFA may decide that it
need not make a recommendation to the ANZFSC because the standard
raises issues of minor significance or complexity; and the Council
has approved a general approach to be applied in such cases.
If a Council member does not disagree with
ANZFA's decision within 28 days, the Council is taken to have
approved of the decision (new section 28 C).
Item 36 provides that standards
that are taken to be adopted by the Council under proposed
section 20B or 28B must be published in the
Gazette or the New Zealand Gazette. There appears to have
been a minor drafting error here in that proposed sections
20C and 28C are the relevant provisions
(ie the provisions which deem Council approval of the Authority's
decisions).
Item 50 seeks to insert a
new section 36(1) to facilitate the process of
'fast-tracking' proposals or applications for food regulatory
measures. The section enables ANZFA to decide to omit to do any
matter or matters required by Part 3 (other than conduct a
preliminary or full assessment) where it is satisfied that omitting
to do the thing will not have a significant adverse effect on the
interests of anyone, or the issue raises issues of minor complexity
only. It does not, however, give any guidance on the matters that
may be considered to be of 'minor significance' by ANZFA. The
proposed new section requires ANZFA to give written notice of its
decision to the applicant, appropriate government agencies and
bodies or persons who have made submissions.
The Australia New Zealand Food Authority
Advisory Committee advises on matters referred to it by the
Authority or by the States or Territories or New Zealand.
Item 55 allows the advisory committee an expanded
role. Section 42(3) of the Act, which prevents the Food Advisory
Committee from advising on an application unless it has been
referred to the committee by ANZFA is repealed. According to the
Explanatory Memorandum(13), the amendment
reflects the expanded role that the Committee has already taken
on.
Item 63 repeals the existing
section 66 which provides for regulations to impose fees for
services. Proposed section 66 states the
regulations may provide that ANZFA can charge a fee for the use of
its facilities as well its services. Reflecting the move to cost
recovery, the amendment also provides that payments are to be made
to ANZFA rather than the Commonwealth. It is not the Government's
intention that ANZFA operate as a business entity. In her
Second Reading Speech, the Minister stated that 'the
Authority will only be able to recover its costs and will not be
able to make a profit.'(14)
At this stage, the size of the proposed fees is
not known. It is possible that large fees may deter consumer groups
from making applications for the development of standards. The
current section 66 provides that regulations may prescribe
circumstances in which the Authority may waive fees that would
otherwise be payable. There is no equivalent to this provision in
the Bill. Although proposed section 66C does
provide that the regulations may provide for remissions and
refunds, the requirement to pay an up front fee may act as a
deterrent to some community groups.
An appropriate framework for food regulation
involves balancing an array of potentially conflicting
considerations. The new 'objectives' clauses contained in the Bill
represent an attempt to alter the balance. The philosophy
underlying the Bill is that the Act currently gives primacy to the
benefit of protecting of public health without acknowledging costs
imposed on business.
The Proposed section 10 largely
mirrors recommendation 25 of the NCP review. However, a different
form of words is used to convey the requirement that in developing
standards ANZFA must make an assessment of the risks raised. The
NCP calls for the systematic application of public health risk
assessment, including the best available scientific data and risk
principles where the Bill speaks of the need for standards to be
based on risk analysis that uses sound scientific principles. The
distinction between these two formulations is not entirely clear.
The underlying basis of the provision however is that in some cases
it may be impossible to guarantee complete safety and that
standards may be set at a level which represents what is perceived
by ANZFA to be an acceptable level of risk to public safety.
Recent overseas experience with genetically
modified foods has raised concerns about the rigour of risk
assessment processes employed by food regulators.(15) It should
also be noted that there are no laboratories at ANZFA(16) and that
data for its assessment of food is based predominantly upon
information provided by food companies and overseas agencies.
Some submissions to Senate Community Affairs
Legislation Committee were critical of the proposed role of codes
of practice. Concern was expressed at the lack of any enforcement
capacity in relation to codes and practice, and at the possibility
that codes may become substitutes for standards.(17) To address the
problem, the minority report recommended that the Bill should be
amended to clarify how extensively codes of practice are to be
applied and how enforcement of such codes is to be achieved.
While it may be true that it is impossible to
guarantee that food products are completely safe, the Bill's
promotion of 'light touch' regulation in the form of codes of
practice may raise concerns that the pursuit of efficiency,
consistency and trade may come at the expense of public health. For
example, it is possible that the promotion of consistency between
International and Australian regulations may mean a reduction in
Australian food standards. Public concerns on this issue may be
addressed by an amendment to the effect that harmonisation is only
to be pursued to the extent that it does not undermine current
Australian food standards.(18)
The measures in the Bill, which enable ANZFA to
make minor amendments to food standards without reference to the
Council may provide enhanced flexibility. They seek to prevent the
Council being tied down by matters that can capably be handled by
ANZFA. As the Minority and Dissenting Reports note however, the
Bill arguably does not provide ANZFA with sufficient guidance in
determining whether a particular matter comes within the minor
matters exemption.(19) The suggestion that the exemption should be
limited to proposals where a third party had not raised concerns
would appear to deal with this concern.
The removal of restrictive notice provisions
should enable ANZFA to perform its functions more speedily.
However, the reaction of interested persons may need to be
monitored to ensure that the methods of public notification chosen
by ANZFA are adequate.
- Senate Community Affairs Legislation Committee, Australia
and New Zealand Food Authority Bill 1999.
- See section 9 Australia and New Zealand Food Standards Act
1991.
- Food Regulation Review (W. Blair - Chair), Food: a growth
industry, August 1998, Commonwealth of Australia.
- ibid p. 119.
- ibid p. 128.
- ibid p. 129.
- p. 10.
- For example, promoting fair trading in food, fostering trade
and commerce in the food industry, ensuring consumers have adequate
information to make informed choices about food and consistency
between domestic and international food standards.
- Food Regulation Review (W. Blair - Chair), Food: a growth
industry, August 1998, recommendation 17(a), Commonwealth of
Australia.
- Explanatory Memorandum p. 12.
- See Monash Centre for Population Health and Nutrition,
Submission No.3 at 4 and Organic Federation of Australia,
Submission 11 at 5. Opposition senators recommended that the Bill
should be amended to ensure that 'there should not be a financial
incentive for ANZFA to approve a potentially risky productto secure
its own budget'. See SCALC Report, p. 14.
- Explanatory Memorandum p. 13.
- p. 16.
- Second Reading Speech, House of Representatives,
Hansard, 14 October 1999, p 11563.
- US and UK food authorities failed to require testing of
genetically modified soya beans for chemical changes after they
were sprayed with herbicide. See 'Doubts Raised over the safety of
GM soya beans' Canberra Times, 25 May, 1999.
- See R. Polya, 'Genetically Modified Foods - Are We Worried
Yet?', Current Issues BriefNo 12 1998-99, p. 15,
Department of the Parliamentary Library.
- Public Health Association of Australia, Senate Community
Affairs Legislation Committee Public Hearing, Committee Hansard, 25
June 1999 at 10. See also Monash Centre for Population Health and
Nutrition, Submission No.3 at 5.
- Such an amendment was proposed in the Dissenting Report of
SCALC, p.19.
- Senate Community Affairs Legislation Committee, Australia
and New Zealand Food Authority Bill 1999, Minority Report at
16, Dissenting Report at 29.
Mark Tapley
17 November 1999
Bills Digest Service
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