Australia New Zealand Food Authority Amendment Bill 2001
April 2001
© Parliament of the Commonwealth of Australia 2001
ISSN 1440-2572
View the report as a single document - (PDF 136KB)
View the report as separate downloadable parts:
For further information, contact:
Committee Secretary
Senate Standing Committees on Community Affairs
PO Box 6100
Parliament House
Canberra ACT 2600
Australia
MEMBERSHIP OF THE COMMITTEE
Members
|
Senator Sue
Knowles, Chairman
|
LP, Western Australia
|
|
Senator Lyn
Allison, Deputy Chair
|
AD, Victoria
|
|
Senator George
Brandis
|
LP, Queensland
|
|
Senator Kay
Denman
|
ALP, Tasmania
|
|
Senator Chris
Evans
|
ALP, Western Australia
|
|
Senator Tsebin
Tchen
|
LP, Victoria
|
Substitute
Member
|
Senator Michael
Forshaw for Senator Evans
for the Committee’s inquiry into the Bill
|
ALP, New South Wales
|
Report
AUSTRALIA NEW ZEALAND FOOD AUTHORITY AMENDMENT BILL 2001
THE INQUIRY
1.1
The Australia New Zealand Food
Authority Amendment Bill 2001 (the Bill) was introduced into the Senate on 8 February 2001. On 28 February 2001, the
Senate, on the recommendation of the Selection of Bills Committee (Report
No. 2 of 2001), referred the Bill to the Committee for report by 29 March 2001.
The reporting date was subsequently extended to 3 April 2001. The matters referred to the Committee for inquiry were whether major
changes to the operation of the Australia New Zealand Food Authority (ANZFA)
were proposed without any public consultation and whether changes proposed to
the Ministerial Council and the ANZFA Board potentially conflict with ANZFA’s
public health and safety objective.[1]
1.2
The Committee received 12
submissions. These are listed at Appendix 1 and may be accessed through
the Committee’s web site at: https://www.aph.gov.au/senate_ca The
Committee held a public hearing on 29 March 2001 and details are listed in
Appendix 2.
THE BILL
2.1 The Bill 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.[2] The changes
reflect the new food regulation arrangements set out in the Inter-governmental
Food Regulation Agreement[3] (IGA) agreed
to by members of the Council of Australian Governments (COAG) on 3 November
2000.[4]
2.2 The Bill seeks to:
-
establish a new statutory authority, Food
Standards Australia New Zealand (FSANZ) which is to be based upon the existing
ANZFA;
-
establish a new Board to administer FSANZ with
membership composition different to the current ANZFA Board. The Board will be
comprised of a Chairperson, the Chief Executive Officer, 2 members nominated by
the New Zealand lead Minister on the Council, a member who has a background in
consumer rights, and not fewer than one, nor more than 5, other members;
-
give legislative recognition to the new
Ministerial Council established by the IGA, the Australia New Zealand Food
Regulation Ministerial Council (based on the existing Council of Health
Ministers);
-
amend the functions of FSANZ to provide for the
development, review and approval of standards which are to be notified to the
Ministerial Council;
-
indicate that the role of the new Ministerial
Council will be to develop domestic food regulation policy and policy
guidelines for setting domestic food standards;
-
indicate that the new Ministerial Council may
direct FSANZ to review any standard or reject any proposed draft standard;
-
amend the procedure for publication and
notification of standards and variations of standards; and
-
make consequential and transitional arrangements
from ANZFA to FSANZ. [5]
2.3Other elements of the new food regulatory
system that do not require legislative change include the establishment of a
Food Regulation Standing Committee to support the Council and a mechanism
established by the Ministerial Council for the provision of stakeholder advice
by interested parties.
ISSUES
Major changes proposed to the operation of ANZFA
and public consultation
3.1 Some
organisations expressed concern about the level of consultation in the post
Blair Review period and the drafting of the Bill. [6]
The Committee carefully considered this issue with all witnesses during its
public hearing.[7]
3.2 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’.[8]
The Blair Review involved extensive public consultation with all stakeholders
including government, industry, business, consumers and the community in
general.[9] In addition, the Blair Review
received over 170 submissions and conducted numerous public hearings and
workshops.[10] The new food regulatory
system was subsequently developed through a formal process established by COAG
Senior Officials to develop a whole-of-government response to the Blair Report
recommendations. The process involved consultation with all relevant
Commonwealth and State/Territory Government Departments, as well as with the
New Zealand Government. Key food
industry organisations representing all parts of the food supply chain and
consumer and public health groups were informally consulted during the process
of developing the model.[11]
3.3 The Department of Health and Aged Care
(DHAC) advised the Committee that the usual process for developing legislation
was followed in relation to this Bill:
...I would venture, from my experience, that is typically the
case. In other words, there is a report, a public inquiry process and
negotiations between jurisdictions; they take a decision; and then it gets
transcribed into legislation, and often then there is a detailed consultative
process about the bits and pieces.[12]
3.4 Other
organisations advised the Committee that they felt appropriate levels of
consultation had occurred.[13] The
Australian Food and Grocery Council (AFGC), for example, detailed its
contribution to the process:
We have made representations to government on the basis of the
recommendations. We were heavily involved - in fact, we were even represented
on the so-called steering committee of 37 and we made representations and
submissions. I think we also made further submissions to government on the
basis of the Blair review recommendations, and we have had ad hoc discussions
at the officials’ level with the department of health on those arrangements. We
were not intimately involved in the discussions and the negotiations and nor
would we expect to be, between the jurisdictions.
The submissions we made to the department were in response to a
call for submissions by the department, by the regulatory reform task force.
Indeed, the one to ANZFA was also made in the courses to submissions. I am
quite certain that other stakeholders would have been made aware of those
reviews.
...when we were approached by the department of health to be given
a briefing on what was transpiring, they said quite categorically that it was
one of a series of briefings that they were giving to a number of stakeholder
groups.[14]
3.5 Taking all
the evidence into account, the Committee is satisfied that extensive public
consultation has taken place in relation to the development of the food
regulation arrangements comprised in the Bill and the IGA.
The Ministerial Council and FSANZ Board: the public
health and safety objective
3.6 Some
organisations expressed concern that the proposed changes to the Ministerial
Council and FSANZ Board might conflict with the public health and safety
objective contained in section 10 of the Act.[15]
Membership of the Ministerial Council
3.7 Concern about
the new Ministerial Council relates to the decision by COAG, embodied in the
IGA, to allow Ministers responsible for portfolios other than health to be
members of the Council. The IGA provides that the Ministerial Council shall
consist of one or more members representing each jurisdiction (Commonwealth,
States, Territories and New Zealand). One member from each jurisdiction must be
the Minister for Health. Such other members with relevant responsibility as are
nominated by each jurisdiction may also be included on the Council.
Significantly, however, the Council will be chaired by the Commonwealth
Minister for Health. As these membership arrangements were agreed to by COAG
(and are not contained in the Bill), they cannot be changed by the unilateral
action of the Commonwealth.
3.8 The principal
concern of some witnesses was in relation to the composition of the new
Ministerial Council and that the inclusion of non-health ministers could be in
conflict with the objective to protect public health and safety and with the
spirit of the ANZFA Act 1991.[16] It was
also claimed that the inclusion of non-health ministers would weaken the
influence of Health Ministers on the Council.[17]
Some amendments were suggested to address the perceived potential conflict
between commercial interests and public health and safety. The Australian
Consumers Association (ACA), for example, advocated that the Bill should be
amended to expressly provide that the State, Territory, Commonwealth and New
Zealand Health Ministers are the lead ministers of the Council and to ensure
that they cannot be substituted by ministerial colleagues from other
portfolios.[18]
3.9 The Committee
notes DHAC’s advice, however, that all jurisdictions have nominated Health
Ministers as their lead minister on the new Ministerial Council. The lead
minister is the only minister who may vote on behalf of a jurisdiction at a
meeting of the Ministerial Council.[19]
Other organisations stressed that the public health and safety objective will
be entrenched in the structure of the regulatory process for the following
reasons:
-
the public health and safety focus of the new
Ministerial Council is assured by arrangements requiring the Chair to be the
Commonwealth Minister for Health;
-
each jurisdiction is to provide representation
that includes a Health Minister;
-
the Secretariat to the Council is to be from the
Commonwealth Health portfolio; and
-
the Ministerial Council must approve
appointments to the FSANZ Board, providing further safeguards for ensuring that
public health and safety considerations remain paramount.[20]
3.10 In addition,
AFFA advised the Committee that through the portfolio Minister’s involvement on
the Council, AFFA will be well placed to assist industry in complying with
regulatory requirements and also to examine alternative cost-effective
co-regulatory approaches to managing food safety.[21]
3.11
The AFGC rejected the proposition that the new
arrangements provide for potential conflicts with public health and safety
objectives, for a number of reasons:
...the legislation’s objectives are clearly enunciated; the checks
and balances in the arrangements are improved; there is greater accountability
imposed upon the ministerial council. Concerns that wider representation in the
processes is a potential source of conflict is based upon a false premise, that
being that the industry’s best interests conflict with public health and safety
objectives; quite the contrary is the case. Rather than dilute the influence of
the health portfolio, might I suggest that it is likely to enhance the health
perspective of other portfolios.[22]
3.12 The Committee
has concluded that the arrangements in relation to the membership of the new
Ministerial Council will not undermine the primacy of public health and safety
in the development of food standards.
Appointment of members to the Board of FSANZ
3.13 Some
organisations expressed concern about the proposed composition of the FSANZ Board
(as outlined in paragraph 2.2). Concerns included that:
-
public confidence in the food supply and food
regulation in Australia may be reduced because of the potential for influence
of commercial, rather than public health interests directing FSANZ operations;[23]
-
the appointment of Board members by nomination
rather than election, could result in public health and consumer interests
being circumvented;[24] and
-
the removal of the current 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, will weaken the
interest of public health and safety.[25]
3.14 DHAC, however, rejected the assertion that
too many Board positions might be allocated to industry. DHAC advised that the new Board arrangements
were intended to reflect the new Ministerial Council arrangements:
...we were essentially trying to broaden the scope.
Hypothetically, it could be stacked with five members all with industry
interests. In my view, no government will do that. They just wanted a broad
possible selection so that they could make expertise based views...
But the overwhelming requirement for this board - and required
by the CAC Act - is to have regard to their legislative responsibilities. In
other words, irrespective of their background, they are to be an expertise
based board and they are to put public health and safety considerations
foremost. In they do not act in terms of the requirements of that act, they are
in some difficulty.[26]
3.15 The AFGC contended that the provisions
equally allow for a majority of the Board members to be community rights
representatives:
It is just nonsense. Anybody who is appointing representatives
to the Board will come through with a balance of people and I expect that those
portfolios will be represented across the Board. No, I do not see there being a
trade expert, a food processing expert, a farming expert, a retailing expert
and any of the others, that making up five industry representatives. I think
that would be a silly outcome.[27]
3.16 The Committee
was also referred to the oversight mechanism provided in the Bill - that is,
the Ministerial Council will oversight the appointment of members of the Board.
The AFGC asserted that it is highly unlikely that the Minister (the Chairperson
of the Council) would appoint members that would weaken the role of the Council
and even more unlikely that the Council would approve such appointments.[28] The AFGC stated that it:
...considers that oversight of the appointment of members of the Board
by the Ministerial Council is an additional and sufficient safeguard to ensure
that no sector or interest group has undue influence on the conduct of the
Board.[29]
3.17
The AFGC also indicated that
there are substantial benefits to be derived from the proposed Board
arrangements:
...rather than dilute the primacy of public health and safety, you
will actually increase the understanding of the other portfolios of its
primacy, and there will be a mutual, supportive cooperative approach in terms
of other portfolios understanding the perspective of other parts of industry
when it is not a matter of public health and safety...[30]
3.18 In relation to
the proposed removal of the current requirement that a Board member be an
officer of a state or territory with responsibility for matters relating to
public health, the DHAC advised this proposal stemmed from the decision to
separate policy from food standard setting responsibilities.[31]
3.19 Another concern
of the ACA was that, whilst the Bill retains a position on the Board for a
member with a background in consumer rights, it does not retain the requirement
in the Act that other members of the Board must have expertise in any one of a
number of specified fields, one of which is consumer rights. The Committee was
assured however, that this drafting anomaly has been identified and will be
rectified by amendment.[32]
Changes to the requirement of Board members to declare interests
3.20 The Bill
proposes to amend section 50 of the Act so that Board members need only notify
the Minister of any ‘material personal interest’ they have in a matter being
considered, or about to be considered. The current requirement of the Act is
that Board members notify the Minister of any ‘direct or indirect pecuniary
interest’.
3.21
Some organisations expressed concern that the proposed
amendment would be less transparent than is currently the case.[33] The Committee was told that the
requirement for personal interest disclosure is important in the current
environment where so much research is funded by industry.[34] The Committee was assured, however,
that the amended disclosure requirement will include pecuniary interests and
Board members will be subject to the same obligations as directors of other
Commonwealth authorities under the Commonwealth
Authorities and Companies Act 1997.[35]
DHAC advised that the proposed new requirements for disclosure are superior to
the current requirements:
The advice from parliamentary council was that that was more
wide sweeping in the onus it put on board members, because a ‘person’ was
generally understood to be an associate, a spouse, a partner or whatever - so
it is broader in its application. ‘Material interest’ covers both pecuniary and
indirect interests, et cetera.[36]
3.22 The Committee
is confident that the proposed arrangements in relation to the composition of
the FSANZ Board will not conflict with the public health and safety objective.
Conclusion
3.23 The Committee
is satisfied that the new arrangements for food regulation, as embodied in the
IGA, and complemented by the provisions of this Bill, will strengthen the
primacy of public health and safety in food regulations. The extensive
consultation that has taken place has resulted in a food regulatory process
that is grounded in sound science. The new streamlined regulatory practice is
consistent with a move toward national uniformity and international best
practice.
RECOMMENDATION
4.1 The
Committee reports to the Senate that it has considered the Australia New
Zealand Food Authority Amendment Bill 2001 and recommends that the Bill proceed.
Senator Sue Knowles
Chairman
April 2001
MINORITY REPORT - AUSTRALIAN LABOR PARTY
AUSTRALIA NEW ZEALAND FOOD
AUTHORITY AMENDMENT BILL 2001
OVERVIEW
The Opposition Senators agree that action is needed to
tighten the regulation of food in Australia. There is also a need to sort out
the problems caused by the overlapping responsibilities and legislation amongst
local, State and Federal jurisdictions and between the various Federal
Ministries and Departments with food and food safety responsibilities.
It is the Opposition’s long held view that any such changes
must ensure that the prime objective of protecting the health and safety of
Australians is not compromised.
The way in which Governments handled the Bovine Spongiform
Encephalopathy issue in the United Kingdom and Europe has resulted in a crisis
of consumer confidence in food safety regulators and food safety in general.
This sentiment has also spilled over from concern about genetically modified
foods to become a general sensitivity about food quality and safety amongst
European and Australian consumers.
The continued health of the food industry depends therefore
on public confidence in food regulation as well as clear, certain and efficient
regulatory arrangements.
This Bill proposes to implement those aspects of a new food
regulatory system that have been agreed by State, Territory and Commonwealth
jurisdictions which require Commonwealth legislative change as a means of
decreasing the regulatory burden on the food sector.
However there are a number of major concerns which should be
addressed if this legislation is to have the desired effect of improving the
efficiency, clarity and certainty of food regulation in Australia while
maintaining public confidence in the system.
As a means of
improving the legislation, the Opposition will move amendments addressing those
concerns when the Bill is debated.
Lack of Public Consultation
In their opening statements and in evidence given to the
Senate Committee the Australian Consumers Association (ACA), the Dieticians
Association of Australia (DAA) and the Public Health Association of Australia
(PHAA), all expressed concern about the lack of consultation on the new food
regulatory model outlined in the Inter Governmental Agreement and underpinned
by the ANZFA Amendment Bill 2001.[37]
The Australian Medical Association supported these concerns.[38]
While the Chair of the Committee attempted to rebut this
evidence by listing the broad public consultation associated with the Food
Regulation Review process (also known as the Blair Review), this response
failed to address the fact that no formal consultation occurred in the 2 years
after that draft report was submitted to COAG.[39]
The objective of the Food Regulation Review was to recommend
to Government 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
final draft report of the Review was released publicly in August 1998.
The Food Regulation Review final draft report was submitted
to the Council Of Australian Governments (COAG) in the same year where a Senior
Officers Working Group was tasked with developing an Inter Governmental
Agreement (IGA) based on its recommendations. This IGA became the basis for the
drafting of the ANZFA Amendment Bill 2001.
By the Department of Health and Aged Care’s own admission,
major changes to the structure of ANZFA, were not outlined in the Food
Regulation Review.[40] Further, the
Department has stated that in the years between the submission of the Food
Regulation Review and the introduction of the ANZFA Amendment Bill 2001, there
was no detailed or formal consultation process with the Australian public or
public health/consumer groups.[41]
In a reference to the way in which the UK Government handled
the BSE situation, the ACA described the lack of consultation process as:
“...herald[ing] a new era in poor
consumer relations, creating a regulatory and public relations nightmare
similar to the United Kingdom’s MAFF regulatory system for food regulation...”[42]
The Australian Food and Grocery Council (AFGC) described
Departmental consultation with its group during the years between the Food
Regulation Review draft report and the introduction of the legislation as
‘fairly ad hoc; nothing terribly structured’. There were two specific
consultations with Departments during that period at the instigation of the
AFGC. [43]
These were described by Mr Hooke as:
“We got to the end of the Blair thing.
With the enormous complexity of issues, I was comfortable with the part I
played. I knew it was going off to the officials’ group. When I had not heard
where that was at, like any dutiful chief executive of an industry organisation
I rang and asked ‘Where are we at?’ ‘Oh, the timing is great. We have just been
working this through. We want to come and talk to you about where we are at.’
That was from a couple of departments, not just health. ‘If that’s heading off
down the track, let us know if it starts running off the rails because we might
like to be involved in a further response and consultation process.’”[44]
This contrasts with the experience of the ACA and the PHAA,
both of which were briefed rather than consulted about the proposed legislation
in January 2001 just prior to its introduction into the Senate.[45] The DAA was not given a briefing.[46]
ANZFA itself was not part of the Senior Officers Working
Group and was only consulted on two or ‘it may have been slightly more’
occasions during the development of the new food regulatory model.[47]
It is of interest to note that the two previous Committee
hearings relating to ANZFA Amendment Bills - the ANZFA Amendment Bill 1996, the ANZFA
Amendment Bill 1997 (heard together) and the ANZFA Amendment Bill 1999 - ANZFA was the only Government witness
and gave detailed evidence on the legislative changes proposed. In contrast, at
this hearing the Authority had subordinated itself to DHAC.[48] In addition ANZFA was not originally
listed to attend the public hearing to provide evidence and its presence had to
be specifically requested by the Opposition.
When asked about the consultation processes with consumer
and public health organisations and peak organisations between the time the
Food Regulation Review went to COAG and its introduction into Parliament, the
Department stated:
“It is often not usual to get a
report and for there to be a whole public consultation process on top of the
public consultation process that went onto that report before the Prime
Minister and the Premiers have taken a decision on that in the COAG context. In
fact, I would venture, from my experience, that is typically the case. In other
words, there is a report, a public inquiry process and negotiations between
jurisdictions; they take a decision; and then it gets transcribed into
legislation, and often then there is a detailed consultative process about the
bits and pieces.”[49]
In the case of the ANZFA Amendment Bill 2001, in contrast to
the Gene Technology Bill 2000 that went through two rounds of public
consultation and a Senate References Committee process, there has been ‘no
detailed consultative process about the bits and pieces’.
The lack of consultation extended to the Committee’s public
hearing where there was considerable confusion generated during the Chair’s
questioning of the first three witnesses in relation to consumer representation
on the FSANZ Board.[50] The Department
made it clear later in the hearing that this confusion arose because while the
Government had been consulted about a pending amendment to the legislation
about consumer representation on the FSANZ Board, the first witnesses and the
other members of the Committee had not.[51]
Protection of Public Health and Safety
Ministerial Council
Changes to the Ministerial Council and the membership of the
FSANZ Board and the introduction of the Precautionary Principle into the
legislation were raised during the inquiry in the context of the ANZFA’s
overriding objective of protecting public health and safety.
It has been acknowledged that the changes to the composition
of the Ministerial Council that allow its membership to be drawn from
jurisdictional ministerial portfolios other than health are governed by the
Inter Governmental Agreement. Amendments to the ANZFA Amendment Bill 2001 are not an appropriate way of addressing
these concerns.[52]
The concerns with the Ministerial Council composition are
two-fold. Firstly, as was the case in UK’s Phillips Report on BSE, there is a
perception that including Ministers from the Agriculture and Trade portfolios
on the Ministerial Council could lead to conflicts of interest in certain
circumstances.[53] This in turn could
put ANZFA’s prime objective of protecting public health and safety at risk. As
the ACA stated:
“...what this bill is proposing was
in place during the outbreak of BSE. The Phillips report and subsequent
government review have concluded that the best place for food regulation is
actually in the department of health, and the food standards agency over there
is completely independent from agriculture and trade now. It was established in
April last year. That, I would say, would be the most persuasive evidence to
show that what we are doing here is at least a decade out of step with overseas
counterparts.”[54]
Secondly, while all jurisdictions (except Western Australian
which is yet to announce its appointments) have put forward the Health Minister
as the ‘lead’ Minister there is no guarantee that this would not change in the
future. In fact, the Department has stated that it was a deliberate decision by
the Prime Minister and Premiers not to designate Health Ministers as ‘lead’
Ministers in either the IGA or legislation.[55]
There is also concern that if the ‘lead’ Minister is not in
attendance at a Ministerial Council meeting, decisions relating to public
health and safety issues may be dealt with by other portfolio Ministers.[56]
The concerns raised about the change in membership of the
Ministerial Council and its effect on potentially watering down ANZFA’s prime
objective of protecting public health and safety have been compounded by
proposed changes to the composition and membership of the FSANZ Board.
The Opposition Senators have significant concerns about
changes to the representation on the Ministerial Council that should remain as
a body of Health ministers.
The FSANZ Board
The Department itself has stated that under the current
proposal there is in theory potential for at least half of the new Board to be
made up of members with industry interests.[57]
The Opposition Senators strongly oppose such an outcome and
will not support any restructuring of the Board that results in an increase in
the representation of the industry groups that are regulated by FSANZ.
The DAA summed up some of the major concerns about this
possibility:
“Industry should certainly be
consulted and listened to when regulations within which it must operate are
being constructed, but we believe strongly that industry should not be in a
position to make the regulations with which they must comply. DAA believes that
it is essential that the public health implications should take precedence over
trade and agriculture in government decision making in this area.”[58]
There is broad agreement amongst all witnesses that the
interests of public health and safety would be best served by a Board that is
independently appointed and science/health-based. As Mr Hooke stated:
“At the end of the day, the
consumers’ confidence and the community’s confidence...in the integrity of the
regulatory processes is paramount. I do not know of any industry board that has
creditability and integrity as its forerunner to what it does that would want
to try and stack the board such that its integrity and its credibility could be
diminished by virtue of it.”[59]
The Public Health Association of Australia highlighted the
required expertise for the FSANZ Board to meet its primary objective of
protecting the health and safety of the Australian public:
“Given that the priority functions
of the Authority are, in relation to food, to protect public health and safety
and to ensure appropriate information to consumers, the essential expertise
that must be on the Board are public health, human nutrition, food science,
food regulation and consumer rights...Expertise that is desirable but not
essential would be that relating to the food industry including primary food
production, food retailing and food processing. The profitability of the food
industry is not the Board’s concern but food expertise is helpful in
understanding the logistics of food handling and the role of the industry in
adhering to food safety standards. It is therefore reasonable to have one
member of the Board with food industry expertise.”[60]
The Food Anaphylactic Children Training and Support
Association (FACTS) further underlined the major expertise requirements of the
Board:
“FACTS asks that the Senate ensure
that any amendment to the ANZFA Act will allow for:
- - Scope for community consultation so that issues important to groups such as
ours can be adequately addressed
- - Provision for consumer
representation on the Board being equivalent or greater than the current
situation
- - Representation of the fields of
medical science, public health, food science, on the Board
- - Provision to establish an expert
panel on allergy matter where required
- - The continued operation of our
food regulatory body under the health portfolio
- - Independence”[61]
One means of achieving independence and ensuring the
predominance of science/ health expertise on the Board, put forward by the DAA,
is to select membership of the FSANZ Board from nominations from key groups
representing the necessary expertise and reduce the number of positions that
can be held by food industry representatives.[62]
This proposal, supported by the PHAA and ACA would also address the AFGC’s
point about the need for a statutory authority that is not subject to the
political will of the incumbent government.[63]
The DAA, the ACA and the PHAA also saw public health
benefits in having a representative of the NHMRC on the Board.[64]
To ensure public confidence in the independence of the
Board, the ACA and PHAA requested that provisions mandating disclosure of Board
members’ direct and indirect pecuniary interests be maintained.[65] There remains a question mark over
whether proposed amendments in the bill in fact strengthen or weaken these
provisions.[66]
Precautionary Principle
The introduction of the Precautionary Principle into the
proposed legislation was raised by the ACA as a means of further strengthening
the role ANZFA plays in protecting public health and safety.[67] As the ACA states:
“I noted in my opening comments
that this bill cannot change the COAG decision, so we need to ensure that
public health and safety can be guaranteed as much as possible in this bill.
One way of doing that is to ensure that the precautionary principle is included
in section 10 of the bill, so that public health and safety is bolstered, if
you like, and there is that extra objective there.”
The preferred form of wording by both the ACA and the DAA
was that contained in the Gene Technology Act 2000.[68]
The AFGC, the Department and ANZFA, however see problems
with the inclusion of the precautionary principle being used in the context of
food regulation. The major concern identified by all groups is over which
definition should or would be used and how it should or would be interpreted.[69]
Finally, concern was raised that in contrast with the
current system, there was a move to restrict public notification of most
information to the Internet only. This was seen by the ACA as inadequate.[70]
Timing and Drafting Errors
In addition to the lack of public consultation on the ANZFA
Amendment Bill 2001, there was concern about the way in which the legislation
was being pushed through the Parliamentary process.
The legislation needs to be passed in time for signing of a
treaty at the end of the winter session, that is the end of June. Despite this
deadline, some five months after the bill’s introduction into the Senate, it
was originally listed for Second Reading Debate on 26 February 2001 - a period
that would not have allowed for sufficient scrutiny of the legislation by
opposition parties.
The process for this Senate Committee inquiry was similarly
rushed with just 3.5 hours of public hearings on 29 March and a reporting date
set for 3 April. This again has not allowed for reasonable scrutiny and
consideration of the evidence put before the Committee.
As the ACA pointed out in its evidence:
“The lack or dearth of consultation
in the ACA’s case about the contents of the bill is compounded by the
inadequate time line that the Senate now has to consider this bill. Due to
inadequate consultation through the drafting process, Australian consumers have
been made reliant on the Senate’s consideration, assessment and necessary
amendment of this bill to protect their health and safety. However, an inquiry
with a reporting date less than three working days after a half-day public
hearing is, in our opinion, inadequate to address consumer concerns.”[71]
In fact the speed with which the ANZFA Amendment Bill 2001
has been drafted and considered, and the results of that process together with
the lack of consultation have resulted in a piece of flawed legislation,
requiring at least two Government amendments to address drafting mistakes.
The first relates to the need to amend the bill to reinstate
a consumer rights representative not only in the mandatory list for inclusion
on the FSANZ Board, but also in the general list.[72]
The second relates to when the Ministerial Council can use
its powers to amend all applications and proposals put to it by ANZFA. Under
the current draft of the bill, this power is only available in consideration of
Urgent applications or proposals. Amendments will be required to ensure that
this power exists in consideration of all applications or proposals as the
Department has stated it was originally intended.[73]
The identification of these major drafting errors together
with the lack of opportunity for public scrutiny of the bill, answers the
question posed by the AFGC during the hearings:
“...why the need for this committee
to review this bill?”[74]
Senator Michael Forshaw (ALP, New South Wales)
Senator Kay Denman (ALP,
Tasmania)
April 2001
SUPPLEMENTARY REPORT - AUSTRALIAN DEMOCRATS
AUSTRALIA
NEW ZEALAND FOOD AUTHORITY
AMENDMENT BILL 2001
1.
Introduction
1.1
The Australia New Zealand Food Authority Amendment Bill
2001 amends the Australia New Zealand
Food Authority Act 1991 to implement arrangements for a new food regulation
system agreed to be members of the Council of Australian Governments (COAG) on
3 November 2000.
1.2
The Government asserts the new system provided for in
this Bill strengthens the focus on public health and safety.
1.3
The Australian Democrats acknowledge the Bill goes
someway to addressing problems in the current regulatory environment identified
in the Blair Review (1998)[75].
1.4
However, the Democrats believe the Bill in its current
form, is flawed and will seek to move appropriate amendments to better ensure
the primacy of public health and safety in the new system.
2. Representation On
Board
2.1.
An issue raised in six submissions, and discussed at
length at the public hearing, was the proposed representation of the FSANZ
Board.
2.2.
The Democrats note the concern expressed in a number of
submissions and at the public hearing that the list of fields of expertise
potentially allow an undesirable over-representation of commercial interests on
the Board.
2.3.
The Australian Democrats believe there is a good case
for some food industry representation on the FSANZ Board and acknowledge it is
unlikely that a Board would be completely ‘stacked’ with industry interests,
however, the Democrats believe a good case was made for an increase in
representation from medical science, public health and food science, including
a representative from the National Health and Medical Research Council.
2.4.
In addition, the Democrats are conscious of the very
serious medical consequences and on-going stress arising from food anaphylaxis
and note concerns raised in relation to novel foods.
2.5.
Accordingly, the Democrats believe a number of
(non-exclusive) options must be considered for committee stage of the Bill,
including;
-
Increasing the size of the Board,
-
Specifying additional fields of expertise in
either or both the mandated and ‘other member’ components of the Board
including, for instance, expertise in medical science and microbiology.
-
Limiting the number of members with commercial
expertise,
-
Establishing two lists of fields of expertise -
a) food industry and b) science and public health - and specifying minimum
representation from both.
2.6.
An additional issue discussed in a number of
submissions and raised at the hearing was the process by which appointments
will be made. Specifically, whether it was preferable for at least some of the
Board members to be nominated by peak bodies as distinct from Ministerial
appointment. In the case of, for instance, an NH&MRC representative, there
is merit in allowing a process by which nominations are presented for
Ministerial approval.
2.7.
As the Democrats are committed to substantially
improving the accountability and transparency of Ministerial appointments to
public authorities, the processes for scrutiny of appointments to the FSANZ
Board will need to be examined.
2.8.
One problem that appears to have been addressed is the
changes to 40(1)(d) mean a person with expertise in the area of consumer rights
was deleted from the new 40(3). We note that in the course of the public
hearing, the Department of Health and Aged Care acknowledged this was a
drafting error and foreshadowed a government amendment to reinstate this
position.
Recommendation
1: That the ‘fields of expertise’ for board members be expanded and the size
and structure of Board be revised to reflect the primacy of public health and
safety in the new food regulatory system.
3. Board Members’
Declaration of Interests
3.1
The Australian Democrats are satisfied that the
provisions of the CAC Act are broader than exists in the current ANZFA Act in
respect of the onus on board members to declare material interests. There remains a question, however, as to
whether ‘material interest’ does or does not include academic and research
associations. Given the importance of
public confidence in such science the Australian Democrats will seek further
advice with a view to an additional amendment if required.
Recommendation
2: That Board members are required to declare academic and research affiliation
interests.
4. Precautionary
Principle.
4.1
There was extensive discussion as to the distinctions
and value of incorporating ‘precaution’, ‘precautionary approach’ or ‘the
precautionary principle’ into the legislation.
4.2
Evidence given to the committee by Mr Lindenmayer from
ANZFA argued that ‘the term ‘precaution’ itself or ‘precautionary approach’
adequately describes the approach that is now in place”.[76]
4.3
The Democrats note the concerns that ‘the precautionary
principle’ is ambiguous but are not convinced that WTO arguments deserve a
place in consideration of a Bill concerned primarily with public health and
safety.
4.4
Reference was made to ‘the precautionary principle’
being adopted in the Gene Technology Bill 2000. While arguments against a
similar approach for this Bill had some merits, at the least, there appears to
be no good reason why implicit notions of a ‘precautionary approach’ should not
be made explicit in section 10.
Recommendation
3: That at a minimum, the ‘precautionary principle’, as adopted in the Gene
Technology Bill 2000, is incorporated into this Bill.
5. Public Notification
5.1
An issue raised by the Australian Consumers’
Association was the adequacy of notification processes.[77] The Democrats accept this point and will seek
to amend the Bill so that FSANZ will be required to publicise ‘routine’ and
‘urgent’ applications in the printed media as well as on the Internet.
Recommendation
4: That FSANZ is required to publicise all applications in printed media in
addition to on the Internet.
6. Public Consultation
6.1
A point made by a number of submissions and discussed
in some length was the lack of consultation with this Bill. The Australian
Democrats do not concur with the view that the Blair Review processes were
sufficiently consultative because this Bill is substantially different to that
review’s recommendations.
7. Additional Comments
7.1
The Democrats have some concerns at the perfunctory
performance of the Government and the Department in its consultation with
relevant groups.
7.2
A final tangential comment: At the public hearing, the
rationale for a Senate Inquiry on this issue was queried by a witness.[78] As
but one consequence of the hearing was the exposure of drafting problems and
consequently, the Department foreshadowing the need for two government
amendments, this reinforces the crucial role that Senate Inquiries play in the
legislative and consultative process.
Senator Natasha Stott Despoja
Australian
Democrats, South Australia
April 2001
APPENDIX 1
Australia New Zealand Food Authority Amendment Bill 2001
Submissions received by the committee
|
1
|
Australia
New Zealand Food Authority (ANZFA)
Additional information
-
response to submission by Goodman Fielder regarding
an application under the Novel Foods Standard
-
Directors’ duties under the Commonwealth Authorities
and Companies Act
|
|
2
|
Dietitians
Association of Australia
|
|
3
|
Australian
Food and Grocery Council
|
|
4
|
FACTS (Food
Anaphylactic Children Training and Support Association)
|
|
5
|
Public
Health Association of Australia Inc
|
|
6
|
Australian
Medical Association Limited (AMA)
|
|
7
|
Ms Rosemary
Stanton
|
|
8
|
Australian
Consumers’ Association (ACA)
|
|
9
|
Ms Dorothy
Francis
|
|
10
|
Goodman
Fielder
|
|
11
|
Commonwealth
Department of Health and Aged Care
|
|
12
|
Department
of Agriculture, Fisheries and Forestry - Australia
|
APPENDIX 2 - PUBLIC HEARING
A public hearing was held on the
Bill on 29 March 2001 in Senate Committee Room 2S3.
Committee Members in attendance
Senator Sue Knowles (Chairman)
Senator Denman
Senator Michael Forshaw
Senator Stott Despoja
Senator Tchen
Witnesses
Public Health Association of Australia
Ms
Pieta Laut, Executive Director
Australian Consumers’ Association
Ms
Rebecca Smith, Senior Food Policy Officer
Dietitians Association of Australia
Ms Sue Cassidy,
Professional Services Dietitian
Dr Rosemary Stanton,
Member
Australian Food and Grocery Council
Mr Mitchell Hooke, Chief Executive
Dr Geoffrey Annison, Scientific and Technical
Director
Department of Health and Aged Care
Mr David Borthwick, Deputy Secretary
Mr Brian Corcoran, First Assistant Secretary,
Population Health Division
Ms Carolyn Smith, Director, Food Policy,
Population Health Division
Australia New Zealand Food Authority
(ANZFA)
Mr Ian Lindenmayer, Managing Director
Ms Claire Pontin, General Manager, Strategy &
Operations
Department of Agriculture, Fisheries and Forestry -
Australia
Ms Bev Clarke, Business Manager, Food Group
APPENDIX 3 - FOOD REGULATION AGREEMENT 2000
Food Regulation Agreement
AN AGREEMENT made
the third day of November, 2000 between:
The COMMONWEALTH OF AUSTRALIA ("the Commonwealth")
and
The STATE OF NEW SOUTH WALES;
The STATE OF VICTORIA;
The STATE OF WESTERN AUSTRALIA;
The STATE OF QUEENSLAND;
The STATE OF SOUTH AUSTRALIA;
The STATE OF TASMANIA;
The NORTHERN TERRITORY OF AUSTRALIA; and
The AUSTRALIAN CAPITAL TERRITORY
collectively called "the States and Territories".
WHEREAS -
A. The Commonwealth and the States and Territories agree
that there is a need to implement a co-operative national system of food
regulation with the following objectives:
(a) providing safe food controls for the purpose of
protecting public health and safety;
(b) reducing the regulatory burden on the food sector;
(c) facilitating the harmonisation of Australia's domestic
and export food standards and their harmonisation with international food
standards;
(d) providing cost effective compliance and enforcement
arrangements for industry, government and consumers;
(e) providing a consistent regulatory approach across
Australia through nationally agreed policy, standards and enforcement
procedures;
(f) recognising that responsibility for food safety
encompasses all levels of government and a variety of portfolios; and
(g) supporting the joint Australia and New Zealand efforts
to harmonise food standards.
B. The Commonwealth and the States and Territories agree
that there is a need to ensure that all sectors in the food supply chain manage
their food safety risks but recognise that the mechanisms for ensuring that
this happens will vary from sector to sector.
IT IS AGREED THAT -
PART I - PURPOSE
1. The purpose of this Agreement is to give effect to a
national approach to food regulation within Australia.
PART II - INTERPRETATION
2. In this Agreement -
(a) 'COAG' means the Council of Australian Governments;
'Codex Alimentarius' means the code of international food
standards set by the Codex Alimentarius Commission to guide and promote the
elaboration and establishment of definitions and requirements for foods, to
assist their harmonisation and, in doing so, to facilitate international trade;
'consistent' means that the wording of the jurisdiction's
provision may differ, if necessary, from the provision in Annex A or Annex B to
this Agreement. However, the provision must deal with the same subject matter,
in a manner appropriate for the legal regime of the jurisdiction, and must have
the same intent and effect as the particular provision being enacted;
'Consultative Council' means the Food Regulation
Consultative Council, to be established pursuant to Part III of this Agreement;
'food legislation' means the laws regulating the packaging,
labelling, sale, handling and distribution of food;
'FSANZ' means Food Standards Australia New Zealand, to be
established pursuant to Part III of this Agreement;
'in the same terms' means that the same words must be used
in the provision in the jurisdiction's Food Legislation as is used in the
provision in Annex A to this Agreement, subject to the Parliamentary
conventions of the jurisdiction;
'jurisdiction' means the Parties to this Agreement and the
Government of New Zealand;
'lead Minister' means a Minister who is a member of the
Ministerial Council and is nominated by each of the Parties to be responsible
to the Ministerial Council for the responses of that Party, pursuant to Part
III of the Agreement;
'Ministerial Council' means the Australia and New Zealand
Food Regulation Ministerial Council, to be established pursuant to Part III of
this Agreement;
'Party' means a party to this Agreement;
'proposed standard' includes a proposed variation to an
existing standard;
'Standing Committee' means the Standing Committee of Senior
Officials to the Ministerial Council, to be known as the Food Regulation
Standing Committee and to be established pursuant to Part III of this
Agreement;
(b) a reference to a Part is a reference to a Part of this
Agreement;
(c) a reference to a clause is a reference to a clause of
this Agreement;
(d) words importing the singular include the plural and vice
versa; and
(e) words importing a gender include the other gender.
PART III - ADMINISTRATIVE ARRANGEMENTS
Australia and New
Zealand Food Regulation Ministerial Council
3. The Parties shall establish a Council, to be known as the
Australia and New Zealand Food Regulation Ministerial Council, which will:
(a) have responsibility for:
(i) the development of domestic food regulatory policy;
(ii) the development of policy guidelines for setting domestic food standards;
(iii) the promotion of harmonised food standards within Australia between the
Parties (harmonisation of domestic standards between States and Territories and
of domestic standards with export standards) and with Codex Alimentarius
(harmonisation of domestic and export standards with international food
standards set by Codex Alimentarius);
(iv) the general oversight of the implementation of domestic food regulation
and standards; and
(v) the promotion of a consistent approach to the compliance with, and
enforcement of, food standards;
(b) consist of one or more members representing each Party,
and the Government of New Zealand, who shall be the Minister for Health of each
Party or Government and other Ministers nominated by that Party or Government
with prime responsibility for matters with which this agreement is concerned;
(c) be Chaired by the Minister with responsibility for the
Commonwealth Health portfolio and supported by a Secretariat provided by that
Minister's portfolio;
(d) operate under the following arrangements:
(i) each Party, and the Government of New Zealand, shall
have one vote on a proposed resolution of the Ministerial Council and this vote
shall represent the views of all Ministers of the Party, or Government of New
Zealand;
(ii) only a lead Minister shall have the right to vote on a resolution proposed
by the Ministerial Council;
(iii) where none of the members representing a Party, or the Government of New
Zealand, on the Ministerial Council is able to be present at a meeting at which
a vote is to be taken, the lead Minister may advise the Chairperson of the
Party's voting intentions in writing by mail, teleprinter, facsimile or other
mode of electronic communication prior to the meeting;
(iv) a vote under clause 3(d)(iii) will have the same effect as if the members
representing a Party, were present and voting at the meeting;
(v) a decision of the Ministerial Council may be made without a meeting being
convened and held;
(vi) a vote on a resolution, either at a meeting or out-of-session, will be
carried by a simple majority of all jurisdictions;
(vii) subject to this Agreement, the Ministerial Council may determine its own
procedures and for that purpose make rules of procedure, including rules
relating to notice of meeting, quorum and conduct of business at meetings, and
may from time to time alter such rules; and
(viii) the Ministerial Council shall hold a meeting at least once in each
calendar year;
(e) request FSANZ to review a proposed standard or an
existing standard if a Party considers that one or more of the following
criteria applies to the standard:
(i) it is not consistent with existing policy guidelines set
by the Ministerial Council;
(ii) it is not consistent with the objectives of the legislation which
establishes FSANZ;
(iii) it does not protect public health and safety;
(iv) it does not promote consistency between domestic and international food
standards where these are at variance;
(v) it does not provide adequate information to enable informed choice;
(vi) it is difficult to enforce or comply with in both practical or resource
terms;
(vii) it places an unreasonable cost burden on industry or consumers;
(f) request FSANZ, subsequent to a review undertaken under
clause 3(e), to review a proposed standard a second time if it is agreed, by a
majority vote, that one or more of the criteria in clause 3(e) applies to the
standard;
(g) have the power to reject a proposed standard that has
been reviewed a second time under clause 3(f) if it is agreed, by a majority
vote, that one or more of the criteria in clause 3(e) still applies to the
standard, provided the Ministerial Council publicly announces its reasons for
doing so.
4. (a) Where FSANZ notifies the Ministerial Council of a
proposed standard developed by FSANZ, other than a proposed standard resulting
from a review of a proposed standard or an existing standard under clauses 3(e)
or 3(f), FSANZ shall proceed to publish the proposed standard as notified to
the Ministerial Council in the Commonwealth of Australia Gazette if the
Ministerial Council does not request a review of the proposed standard under
clause 3(e) within 60 days of being notified of the proposed standard by FSANZ.
(b) Where FSANZ notifies the Ministerial Council of a
proposed standard resulting from a review of a proposed standard or an existing
standard following a request under clauses 3(e) or 3(f), FSANZ shall proceed to
publish the proposed standard as notified to the Ministerial Council in the
Commonwealth of Australia Gazette if and when FSANZ is notified by the
Ministerial Council that the Ministerial Council does not intend to request a
second review of the proposed standard under clause 3(f) or to reject the
proposed standard under clause 3(g).
(c) FSANZ shall not publish a proposed standard in the
Commonwealth of Australia Gazette other than in accordance with clauses 4(a) or
4(b).
5. The Parties shall invite the President of the Australian
Local Government Association, or his delegate, to participate in the activities
of the Council as an observer.
Food Regulation
Standing Committee
6. When establishing the Ministerial Council, the Parties
shall also establish a Standing Committee of Senior Officials, to be known as
the Food Regulation Standing Committee:
(a) with the functions of:
(i) co-ordinating policy advice
to the Ministerial Council; and
(ii) ensuring a nationally consistent approach to the implementation and enforcement
of food standards;
(b) with its membership
reflecting the Ministerial Council membership;
(c) which shall be chaired by
the Secretary of the Department for which the Chairperson of the Ministerial
Council has portfolio responsibility; and
(d) which is supported by the
Ministerial Council secretariat.
7. The Parties shall invite the Australian Local Government
Association to be a full participating member of the Standing Committee.
Food Standards
Australia New Zealand
8. The Commonwealth shall
establish a statutory authority, to be known as 'Food Standards Australia New
Zealand':
(a) with functions including:
(i) developing proposed domestic
food standards in accordance with the policy guidelines set down by the
Ministerial Council;
(ii) notifying the Ministerial Council of proposed standards developed by
FSANZ;
(iii) reviewing proposed standards or existing standards at the request of the
Ministerial Council under clauses 3(e) or 3(f); and
(iv) notifying the Ministerial Council of the outcomes of reviews of proposed
standards or existing standards following a request by the Ministerial Council
under clauses 3(e) or 3(f).
(b) managed by a Board of no
more than ten members including:
(i) a Chairperson
(ii) such other members as are appointed in accordance with clause 10,
including two members from New Zealand; and
(iii) the Chief Executive Officer of FSANZ, appointed by the Board.
9. The Commonwealth, through the
Minister responsible for the Commonwealth Health portfolio, shall appoint the
members of the Board, referred to in clause 8(b)(i) and 8(b)(ii), after
consultation with, and with the agreement of, members of the Ministerial
Council, and shall only appoint a person to be a member of the Board if the
person is suitably qualified for appointment because of expertise in one or
more of the following areas:
(a) public health;
(b) food science;
(c) human nutrition;
(d) government;
(e) administration of food law;
(f) consumer issues;
(g) the food industry;
(h) food processing or retailing;
(i) primary food production;
(j) small business; and
(k) trade.
10. In making these appointments, the Health Minister will
seek to ensure that there is an appropriate balance of skills covering the
above areas of expertise.
Food Regulation
Consultative Council
11. The Ministerial Council must
establish, within 12 months of the first meeting of the Ministerial Council:
(a) a Food Regulation
Consultative Council in accordance with clause 12; or
(b) an alternative means of
consultation to provide stakeholder advice to the Ministerial Council, the
Standing Committee, and FSANZ, if that alternative is agreed to by all the
Parties.
12. If it is to be established
by the Ministerial Council, the Food Regulation Consultative Council shall:
(a) have the functions of:
(i) providing advice to the
Ministerial Council and Standing Committee regarding the development of
domestic food regulation policy;
(ii) providing advice to the Ministerial Council and Standing Committee
regarding the development of policy guidelines for the setting of domestic food
standards;
(iii) providing advice to FSANZ on the setting of domestic food standards; and
(iv) providing advice to the Ministerial Council, Standing Committee and FSANZ
on appropriate strategies for FSANZ to conduct consultation with their stakeholders;
and
(b) comprise an independent and eminent person as
Chairperson and a high level representative from organisations representing
each of the following interests:
(i) Primary production;
(ii) Processed food;
(iii) Food retail;
(iv) Food service;
(v) Consumers;
(vi) Public health professionals;
(vii) Small business.
PART IV - INTRODUCTION AND AMENDMENT OF FOOD LEGISLATION AND ADOPTION
OF FOOD STANDARDS
Introduction of Food
Acts
13. The States and Territories
will use their best endeavours to submit to their respective Parliaments,
within twelve months of the date of signing this Agreement, and in accordance
with clause 14, legislation which gives effect to the provisions listed at
Annex A and Annex B of this Agreement which provide for the effective and
consistent administration and enforcement of the Food Standards Code (including
the Food Safety Standards).
14. The legislation submitted by
each State and Territory to its respective Parliament:
(a) will contain provisions that
are either
(i) in the same terms as all of
those contained in Annex A of this Agreement, noting that the words in square
brackets are optional; or
(ii) if the State or Territory
has separate legislation governing safe primary food production, consistent
with all of those contained in Annex A of this Agreement noting that the words
in square brackets are optional;
(b) may contain whichever
provisions it chooses to include from those contained in Annex B of this
Agreement. These provisions are administrative in nature and, because of the
differing administrative or enforcement arrangements of particular
jurisdictions, do not need to be adopted in the same terms by the States and
Territories but, rather, can be adopted in a manner consistent with the
relevant provision in Annex B; and
(c) may contain additional
provisions that do not conflict with any of the provisions enacted pursuant to
clause 14(a) or 14(b).
15. Where a State or Territory
prescribes a food production activity for the purposes of the definition of
"primary food production" in Annex A of this Agreement, it will
advise the Ministerial Council of its intentions in order to promote national
consistency.
16. States and Territories shall
set penalties, whether by dollar amounts or by penalty units, for offences in
the legislation submitted in accordance with clause 14 that are the same as, or
as close as possible to (recognising the limits imposed by that jurisdiction's
general penalty provisions scheme), the penalties for offences that are
contained in Annex A of this Agreement and the penalties for offences that have
been included from Annex B.
17. Each State and Territory
will use its best endeavours to secure the passage and commencement of the
legislation referred to in clause 14 within the Parliamentary session following
introduction.
Amendment of the
Annexes
18. Where a Party considers that
Annex A or the intent of any of the provisions of Annex B should be amended,
that jurisdiction will recommend its proposed amendments to the Ministerial
Council.
19. Where the Ministerial
Council agrees, by a majority vote, to a recommendation under clause 18, it
will refer the proposed amendments to the Parliamentary Counsels' Committee for
drafting.
20. Where the Ministerial
Council does not agree, by a majority vote, with the proposed amendment, the
amendment will not be made.
21. A State or Territory may
introduce into Parliament, a Bill to amend its Act if it is necessary to do so
as a matter of urgency in order to ensure continuous and effective
administration or enforcement of its Act. The State or Territory must
immediately report any such Bill introduced to the Ministerial Council. The
Ministerial Council, at its next meeting, will consider any inconsistencies
between the introduced Bill and the Annex A provisions and may agree, by
majority vote, to include appropriate amendments to the relevant Annex of this
Agreement in order to maintain national consistency.
22. After amendment of an Annex under clause 19, States and
Territories will use their best endeavours to submit to their respective
Parliaments in accordance with clause 14, legislation which gives effect to the
amendment.
Adoption of Food Standards
23. The States and Territories
will take such legislative or other steps as are necessary to adopt or
incorporate as food standards in force under the food legislation of the State
or Territory, the food standards (including variations to those standards) that
are from time to time:
(a) developed by FSANZ; and
(b) published in the
Commonwealth of Australia Gazette.
24. Such standards are to take effect on the date specified
in the Gazette.
25. Subject to clause 28, no State or Territory shall,
subsequent to the steps taken pursuant to clause 23, amend the food standards
referred to in that clause.
26. No State or Territory shall, by legislation or other
means, establish or amend a food standard other than in accordance with this
Agreement.
27. It is hereby agreed that a food standard, developed by
FSANZ and published in the Commonwealth of Australia Gazette, may include a provision
in respect of a State or Territory or part of a State or Territory where the
Ministerial Council is satisfied that the provision is necessary because of
exceptional conditions in that State or Territory and that the provision would
not present a risk to public health or safety or contravene Australia's
international treaty obligations.
28. Where a State or Territory determines that an issue
affecting public health and safety requires a new food standard, or variation
of a standard adopted pursuant to clause 23, and that the circumstances
affecting public health and safety would not allow time for the steps pursuant
to clause 23 to be taken, the State or Territory may, under the food
legislation of the State or Territory, adopt or vary a food standard
accordingly, provided that:
(a) the State or Territory notifies FSANZ of its intention
to adopt or vary the food standard;
(b) the new or varied food standard applies for a period of
no longer than twelve months from the date of its adoption or variation; and
(c) the State or Territory makes, on so determining, an
immediate application to FSANZ to adopt the new food standard or to vary the
relevant food standard.
29. An application to FSANZ pursuant to clause 28(c) shall
be decided within six months of the application being made.
30. Where a State or Territory determines that requirements
relating to mandatory food safety programs are necessary in that State or
Territory, the State or Territory may amend its food legislation to require
mandatory food safety programs.
31. To promote national consistency, the States and
Territories will work towards a best practice model for food safety programs.
PART V - COMMENCEMENT OF THIS AGREEMENT
32. The Parties acknowledge and agree that this Agreement
cannot be given full effect unless and until:
(a) an agreement is entered into between the Government of
the Commonwealth of Australia and the Government of New Zealand which either
amends or takes the place of the agreement between those Governments made on 5
December 1995 establishing a system for the development of joint food
standards; and
(b) Commonwealth legislation amending or replacing the Australia New Zealand Food Authority Act
1999 comes into force, to give effect to the provisions of this Agreement.
33. Until the agreement between Australia and New Zealand
and the Commonwealth legislation referred to in clause 32 comes into force, the
Parties shall implement this Agreement in the following way:
(a) a reference to FSANZ in clauses 23, 27, 28 and 29 of
this Agreement shall be taken to be a reference to the Australia New Zealand
Food Authority; and
(b) the Ministerial Council shall be known as the Australia
New Zealand Food Standards Council and, in addition to the responsibilities
included in clause 3(a), will undertake the functions of the Australia New
Zealand Food Standards Council set out in the Australia New Zealand Food Authority Act 1991 ;
(c) the standards referred to in clause 23(a) will be
recommended by the Australia New Zealand Food Authority to the Ministerial
Council and adopted by the Ministerial Council in accordance with the functions
of the Australia New Zealand Food Authority and the Australia New Zealand Food
Standards Council set out in the Australia
New Zealand Food Authority Act 1991; and
(d) clauses 3 (e), (f) and (g), 4, 9, and 10 will not come
into effect.
34. (a) The Agreement between the Commonwealth of Australia,
the States, the Northern Territory of Australia and the Australian Capital
Territory in relation to the adoption of uniform food standards made on 30 July
1991 shall cease to operate upon this Agreement being given full effect.
(b) Prior to this Agreement being given full effect, those
provisions of this Agreement which come into effect in accordance with this
Part V shall override any provisions of the Agreement between the Commonwealth
of Australia, the States, the Northern Territory of Australia and the
Australian Capital Territory in relation to the adoption of uniform food
standards made on 30 July 1991 which deal with the same subject matter as those
provisions of this Agreement.
PART VI -REVIEW OF IMPLEMENTATION AND EFFECTIVENESS
35. The Parties, in establishing the Ministerial Council and
Standing Committee, shall require them to report annually to COAG on the
progress towards the implementation of the co?operative system set down in this
Agreement and its effectiveness.
36. The Parties shall jointly conduct and conclude a review
of the effectiveness of this Agreement no later than five years after the
commencement of the Agreement.
PART VII - AMENDMENT OR VARIATION OF AGREEMENT
37. Where a Party considers that this Agreement should be
amended, it may request consultations with the other Parties to this end,
except in respect of amendments to Annexes A and B which may only be amended in
accordance with clauses 18 to 22.
38. Amendments to this Agreement, other than amendments to
Annex A or B, may only be made with the written consent of all Parties.
39. Any agreed amendments to the Agreement shall be
contained in a document distributed to all Parties and which shall include a
reference to the date on which the amendment shall come into force.
PART VIII - DISPUTE RESOLUTION
40. Where a dispute arises under
this Agreement:
(a) the Parties shall require the members of the Ministerial
Council to attempt to resolve the disputes in the first instance;
(b) if this fails, the Parties may refer the dispute to COAG to seek a
resolution to the dispute through COAG processes.
PART IX - WITHDRAWAL AND TERMINATION
41. Any Party may withdraw from this Agreement provided it
gives not less than 12 months notice in writing to each of the other Parties.
42. Withdrawal from the Agreement by any Party shall result
in the Agreement being terminated.
43. Upon receiving notice from a Party that they wish to
withdraw from the Agreement, the Commonwealth shall notify the Government of
New Zealand to this effect.
IN WITNESS WHEREOF this Agreement has been executed as at
the day and year first written above.
SIGNED by:
The Honourable John Winston Howard MP
(Prime Minister of the Commonwealth of Australia)
The Honourable Robert John Carr MP
(Premier of the State of New South Wales)
The Honourable Stephen Phillip Bracks MP
(Premier of the State of Victoria)
The Honourable Peter Douglas Beattie MLA
(Premier of the State of Queensland)
The Honourable Richard Fairfax Court MLA
(Premier of the State of Western Australia)
The Honourable John Wayne Olsen MP
(Premier of the State of South Australia)
Mr Jim Bacon MHA
(Premier of the State of Tasmania)
Mr Gary John Joseph Humphries MLA
(Chief Minister of the Australian Capital Territory)
The Honourable Denis Burke MLA
(Chief Minister of the Northern Territory of Australia)
Councillor John Ross
(President of the Australian Local Government Association)