Bills Digest no. 101 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Science, Technology, Environment and Resources Section
12 May 2015
of the Bill
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 18
House: House of
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
Purpose of the Bill
The primary purpose of the Food Standards Australia New
Zealand Amendment Bill 2015 (the Bill) is to update and replace references in
the Food Standards
Australia New Zealand Act 1991 (FSANZ Act)
to the Australia and New Zealand Food Regulation Ministerial Council (ANZFRMC),
which has been renamed the Australia and New Zealand Ministerial Forum on Food
Regulation. The Bill also makes other technical amendments to the FSANZ Act.
Australia and New Zealand have a joint
system for regulating food safety and quality. This system is underpinned
by the FSANZ Act and an
intergovernmental agreement—the Food Regulation Agreement—between the
Commonwealth, state and territory governments (and a treaty with New Zealand).
The Food Regulation Agreement established the Australia and New Zealand
Food Regulation Ministerial Council (ANZFRMC) which is responsible
for developing food regulatory policy, and adopting, amending or rejecting food
These standards are developed by Food Standards
Australia New Zealand (FSANZ) which is an authority established by the FSANZ
On 13 February 2011, the ANZFRMC became the Legislative
and Governance Forum on Food Regulation (FoFR) and was one of several
legislative and governance fora in the Council of Australian Governments (COAG)
However, on 13 December 2013, COAG agreed to streamline this council system
from 22 councils to eight.
The legislative and governance fora continue according to their legislative
requirements, but ‘outside the auspices of COAG’.
At the FoFR meeting on 27 June 2014, ministers agreed to
change the name of FoFR to the ‘Australia and New Zealand Ministerial Forum on
Food Regulation’. Membership of the Forum comprises a minister from New Zealand,
health ministers from Australian states and territories and the Australian
Government, as well as other ministers from related portfolios (such as agriculture
Selection of Bills Committee
The Bill has not been referred to a committee for
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills made
no comments on the Bill.
Parliamentary Joint Committee on
The Parliamentary Joint Committee on Human Rights in its
report tabled on 24 March 2015 considered that the Bill does not engage human
Policy position of non-government
At the time of writing, no policy position on the Bill had
been announced by Labor, other non-government parties or the independents.
Position of major interest groups
No position on the Bill has been announced by any major
According to the Explanatory Memorandum, there is no
financial impact relating to this Bill.
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.
Schedule 1 of the Bill contains its operative provisions.
Amendments to reflect the change of
name to the Forum on Food Regulation
Items 1 and 2 repeal the definition of ‘Council’ in
the FSANZ Act and insert a definition of ‘Forum on Food Regulation’ to
reflect the change of name. Item 7 clarifies that the Australia and New
Zealand Food Regulation Ministerial Council that was established by the Food
Regulation Agreement continues in existence by force of this section under the
name Australia and New Zealand Ministerial Forum on Food Regulation (which is
shortened to the Forum on Food Regulation). The majority of the other items in
the Bill then reflect this name change, in particular by substituting
references to the ‘Council’ with references to the ‘Forum on Food Regulation’.
High level health claims variation
Items 22 and 40 make changes to the processes for
approving draft ‘high level health claims’ variations. A ‘high level health
claims variation’ is a change to the list of high level health claims made
under the Nutrition,
Health and Related Claims Standard.
‘High level health claims’ are made in relation to a nutrient or substance in a
food and its relationship to a serious disease (or to a biomarker of a serious
disease). The only high level health claims that are permitted to be made are
those that have been approved by FSANZ and are set out in the Standard. For
example, ‘diets high in calcium may reduce the risk of osteoporosis in people
65 years and over’.
Level Health Claims Committee gives advice to FSANZ on applications or
proposals to make a high level health claims variation.
These items repeal paragraph 50(2)(b) and 76(2)(b) of the FSANZ
Act to remove a requirement for FSANZ, before it approves a draft high
level health claims variation, to assess the variation against criteria set out
in the Nutrition, Health and Related Claims Standard, taking into account
recommendations made by the High Level Health Claims Committee. The Explanatory
Memorandum explains that this is ‘to reflect the fact that there are no criteria
set out in the Nutrition, Health and Related Claims Standard’.
The requirement for FSANZ to consider the criteria in the
Nutrition, Health and Related Claims Standard was initially added to the FSANZ
Act through amendments in 2007 before that standard had been finalised.
In fact, the standard was only finalised in January 2013,
and it appears that the final standard does not contain criteria as anticipated
in the 2007 amendments. While it makes sense to remove references in the FSANZ
Act to criteria which do not exist, these amendments also have the
consequence of removing the requirement for FSANZ to take into account
recommendations made by the High Level Health Claims Committee in relation to
the draft variation. No reasons are given in the Explanatory Memorandum for
removing this aspect. However, FSANZ will still be required to consider other
matters, such as whether the draft variation will protect public health and
safety, provide adequate information and prevent misleading or deceptive conduct.
The Bill also contains a number of other minor amendments
to the FSANZ Act as set out below.
Item 6 inserts a new section 7A into the FSANZ
Act which specifies that where the Act requires FSANZ to give written
notice to an appropriate government agency, the obligation will be satisfied if
FSANZ gives written notice to an appropriate government agency that FSANZ
considers has an interest in the matter to which the notice relates. This means
that FSANZ will no longer be required to notify every government agency but
rather is provided with discretion to determine which government agencies are
relevant depending on the notification. The Explanatory Memorandum states that
this means that the workload of FSANZ will be reduced and that government
agencies are ‘not receiving notifications which are irrelevant to their
Items 13 and 31 clarify the requirements for FSANZ
reports to contain Regulation Impact Statements. Currently,
paragraph 33(1)(b) of the FSANZ Act provides that, after approving or
rejecting a draft standard or a draft variation of a standard, FSANZ must
prepare a report. Paragraph 33(3)(i) requires the report to contain a
Regulation Impact Statement. Item 13 amends this requirement to provide
that a Regulation Impact Statement is only required ‘if applicable’. Item 31
makes the equivalent change to paragraph 63(3)(i) which relates to FSANZ
reports on draft food regulatory measures or draft variations of a food
The Explanatory Memorandum states that this ‘recognises that a Regulation
Impact Statement may not always be applicable’ to reports prepared by FSANZ.
Items 16, 20, 34, 38 and 83 enable FSANZ to publish
certain notices (for example, relating to the approval of draft food standards)
on its website, rather than having to publish those notices in a newspaper. The
requirements for the content of the notice are the same, only the mode of
publication is proposed to be changed. Similarly, items 76–81, 84, 103 and
108–109 remove requirements to publish certain notices in a newspaper,
while retaining other requirements to publish the relevant notices, for example,
on the internet.
Item 27 clarifies section 56 of the FSANZ Act,
which currently provides that FSANZ may abandon a proposal for the development or
variation of a food regulatory measure at any time. This item amends subsection
56(1) to provide that FSANZ may abandon a proposal at any time before a draft
standard, draft variation, draft code of practice or variation of a code of
practice is approved. Items 29 and 30 then clarify that the requirement
for FSANZ to assess a proposal is subject to its right to abandon the proposal
under section 56. This amendment does not seem to change existing practice. FSANZ
abandoned only one proposal in 2013–14, and that was prior to any approval.
No proposals were abandoned in the year before that.
Items 128 and 129 amend the requirements in section
152 of the FSANZ Act for the contents of the annual report prepared by
the FSANZ Board. Currently, paragraph 152(1)(t) of the FSANZ Act only
requires reporting on the number of approved applications, which are made by
any person or body, for the development or variation of food regulatory
measures. This paragraph does not require reporting on the number of approved proposals,
which are prepared by FSANZ on its own initiative, for the development or
variation of food regulatory measures.
The amendments will require both the number of applications and
proposals for draft standards and draft variations approved during the relevant
period to be reported. Reporting requirements will also be extended to include
the numbers of urgent applications and proposals approved under section 97 of
the FSANZ Act. FSANZ included this extended information in its most
recent annual report, even though there was no requirement to do so.
Items 12, 28, 41, 44, 115, 117, 125 and 126 make
minor drafting corrections or clarifications to various provisions in the FSANZ
Finally, item 132 clarifies that certain amendments
made by the Bill take effect on or after the commencement of the Bill.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
. Food Standards Australia
New Zealand Act 1991 (FSANZ Act), accessed 5 May
of Health, 'The
food regulation system', Department of Health website, accessed 17 April
2015; see also Food Standards Australia New Zealand (FSANZ), 'Food
regulation agreements', FSANZ website, accessed 17 April 2015; Agreement
between the Government of New Zealand and the Government of Australia
Concerning a Joint Food Standards System, 5 December 1995,  ATS
12, as amended.
of Health, 'Australia
and New Zealand Ministerial Forum on Food Regulation', Department of Health
website, accessed 17 April 2015.
12 of the FSANZ Act. FSANZ, 'Food Standards
Australia New Zealand', FSANZ website, accessed 17 April 2015.
of Australian Governments (COAG), ‘COAG Council System’,
COAG Archive website, 12 April 2012, accessed 12 May 2015.
Communique, COAG Meeting,
Canberra, 13 December 2013, accessed 17 April 2015.
Standards Australia New Zealand Amendment Bill 2015, p. 1, accessed 17
of Health, 'Membership of the
Australia and New Zealand Ministerial Forum on Food Regulation', Department
of Health website, accessed 17 April 2015.
of Bills Committee, Report
No. 4 of 2015, The Senate, Canberra, 26 March 2015, accessed 15 April
Standing Committee for the Scrutiny of Bills, Alert
Digest No. 4 of 2015, The Senate, 25 March 2015, p. 31, accessed 15
Joint Committee on Human Rights, Twenty-first
report of the 44th Parliament, Canberra, 24 March 2015, p. 1, accessed 15
Standards Australia New Zealand Amendment Bill 2015, p. 1, accessed 15
Statement of Compatibility with Human Rights can be found at page 2 of the
Explanatory Memorandum to the Bill.
Act, subsection 4(1).
content claims and health claims', FSANZ website, accessed 4 May 2015.
'High Level Health Claims Committee',
FSANZ website, accessed 5 May 2015. The High Level Health Claims Committee is
established under subsection 118(1A) of the FSANZ Act. See also FSANZ
Act, subsection 4(1).
Standards Australia New Zealand Amendment Bill 2015, p. 5, accessed 15
Standards Australia New Zealand Amendment Bill 2007, p. 3, accessed 5 May
health and related claims', FSANZ website, accessed 4 May 2015.
Act, paragraph 50(2)(a).
Standards Australia New Zealand Amendment Bill 2015, p. 4, accessed 15
'food regulatory measure' is defined in section 4 of the FSANZ Act as a
standard or code of practice.
Standards Australia New Zealand Amendment Bill 2015, pp. 4 and 5, accessed
15 April 2015.
report 2013–14, p. 13, accessed 5 May 2015.
report 2012–13, p. 101, accessed 5 May 2015.
paragraph 152(1)(n) of the FSANZ Act does require reporting on the
'number of proposals that were disposed of during the current period and the
manner of their disposal'. This paragraph is not amended by the Bill.
Annual report 2013–14, op. cit., Appendix 2, p. 80.
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