Chapter 2
Background to the decision to review Australia's policy for the importation
of beef and beef product
Introduction
Bovine Spongiform Encephalopathy
2.1
Bovine Spongiform Encephalopathy (BSE) is a progressive, fatal, central
nervous system disorder of cattle. Consumption of certain tissues from BSE
infected cattle has been linked to the rare fatal human disease variant
Creutzfeldt-Jakob Disease (vCJD).[1]
Since BSE was first identified as a major risk to human health, Australia has
implemented arrangements to protect Australians from exposure to BSE via the
human and animal food chains. There has been no instance of BSE infected cattle
in Australia and no case of vCJD has yet been diagnosed in Australia.[2]
Previous BSE food safety policy
2.2
Since 2001 Australia has implemented a ban on beef imports from
countries reporting any BSE cases and those countries exposed to high risk
factors, together with a range of other measures to protect the Australian
population from BSE contamination. Countries currently banned from exporting
beef and beef products to Australia because of the identification of indigenous
BSE in their territories include Canada, Japan, many European countries and the
United States.[3]
2.3
Under the 2001 policy, countries that have never reported a BSE case in
their cattle herd could apply to FSANZ for BSE risk assessment. The Australian
BSE Country Classification Committee assigned countries a Category A, Category
B or Category C status, depending on the level of assessed BSE risk, based on each
country's technical submissions. Differing food safety measures were then
applied to beef imports from each category. The Australian Quarantine
Inspection Service (AQIS) conducted checks at the border to verify that the
correct certification was provided for the country category for each
consignment.[4]
2.4
The Department of Agriculture, Fisheries and Forestry (DAFF) told the
committee that the assessment approach used in the 2001 policy had some
inherent weaknesses because it did not include a mechanism for in-country
inspections to verify information provided for desk audit and the methodology
used is now outdated.[5]
2.5
DAFF advised the committee that when Australia announced its policy in
2001, "departments recognised that the policy was conservative and that
scientific understanding and management of the risks of BSE were
progressing"[6].
DAFF told the committee:
A verbal commitment was given to trading partners that the
policy would be reviewed in 2003, two years after implementation. It is a matter
of public record that a scientific review of the policy commenced in 2003 and
that the previous government considered proposals to update the policy in 2005
and 2007, but the policy was not changed.[7]
Legislative and administrative framework
within which the ban was implemented
Development of food standards
2.6
The Australian food safety policy on BSE is reflected in requirements
set out in the Australian New Zealand Food Standards Code Standard 2.2.1.11 –
Meat and Meat Products.[8]
The Code states:
Bovine meat and meat products must be derived from animals
free from bovine spongiform encephalopathy.[9]
2.7
The standard applies equally to both domestic and imported meat and meat
products.[10]
A copy of the standard is provided at Appendix 3.
2.8
Food Standards Australia New Zealand (FSANZ) is responsible for the
development of food standards. Food standards have the force of law. Responsibility
for enforcing and policing food standards rests with the States and Territories
in Australia and with the New Zealand Government in New Zealand. The standards
apply to both domestic and imported foods.
Determination of risk foods
2.9
The Commonwealth enforces the code in relation to food imported into
Australia through the Imported Food Control Act 1992. FSANZ determines
the risk food poses to public health and safety following a food safety risk
assessment. FSANZ categorises food as 'risk' if it has the potential to pose a
medium to high risk to public health.[11]
FSANZ advises AQIS of the risk category for food and this determines the frequency
with which it will be inspected and the appropriate testing regime to be
implemented under the Food Inspection Scheme.[12]
Risk foods are listed in a schedule to the Imported Food Control Order 2001.
Beef and beef products from all countries are classified as 'risk' food for the
purposes of the Food Inspection Scheme. There has been no change to this
categorisation as a result of the change in Australia's BSE food safety policy.
Other import requirements for beef
and beef products
2.10
Biosecurity Australia is responsible for developing and reviewing animal
quarantine measures for the importation of animals and animal products into
Australia. The importation of beef and beef products must meet animal
quarantine requirements for foot and mouth disease and rinderpest. Australia
also enforces bans on feeding animal materials such as beef to cattle.[13]
Proposal to change Australia's BSE food safety policy
2.11
On 20 October 2009, the Minister for Trade, the Hon. Simon Crean, the
Minister for Agriculture, Fisheries and Forestry, the Hon. Tony Burke, the
Minister for Health, the Hon. Nicola Roxon and the Parliamentary Secretary for
Health, the Hon. Mark Butler announced that Australia would be adjusting its
imported food policy settings regarding BSE with effect from 1 March 2010. In
announcing the change the Ministers stated that there would be no change to the
Australian food standard requirement that beef and beef products are to be
derived from animals free of BSE and that the current enforcement measures will
continue to apply.[14]
2.12
The new policy would permit the importation and/or sale of certain beef
and beef products under agreed conditions from countries that have reported
cases of BSE. In its submission to the inquiry, the Department of Health and Ageing
(DOHA) advised the committee that the policy had moved from an exclusion system
to an assessment system whereby the human health risk from beef from all
countries is evaluated.[15]
Under the new policy a country wishing to export beef to Australia is able to
apply to FSANZ and undergo an assessment to determine whether the country has
in place, and appropriately monitors, controls necessary to ensure that beef
and beef products exported to Australia are derived from animals free of BSE.
The new policy is set out in Australia's Bovine Spongiform Encephalopathy
(BSE): Requirements for the importation of Beef and Beef Products for Human
Consumption – Effective March 2010.[16]
Beef industry request for change to
BSE policy
2.13
The committee heard that the review of Australia's current BSE policy was
initiated, at least in part, by a request from the Red Meat Advisory Council
(RMAC).[17]
Mr Timothy Yeend, First Assistant Secretary of the Office of Trade
Negotiations, Department of Foreign Affairs and Trade (DFAT), told the
committee that:
In the discussions we have had when we have spoken to
industry, given the huge reliance they have on maintaining export markets et
cetera, the prospect of some kind of action by a trading partner to challenge
Australia and the consequences of that for our industry, both domestically and
in terms of its export markets, were a major concern. Certainly as they came to
government this was registered very clearly and was one of the key
considerations in the government deciding to look at the policy again.[18]
2.14
In a letter to Minister Burke on 9 August 2009 RMAC stated:
Red Meat Advisory Council Ltd (RMAC) believes it imperative
for the Federal Government to amend the current standard such that it is made
consistent with the standard set by the World Organisation for Animal Health
(OIE) and current ambiguity is removed.[19]
2.15
RMAC advised the Minister that at its board meeting on 6 March 2009,
RMAC had "again endorsed its opposition to the BSE certification rules
currently operating in Australia".[20]
RMAC wrote a second letter to the Minister, in similar terms, on 18 September
2009.[21]
2.16
DFAT provided the committee with a summary of the sequence of events
that led to the decision to amend the policy:
It is noted that the timing of this specific request from
RMAC was related to a discussion, on 28 July 2009 within a Red Meat Market
Access Committee (RedMMAC) meeting, in which DFAT advised of the recent
stepping up of pressure from trading partners for a review of Australia's BSE
policy. Within that meeting DFAT requested industry to advise government
regarding its position on the issue. Industry members of the Committee present
at the meeting included 8 representatives of the Australian Meat Industry
Council (AMIC), 1 representative of Meat and Livestock Australia (MLA) and 2
representatives of the Cattle Council of Australia. It was agreed that AMIC
would write to RMAC seeking consideration of the issue with a view to getting
consistent industry policy put back to Government for consideration. RMAC, on
behalf of its members, subsequently wrote to the Minister for Agriculture,
Fisheries and Forestry, the Hon Tony Burke MP, on 9 August 2009 seeking an
urgent update of the 2001 policy on BSE. On 18 September 2009 RMAC sent a
further letter to Minister Burke reiterating its request for an update of the
2001 policy on BSE, to reflect, among other things, increased understanding of
the risks posed by BSE, increased confidence in measures to minimise the risks
of BSE and recommendations and principles of the World Organisation for Animal
Health (OIE).[22]
2.17
RMAC's concerns with the policy centre on two perceived risks to the
Australian beef industry: the risk that all beef, both domestic and imported,
would be removed from retail shelves in the event of a BSE outbreak in
Australia; and the risk of action through the World Trade Organisation (WTO) by
Australia's trading partners.
Risk of removal of beef from retail
sale
2.18
In its submission to the inquiry DFAT told the committee that RMAC has
long been concerned about the negative impact Australia's 2001 BSE policy could
have on the local industry should Australia experience an indigenous case of
BSE. DFAT told the committee that such an occurrence was 'unlikely but a real
possibility despite measures currently in place'[23].
DFAT described the following outcome:
In the unlikely event of a case of BSE in Australian cattle,
Australia would be obliged to ban Australian produced beef from sale in
Australia because the 2001 policy on beef imports indefinitely bans the import
of beef from countries which have had a case of BSE in their cattle. Failure to
implement such a ban would leave Australia exposed to a WTO challenge.[24]
2.19
In its submission RMAC told the committee that if beef were removed from
shelves the cost to the Australian beef industry would be significant.[25]
In its letters to Minister Burke, RMAC stated that Clause 11 of Standard 2.2.1
of the Food Standards Code is ambiguous. RMAC advised the Minister:
Australia's legal requirement relating to BSE and the safety
of domestic beef for human consumption is ambiguous: it is stated in Clause 11,
Standard 2.2.1 of the FSANZ Food Standards Code that, "Bovine meat and
meat products must be derived from animals free from bovine spongiform
encephalopathy". This ambiguity must be clarified through the provision of
a domestic-food-safety-response policy that is developed and agreed to by
relevant Federal, State and Territory human-health and food-safety authorities
in consultation with the industry.[26]
2.20
The committee notes that there appears to be widespread agreement that
the risk of a BSE outbreak in Australia is unlikely.[27]
For example, the committee notes the comments of Mr Gary Burridge, representing
the Australian Meat Industry Council when asked his view on the likelihood of a
case of BSE in Australia under the current import arrangements that are in
place. Mr Burridge said:
I would say that it is very limited, based on the science
that we have been provided with and that has been provided by international and
domestic experts.[28]
2.21
Nevertheless, the committee notes that such an outcome has been
described in quite alarming terms, both within the context of the inquiry and
more widely in the media. The committee notes Minister Burke's comments during
a radio interview shortly after the announcement of the new policy that:
If, for example, there were an outbreak of BSE in Tasmania,
all Australian beef no matter where it came from would have to be taken off the
shelves in Australia. Because we have a policy at the moment that says for any
country, including our own, you can't take a regional approach; you can't take
a science–based or a health-based approach. The approach has to be nationwide
and immediate and its all off the shelves.[29]
2.22
The Australian Beef Association (ABA) told the committee that they
regard the issue of the potential for removal of beef off supermarket shelves
in the event of a case of BSE as a farce and a completely separate issue to the
decision to relax import requirements for beef. Mr Carter told the committee:
No government in the world would put 300,000 people out of
work by taking all the beef off the shelves. It has not happened anywhere. We
believe that what has been going on is a complete fabrication. It has been said
that the WTO obligations would necessitate it. We would like to see that paper,
and we ask that it be tabled.[30]
2.23
The committee received confirmation from DOHA that any decision to
remove beef from retail shelves would be taken by individual state health
ministers. [31]
2.24
The committee notes that FSANZ has procedures in place to recall any
food products that pose a health risk.[32]
The procedures followed are set out in Food Code Standard 3.2.2.
2.25
The power to recall contaminated meat products is contained in both the Food
Standards Australia New Zealand Act 1991(FSANZ Act) and the Trade
Practices Act 1974. Section 13 of the FSANZ Act says the functions of FSANZ
include:
(j) in co-operation with the Department administering
Division 1A of Part V of the Trade Practices Act 1974, to coordinate the recall
of food under that division; and
(k) at the request of the States and Territories, to
co-ordinate action by the States and Territories to recall food under State and
Territory laws.[33]
Australia's international trade
obligations
2.26
In its submission DFAT advised the committee that Australia's 2001 BSE
policy has been strongly criticised over a long period of time by a number of Australia's
key trading partners, including Canada, the US, Japan and Europe, as being
inconsistent with current science and the relevant international standard. DFAT
also told the committee that because of this, some of these countries have
indicated that they consider the policy to be in breach of Australia's WTO
obligations.[34]
2.27
More specifically, DFAT drew the committee's attention to Canada's
initiation of a WTO dispute against the Republic of Korea's BSE-related
restrictions on imported beef which are similar to Australia's requirements.[35]
DAFF also told the committee that the policy change is consistent with the
approach being taken by Australia's key trading partners:
The BSE-related import requirements for a number of countries
have been progressively relaxed in recent years, particularly in North Asian
markets, from a position of blanket bans on imports from countries with
reported BSE cases. Japan, Taiwan, the Republic of Korea, New Zealand, Canada,
the United States and European Union member States are examples of the many
countries that now permit beef imports from countries that have reported BSE
cases.[36]
Australia's WTO obligations
2.28
DFAT advised the committee that the major trade obligations invoked by
Australia's policy on BSE and imported food safety are its obligations under
the WTO Agreement on the Application of Sanitary and Phytosanitary Measures
(WTO SPS Agreement). This Agreement provides a multilateral framework of rules
governing the use of measures to protect the life and health of humans, animals
and plants, with the aim of minimising any negative impact on international
trade.
2.29
Under the WTO SPS Agreement, WTO member countries are encouraged to
harmonise their measures with international standards developed by 'relevant'
international organisations, including the OIE.[37]
Measures may differ from an international standard but WTO members must not use
SPS measures that are: unnecessary, not science-based, arbitrary, or which
constitute a disguised restriction on trade.[38]
Article 2.3 of the WTO SPS Agreement requires that Australia must not place
more onerous conditions on imports from other countries than it applies
domestically.[39]
2.30
The SPS Agreement requires WTO members to base their SPS measures on a
risk assessment and to take into account risk assessment techniques developed
by relevant international organisations. [40]
DFAT explained that:
The World Organisation for Animal Health (OIE) has
implemented a standard, significantly updated in 2005, that provides for the
safe trade in beef from countries that have experienced BSE.[41]
2.31
DFAT advised the committee that while Australia's new BSE policy does
not adopt the OIE standard or the categorisation of countries by the OIE, it
will take into account the OIE risk assessment methodology to undertake its own
risk assessments.[42]
Australia's Free Trade Agreement
with the United States
2.32
The ABA told the committee that it believed that the change in Australia's
BSE policy is directly linked to a side letter to the Australia – United States
Free Trade Agreement.[43]
In the side letter the then Minister for Trade, the Hon Mark Vaile, confirmed
the following understanding between the governments of Australia and the United
States:
Australia and the United States recognize the importance of
addressing both food safety and animal health issues regarding Bovine
Spongiform Encephalopathy (BSE) in a science-based, comprehensive, and cohesive
manner.
Science-based responses to address BSE concerns help to
ensure food safety and protect animal health while avoiding unnecessary variers
to international trade. Australia and the United States recognize the central
roles of the World Health Organization and Food and Agriculture Organization of
the United Nations' Codex Alimentarius Commission (Codex) and the International
Organization for Epizootic (OIE) in establishing international standards and
guidelines, and will participate actively as these organizations address
BSE-related issues.
Australia and the United States note that the OIE is
presently reviewing BSE standards as they relate to animal and public health.
Australia and the United States will work cooperatively in the OIE, Codex, and
other fora as appropriate, with the objective of securing science-based
standards and guidelines that address risks to food safety and animal health
from BSE.[44]
Committee comment
2.33
The committee does not accept that a blanket recall of Australian beef
and beef product would ever be implemented on an Australia wide basis in the
event of an Australian case of BSE.
2.34
As indicated previously in this chapter, the committee was advised
during this inquiry that no amendments to the Food Code or to the FSANZ Act are
proposed as a result of the policy announced on 20 October 2009.[45]
The committee also notes that under the new policy the requirement within the
Food Standards that bovine meat and meat products must be derived from animals
free from BSE remains unchanged.
2.35
The committee also notes that in the event of a new case of BSE, a
country that has been given either a Category 1 or Category 2 BSE risk status
is required to provide a report on the epidemiological investigation into the
BSE case(s) and provide any other information to justify the continuation of
its current Australian BSE status. FSANZ reserves the right to suspend a country's
status at any time, including before the information is provided, until it is
satisfied with the submitted information.[46]
2.36
While the new policy may ease the pressure on Australian State and
Territory governments if they were to be faced with a reported case of BSE, it
is not clear to the committee that the concerns regarding the ambiguity of how
Australia's policy for the removal of beef and beef products from sale would be
implemented in the event of an Australian case of BSE have been specifically addressed.
The committee considers that these concerns are justified. The committee considers
that a clear policy for Australia's domestic response in the case of a BSE
related food safety event should be developed and agreed to by the relevant
Federal, State and Territory human-health and food-safety authorities in
consultation with the industry.
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