BILLS DIGEST NO. 101, 2014–15              12 May 2015

Food Standards Australia New Zealand Amendment Bill 2015

Sophie Power
Science, Technology, Environment and Resources Section 

Date introduced: 18 March 2015

House:  House of Representatives

Portfolio: Health

Commencement:  The 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 Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

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)[1] 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.

Background

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).[2] 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 standards.[3] These standards are developed by Food Standards Australia New Zealand (FSANZ) which is an authority established by the FSANZ Act.[4]

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) council system.[5] However, on 13 December 2013, COAG agreed to streamline this council system from 22 councils to eight.[6] The legislative and governance fora continue according to their legislative requirements, but ‘outside the auspices of COAG’.[7]

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 ministers).[8]

Committee consideration

Selection of Bills Committee

The Bill has not been referred to a committee for consideration.[9]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills made no comments on the Bill.[10]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights in its report tabled on 24 March 2015 considered that the Bill does not engage human rights.[11]

Policy position of non-government parties/independents

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 interest groups.

Financial implications

According to the Explanatory Memorandum, there is no financial impact relating to this Bill.[12]

Statement of Compatibility with Human Rights

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.[13]

Key issues and provisions

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 process

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.[14] ‘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’.[15] A High Level Health Claims Committee gives advice to FSANZ on applications or proposals to make a high level health claims variation.[16]

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’.[17]

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.[18] In fact, the standard was only finalised in January 2013,[19] 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.[20]

Other amendments

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 operations’.[21]

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 regulatory measures.[22] The Explanatory Memorandum states that this ‘recognises that a Regulation Impact Statement may not always be applicable’ to reports prepared by FSANZ.[23]

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.[24] No proposals were abandoned in the year before that.[25]

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.[26] 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.[27]

Items 12, 28, 41, 44, 115, 117, 125 and 126 make minor drafting corrections or clarifications to various provisions in the FSANZ Act.

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.

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[1].              Food Standards Australia New Zealand Act 1991 (FSANZ Act), accessed 5 May 2015.

[2].              Department 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, [1996] ATS 12, as amended.

[3].              Department of Health, 'Australia and New Zealand Ministerial Forum on Food Regulation', Department of Health website, accessed 17 April 2015.

[4].              Section 12 of the FSANZ Act. FSANZ, 'Food Standards Australia New Zealand', FSANZ website, accessed 17 April 2015.

[5].              Council of Australian Governments (COAG), ‘COAG Council System’, COAG Archive website, 12 April 2012, accessed 12 May 2015.

[6].              COAG, Communique, COAG Meeting, Canberra, 13 December 2013, accessed 17 April 2015.

[7].              Explanatory Memorandum, Food Standards Australia New Zealand Amendment Bill 2015, p. 1, accessed 17 April 2015.

[8].              Department of Health, 'Membership of the Australia and New Zealand Ministerial Forum on Food Regulation', Department of Health website, accessed 17 April 2015.

[9].              Selection of Bills Committee, Report No. 4 of 2015, The Senate, Canberra, 26 March 2015, accessed 15 April 2015.

[10].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 4 of 2015, The Senate, 25 March 2015, p. 31, accessed 15 April 2015.

[11].              Parliamentary Joint Committee on Human Rights, Twenty-first report of the 44th Parliament, Canberra, 24 March 2015, p. 1, accessed 15 April 2015.

[12].              Explanatory Memorandum, Food Standards Australia New Zealand Amendment Bill 2015, p. 1, accessed 15 April 2015.

[13].              The Statement of Compatibility with Human Rights can be found at page 2 of the Explanatory Memorandum to the Bill.

[14].              FSANZ Act, subsection 4(1).

[15].              FSANZ, 'Nutrition content claims and health claims', FSANZ website, accessed 4 May 2015.

[16].              FSANZ, '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).

[17].              Explanatory Memorandum, Food Standards Australia New Zealand Amendment Bill 2015, p. 5, accessed 15 April 2015.

[18].              Explanatory Memorandum, Food Standards Australia New Zealand Amendment Bill 2007, p. 3, accessed 5 May 2015.

[19].              FSANZ, 'Nutrition, health and related claims', FSANZ website, accessed 4 May 2015.

[20].              FSANZ Act, paragraph 50(2)(a).

[21].              Explanatory Memorandum, Food Standards Australia New Zealand Amendment Bill 2015, p. 4, accessed 15 April 2015.

[22].              A 'food regulatory measure' is defined in section 4 of the FSANZ Act as a standard or code of practice.

[23].              Explanatory Memorandum, Food Standards Australia New Zealand Amendment Bill 2015, pp. 4 and 5, accessed 15 April 2015.

[24].              FSANZ, Annual report 2013–14, p. 13, accessed 5 May 2015.

[25].              FSANZ, Annual report 2012–13, p. 101, accessed 5 May 2015.

[26].              However, 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.

[27].              FSANZ, Annual report 2013–14, op. cit., Appendix 2, p. 80.