AUSTRALIA NEW ZEALAND FOOD AUTHORITY AMENDMENT BILL 1999
11 AUGUST 1999
© Commonwealth of Australia 1999
ISSN 1440-2572 |
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Senate Standing Committees on Community Affairs
PO Box 6100
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Canberra ACT 2600
Australia
MEMBERSHIP OF THE COMMITTEE
Members
| Senator Sue Knowles, Chairman |
LP, Western Australia |
| Senator Andrew Bartlett, Deputy Chair |
AD, Queensland |
| Senator Kay Denman |
ALP, Tasmania |
| Senator Chris Evans |
ALP, Western Australia |
| Senator Brett Mason |
LP, Queensland |
| Senator Tsebin Tchen |
LP, Victoria |
Former Members
| Senator Alan Eggleston |
LP, Western Australia |
| Senator David MacGibbon (to 30.6.99) |
LP, Queensland |
Substitute Member
| Senator Forshaw for Senator Denman for the Committee's
inquiry into the Bill |
ALP, New South Wales |
Participating Members
| Senator Eric Abetz |
LP, Tasmania |
| Senator Bob Brown |
Greens, Tasmania |
| Senator the Hon Rosemary Crowley |
ALP, South Australia |
| Senator the Hon John Faulkner |
ALP, New South Wales |
| Senator Michael Forshaw |
ALP, New South Wales |
| Senator Brenda Gibbs |
ALP, Queensland |
| Senator Brian Harradine |
Ind, Tasmania |
| Senator Meg Lees |
AD, South Australia |
| Senator the Hon Chris Schacht |
ALP, South Australia |
| Senator John Woodley |
AD, Queensland |
REPORT
AUSTRALIA NEW ZEALAND
FOOD AUTHORITY AMENDMENT BILL 1999
1. THE INQUIRY
1.1 The Australia New Zealand Food Authority Amendment Bill 1999 (the
Bill) was introduced into the Senate on 31 March 1999. On 20 April
1999, the Senate, on the recommendation of the Selection of Bills Committee
(Report No.6 of 1999), referred the provisions of the Bill to the Committee
for report by 30 June 1999. The reporting date was subsequently extended
until the first sitting week in August.
1.2 In undertaking its inquiry into the Bill, the Committee agreed to
consider a number of issues relating specifically to the proposed amendments
in the Bill and the Bill's place in the overall Government legislative
framework relating to food standards and regulation.
1.3 The Committee considered the Bill at a public hearing on 25 June
1999. Details of the public hearing are referred to in Appendix 2. The
Committee received 25 submissions and other written material relating
to the Bill, which are listed at Appendix 1.
2. THE BILL
2.1 As part of proposals to reform the food regulatory system in Australia,
a number of reviews have been conducted including the Food Regulation
Review, the National Competition Policy Review of the Australia New Zealand
Food Authority Act, and the Review of the Model Food Act and the State
and Territory Food Acts. The Bill addresses recommendations arising from
the reviews and seeks to amend the Australia New Zealand Food Authority
Act 1991 (the Act) in four major ways:
- creating objectives for the Act in order to provide public transparency
and accountability and clarifying the role, functions and regulatory
objectives of ANZFA;
- providing ANZFA with more flexibility and efficiency in its consultation
and decision-making processes, in particular by allowing ANZFA `to tailor
consultation processes, allocate more resources where there are significant
concerns and streamline processes for minor issues while still ensuring
that stakeholders have maximum opportunity to provide input on issues
that affect them'. [1] The Bill also provides
for ANZFA to make decisions on minor amendments to the Food Standards
Code where clear policy direction has been given by the Australia New
Zealand Food Standards Council (ANZFSC);
- enabling ANZFA to more effectively protect public health and safety
and the prevention of misleading and deceptive behaviour by allowing
the effective implementation and enforceability of new food standards;
and
- allowing ANZFA to prioritise and direct resources to its agreed work
program and to the food standards matters which are of major public
interest and to charge for services which are outside the work program
where there is a commercial benefit to the particular applicant inherent
in the application. [2]
2.2 A number of the amendments in this Bill were previously contained
in the Australia New Zealand Food Authority Amendment Bill 1996, which
lapsed at the end of the previous Parliament. The Committee had considered
and reported on that Bill in June 1997, commenting on a number of issues
including management improvements and resource prioritisation, and cost
recovery from industry through application fees and charges. [3]
3. ISSUES
3.1 As noted in paragraph 1.2, the Committee agreed to consider specific
issues relating directly to the Bill in undertaking its inquiry. This
section discusses the issues as agreed to by the Committee.
The adequacy of the proposed objectives for ANZFA
3.2 The Bill proposes to insert an overall objective for the Act in order
to `provide public transparency and a concise statement of the role of
the Authority'. [4] In addition, the proposed amendment of section
10 of the Act will provide two objectives for ANZFA in developing and
varying food regulatory measures: the protection of public health and
safety; and, the prevention of misleading or deceptive conduct. The Bill
also provides that ANZFA must have regard to five matters when developing
food standards. These include the provision of adequate information to
consumers and the promotion of consistency between domestic and international
food standards.
3.3 The inclusion of the overall objective was commented upon in a number
of submissions. The Australian Consumers' Association (ACA) submitted
that the objective `seemed superfluous'. The ACA and other groups expressed
concerns about the use and potential misuse of the concept of `equivalent
public health protection' in Australia and New Zealand. It was argued
that `equivalent' protection would lead to `lowest common denominator'
harmonisation of food regulations in Australia and New Zealand. [5] Other submissions noted that the word `safety'
had been dropped from the objective. [6]
3.4 Some groups also commented upon the proposed amendments to section
10 of the Act. The Food Industry Conference of Australia (FICA) stated
that the inclusion of a reference to `the prevention of misleading or
deceptive conduct' could risk confusion with the trade practices jurisdiction.
[7] It was also argued that the amendments will
downgrade the objective of focus on consumer need to only something to
which ANZFA `must have regard'. The introduction of a requirement to consider
`risk analysis that uses sound scientific principles' was questioned as
the risk assessment was not quantified, it is only required that it be
based on sound scientific principles. [8] Concerns
were also raised about the use of the term `sound science'. [9]
3.5 Another matter raised was the provision of adequate consumer information.
The ACA noted that food labels are the key to information and provide
the only point of sale advice available to the consumer. The ACA added
that `labelling is becoming increasingly important because people cannot
open foods in the supermarket. They do not know how foods are produced.'
[10]
3.6 Submissions also argued that the introduction of consistency between
domestic and international food regulations could lead to a lowering of
standards as Codex levels are `arguably well below our existing standards
in many respects'. [11] The AMWU Food Division
noted, in relation to harmonisation with New Zealand standards, that:
…where we have got differences in the standards between the two
countries let us choose the better, the more stringent and if there
are particular problems in terms of actually implementing those standards,
work those out on a practical and pragmatic basis. Instead of that,
we have not. In a number of cases we have actually gone for the lowest
common denominator standard, and that applies globally. [12]
3.7 In addition, it was argued that the inclusion of the promotion of
trade and commerce will put ANZFA in a contradictory position and was
inappropriate for a regulatory body. [13]
3.8 While some submissions acknowledged the need to redraft ANZFA's objectives,
it was considered that greater emphasis should be put on consumer interests
and less on those of industry. [14] However,
the Australian Food and Grocery Council (AFGC) stated that the proposed
amendment was an improvement on the current objectives. [15]
3.9 ANZFA noted that the overall objective `provides a strong statement
of the Authority's role, providing both guidance to the Authority in administering
its various functions under the Act, as well as setting a broad benchmark
of public accountability'. It also noted that the proposed objectives
for food regulatory measures:
…strengthen the consumer aspects of standards development. Lower
order objectives, such as promoting trade and commerce, are now clearly
separated and this will make it clear that the objectives of any work
on a food standard must be public health and safety and /or the prevention
of misleading and deceptive behaviour. [16]
3.10 In response to concerns that a general objective to provide information
to consumers will be removed from section 10, ANZFA stated that this objective
still remained in section 10(2) and in the overall objectives of the Act.
[17] It noted that section 10 was being amended because
it only applied to mandatory standards. ANZFA stated that:
We are suggesting this is appropriate because a mandatory labelling
standard is often not the best way of giving consumers information.
This really broadens it out and focuses on issues such as education
campaigns, pamphlets, point of sale posters, web sites, fact sheets,
et cetera. These are often more effective ways of providing information
to consumers. [18]
3.11 In relation to the harmonisation with international standards, ANZFA
stated that:
Essentially, we are obliged to comply with the obligations that Australia
has entered into by signing up to the World Trade Organisation agreements
which, basically, require us to be consistent with international standards
whenever we are developing a standard except where we can demonstrate
on good scientific principles that there is a reason to deviate from
them to protect public health and safety in Australia. Amending that
part of the Act to include a statement that it does not lower the Australian
standard would not be consistent with our WTO obligations. It was the
reason, I believe, that that rider was removed several years ago from
the Act. [19]
The extent to which public health is actually protected and promoted
3.12 Some groups suggested that the amendments would not sufficiently
promote and protect public health and safety. It was argued that the protection
function was being relegated to a lower priority in view of moves to minimise
regulation and ensure that industry was not overburdened. [20] A range of other concerns were raised including
the removal of `quality' standards; allowing (private) third party auditing
of food safety programs; and the introduction of industry codes of practice
which are not legally binding. [21] The Public
Health Association of Australia stated that:
…because of the direct relationship between food and health there
is little room for error in ensuring a safe food supply. For this reason
we believe that strong, enforceable and enforced regulation which has
the weight of law is a necessary requirement. Industry codes of practice
and guidelines are certainly welcomed, but should be in addition to
regulation, not replacing it. [22]
3.13 ANZFA stated that the protection of public health and safety `has
been, and will remain, the primary focus' of its standards development
work. ANZFA went on to note that its food product standards and food safety
standards functions were underpinned by a food monitoring and surveillance
program, a legal program, a general policy area, and public information
and education program. However, the responsibility for enforcing and administering
the food standards developed through the ANZFA system rests with the States
and Territories, which have devolved much of this responsibility to local
government. ANZFA noted that, as a consequence, the food regulatory system
in Australia is complex and fragmented. [23]
3.14 ANZFA submitted that the proposed amendments to section 9 of the
Act would enable food safety standards to be included in the Food Standards
Code. The standards will replace existing State and Territory food hygiene
regulations `making them more consistent nationally, promote a preventative
approach and align with international best practice'. [24]
3.15 ANZFA also stated that:
We are seeking to include in the Act coverage of codes of practice
as well as standards. At the moment the Act refers just to standards
… [ANZFA] always considers a range of alternative measures, and
in some cases a code of practice is more appropriate than a standard.
At the moment the development of codes of practice is not subject to
any statutory consultation requirements. Under the proposed amendments
it will be. This will make ANZFA's processes more transparent. There
is no intention for wholesale replacement of standards by codes of practice—there
are very few situations where codes of practice are deemed appropriate.
[25]
The extent to which consumer protection may be reduced
3.16 Several submissions argued that there will be a lessening of consumer
protection through lowering the priority given to providing information
to consumers to enable them to make informed choices, the use of codes
of practice and the move for the harmonisation of regulation with New
Zealand and the Codex. Submissions cited recent examples of harmonisation
in relation to cadmium levels and the Maximum Residue Level for glyphosate
as instances where protection for consumers had been reduced. [26]
3.17 Some groups argued that consumers would not be protected by the
introduction of charges for certain applications. [27]
CFA stated that this will mean that ANZFA becomes `beholden to, or captured
by, the food industries it is meant to regulate' and the AMWU stated that
it would disadvantage smaller organisations because of the significant
cost factor. [28] CFA indicated that consumer groups believed that
in order to minimise the risk of regulatory bodies being `captured' by
the interests which they are charged with regulating, they should be wholly
public funded. [29]
3.18 Coles Supermarkets submitted that cost recovery should not be a
priority `as this may lead to distortions in setting of the work program'.
[30] FICA supported cost recovery but `only
where the benefits of such a review can be shown to accrue in a significant
way to a particular organisation or a business'. [31] FICA also suggested that the establishment of
the work program should be open and transparent so that it was not unduly
influenced by any particular interest group. [32]
3.19 AFGC argued that the issue of adequate funding of ANZFA operations
is central to the cost recovery debate. AFGC stated that the Government
`has an unequivocal obligation to adequately fund agencies with clear
public health and safety objectives such as ANZFA'. AFGC considered that
the only condition under which ANZFA can demand payment for its services
is when an `exclusive, capturable benefit is conferred upon a party seeking
amendment to the Food Standards Code'. [33]
3.19 ANZFA emphasised that it is `committed to ensuring that consumer
protection is improved and not reduced'. It argued that the proposed amendments
to the objectives of ANZFA in developing food regulation measures would
improve consumer protection. [34]
3.20 In relation to the work program and charges, ANZFA responded that
the establishment of a work program would allow it to better manage its
work flow `so that we do not get forced into compromising the quality
of the work by trying to do everything that we are required by legislation
to do on a fixed budget'. Applications will be prioritised, based on the
degree of public good and will be scheduled over a three-year period.
Fees will be charged where there is capturable commercial good from an
application, or where an applicant wishes to have the priority of their
application raised. The charging arrangements will be set in regulations.
ANZFA advised that `the fee will be based on the amount of work that the
Authority has to do in making its decision, not on the outcome. They will
not be buying the outcome; they will be buying the process'. [35]
Transparency and public reporting of decision making
3.21 Amendments proposed to Part 3 of the Act will change ANZFA's notification
requirements and will also provide for ANZFA's Board to deal with less
significant applications and variations of standards. This will only occur
where the Ministerial Council has approved a general approach to be taken
in relation to the matter that is the subject of the application. Any
member of the Council may disagree with the Board's decision within 28 days.
3.22 ACA submitted that the theory of ANZFA's transparency, public reporting
and public consultation is not matched by practice. It claimed that `on
some occasions the input made by consumers or consumer organisations has
simply been ignored; on others, no attempt at consultation has been made;
on still others, consultation has been tokenistic'. [36] However, ACA conceded that the situation has
been exacerbated by ANZFA's heavy workload.
3.23 Some submissions referred to ANZFA's decision not to recommend the
full labelling of genetically engineered foods in face of widespread consumer
calls for full labelling. [37] Other submissions also argued that ANZFA had
used its fast-tracking powers for the folate fortification pilot to ensure
that it did not have to conduct consultations with consumer groups and
the public and that industry needs had overridden those of the public.
[38] It was argued that the proposed amendments in
relation to notifications and the inclusion of discretions in relation
to the manner in which consultations are carried out will further reduce
ANZFA's accountability to consumers. [39]
3.24 Several groups expressed concern about the proposal to allow ANZFA
to make recommendations on matters of minor significance. It was argued
that approval by Ministers was part of the consumer protection mechanisms.
[40] Many submissions pointed to ANZFA's recommendation
relating to genetically modified food which was rejected by ANZFSC as
an example of the problems devolving decision-making to ANZFA. [41]
3.25 In its submission ANZFA stated that it `is proud of its high level
of transparency and public reporting of decisions'. ANZFA noted that it
used a wide variety of tools to keep interested parties informed including
maintenance of a `public register' of all working documents relating to
applications and proposals; an extensive website; and publication of notices
on a variety of matters in newspapers and in gazettes.
3.26 ANZFA noted that the amendments will retain the requirements to
notify in relation to all the matters but will reduce the prescriptiveness
of notification in relation to newspaper and gazette notices. It stated
that `at the moment there is a requirement at several stages in the process
for ANZFA to place very expensive newspaper advertisements in both Australia
and New Zealand, and often these result in no further interest from stakeholders
than we already had'. [42] Public notification
will still occur at the commencement of each application. Thereafter greater
flexibility will ensure a cost effective notification process.
3.27 In relation to the amendment of decision making procedures, ANZFA
noted that there was some confusion about what the amendments will achieve.
It confirmed that `it will not be decision making by ANZFA; it will still
be decision making by the council … It requires the ministers to
have agreed to a strategic direction or an umbrella decision and for the
issues to be of minor significance'. The new arrangements will `improve
the timeliness and also remove some of the administrative work for ministers'.
ANZFA advised that these arrangements would only be used in limited circumstances
and all the other provisions of the Act would apply in terms of consultation.
[43]
Adequacy of public participation in ANZFA's decision making
3.28 Several submissions argued that the amendments to notification and
consultation provisions would weaken public participation. They noted
that consumers are not resourced sufficiently to fully participate in
ANZFA's decision making processes. In contrast, industry has the financial
resources and staff to consult and advocate their position. It was also
argued that special food needs groups were not adequately consulted and
that there was difficulty in accessing documents. Other submissions raised
concerns about amendments allowing for the fast-tracking of assessment
of some proposals by removing the current requirement for two rounds of
public consultations. [44]
3.29 ANZFA emphasised that it was committed to consulting with its industry,
consumer and government stakeholders in Australia and New Zealand. Further,
through its consultations, it aims to invite stakeholder involvement in
its decision making. ANZFA stated that the proposed amendments to the
Act `are aimed at improving the efficiency of the consultation process
by reducing the prescriptive nature of the current process and allowing
the Authority a greater degree of flexibility especially where matters
are considered insignificant and of minor public interest or concern'.
[45]
3.30 ANZFA also noted that it is currently preparing a policy document
for public consultation on consultation arrangements. Included in the
document is a suggestion that at the start of each application, ANZFA
will publish a consultation plan on that particular application. ANZFA
stated that `this will make ANZFA's work more transparent and accountable'.
[46]
The Bill's place in the overall Government legislative framework relating
to food standards and regulation
3.31 Several submissions argued that a more nationally integrated approach
to food regulation was needed. Submissions noted that responsibility for
food standards and regulation is currently divided between ANZFA and several
other agencies as well as the Commonwealth, State and Territory departments
of Health, Agriculture and Industry. It was argued that this creates overlapping
responsibilities and can lead to confusion as to the responsible agency
in certain circumstances. [47] Consumer and
other groups argued for the establishment of a national food regulatory
authority responsible for co-ordinating enforcement of food regulation
on a national level and that such an authority needed to have a clear
consumer focus. [48]
3.32 ANZFA noted that its core business created under the Act is to develop
national, and now bi-national, food standards in cooperation with the
Australian Commonwealth, New Zealand and State and Territory governments.
ANZFA submitted that this Bill would `facilitate the cost effective development
of food standards to keep pace with the high rate of technological and
policy change, including industry and consumer demand for greater uniformity
of regulation'. The Authority also noted that the amendments will allow
it to play an active part in assisting national harmonisation of food
laws, for example, developing a model Food Act. In addition, the Authority
stated that the amendments allow for the implementation of uniform food
safety standards throughout Australia. [49]
4. RECOMMENDATION
4.1 The Committee reports to the Senate that it has considered the Australia
New Zealand Food Authority Amendment Bill 1999 and recommends that
the Bill proceed.
Senator Sue Knowles
Chairman
August 1999
MINORITY REPORT - AUSTRALIAN LABOR PARTY
AUSTRALIA NEW ZEALAND FOOD AUTHORITY
AMENDMENT BILL 1999
1. Introduction
This Report reflects the views of the undersigned Senators who attended
the Community Affairs Legislation Committee hearings into the Australia
New Zealand Food Authority Amendment Bill 1999 on 25 June 1999. These
Senators do not agree with conclusions and recommendations contained in
the Committee majority report.
The majority report fails to adequately reflect and address the body
of evidence in the submissions and presentations to the Committee. While
the report outlines evidence from submissions that oppose both the thrust
of the Bill and specific matters of detail, it does not meaningfully respond
to these arguments and concludes by supporting the Bill without amendment.
The submissions of the ANZFA are the only significant evidence cited by
the majority report in response to the many opposing arguments from numerous
consumer and industry groups.
The strong message from the submissions and witnesses to the Inquiry
is that public health and consumer safety must be the primary concern
in Australia's food regulatory system and that the system should be regulated
by a clearly independent authority. The majority of witnesses did not
think this is currently the case, or that the Bill in its current form
would improve the situation.
2. The Adequacy of the Legislative framework
The final term of reference asks the Committee to consider the Bill's
place in the Government's overall legislative framework relating to food
standards and regulation.
Although the Bill deals with fundamental questions such as the Objects
of the Act and the main procedures used by ANZFA it is not based on any
overall analysis of the best mechanisms for food regulation. In fact the
Bill consists of an amalgam of amendments drawn from various sources.
The Bill should have taken a more global approach. The Blair Review into
the food industry completed in October 1998 was an important document
that canvassed many critical issues about food regulation. Unfortunately
the Government has not made a full response to this report and this Bill
is not drawn from such an overall analysis that takes into account the
impacts on the economic, agriculture, public health and consumer safety.
It is understood the Government has flagged that the Blair report will
be discussed at COAG in the future, and that other amendments to the ANZFA
Act will be developed after that. It is difficult to properly assess this
Bill without having a broader response to Blair to give the strategic
framework.
Opposition Senators are concerned that many aspects of this Bill do not
work to achieve the sort of independent food regulatory system that Australia
needs to give confidence in our own food supply and assure overseas customers
that our agricultural products are clean and wholesome.
Indeed there was considerable evidence presented that the Bill will in
fact weaken rather than strengthen the current system.
There is widespread public concern about food standards fired by the
current controversy over genetically modified food and a string of deaths
and illness caused by poor food hygiene. In this context it is vital that
the reputation of ANZFA be restored and public confidence in food regulation
strengthened.
It is thus wrong that the objectives of Australia's national Food Authority
be watered down or for its operating procedures to be adulterated by financial
considerations that put public health a poor second.
ANZFA is an interesting attempt to achieve common standards with New
Zealand on an important issue of shared importance in trade. There are
advantages in both countries sharing the burden of regulation and benefits
for producers, processors and consumers in devising a common set of standards.
Likewise there are benefits from removing avoidable variations from international
standards by harmonising the wording of our own Standards.
However these advantages should not come at the cost of reducing food
standards to a “lowest common denominator”. The process of “harmonisation”
may involve some countries putting in place more stringent food safety
laws. There is significant scope to simplify the way regulations are written
and enforced (and thereby reduce compliance costs) without lowering food
quality and purity standards.
Deregulation and moves toward Codes of Practice will not maintain public
confidence unless they occur within a clear framework that is transparent
to the public and independent of the food industry. The major players
in the food industry recognise the particular sensitivity of food safety
and the crucial role of maintaining public confidence in the regulatory
system. It is clear from the submissions to this Inquiry that in its current
form this Bill will not help achieve that goal.
However, if the issues raised by those submissions are addressed by way
of amending this Bill and the Government recommits itself to a strong
and independent Food Authority the outcome would be a boost in public
confidence.
3. Introduction of overall Objects for the Act
A prime concern in the submissions was the new Objects proposed to be
inserted as section 2A of the Act. A number of submissions regarded the
proposed Objects as a reduction in the level of emphasis given to consumer
interests and public health. Specific issues raised by consumers included:
- The use of the expression 'equivalent public health protection'.
This was considered to create the potential for food regulatory
standards to be developed on the basis of 'lowest common denominator'
protection of public health based on a relative rather than absolute
standard. [50]
- Promotion of harmonisation between domestic and international/
Codex food regulatory measures. Witnesses before the Inquiry regarded
this objective in s2A(e) as a trigger for the lowering of Australian
standards to minimum Codex levels [51], with diminished consumer protection
as a result. [52]
In response to these concerns, ANZFA raised Australia's
obligations under the WTO Agreements. The Authority's statements to the
Committee suggest that by stipulating that Australian standards would
not be lowered, we would stand in conflict with WTO provisions. [53]
Against this, the view of several witnesses was that harmonisation with
international standards would almost inevitably mean lowered standards.
The authors of the Minority report do not accept that the WTO Agreement
on Sanitary and Phytosanitary Measures (SPS Agreement) necessarily requires
that Australia's food standards be reduced. The SPS Agreement merely encourages
harmonisation and requires standards that exceed the international benchmarks
to be based on a scientific justification or an appropriate risk assessment.
ANZFA itself acknowledges that there are means by which Australia can
retain stronger standards than in Codex without breaching the SPS Agreement.
[54] Accordingly, adopting the object of harmonisation
should not be unqualified. Rather, the concept can be expressed in a neutral
fashion by adding to ANZFA's functions along the following lines:
“The promotion of harmonisation with New Zealand and more broadly,
accepted international standards, based on scientifically justifiable
criteria.
Harmonisation should be achieved by redrafting which does not significantly
weaken the Australian standard or by encouraging other countries to incorporate
the desirable aspects of Australia's standards.”
4. The Objectives to be followed in Developing Food Standards
The Bill proposes that the existing objectives for developing food regulatory
measures, contained in section 10 of the ANZFA Act, should be replaced.
Witnesses to the Inquiry argued the effect of this would be to reduce
the focus on consumer interests. [55]. These
concerns included:
- The elevation of trade and commercial considerations above consumer
information. The latter is afforded only the status of `a matter to
which ANZFA must have regard' as opposed to an objective [56].
- ANZFA is required only to develop standards based on risk analysis
using `sound scientific principles'. This is not given the status of
an objective, and the use of `sound science' as opposed to the `best
available' scientific evidence is a markedly weaker benchmark than even
the Blair Report's recommendations [57] in
this respect.
The proposed objectives need to be substantially re-drafted if a case
is to be made out that the existing objectives should be changed.
5. Refund of application fees and the Independence of ANZFA
The Bill provides for ANZFA to refund applications fees to unsuccessful
applicants in a number of circumstances. This was viewed by witnesses
as creating a threat to the independence of the Authority, which would
become financially dependent on outcomes favourable to applicants. There
would be a clear incentive for the Authority to accept some applications
that might otherwise be considered unfavourably in order to meet its budget
requirements. [58]
The Monash Centre for Population Health and Nutrition noted with concern
the `no risk advantage' to industry organisations whose applications to
ANZFA are unsuccessful, coupled with the incentive to ANZFA to approve
applications in order to secure its budget. [59]
The Organic Federation of Australia regarded these factors as having
dangerous implications for the independence of ANZFA and for public health
and safety [60].
In addition the submission from the Australia Food And Grocery Council
(received 4 August 1999) expresses “grave concerns with a food regulatory
system which is inadequately funded to meet its public good function while
remaining inefficient, imposing significant costs on industry, and governments”.
[61]
Clearly, the public good to be protected is several orders of magnitude
greater than the running cost of the Authority which has the responsibility
for regulating food standards. Core funding for ANZFA should be assured
from general revenue. Application fees are an appropriate source of revenue
but they should be realistic and provide a predictable income stream not
influenced by the favourable or unfavourable outcome on each decision.
There should not be a financial incentive for ANZFA to approve a potentially
risky product to secure its own budget when the cost to the community
could be far greater.
6. Substitution of enforceable `food standards' with less stringent
`Codes of Practice'
The Bill proposes to introduce Codes of Practice as a supplementary form
of food regulation to the existing `food standards'.
A Code of practice would provide a lower level of regulation under which
the Authority would have little or no enforcement power and the requirement
on industry to report compliance would be diminished. There was strong
concern that things, which had previously been subject to food standards,
would come within the more flexible and less enforceable Codes of Practice
and that this would greatly reduce or remove the requirements on industry
to abide by the regulations.
Witnesses before the Inquiry also indicated their concern that the enforcement
of Codes of Practice as proposed by the Amending Legislation is likely
to be less stringent than the current capacity to enforce food standards.
[62]In particular, the Public Health Association of
Australia addressed the problem of ANZFA having no clear mechanism or
requirement for the regular review and development of Codes of Practice.
[63]
Most importantly, it was noted that such Codes appear to have no legally
binding effect on industry, and no enforceable jurisdiction. [64]
It was suggested that to get redress, in legal effect the codes would
be useless and consumers would have to rely on State fair trading legislation,
Trade Practices Act or the ACCC which would prove administratively difficult,
costly and time consuming.
ANZFA has responded that Codes of Practice are already developed to help
with administration of the Act and that by bringing them into a statutory
framework, as proposed by the Bill, there would be statutory consultation
requirements which are not required under current arrangements. [65]
The Minority report agrees that Codes of Practice have a role to play
but they should not come to substitute for food standards. ANZFA has indicated
that this is not its intention.
The Bill should therefore be amended to clarify how extensively the Codes
of Practice provisions are to be applied and how enforcement of such Codes
is to be achieved. A Code of practice should not be permitted to substitute
for a Standard containing measures that protect public health or consumer
safety. Rather they should be used to articulate industry best practice
in processing to minimise the chance of non-complying food being prepared.
7. Fast-Tracking of Applications.
The Bill proposes a new discretion for ANZFA to deal with matters of
`minor significance'. This includes the removal of the existing requirement
for publication of proposals in the National Press.
Witnesses particularly emphasised the recent food-labelling situation
involving genetically modified foods as an indication of the need for
continued Ministerial monitoring and review of food standards [66]. The lack of any criteria for what the Authority
might think was a minor matter was the root of this concern. There are
no doubt circumstances where avoidance of delay in re-approval is desirable
and the full cost of wide public consultation is not justified.
A current proposal to allow caffeine in carbonated drinks other than
Cola was also raised as an example of something that might look to be
minor but which had important ramifications for national dietary behaviour.
(In this case, excessive caffeine intake by young children and a skewing
of drink preferences away from more healthy alternatives.)
ANZFA maintains that decision-making will still be made by the ANZFSC.
The Authority indicates that Ministers will need to have agreed to a strategic
direction and that the issues relating to the food regulatory measure
are of minor significance. Further, ANZFA argues it would only take such
decisions in limited circumstances [67] - however
these circumstances are not spelt out.
This intention should be reflected in the Bill by removing the open-ended
nature of the provision allowing discretion over matters of minor significance.
A safeguard against the misuse of the “minor significance”
exception could be to provide that it did not apply where a third party
had raised concerns. This would ensure that if a circumstance arose where
there was a controversial matter being considered it could be elevated
to the level of the Council and not approved administratively by the Authority
without broader public debate.
8. Policy development
FICA raised concern that the ANZFSC would be charged with the responsibility
of developing policy, while ANZFA would be relied on for the development
of rules. FICA viewed this as an undesirable division of responsibilities
in food regulation [68]. The boundaries of
what is policy and what is administrative practice are very grey.
The arrangements for delegation of decisions should be more explicit
so that there is a clear definition of what is a Council policy and what
broad guidelines or directions the Council has set. It should be possible
to examine the Guidelines and policies that ANZFA use to underpin their
decision making.
9. Notification provisions
The critical need for public participation was raised in relation to
the removal of notification/ publication requirements and also the involvement
of ministers in rejecting food standards or labelling requirements [69]. The proposed watering down of notification provisions
does not seem justified and will reduce the scope for the Authority to
do its consultation properly.
10. Recommendations
The strong message from the submissions and witnesses to the Inquiry
is that Australia's food regulatory system must retain as its first concern
the maintenance of public health and consumer safety, regulated by a clearly
independent authority.
The Bill is unacceptable as it fails to maintain a regulatory framework
which will ensure public confidence in food standards.
Some of the proposals have the potential to undermine public health and
consumer safety.
It is recommended that the Bill be amended to address many of the specific
concerns raised during the Inquiry, which the Majority Report has largely
ignored.
The Government is also encouraged to bring forward a full response to
the Blair Inquiry and recommit itself to a strong and independent Food
Authority.
Senator Chris Evans
(ALP, Western Australia)
Senator Michael Forshaw
(ALP, New South Wales)
THE AUSTRALIAN DEMOCRATS
DISSENTING REPORT - Australia New Zealand Food Authority Amendment Bill 1999
1. Summary
1.1 The Australian Democrats assert that the Australia New Zealand Food
Authority Amendment Bill 1999 (the Bill) as proposed is unacceptable and
requires amendment to give public health and safety, and consumer interests
appropriate consideration in the formulation of food regulation.
1.2 The Australian Democrats call for a comprehensive definition of public
health within the Bill to encompass the broader aspects of public health
in terms of nutrition and environmental factors.
1.3 The Australian Democrats maintain that `equivalent' public health
is an inappropriate qualifier of the ANZFA's objective to ensure public
health protection. Maintenance of the 1991 objective, `the protection
of public health and safety' is recommended.
1.4 The Australian Democrats maintain that public safety should be an
essential objective for Australia's primary food regulatory body as should
the provision of adequate food product information to consumers.
1.5 The definition of food under the Bill requires clarification so that
nutriceuticals are placed under the jurisdiction of the Therapeutic Goods
Administration and that the delineation of what is a food and what is
a drug is not left to the discretion of the Minister to determine.
1.6 Consistency between domestic and international food standards (as
proposed in Section 2a) is desirable only in cases which do not undermine
Australia's current standards. The Australian Democrats assert that the
Bill should give effect to Australia's and New Zealand's international
treaty obligations and national cooperative arrangements only when it
will not lead to a reduction in Australia's current domestic food standards.
1.7 The Australian Democrats oppose the wider regulatory shift towards
cost-benefit and cost recovery measures. Cost recovery should be left
as it is presently, that is, unused. Public health considerations should
be paramount in the construction of food standards. However, the Bill
in its current form gives primacy to acknowledging business costs. [70]
1.8 In conclusion, the Australian Democrats believe the Bill in its current
form is unworkable for the above mentioned reasons. The proposed Bill
must be amended as outlined in the following dissenting report to ensure
the ANZFA places appropriate emphasis on public health and consumer interests.
2. Background
2.1 The Australian New Zealand Food Authority, then named the National
Food Authority, was established as a `regulatory experiment' 1991.
2.2 The body was renamed the Australian New Zealand Food Authority in
1996 after Australia and New Zealand undertook joint food regulation.
2.3 Food regulatory responsibilities are fragmented across several Commonwealth
agencies in Australia. Commonwealth Agencies which possess food regulatory
responsibilities include:
- the Australian Quarantine and Inspection Service (AQIS), which undertakes
the Imported Food Inspection Program (IFIP) in conjunction with the
ANZFA;
- The Consumer Affairs Division of the Department of the Treasury, which
undertakes food and other mandatory product recalls; and,
- The Australian Competition and Consumer Commission (ACCC), which instigates
legal action against suppliers of defective products under the Trade
Practices Act 1974. [71]
2.4 The ANZFA:
- develops food standards and other regulatory measures for Australia
and New Zealand and coordinates surveillance of food available in Australia;
- coordinates food product recalls in cooperation with the States and
Territories;
- conducts research on matters that may be included in food standards;
- undertakes initiatives in food safety education in conjunction with
States and Territories;
- develops Codes of Practice for industry on any matter that may be
included in a food standard;
- develops risk assessment policies for imported foods; and, is developing
a set of national food hygiene standards. [72]
2.5 Currently, the ANZFA does not have the ability to implement or enforce
food standards. Instead, the ANZFA recommends food regulations to the
Australian New Zealand Food Standards Council (the ANZFSC) who either
approve amend or reject recommendations outright, or until further research
and refinement has been undertaken. The ANZFA's recommendations can not
become regulation without the approval of the ANZFSC. The ANZFSC consists
of the State and Federal Health Ministers of Australia and New Zealand.
2.6 Six years after the ANZFA's establishment a food regulation review
was deemed appropriate and was announced by the Prime Minister in his
March 1997 statement More Time for Business. The ensuing review
of the ANZFA has occurred in fragments.
2.7 Food Regulation under the ANZFA have been considered in:
- The Food Regulation Review (the Blair Report); The National Competition
Policy Review of the Australian New Zealand;
- Food Authority Act 1991 (the Act); and,
- The Review of the State and Territory Food Acts.
2.8 Recommendations of these reviews form central portions of the proposed
Bill, though some consequential changes have been made from the Blair
Report recommendations. [73] Recommendations of the Blair Review, however
provides the basis for the majority of the amendments which the Bill proposes.
2.9 The key objectives of the Blair Review were:
`while protecting public health and safety, to:
- reduce the regulatory burden on the food sector, and examine those
regulations which restrict competition, impose costs or confer benefits
on business; and,
- improve the clarity, certainty and efficiency of food regulatory
arrangements'. [74]
2.10 The Blair Review undertook a strategic assessment of concurrent
government review activities to ensure a coordinated and consolidated
approach to food regulation across all three spheres of government and
across the agricultural and health portfolios. It combined:
- the 1996 Small Business Deregulation Task Force Report Time for
Business which proposed a comprehensive review of food regulation;
and,
- the Commonwealth Government's legislative review program under the
national competition principles agreement which referred to the Australian
New Zealand Food Authority Act 1991. [75]
2.11 Therefore the regulatory review of the ANZFA was undertaken with
primary consideration to economic efficiencies rather than public health
and safety considerations. This inappropriate focus is reflected in the
Bill as currently proposed.
3. Current Practice
3.1. Australia's Current Food Regulatory System
3.1.1 Currently, Australia's food regulatory system is complicated and
fragmented. [76]
3.1.2 Responsibility for enforcing and administering food standards developed
through the ANZFA system rests with the States and Territories, which
have transferred a large percentage of this jurisdiction to local government.
3.1.3 The ANZFA's current objectives, as defined in the Australia
New Zealand Food Authority Act 1991 are that it develops food standards
in accordance with the following objectives, decreasing in priority:
- the protection of public health and safety;
- the provision of adequate information relating to food to enable consumers
to make informed choices and to prevent fraud and deception;
- the promotion of fair trading in food;
- the promotion of trade and commerce in the food industry; and
- the promotion of consistency between domestic and international foodstandards
where these are at variance.
3.1.4 Conflicts between responsibilities to represent the interests of
consumers and that of industry in the ANZFA are apparent. It has been
documented in the press that staff of the ANZFA have admitted to being
too close to industry, despite the primary objective of the ANZFA protect
public health and safety. [77]
3.1.5 The fact that there are no laboratories at the ANZFA and that the
ANZFA does not undertake any independent testing makes it questionable
that the ANZFA can fulfil its commitment to the health of the community
under its' objectives. This is compounded by the usage of data predominantly
provided by food companies and overseas agencies and has implications
for the grounds on which the introduction of charges by the ANZFA are
substantiated as discussed below.
3.1.6 The Sydney Morning Herald reported that staff of the ANZFA admitted
to defending and promoting genetically modified foods during the labelling
and regulation debate of these foods. [78]
This is despite prestigious scientific reports in academic journals stating
the possible public health risks associated with genetically modified
food consumption. [79] Therefore, demonstrating
that industry and consumer interests are inadequately reconciled under
the ANZFA at present.
3.2 International Obligations
Conflict between the ANZFA's objective to ensure public health and safety
and to adhere to international trade obligations is also problematic.
3.2.1 The ANZFA complies with Australian and New Zealand's international
obligations under the World Trade Organisation (WTO) agreements and the
Australia New Zealand Closer Economic Relations Trade Agreement.
3.2.2 The WTO recognises the Codex Alimentarius Commission. Codex standards
have significant impact on Australia and New Zealand. The ANZFA contributes
to food standards debates at Codex meetings and takes account of Codex
principles in the Food Standards Code.
3.2.3 Australia is obliged under the WTO's agreement to be consistent
with international standards whenever a standard is developed. An exception
is made when it can be demonstrated on good scientific principle that
a change would undermine protection of public health and safety in Australia.
However, this qualification of international standardisation is not reflected
in the Government's proposed legislation and, therefore, could lead to
a greater risk to public health and safety.
3.2.4. Specifically, consistency between domestic and international food
regulatory measures opens up the risk of a situation of standards of the
lowest common denominator. For example, the ANZFA's and the ANZFSC's recent
approval of Proposal P144 (which sought to raise the permitted cadmium
level in Australian foods from 0.05 to 0.1 mg/kg in peanuts in Standard
A12 of the Food Standards Code in keeping with standards of the Codex
Alimentarius) demonstrates this risk.
3.3 The United Kingdom's Food Standards Agency
As acknowledged in the Australian Consumers Association's (ACA) submission
to the Senate Committee's inquiry, the government of the United Kingdom
(UK) has frankly acknowledged the incompatibility of consumer and industry
interests in relation to food regulation [80].
3.3.1 Paragraph 1.12 of the UK Food Regulation White Paper states that:
The Government agrees that a clear separation is needed between
promoting safe food and wider consumer interests on the one hand and
promoting the interests of business on the other. [81]
3.3.2 The United Kingdom has established the United Kingdom Food Standards
Agency to achieve separation of wider consumer and business interests.
The United Kingdom Food Standards Agency is to be a statutory body with
a clear focus on protecting the public and the possessing statutory authority
across the whole food chain. Its objectives include:
4. Issues Within the Bill
4.1 The ANZFA's Objectives
The Bill introduces an objective section for the Act and recasts ANZFA's
objectives. Under the Bill as proposed health, safety and the protection
of the community are no longer objectives and have been demoted instead
to
`priorities' of the ANZFA. Such amendments produce a weak and inadequate
charter for Australia's primary food regulator.
4.1.1 `equivalent public health protection'
4.1.1.1 The Australian Democrats object to the term `equivalent' which
qualifies the ANZFA's objective to ensure public health protection in
relation to food throughout Australia and New Zealand.
4.1.1.2 In response to questions on notice at the Senate Committee inquiry,
the Minister for Health and Aged Care stated that the wording of objective
(a) in the proposed Section 2A of the Bill refers to equivalent public
health protection across Australia or New Zealand. [83]
4.1.1.3 The Chair's Draft acknowledges `the ACA and other groups (who)
expressed concerns about the use and potential misuse of the concept of
equivalent public health protection' in Australia and New Zealand.
The Australian Democrats share this concern as the term `equivalent' can
be interpreted as a formalised move towards lowest common denominator
standards between the two countries.
The Australian Democrats maintain that `equivalent' public health
is an inappropriate qualifier of the ANZFA's objective to ensure public
health protection. Maintenance of the 1991 objective, `the protection
of public health and safety' is recommended instead.
4.1.2 Safety
4.1.2.1 The Bill omits public safety from the ANZFA's objectives and
thereby eliminates public safety from the ANZFA's regulatory considerations
and responsibilities. The Australian Democrats deem public safety to be
a fundamental aspect of a food regulatory body's responsibility. The inclusion
of public safety in the ANZFA's objectives can only strengthen the most
important charter of a food regulatory body, that is, the objective to
public health protection.
The Australian Democrats maintain that public safety should be an
essential objective for Australia's primary food regulatory body.
4.1.3 Public Health
4.1.3.1 Though the Objectives of the Act specify that the ANZFA must
ensure equivalent public health, public health is not defined. This is
problematic.
4.1.3.2. Ms Susan Cassidy, Professional Service Dietitian, Dietitians
Association of Australia stated at the Committee inquiry that the:
`DAA recommends the inclusion of a definition of public health in
the act…(that will) recognise the broader aspects of public health
in terms of health improvement and disease prevention. This is not captured
within the objectives as they stand. In addition, DAA believes that
there is a need to undertake consultation to define `protect'. DAA believes
that it also implies `promote', that is, nutrition, public health and
safety, and that these encompass long-term population ecological bases
rather than short-term individualistic bases. The system needs not just
to maintain protection but also to be responsive to developments in
the food and health sectors. [84]
The Australian Democrats call for a wide definition of public health
in the Bill which encompasses the broader aspects of public health in
terms of nutrition and environmental factors.
4.1.4 Consistency of Domestic and International Food Standards
4.1.4.1 Pursuit of consistency between domestic and international food
regulatory measures will lead to food regulation of the lowest common
denominator and will risk the Australian environment.
4.1.4.2 Australia's food standards are generally more stringent than
that of the international food regulatory body Codex Alimentarius and
Australia can produce foods with relatively high purity compared to trading
partners. This ability should be preserved and promoted rather than undermined
by lower international food standards.
4.1.4.3 Consistency is generally desirable, but not when it requires
a lowering of Australia's present standards. Health risk analyses may
conclude that increasing food standards poses an insignificant risk to
consumers, however, the ANZFA does not consider the impact that these
increased thresholds may have on the environment.
4.1.5 Inconsistency of Objectives stated in Section 2A and Section
10.
4.1.5.1 Under Section 10 of the Bill, the provision of adequate consumer
food product information is demoted from an `objective' under Section
2A of the Bill to only a point that the ANZFA must `also have regard to'.
This demotion is a notable and problematic inconsistency.
4.1.5.2 The provision of adequate information on food products is essential
for ensuring public health and safety and should be given equal weighting
to these objectives.
The provision of adequate information to consumers on food products
must be a clear objective of the Bill.
4.1.6 Consumer Information
4.1.6.1 Many consumer groups voiced concern at the Senate Committee's
Public Hearing of the incongruity between the objectives in the proposed
Section 10 and those in Section 2A. The Bill's objective in Section 2A
that the ANZFA ensures adequate consumer food product information enable
informed choice is not reflected in the proposed Section 10.
4.2. Voluntary Codes of Practice
4.2.1 The proposed amendment to Item 1 (replacing `food standards'
with `food regulatory measures') reflects a wider move towards
voluntary codes of practice as an alternative to prescriptive standards.
The term `food regulatory measures' includes voluntary codes of
conduct for industry in addition to enforceable standards.
4.2.2 The Bill, as proposed, acts to introduce voluntary codes of practice
as an alternative and substitute to enforceable regulation.
4.2.3 The Bill's Explanatory Memorandum states that the ANZFA
can only make codes of practice in relation to areas in which it has expertise.
Proposed Section 9A of the Bill provides that voluntary codes of practice
can only deal with matters that can be the subject of standards. The fact
that codes and standards can address the same subject matter may encourage
the ANZFA to see codes of practice as less costly substitute to legally
binding standards. [85]
4.2.4 The Australian Democrats consider the general shift of food regulation
to voluntary codes with concern. Industry managed codes of practice should
not be considered as a general alternative to standards as lapses can
lead to food spoiling and life threatening illness. The South Australian
Garibaldi Small Goods food poisoning incident and the estimated 2.5 billion
dollar cost to the community of food poisoning per annum should be ample
impetus to establish codes of practice as an extra precaution not a substitute
to food standards.
4.2.5 Food safety must not be economised and downsized. Consumer health
and confidence can not be risked.
4.3 Nutriceuticals
4.3.1 The Bill inserts a new definition of food in Item 8 delineating
between the therapeutic goods administration and the ANZFA. This inclusion
of any substance or thing capable of being used for human consumption
et cetera does not account for the emergence of nutriceuticals in Australia's
food stores, that is, food stuffs which claim health benefits (eg: the
successful foliate fortification pilot [86]).
4.3.2 All nutriceuticals should undergo independent testing. This is
not current practice in the ANZFA therefore, as a therapeutic substance,
nutriceuticals should be placed under the jurisdiction of the Therapeutic
Goods Administration.
4.3.3 Furthermore, considering the immense market success and further
potential for nutriceuticals on our supermarket shelves, the demarcation
between food and drugs should not be at the discretion of the Minister.
The food versus drug demarcation should be legislated to avoid any undesired
lobbying by food manufacturers.
4.4 Cost-Recovery Assessment Charges
4.4.1 The Bill as proposed allows the ANZFA to charge for services and
assessments. The Bill requires that those applying for food regulation
must be charged for the preliminary assessment and notices given in relation
on the application. Under Section 15, a fixed charge is required before
an application can be assessed.
4.4.2 The magnitude of the charges has not been determined however. The
probability that such an up-front fee will pose a deterrent to community
groups to participate in the development of standards and making regulation
applications could be quite considerable. The Current Act (Section 66)
sets out circumstances in which the ANZFA can waive fees. This is not
included in the proposed Bill. [87]
4.4.3 The Bill also requires that the charge be refunded if an application
is rejected (Section 13) opening up the risk of the ANZFA approving applications
for monetary motivations.
4.4.4 The Bill also reflects a move toward cost-recovery (Item 63) allowing
the ANZFA to charge for use of its facilities, providing that charges
be paid directly to the ANZFA rather than the Commonwealth.
4.4.5 Cost-recovery was deemed undesirable by both consumer and industry
interests in submissions to the Senate inquiry. Coles supermarket stated
that cost-recovery `may lead to distortions in setting of the working
program [88]'.
The Australian Democrats do not support cost-recovery provisions
for the assessment of food safety as it could possibly undermine the
ANZFA's ability to provide independent assessments and also restrict
community access to regulation assessments.
4.5. Cost-Benefit Analysis
4.5.1 The Bill as proposed introduces cost-benefit analyses in the consideration
of food regulatory measures, thereby codifying the ANZFA decision-making
procedures which have been in operation over the preceding five years.
4.5.2 In response to a question on notice on the ANZFA's cost-benefit
analyses the Minister for Health and Aged Care stated that:
The cost-benefit analysis referred to in Item 29 refers to the preparation
of Regulation Impact Statements (RIS)…options are ranked according
to their net economic and social benefits. The RIS embodies this analytical
process.
The RIS identifies and evaluates, when possible, the costs and benefits
of the regulation and its health, economic and social impacts. The terms
`cost' and `benefit' are used in the broadest sense. The analysis of
costs and benefits includes specific monetary impacts, where these are
possible to quantify, but it is often based on qualitative factors such
as the protection of public health and safety, prevention of misleading
and deceptive conduct, minimising restrictions on competition and barriers
to trade. [89]
4.5.3 The Australian Democrats are opposed to the `ranking' of the net
economic and social benefits of food regulatory options under the Regulation
Impact Statements (RIS). Such systems may be influenced by political agendas
and powerful stakeholder interests. The risk that under the RIS system
easily gauged quantitative factors are given inappropriate weight to qualitative
factors such as consumer social, ethical and environmental concerns is
considered too great.
4.5.4 The Australian Democrats can not support the codification of a
decision-making process which deems segregation and full and comprehensive
mandatory labelling of genetically modified foods inappropriate and too
costly and approves the doubling of acceptable cadmium levels in food
sold in Australia.
4.6 Increased Regulatory Power of the ANZFA
4.6.1 The Bill extends the ANZFA's powers to make food regulations independent
of the ANZFC in certain circumstances.
4.6.2 The Bill allows for the ANZFA to implement regulation in situations
which are considered to be of `minor significance', though what is minor
is not specified. The ANZFA decision will become regulation in 28 days
of the decision if the ANZFSC do not object.
4.6.3 Though the ANZFA would have undertaken public consultation as it
deemed appropriate by this time, the 28-day window leaves little time
for community interests to be organised and activated before the decision
is regulated. However, the current system is also inappropriate as decisions
can be postponed by the Council, as was the case with labelling of genetically
modified foods, thereby allowing the Health Ministers to pursue a non-labelling
position without appropriate approval for an extended period of time.
The Australian Democrats can not support the increased regulatory
powers of the ANZFA as it restricts another avenue for public input
into food regulation decisions.
4.7 Public Consultation.
4.7.1 The proposed Bill intends to grant the ANZFA the power to determine
what public conferral and consultation is appropriate in food regulation
matters.
4.7.2 The Bill grants the ANZFA the discretionary judgement to consult
`in any manner it considers appropriate and effective', removing
the requirement to carry out two rounds of public consultation where `a
proposal raises issues of minor significance' or where `omitting
to consult will not have a significant adverse effect on the interests
of anyone'. [90]
4.7.3 This increased regulatory powers of ANZFA is inappropriate, considering
the current lack of consumer consultation expressed in submissions to
the Senate inquiry into the proposed Bill and the disregard that the ANZFA
demonstrated for public sentiment on the issue of labelling of genetically
modified foods.
The ANZFA should not be granted increased power to determine how
and in what manner it consults with the public.
5. Conclusion
5.1 In conclusion, the Australian Democrats believe that the Bill in
its current form is unworkable for the above mentioned reasons. The proposed
Bill must be amended as specified above to ensure the ANZFA places appropriate
emphasis on public health and consumer interests.
5.2 The Bill currently imposes in-built inequalities on access to food
assessment and regulation, particularly with respect to proposed cost
implementation and increases in regulatory autonomy of the ANZFA.
5.3 The Australian Democrats recommend that the Australian New Zealand
Food Authority Amendment Bill 1999 be amended to ensure the adequate protection
of consumer interests and public health.
Natasha Stott Despoja
The Australian Democrats
Andrew Bartlett
The Australian Democrats
9 August 1999
APPENDIX 1 - Submissions received by the Committee
| 1 |
Australian Manufacturing Workers Union (AMWU), Food
Division |
| 2 |
Coles Supermarkets Australia Pty Ltd |
| 3 |
Monash Centre for Population Health and Nutrition
- Additional information dated 28 June 1999 |
| 4 |
Consumer Food Network of the Consumers' Federation
of Australia Inc |
| 5 |
South Australian Food Alliance |
| 6 |
Mr Arnold Ward |
| 7 |
Dietitians Association of Australia |
| 8 |
Mr Desmond Sibraa |
| 9 |
Mr and Mrs P Gurrin |
| 10 |
Public Health Association of Australia Inc |
| 11 |
Organic Federation of Australia Inc
- Additional information dated 28 June 1999 |
| 12 |
National Council of Women of Australia |
| 13 |
Federated Association of Australian Housewives (Tasmania) |
| 14 |
Food Industry Conference of Australia Inc |
| 15 |
Allergy, Sensitivity & Environmental Health Association
Qld Inc |
| 16 |
Australian Consumers' Association
- Document tabled at public hearing 25 June 1999 |
| 17 |
Department of Health and Aged Care |
| 18 |
Australian GeneEthics Network |
| 19 |
Australia New Zealand Food Authority
- Additional information dated 12 July 1999
- Additional information dated 16 July 1999 |
| 20 |
VicHealth |
| 21 |
Beale Management Consultants
- Additional information dated 16 July 1999 |
| 22 |
Mrs Dorothy Bowes |
| 23 |
Ms Susan Papi |
| 24 |
Australian Chemical Trauma Alliance
- Additional information dated 1 August 1999 |
| 25 |
Australian Food and Grocery Council |
The Committee received an 80 page petition relating to the banning or
labelling of all genetically engineered foods and food products.
The Committee also received correspondence and form letters from 53 people
relating generally to issues of food regulation and labelling.
APPENDIX 2 - Public Hearing
A public hearing was held on the Bill on 25 June 1999 in Senate Committee
Room 2S3.
Committee Members in attendance
Senator Sue Knowles (Chairman)
Senator Chris Evans
Senator Michael Forshaw
Witnesses
Dietitians Association of Australia
Ms Sue Cassidy, Professional Services Dietitian
Public Health Association of Australia
Ms Lynne Flemming, Executive Director
Ms Julie Woods, Secretariat, Food Legislation and Regulation Advisory
Group
Australian Consumers' Association
Mr Matt O'Neill, Senior Policy Officer, Food and Nutrition
Consumers' Federation of Australia – Consumer Food Network
Mr Dick Copeman, Coordinator
Food Industry Conference of Australia
Mr Terry Mott, Chairman
Mr Graeme Taylor, Executive Director
Organic Federation of Australia
Mr Scott Kinnear, Chairperson
Monash Centre for Population Health and Nutrition
Ms Maggie Niall, Public Health Nutritionist
Australian Manufacturing Workers Union – Food Division
Mr Noel Treharne, Federal Secretary
Mr Max Ogden, Industrial Officer, ACTU
Mr Tony Webb, Consultant
Australia New Zealand Food Authority
Dr Simon Brooke-Taylor, Program Manager, Food Standards
Ms Claire Pontin, General Manager, Monitoring and Operations
Ms Fiona Jolly, Program Manager, Legal
Footnotes
[1] Minister's Second Reading Speech, p.2.
[2] Minister's Second Reading Speech, pp.2-3.
[3] Australia New Zealand Food Authority Amendment
Bill 1996 and Australia New Zealand Food Authority Amendment Bill (No.2)
1997, Report by the Senate Community Affairs Legislation Committee, June
1997.
[4] Explanatory Memorandum, p.8.
[5] Submission No.16, p.3 (ACA); Submission
No.4, p.1 (Consumers' Federation of Australia).
[6] Submission No.4, p.1 (Consumers' Federation
of Australia).
[7] Committee Hansard, 25.6.99, p.CA26.
[8] Submission No.11, p.3 (Organic Federation
of Australia).
[9] Committee Hansard, 25.6.99, p.CA14.
[10] Committee Hansard, 25.6.99, p.CA13.
[11] Submission No.11, p.3 (Organic Federation
of Australia).
[12] Committee Hansard, 25.6.99, p.CA38.
[13] Submission No.5, p.1 (South Australian
Food Alliance); Submission No.7, p.1 (Dietitians Association of Australia);
Submission No.11, p.3 (Organic Federation of Australia).
[14] Submission No. 16, p.4 (ACA). See also
Submission No.1, p.21 (AMWU).
[15] Submission No.25, Attachment 2, p.7 (AFGC).
[16] Submission No.19, p.5 (ANZFA).
[17] Submission No.19, p.6 (ANZFA).
[18] Committee Hansard, 25.6.99, p.CA2.
[19] Committee Hansard, 25.6.99, p.CA46.
[20] Submission No.10, p.6 (Public Health Association
of Australia).
[21] Submission No.3, p.5 (Monash Centre for
Population Health & Nutrition); Submission No.4, p.3 (CFA); Submission
No.7, p.1 (Dietitians Association of Australia); Submission No.10, p.7
(Public Health Association of Australia); Submission No.11, p.4 (Organic
Federation of Australia); Submission No.15, p.2 (Allergy, Sensitivity
& Environmental Health Association Qld); Submission No.16, p.5 (ACA);
Submission No.21, p.10 (Beale Management Consultants).
[22] Committee Hansard, 25.6.99, p.CA8.
[23] Submission No.19, p.6 (ANZFA).
[24] Submission No.19, p.7 (ANZFA).
[25] Committee Hansard, 25.6.99, p.CA1.
[26] Submission No.4, p.2 (CFA); Submission
No.10, p.8 (Public Health Association of Australia).
[27] See for example, Submission No.4, p.4
(CFA); Submission No.12, p.3 (National Council of Women of Australia);
Submission No.15, p.4 (Allergy, Sensitivity & Environmental Health
Ass Qld).
[28] Submission No.4, p.4 (CFA); Committee
Hansard, 25.6.99, p.CA40.
[29] Committee Hansard, 25.6.99, p.CA17;
Submission No.4, p.4 (CFA); See also Committee Hansard, 25.6.99,
p.CA40.
[30] Submission No.2, p.2 (Coles Supermarkets
Australia).
[31] Committee Hansard, 25.6.99, p.CA26.
[32] Submission No.14, p.3 (FICA).
[33] Submission No.25, pp.9, 11-12 (AFGC).
[34] Submission No.19, p.7 (ANZFA).
[35] Committee Hansard, 25.6.99, p.CA44.
[36] Submission No.16, p.5 (ACA).
[37] Submission No.10, p.8 (Public Health Association
of Australia); Submission No.11, p.5 (Organic Federation of Australia).
[38] Submission No.4, p.4 (CFA); Submission
No.7, p.2 (Dietitians Association of Australia).
[39] Submission No.16, p.5 (ACA).
[40] Committee Hansard, 25.6.99, p.CA11.
[41] Submission No.1, p.25 (AMWU); Submission
No.4, p.4 (CFA); Submission No.10, p.8 (Public Health Association of Australia);
Submission No. 11, p.5 (Organic Federation of Australia). See also Committee
Hansard, 25.6.99, p.CA41.
[42] Committee Hansard, 25.6.99, p.CA2.
[43] Committee Hansard, 25.6.99, p.CA43.
[44] Submission No.4, p.5 (CFA); Submission
No.5, p.4 (SA Food Alliance); Submission No.10, p.9 (Public Health Association
of Australia); Submission No.15, p.4 (Allergy, Sensitivity & Environmental
Health Association Qld).
[45] Submission No.19, pp.9-10 (ANZFA).
[46] Committee Hansard, 25.6.99, p.CA2.
[47] Submission No.1, pp.25-27 (AMWU); Submission
No.4, p.6 (CFA); Submission No.5, p.5 (SA Food Alliance).
[48] Submission No.1, pp.26-27 (AMWU); Submission
No.3, p.1 (Monash Centre for Population Health and Nutrition); Submission
No.4, p.6 (CFA); Submission No.15, p.6 (Allergy, Sensitivity & Environmental
Health Association Qld); Submission No.16, p.2 (ACA); Committee Hansard,
25.6.99, p.CA36.
[49] Submission No.19, p.12 (ANZFA). See also
Submission No.17, p.1(DHAC).
[50] Consumer Food Network of the Consumers'
Federation of Australia Submission at 1; Australian Consumers Association
Submission at 3.
[51] Australian Manufacturing Workers' Union
(hereafter `AMWU') Submission, at pg22.
[52] Public Health Association of Australia,
Food Legislation and Regulation Advisory Group Submission at 8.
[53] Senate Community Affairs Legislation
Committee Public Hearing, Committee Hansard, 25 June 1999, at 46.
[54] Senate Community Affairs Legislation
Committee Public Hearing, Committee Hansard, 25 June 1999, at 46.
[55] Supra note 4, Australian Consumers
Federation, at 19.
[56] Ibid, at 16.
[57] Food: a growth industry. Report of
the Food Regulation Review, August 1998, Recommendation 25(2)(b) at
126; see also supra note 4 at 19, 20.
[58] Submission 11, Organic Federation of Australia
at 5.
[59] Submission 3, Monash Centre for Population
Health and Nutrition at 4.
[60] Submission 11, Organic Federation of Australia
at 5.
[61] Submission 25, Australian Food and Grocery
Council at 3
[62] Supra note 4, Public Health Association
of Australia at 7.
[63] Supra note 4, Public Health Association
of Australia, at 10.
[64] Ibid; Submission 3, Monash Centre
for Population Health and Nutrition at 5.
[65] Supra note 4, ANZFA, at 44.
[66] Supra note 4, Dietitians Association
of Australia & Public Health Association of Australia, at 11.
[67] Supra note 4, ANZFA at 43.
[68] Submission 14, Food Industry Conference
of Australia, at 3.
[69] Supra note 4, Consumer Food Network
at 15.
[70] `The philosophy underlying the Bill
is that the Act currently gives primacy to the benefit of protecting of
public health without acknowledging costs imposed on business'. Tapley
Mark, Bills Digest No. 206 1998-99 Australia New Zealand Food Authority
Amendment Bill, Law and Bills Digest Group, Department of the Parliamentary
Library 28 June 1999 at page 8. The Australian Democrats maintain that
the Act currently does not protect public health adequately and that the
Bill as proposed shifts the balance of interests further in the favour
of industry.
[71] The Auditor General, Food Safety Regulation
in Australia-Australian New Zealand Food Authority Follow-up Audit, Audit
report No.45 1998-1999 Performance Audit at page 10.
[72] The Australian New Zealand Food Authority
Service Charter 1998 at page 2 of 8 at http://www.anzfa.gov.au/WhatIsANZFA/servicecharter.pdf
[73] See Submission No.16, Australian Consumers
Association, at page 1 & attachment 2. The Blair Review recommended
that decisions be based on the best available scientific information,
yet the amendment in the Bill changed the wording to standards on `risk
analysis and sound scientific principles', opening up the risk of `junk'
science versus `sound' science stand-offs.
[74] Food Regulation Review Committee, Food:
a growth industry, Report of the Food regulation Review, August 1998
at page x.
[75] Ibid.
[76] Submission No. 19, The Australian New
Zealand Food Authority at page 6; citied in Chair's Draft at pages 5-6.
[77] Ragg Mark, Mastications: Taste of a food
fight to come, The Sydney Morning Herald, July 25 1999. http://www.smh.com.au/news/9906/25/text/features3.html.
[78] Ibid.
[79] Research from the Netherlands show that
antibiotic resistant marker genes from genetically engineered bacteria
can be transferred horizontally to indigenous bacteria at a substantial
rate of 10-7 in an artificial gut. MacKenzie D, (1999) Gut Reaction, New
Scientist 30 January at page 4;Researchers in the US found widespread
horizontal transfer of a yeast parasite to the mitochondrial genome of
higher plants. Cho Y, Qui Y-L., Kuhlman P., Palmer J.D., (1998) Explosive
invasion of plant mitochondria by a group I intron.. Proc. Natl. Acad.
Sci., USA 95, at pages 14244-9.
[80] Submission No.16, Australian Consumers
Association, at page 2.
[81] United Kingdom Food Regulation White Paper
1998 at paragraph 1.12.
[82] Ibid. at paragraph 1.2.
[83] In response to a question placed on notice
by Senator Stott Despoja inquiring: What does ANZFA understand `The
wording of objective equivalent public health to mean in section 2A which
states that the Authority ensure that people enjoy the benefit of equivalent
public health protection? The Minister for Health and Aged Care upon
notice on 25 June 1999 stated:The wording of objective (a) in the proposed
section 2A reflects that the body that is now ANZFA was established with
the aim of achieving uniformity in food law through out Australia (and
now New Zealand). This is an appropriate objective for a national body
such as ANZFA which worked in partnership with States and Territories
and New Zealand to develop law that adequately protected public health
but because of the inevitable differences that would occur citizens of
one jurisdiction may be less well protected than others in another jurisdiction.
Senate Community Affairs Legislation Committee, Australia New Zealand
Food Authority Amendment Bill, 25 June 1999.
[84] Cassidy, Susan, Professional Services
Dietitian Dietitians Association of Australia, Senate Community Affairs
Legislation Committee Hansard: Australia New Zealand Food Authority Amendment
Bill 1999 Friday 25 June 1999 at page CA 7.
[85] Tapley Mark, Bills Digest No. 206 1998-99
Australia New Zealand Food Authority Amendment Bill, Law and Bills Digest
Group, Department of the Parliamentary Library 28 June 1999 at page 5.
[86] See Submission No. 4. Consumers' Federation
of Australia Inc at page 4 (cited also in Submission No. 5, The South
Australian Food Alliance):`The folate fortification pilot is, presumably,
a model of how such a system will operate. In that case, certain companies
paid large amounts of money to ANZFA to develop guidelines and approval
processes, without any public consultation, for a process that was more
about promoting sales of those companies' processed food products than
about promoting public health. The token inclusion in the guidelines of
a requirement to promote the value of a balances diet of fresh unprocessed
foods has been largely ignored by the companies in the labelling and promotion
of their fortified products.'
[87] Ibid. at page 7.
[88] Submission No. 2 Coles Supermarket Australia,
at page 2; cited in the Chairs Draft, at page 5.
[89] Minister for Health and Aged Care, in
response to question on notice by Senator Natasha Stott Despoja, Senate
Community Affairs Legislation Committee, Australia New Zealand Food Authority
Amendment Bill, 25 June 1999.
[90] Tapley Mark, Op. cit.