Bills Digest no. 32 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Paula Pyburne
Law and Bills Digest Section
14 October 2015
Contents
Purpose
of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 17
September 2015
House: House of
Representatives
Portfolio: Health
Commencement: Sections
1–3 on Royal Assent; Part 1 of Schedule 1 on the day after Royal Assent; Part 2
of Schedule 1 on a day fixed by Proclamation which is no longer than 12 months
after Royal Assent—or not at all; Schedule 2 on 1 January 2016.
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.
The purpose of the Food Standards Australia New Zealand
Amendment (Forum on Food Regulation and Other Measures) Bill 2015 (the Bill) is
to amend the Food
Standards Australia New Zealand Act 1991 (FSANZ Act) to reflect the change of name of
the former Australia and New Zealand Food Regulation Ministerial Council to the
Australia and New Zealand Ministerial Forum on Food Regulation.[1]
In addition, the Bill amends those provisions of the FSANZ
Act which relate to the composition of, and appointment process to, the
Food Standards Australia New Zealand Board.
Structure
of the Bill
The Bill has two Schedules:
- Schedule
1 has two Parts:
- Part
1 contains a variety of amendments, primarily those which reflect the change of
name to the Forum on Food Regulation. Other amendments are intended to clarify
the manner in which certain information relating to applications for, or
proposals to vary, food standards are to be published
- the
provisions in Part 2, repeal the definition of Forum on Food Regulation
and the reference to the Forum in proposed Part 1A of the FSANZ Act. They
will come into effect within 12 months of the enactment of the Bill as they
will no longer be necessary. This timeframe is designed to provide sufficient
time for the Food Regulation Agreement which established the Australia and New
Zealand Food Regulation Ministerial Council to be amended.[2]
- Schedule
2 contains amendments to the FSANZ Act relating to the appointment of
Board members. They are scheduled to commence on 1 January 2016.
History of food regulation
The Commonwealth, states and territories entered into a
co-operative arrangement in 1991 to adopt food standards developed by the then
National Food Authority and agreed by Health Ministers from all participating
jurisdictions.
The purpose of the 1991 agreement was to consolidate
responsibility for developing food standards in one specialist agency and to
ensure the uniformity of food standards across all states and territories,
which continue to have primary responsibility for enforcing food laws. In
general, these arrangements continue to apply.[3]
The National Food Authority (the NFA) was established as a
Commonwealth statutory body by the National Food Authority Act 1991 to
develop national food standards and undertake related work.[4]
Subsequently a treaty between Australia and New Zealand—the Agreement
between the Government of Australia and the Government of New Zealand
concerning a Joint Food Standards System (the Treaty)—confirmed New
Zealand’s participation in the system.[5]
To put the Treaty into effect, Parliament passed amending legislation to
transform the National Food Authority into the Australia New Zealand Food
Authority (ANZFA).[6]
The legislation enabled New Zealand to be represented on the Board of the
Authority as well as membership of the Australia New Zealand Food Standards
Council. This initiative introduced a joint food standards setting system for
Australia and New Zealand.[7]
Involvement of COAG
On 3 November 2000 an Inter-governmental Food Regulation
Agreement was agreed to by members of the Council of Australian Governments (COAG).[8]
The Food Regulation Agreement established the Australia and New Zealand Food
Regulation Ministerial Council to:
... develop domestic food regulation policy as well as policy
guidance for setting domestic food standards. Recognising the primacy of public
health and safety considerations in developing such policy, the Australia and
New Zealand Food Regulation Ministerial Council will be based on the existing
Council of Health Ministers (ANZFSC), but can be complemented by other
Ministers nominated by individual jurisdictions covering portfolios such as
primary or processed food production, or trade. Each jurisdiction will have
only one vote on all resolutions.[9]
According to COAG, under the Agreement ‘national food
standards in Australia and New Zealand will be developed by a new, independent
statutory agency with appropriate scientific and technical expertise. This
agency, to be known as Food Standards Australia New Zealand (FSANZ), will
replace the existing Australia New Zealand Food Authority’.[10]
The FSANZ Act was enacted to give effect to the Agreement.[11]
Reforming the council system
At its meeting of July 2009, COAG announced that, ‘in
order to ensure the ongoing effectiveness of these arrangements’, it had agreed
that Dr Allan Hawke would lead a review of Ministerial Councils and report back
in November 2009.[12]
Following Dr Hawke’s report, which has not been made
public, COAG agreed to reforms that would see the number of Ministerial
Councils reduced from over 40 to about 11 or fewer by March 2011.[13]
Under the new system, enduring issues of national significance will be
addressed through Standing Councils, while critical and complex issues will be
addressed through limited life Select Councils.[14] In addition, it
was decided that a Ministerial Legislative and Governance Forum
would be established to manage ongoing legislative and governance functions in
relation to food regulation.[15]
The number of Ministerial Councils has since been reduced to eight.[16]
Effect on FSANZ
The effect of COAG’s decision to reduce the number of
Ministerial Councils is that the Australia and New Zealand Food Regulation
Ministerial Council (Council) which was established by the Food Regulation
Agreement was renamed as the Australia and New Zealand Ministerial Forum on
Food Regulation (the Forum).[17]
The Forum comprises a Minister from New Zealand and the
Health Ministers from Australian States and Territories, the Australian
Government as well as other Ministers from related portfolios (such as Primary
Industries, Consumer Affairs etc) where these have been nominated by their
jurisdictions. This ensures a whole-of-food chain approach to food safety
regulation. Each jurisdiction has a Lead Minister for voting purposes.[18]
The purpose of the FSANZ Act is to establish a regime
for the making (and varying) of food standards for Australia and New Zealand by
FSANZ. Under the FSANZ Act the Council has responsibility for: the
development of domestic food regulatory policy; the development of policy
guidelines for setting domestic food standards; the promotion of harmonised
food standards within Australia
and between Australia and New Zealand; the general oversight of the implementation
of domestic food regulation and standards; and the promotion of a consistent
approach to the compliance with, and enforcement of, food standards.[19]
The Bill amends the FSANZ Act to reflect the change
of name of the Council to the Forum. The amendments in the Bill were previously
contained in the Food Standards Australia New Zealand Amendment Bill 2015 (the
earlier Bill).[20]
That Bill has been discharged from the notice paper and will not proceed.
Schedule 1 to the current Bill contains some of the amendments which were
contained in the earlier Bill.
Food Regulation Standing Committee
The Food Regulation Standing Committee (Standing
Committee) is the sub-committee of the Forum. Membership of the Standing Committee
comprises senior officials of departments for which the Ministers represented
on the Forum have portfolio responsibility. The Standing Committee is
responsible for coordinating policy advice to the Forum and ensuring a
nationally consistent approach to the implementation and enforcement of food
standards.[21]
Selection of Bills Committee
At its meeting of 17 September 2015, the Senate Selection of
Bills Committee deferred consideration of the Bill to its next meeting.[22]
Senate Standing Committee for the
Scrutiny of Bills
At the time of writing this Bills Digest, the
Committee for the Scrutiny of Bills had not commented on the Bill.
At the time of writing this Bills Digest neither
non-government parties nor independent members of the Parliament have commented
on the Bill.
At the time of writing this Bills Digest stakeholder
groups had not commented on the Bill.
According to the Explanatory Memorandum, ‘there is no
financial impact relating to this Bill’.[23]
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.[24]
Parliamentary Joint Committee on Human
Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not require additional comment, as it does not engage human
rights.[25]
Schedule 1
Change of name
Item 7 inserts proposed Part 1A—The Forum on
Food Regulation into the FSANZ Act. Within Part 1A, proposed
section 11A states that the Australia and New Zealand Food Regulation
Ministerial Council may also be known as the Australia and New Zealand
Ministerial Forum on Food Regulation.
The Bill makes consequential amendments to the FSANZ
Act to reflect this change of name by repealing references to the Council
and inserting references to the Forum on Food Regulation[26]
or simply, the Forum.[27]
Appropriate government agency
Currently, section 4 of the FSANZ Act defines the
term appropriate government agency by way of an exhaustive list. Item
1 of the Bill repeals and replaces the definition so that the term refers
to:
(a) the
relevant Department of State of the Commonwealth, a State, a Territory or New
Zealand administered by a Minister who is a member of the Forum on Food
Regulation
(b) any other
body that has an officer on the Food Regulation Standing Committee or
(c) any other
body or officer of the Commonwealth, a State, a Territory or New Zealand that
the Authority considers has a particular interest in the relevant matter.
A number of consequential amendments flow from this
change. First, the definitions of Gene Technology Regulator, GMO
and GM product are repealed.[28]
Second, section 19 of the FSANZ Act is repealed.[29]
Currently, section 19 provides that if FSANZ is required to give a notice
concerning an existing or proposed food regulatory measure to the Gene
Technology Regulator, it need only do so if the food regulatory measure relates
to food that is or contains a GMO or a GM product.
Together, the effect of the amendments is that where FSANZ is required by the FSANZ
Act to notify an appropriate government agency, it will only
notify the Gene Technology Regulator if it considers that the Gene Technology Regulator
has a particular interest in the matter. This also reflects recent amendments
to the Gene Technology Act 2000, which removed requirements for the Gene
Technology Regulator to maintain a record of GM product approvals made by other
agencies such as FSANZ.[30]
Publishing notices on the FSANZ
website
Currently, if FSANZ approves a draft standard or a draft
variation of a standard, it is required to, amongst other things, publish in a
generally circulating newspaper, in each state or territory and in New Zealand,
a notice stating:
- the
draft standard or draft variation has been approved
- the
Council (to be known as the Forum) has been notified that the draft standard or
draft variation has been approved and
- the
Council (to be known as the Forum) may request FSANZ to review the draft
standard or draft variation and
- further
information about the draft standard or draft variation may be obtained at a
specified location.[31]
The Bill amends this requirement and equivalent
requirements within the FSANZ Act to publish notices in a generally
circulating newspaper and substitutes a requirement that notices are to be published
on the FSANZ website.[32]
References to the Nutrition, Health
and Related Claims Standard
Nutrition content claims and health
claims are voluntary statements made by food businesses on labels and in
advertising about a food. Nutrition content claims are claims about the content
of certain nutrients or substances in a food, such as ‘low in fat’ or ‘good
source of calcium’.
Health claims refer to a relationship
between a food and health rather than a statement of content. There are two
types of health claims:
- general level health claims which refer to a
nutrient or substance in a food and its effect on a health function such as: calcium
is good for bones and teeth
- high level health claims which refer to a
nutrient or substance in a food and its relationship to a serious disease or to
a biomarker of a serious disease such as: diets high in calcium may reduce the
risk of osteoporosis in people 65 years and over.[33]
Under the existing terms of the FSANZ Act, FSANZ is
required to assess any draft variation of high level health claim against the
criteria set out in the Nutrition, Health and Related Claims Standard.[34]
According to the Explanatory Memorandum, ‘there are no such criteria’.[35]
That being the case, the Bill removes the requirement.[36]
Schedule 2—appointing members to
the Board
According to the Explanatory Memorandum to the Bill, the
amendments in Schedule 2 of the Bill respond to the recommendations of the
report of the Review of the Food Standards Australia Board appointment process.[37]
Unfortunately that report has not been published. Therefore it is not possible
to gauge whether the amendments appropriately reflect those recommendations.
The membership of the Board of FSANZ was originally
set out in the Food Regulation Agreement 2000 which stated:
8. The Commonwealth shall establish a statutory
authority, to be known as ‘Food Standards Australia New Zealand’:
(a) ...
(b) managed by a Board of no more than ten members
including:
(i) a Chairperson
(ii) such
other members as are appointed in accordance with clause 10, including two
members from New Zealand and
(iii) the Chief Executive Officer of FSANZ,
appointed by the Board.
9. The Commonwealth, through the Minister responsible for
the Commonwealth Health portfolio, shall appoint the members of the Board,
referred to in clause 8(b)(i) and 8(b)(ii), after consultation with, and with
the agreement of, members of the Ministerial Council, and shall only appoint a
person to be a member of the Board if the person is suitably qualified for appointment
because of expertise in one or more of the following areas:
(a) public health;
(b) food science;
(c) human nutrition;
(d) government;
(e) administration of food law;
(f) consumer issues;
(g) the food industry;
(h) food processing or retailing;
(i) primary food production;
(j) small business; and
(k) trade.
10. In making these appointments, the Health Minister will
seek to ensure that there is an appropriate balance of skills covering the
above areas of expertise.[38]
However, when the original Bill establishing FSANZ and its
Board was referred to the Senate Standing Committee for Community Affairs
(Community Affairs Committee) for inquiry and report, many submitters expressed
concern about the proposed composition of the Board including:
- public
confidence in the food supply and food regulation in Australia might be reduced
because of the potential for influence of commercial, rather than public health
interests directing FSANZ operations
- the
appointment of Board members by nomination rather than election, could result
in public health and consumer interests being circumvented and
- the
removal of the current requirement that one of the members of the Board be an
officer of a State or Territory authority with responsibility for matters
relating to public health, would weaken the interest of public health and
safety.[39]
In response to these concerns, amendments to the original
Bill were moved in the Senate with the effect that, amongst other things, the
membership of the Board was increased to 12.[40]
Under existing subsection 116(1) of the FSANZ Act, the
Board comprises the Chairperson, the Chief Executive Officer (CEO) and 10 other
members. Of those 10 members:
- three
members are to be nominated by the New Zealand lead Minister on the Ministerial
Council[41]
- one
member nominated by consumer organisations[42]
- one
member nominated by the CEO of the National Health and Medical Research Council[43]
- three
members nominated by organisations, or public bodies, established for purposes
relating to science or public health[44]
and
- two
members nominated by organisations, or public bodies, established for purposes
relating to the food industry.[45]
Although new members are nominated by the various
organisations listed above, all members (except the CEO of FSANZ) are appointed
by the Minister for Health.[46]
Existing subsections 116(2B)–(5) of the FSANZ Act
further prescribe the qualifications which a person must have in relation to
each of the categories of member in order to be found suitable for appointment.
Subsections 116(1), (2) and (2B)–(5) of the FSANZ Act are repealed by
the Bill.[47]
Instead, the Board will be comprised of the Chief Executive Officer (who is
appointed by the Board)[48]
and 11 other members appointed by the Minister.[49]
Under the Bill the number of members from various disciplines, their required
fields of expertise and any other requirements for appointment are set out in
table form.[50]
The Bill consolidates the fields of expertise to science and public
health fields of expertise[51]
and food industry fields of expertise.[52]
The only member of the Board who is not required to come from either of those
fields of expertise is the consumer rights member.[53]
The Forum on Food Regulation must agree to the appointments of all the members[54]
but for those who are nominated by the New Zealand lead Minister on the Forum.[55]
In that case, the Minister is required to consult with the Forum on Food
Regulation.
The Bill provides that those Board members who fall within
categories 4–6 in the table of members (that is, the consumer rights member,
the science and public health members and the food industry member) will be
either persons who have been nominated by an organisation or public body from
which the Minister sought nominations, or selected in accordance with a
competitive selection process that covers Australia and New Zealand.[56]
According to the Explanatory Memorandum, the amendment:
... implements a recommendation in the Board Review report
endorsed by the Forum on Food Regulation specifically related to FSANZ Board
appointments of consumer rights, science and public health, and food industry
members; and [is] intended to open up the pool of potential candidates for
vacant FSANZ Board member positions.[57]
Currently the FSANZ Act allows the Minister to
appoint members to the Board for a period not exceeding four years, with the
option for reappointment of a second term.[58]
The Bill does not amend this provision. The Bill contains saving provisions so
that existing Board appointments will be treated as appointments under the
categories of member which are proposed by the Bill.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Food Standards Australia
New Zealand Act 1991, accessed 24 September 2015.
[2]. Food
Standards Australia New Zealand (FSANZ), ‘Food
Regulation Agreement 2008’, FSANZ website, July 2008, accessed 1 October
2015.
[3]. FSANZ,
‘Background:
partnerships with states and territories’,
FSANZ website, accessed 1 October 2015.
[4]. National Food Authority
Act 1991, accessed 1 October 2015.
[5]. Agreement
between the Government of Australia and the Government of New Zealand
concerning a Joint Food Standards System, done at Wellington
5 December 1995, [1996] ATS 12 (entered into force 5 July 1996), accessed 14
October 2015. The Treaty was most recently amended by an Exchange
of Letters, done at Canberra 3 March 2010, [2010] ATS 15 (entered into
force 6 July 2010), accessed 14 October 2015.
[6]. National Food Authority
Amendment Act 1995, accessed 1 October 2015.
[7]. M
Tapley, Australia
New Zealand Food Authority Amendment Bill 2001, Bills digest, 120,
2000–01, Department of the Parliamentary Library, Canberra, 2001, p. 2,
accessed 1 October 2015.
[8]. Food
Regulation Agreement 2000, accessed 1 October 2015.
[9]. Revised
Explanatory Memorandum, Australia New Zealand Food Authority Amendment Bill
2001, p. 1, accessed 1 October 2015.
[10]. Council
of Australian Governments (COAG), Communiqué,
COAG Meeting, Canberra, 3 November 2000, p. 4; W Truss (Minister for
Agriculture, Fisheries and Forestry) and G Tambling (Parliamentary Secretary
for Health and Aged Care), COAG
agreement will strengthen food safety, joint media release,
3 November 2000, both accessed 1 October 2015.
[11]. Australia New
Zealand Food Authority Amendment Act 2001, accessed 1
October 2015.
[12]. COAG,
Communiqué,
COAG Meeting, Darwin, 7 July 2009, accessed 1 October 2015.
[13]. R
Lundie, ‘Reform
of Ministerial Councils’, FlagPost, Parliamentary Library blog, 8 March
2011, accessed 1 October 2015.
[14]. Council
of Australian Governments, Communiqué:
Attachment C—more effective Ministerial Council system, COAG Meeting, Canberra,
13 February 2011, p. 1, accessed 1 October 2015.
[15]. Ibid.,
p. 2.
[16]. COAG,
Communiqué, COAG Meeting,
Canberra, 13 December 2013, p. 4, accessed 1 October 2015.
[17]. Department
of Health (DoH), ‘Australia
and New Zealand Ministerial Forum on Food Regulation (The Forum)’, DoH
website, 4 August 2014, accessed 5 October 2015.
[18]. Ibid.
[19]. Australian
Government Directory, ‘Australia
and New Zealand Food Regulation Ministerial Council’, Directory website, 22
March 2013, accessed 5 October 2015.
[20]. Parliament
of Australia, Food
Standards Australia New Zealand Amendment Bill 2015 homepage, Australian
Parliament website, accessed 12 October 2015.
[21]. DoH,
‘The
Food Regulation Standing Committee (FRSC)’, DoH website, page last updated
16 October 2013, accessed 5 October 2015.
[22]. Selection
of Bills Committee, Report,
12, 2015, The Senate, Canberra, 17 September 2015, p. 4, accessed 24 September
2015.
[23]. Explanatory
Memorandum, Food Standards Australia New Zealand Amendment (Forum on Food
Regulation and Other Measures) Bill 2015, p. 2.
[24]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Bill.
[25]. Parliamentary
Joint Committee on Human Rights, Twenty-ninth
Report of the 44th Parliament, The Senate, Canberra, 13 October 2015,
p. 2, accessed 14 October 2015.
[26]. Item
3 of the Bill inserts the definition of Forum on Food Regulation.
The term means the Australia and New Zealand Food Regulation Ministerial
Council established by the Food Regulation Agreement.
[27]. Items
2, 6, 8–10, 12, 15, 16, 18–20, 22, 24–27, 33, 34–37, 38, 40, 43, 44, 46–73, 75,
76, 83, 86, 88–93, 94–104, 107–109, 113–116, 118, 120–126, 129, 132 and 133
of Schedule 1 of the Bill.
[28]. Item
4 of Schedule 1 to the Bill.
[29]. Item
11 of Schedule 1 to the Bill.
[30]. These
amendments were made by the Gene Technology
Amendment Act 2015, accessed 12 October 2015. For further information
on these amendments, see S Power and E Hanna, Gene
Technology Amendment Bill 2015, Bills digest, 44, 2015–16,
Parliamentary Library, Canberra, 2015, accessed 12 October 2015.
[31]. FSANZ
Act, paragraph 34(1)(c).
[32]. Items
17, 21, 35, 39, 77, 84, 105 and 111 of Schedule 1 of the Bill.
[33]. FSANZ,
‘Nutrition
content claims and health claims’, FSANZ website, January 2013, accessed 5
October 2015.
[34]. FSANZ
Act, paragraphs 50(2)(b) and 76(2)(b).
[35]. Explanatory
Memorandum, Food Standards Australia New Zealand Amendment (Forum on Food
Regulation and Other Measures) Bill 2015, p. 6.
[36]. Items
23 and 41 of Schedule 1 to the Bill.
[37]. Explanatory
Memorandum, Food Standards Australia New Zealand Amendment (Forum on Food
Regulation and Other Measures) Bill 2015, p. 11.
[38]. Senate
Community Affairs Legislation Committee, Australia
New Zealand Food Authority Amendment Bill 2001, The Senate, Canberra,
April 2001, appendix 3, accessed 2 October 2015.
[39]. Ibid.,
p. 5.
[40]. G
Tambling (Parliamentary Secretary to the Minister for Health and Aged Care), ‘Second
reading speech: Australia New Zealand Food Authority Amendment Bill 2001’,
Senate, Debates, 23 May 2001, p. 24152, accessed 12 October 2015.
[41]. FSANZ
Act, paragraphs 116(1)(c) and (ca).
[42]. FSANZ
Act, paragraph 116(1)(d).
[43]. FSANZ
Act, paragraph 116(1)(e).
[44]. FSANZ
Act, paragraph 116(1)(f).
[45]. FSANZ
Act, paragraph 116(1)(g).
[46]. FSANZ
Act, subsection 116(1A). Under section 19A of the Acts Interpretation Act
1901 a mention of a Minister without specifying the Minister referred
to (as in this case) is a reference to the Minister who is, for the time being,
administering the provision.
[47]. Items
2 and 3 of Schedule 2 to the Bill.
[48]. Item
127 of Schedule 1 to the Bill amends subsections 128(2) and (4) of Food
Standards Australia New Zealand Act to this effect.
[49]. FSANZ
Act, proposed subsection 116(1).
[50]. FSANZ
Act, proposed subsection 116A(1).
[51]. FSANZ
Act, proposed subsection 116A(2).
[52]. FSANZ
Act, proposed subsection 116A(3).
[53]. FSANZ
Act, item 4 of the table in proposed subsection 116A(1).
[54]. FSANZ
Act, item 1 of the table in proposed subsection 116A(1) and proposed
paragraph 116(4)(b).
[55]. FSANZ
Act, items 2 and 3 of the table in proposed subsection 116A(1).
[56]. FSANZ
Act, proposed subsection 116A(4).
[57]. Explanatory
Memorandum, Food Standards Australia New Zealand Amendment (Forum on Food
Regulation and Other Measures) Bill 2015, p. 13.
[58]. FSANZ
Act, subsections 117(2) and (4).
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