Bills Digest No. 68,
2017–18
PDF version [245KB]
Paula Pyburne
Law and Bills Digest Section
30
January 2018
Contents
Purpose of the Bill
Background
Changes to the law
Step 1—amending the CCA
Step 2—creating the information
standard
Application of the information
standard
Committee consideration
Senate Standing Committee for
Selection of Bills
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Concluding comments
Date introduced: 19
October 2017
House: House of
Representatives
Portfolio: Agriculture
and Water Resources
Commencement: 1
July 2018
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 Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at January 2018.
Purpose of
the Bill
The purpose of the Imported Food Control Amendment
(Country of Origin) Bill 2017 (the Bill) is to amend the Imported Food
Control Act 1992 to incorporate the Country of Origin Food
Labelling Information Standard 2016 by reference.
Background
Over a period of almost 20 years, consumers and Members of
Parliament expressed their concerns that food labels did not contain adequate
information about the country of origin of the ingredients of foods.[1]
Until recently, the legislative underpinning of food
labelling was contained in, first, the Competition and
Consumer Act 2010 (CCA) which sets out a range of prohibitions
with regards to making false or misleading representations about goods,
including the following:
- a
general prohibition against misleading or deceptive conduct in trade or
commerce[2]
- a
broad prohibition against making a false representation that goods, among other
things, have a particular history (including their country of origin)[3]
and
- a
prohibition against engaging in conduct which is liable to mislead the public
as to the nature, manufacturing process, characteristics, suitability for their
purpose or the quantity of any goods.[4]
The prohibitions against misleading and deceptive conduct
in relation to goods, including their country of origin, were balanced by
various ‘safe harbour’ provisions (also referred to as defences).[5]
Second, the Food Standards
Australia New Zealand Act 1991 (FSANZ Act) establishes Food
Standards Australia New Zealand (FSANZ) which is responsible for developing
food standards and codes of practice covering the content and labelling of food
to be applied in Australia and New Zealand.[6]
Changes to
the law
In order to address the concerns regarding country of origin
labelling, the Government engaged in a two-step process.
Step
1—amending the CCA
Step 1 of the process entailed updating the so called
‘safe harbours’ that are contained in the CCA. The Competition and
Consumer Amendment (Country of Origin) Act 2017 was enacted and
commenced on 23 February 2017. It updated Schedule 2 to the CCA which
contains the Australian Consumer Law. In particular it amended the requirements
to be met by a person making a specific country of origin representation about
a good or service. Those requirements are:
- if
goods are represented as being grown in a particular country then each
significant ingredient or significant component of the goods must have been grown
in that country; and all, or virtually all, processes involved in the
production or manufacture of the goods must have happened in that country[7]
- if
goods are represented as being the produce of a particular country then that
country must be the country of origin of each significant ingredient or
significant component of the goods; and all, or virtually all, processes
involved in the production or manufacture of the goods must have happened in
that country[8]
- if
goods are represented as having been made, manufactured or as originating
from a particular country then the goods must have been last substantially
transformed in that country; and the representation must not be a
representation that the goods were grown or produced in that country[9]
- if
goods are labelled with a mark specified in an information standard
relating to the country of origin labelling of the goods then the goods must
satisfy all the requirements under the information standard relating to the use
of the mark.[10]
Step
2—creating the information standard
Consistent with the last of those points, the Country of Origin Food
Labelling Information Standard 2016 (the Information Standard) was made,
coming into effect on 1 July 2016.[11]
The Information Standard requires that certain food that is sold in Australia
is to comply with mandatory country of origin labelling requirements.[12]
Food that is grown, produced, made or packaged in Australia will be required to
carry a standard mark.[13]
The marks include an indication of the proportion of Australian ingredients by
ingoing weight through text and a bar chart.
Business was given two years—to 1 July 2018—to transition
to the new arrangements so that existing stock in trade can see out its shelf
life.[14]
If the food was grown, produced or made in Australia
exclusively from Australian ingredients, the information must be in the
form of one of the standard marks.[15]
These marks include the following features:
- a logo to assist the consumer to easily identify that the food
was grown, produced or made in Australia:
- a full bar chart to indicate that the food’s ingredients are
exclusively Australian:
-
a statement indicating that the food was grown, produced or made
in Australia and that its ingredients are exclusively Australian.[16]
If the food was grown, produced or made in Australia and
some of its ingredients are not Australian, the information must be in the
form of one of the standard marks which include the following features below:[17]
- a logo to assist the consumer to easily identify the food was
grown, produced or made in Australia:
- one of the following bar charts to provide a visual indication of
the proportion, by ingoing weight, of the food’s Australian ingredients:
- a Made in Australia statement, together with a statement that
aligns with the bar chart and clearly states the minimum proportion, by ingoing
weight, of the food’s Australian ingredients.[18]
Where food that is packaged in Australia includes food
that was not grown, produced or made in Australia the Information Standard
provides that the relevant label does not include the kangaroo logo.[19]
In addition, it provides a range of examples of marks to be used which make
clear to consumers the percentage of ingredients in the food, if any, that have
been sourced from Australia.[20]
Application of the information standard
Generally speaking the country of origin labelling
requirements apply to a sale of food in Australia if the sale is a retail sale
or if the sale is not a retail sale, but the food is sold as suitable for
retail sale without any further processing, packaging or labelling.[21]
Committee
consideration
Senate Standing
Committee for Selection of Bills
At its meeting of 19 October 2017, the Senate Standing
Committee for Selection of Bills deferred consideration of the Bill to its next
meeting.[22]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had
no comment on the Bill.[23]
Policy
position of non-government parties/independents
At the time of writing this Bills Digest neither
non-government parties nor independents had commented on the Bill.
Position of
major interest groups
At the time of writing this Bills Digest stakeholder
groups had not commented on the Bill.
Financial
implications
According to the Explanatory Memorandum, ‘the Bill will
have no financial impact on the Australian Government Budget’.[24]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility
with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of that Act. The Government considers that the
Bill is compatible.[25]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise human rights concerns.[26]
Key issues
and provisions
The Imported Food Control Act is intended to provide
for the compliance of food imported into Australia with Australian food
standards and of public health and safety requirements.[27]
The Act applies to all food imported into Australia with the exception of:
-
food that is imported from New Zealand and is of a kind that is
specified by the regulations to be food to which the Act does not apply[28]
- prohibited food
- food that is imported for private consumption
- food that is ship’s stores or aircraft’s stores, within the
meaning of section 130C of the Customs Act 1901
or
-
food that is imported as a trade sample.[29]
Section 8 of the Imported Food Control Act provides
that a person must not import into Australia food to which the Act applies that
the person knows does not meet applicable standards or poses a risk to human
health. A contravention of this prohibition gives rise to an offence, the
maximum penalty for which is imprisonment for 10 years. In addition, section
8A of the Imported Food Control Act provides that a person may only deal
with food imported into Australia if the food meets applicable standards
relating to information on labels for packages containing food. A failure to
comply with that requirement gives rise to an offence, the maximum penalty for
which is imprisonment for 10 years. The ‘applicable standard’ referred to in
both of these provisions is defined as the ‘national standard in force in
relation to that food’.[30]
The Bill repeals and replaces the definition of national
standard in the Imported Food Control Act so that, with effect
from 1 July 2018, the national standard is:
Concluding
comments
The battle to develop a country of origin food standard
which accurately informs Australian consumers about where the food that they
buy was grown, produced or made has been a long one. The development of the
information standard and its gradual coming into effect is a welcome
improvement to food labelling laws.
On 1 July 2018 the existing Australia New Zealand
Food Standards Code—1.2.11—Information requirements—country of origin labelling
will be repealed and the Information Standard will replace the requirements for
country of origin labelling in the Australia New Zealand Food Standards Code.
The Bill ensures that the requirements for country of
original labelling for food continue to be applied under the Imported Food
Control Act and that authorised officers are able to continue to enforce
country of origin labelling requirements for imported food at the border.
[1]. P
Pyburne, Competition
and Consumer Amendment (Country of Origin) Bill 2016, Bills digest, 9,
2016–17, Parliamentary Library, Canberra, 2016.
[2]. CCA,
Schedule 2, clause 18.
[3]. CCA,
Schedule 2, clause 29.
[4]. CCA,
Schedule 2, clause 33.
[5]. CCA,
Schedule 2, clause 255.
[6]. Food Standards Australia New
Zealand (FSANZ), ‘Food Standards
Code’, FSANZ website, 2015.
[7]. CCA,
Schedule 2, subclause 255(1), table item 1.
[8]. CCA,
Schedule 2, subclause 255(1), table item 2.
[9]. CCA,
Schedule 2, subclause 255(1), table item 3.
[10]. CCA,
Schedule 2, subclause 255(1), table item 4.
[11]. CCA,
Schedule 2, clause 134 empowers the Minister to make an information standard.
[12]. Pyburne,
Competition
and Consumer Amendment (Country of Origin) Bill 2016, op. cit.
[13]. See
Australian Government, ‘Australia's
food labels are getting clearer’, Australian Government website, 2016.
[14]. Department
of industry, Innovation and Science (DIIS), ‘Country
of origin labelling’, DIIS website, 2016.
[15]. The
marks are set out in Country of Origin Food Labelling Information Standard,
section 18.
[16]. Country
of Origin Food Labelling Information Standard, section 6.
[17]. Country
of Origin Food Labelling Information Standard, section 19.
[18]. Country
of Origin Food Labelling Information Standard, section 6.
[19]. Country
of Origin Food Labelling Information Standard, section 6.
[20]. Country
of Origin Food Labelling Information Standard, section 22.
[21]. Country
of Origin Food Labelling Information Standard, subsection 14(1).
[22]. Senate
Standing Committee for Selection of Bills, Report,
15, 2017, The Senate, Canberra, 7 December 2017.
[23]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 13, 2017, The Senate, Canberra, 15 November 2017, p. 33.
[24]. Explanatory
Memorandum, Imported Food Control Amendment (Country of Origin) Bill 2017,
p. 2.
[25]. The
Statement of Compatibility with Human Rights can be found at page 7 of the Explanatory
Memorandum to the Bill.
[26]. Parliamentary
Joint Committee on Human Rights, Twelfth
report of the 45th Parliament, The Senate, Canberra, 28 November
2017, p. 96.
[27]. Imported
Food Control Act, section 2A.
[28]. Section
3A of the Imported Food Control
Regulations 1993 provides that the Imported Food Control Act does
not apply to food that is imported from New Zealand and was made or
produced in New Zealand and is not risk food.
[29]. Imported
Food Control Act, subsection 7(1).
[30]. Imported
Food Control Act, subsection 3(1).
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