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Wednesday, 20 June 2007
Page: 192


Ms ROXON (11:20 AM) —I rise to speak today on the Food Standards Australia New Zealand Amendment Bill 2007. Labor supports this bill and hopes that the significant changes to the process that are being introduced as a result of this bill will, as the parliamentary secretary has outlined, improve the processes for industry. We hope equally that they will provide some further protection for consumers, who also have found the previous process not only time consuming but also difficult to be involved in.

No doubt it has been apparent to anybody listening to the parliamentary secretary’s speech that this is an area where there are a vast number of different ministerial councils, different advisory bodies and different regulatory bodies. The attempts in the bill to streamline these processes and make sure that they can work for industry are vitally important. There is even a new layer of complexity—it has been in existence for some time—added to our normal federal relations between the states and the Commonwealth to include New Zealand. The parliamentary secretary has noted that some of these provisions do not come into effect until the treaties that need to be amended between Australia and New Zealand would be effected.

This bill has already been introduced and debated in the Senate. There was a Senate committee process in place, and I will talk through some of the recommendations that were made there. The bill that we are now debating in this place has the amendments that the government was prepared to accept. We had hoped that the government might accept amendments relating to public health issues that were recommended by the Senate committee. We regard this as a vital part of the whole regime that is in place. Given that the government was not prepared to accept those amendments in the other place, we will not be moving a separate amendment here, but we will be recording our disappointment that the recommendations of the Senate committee in relation to public health were not adopted by the government. We do accept however that this is an evolving process and that there will no doubt be many other occasions when we are all before this House making changes to this bill and that there will be opportunities to pursue those issues further down the track.

For the record, this bill proposes to amend the Food Standards Australia New Zealand Act 1991 in a number of ways. Firstly, it reforms the assessment and consultation process. The current one-size-fits-all model for assessing different applications and proposals by FSANZ will be replaced by three different streams so that the applications and proposals can be assessed according to their nature and scope. Secondly, the bill contains amendments to strengthen the alignment of policy settings, processes of the ministerial council and the standard development and approval process of FSANZ. The bill enables FSANZ to suspend consideration of an application for up to 18 months where the council has notified FSANZ that it is developing a policy guideline on the same issue. Thirdly, subject to necessary changes to the food treaty between Australia and New Zealand, the bill streamlines the process for finalising standards, removing the option for a second review by the ministerial council after FSANZ has approved a standard. Fourthly, the bill introduces a new process for the scientific pre-market assessment and approval of high-level health claims. And finally, the bill makes several minor and consequential amendments to the act to reduce red tape and duplication and to improve clarity.

According to the explanatory memorandum and the comments of the parliamentary secretary, the purpose of the bill is to amend the act to expedite the development of food regulatory measures and to improve the framework within which FSANZ operates and food standards are made. We know that this is a particular area of concern to the industry. Australia does have a very strong and well developed food industry that finds the processes often difficult and slow, and it is welcome that the government is acting to try to improve that process.

But it is also an area where the public have become increasingly engaged in the health claims made about food, particularly relating to nutritional value. This debate is going to be ongoing and we know that FSANZ is already undertaking much work trying to come up with proper guidelines which will enable particular health and nutritional claims to be clearly set out for the public. So this will, I suspect, end up being important background for the range of other changes which it is almost inevitable will keep progressing through this area.

The parliamentary secretary noted that the government’s response in this bill has been as a result of lengthy consultations, a range of reviews, and feedback from consumers, government and industry highlighting a number of areas needing improvement in the framework for developing and assessing food standards by the authority. Some of this work goes back as far as 1991, when the National Food Authority was established and when the states and territories entered into an agreement with the Commonwealth. New Zealand became a partner in the Australian food regulatory system in 1996 and that was when ANZFSA was established.

In November 2000 the Council of Australian Governments—COAG—agreed to a new food regulatory system in response to the recommendations of the food regulation review known as the Blair report. Obviously, since the establishment of that new independent statutory authority, Food Standards Australia New Zealand has been established to develop approved science based food standards. Policy responsibility for the regulatory framework has been conferred on the ministerial council, comprising ministers representing all relevant portfolios, and New Zealand again joined the system by way of treaty.

In 2004, the Food Regulation Standing Committee, comprising senior officials from New Zealand, Australia and all state and territory governments, undertook a review of the regulatory system aimed at identifying opportunities for reducing delays in Australia’s food standards assessment and approval process and enhancing the protection of confidential commercial information. The government, as has been noted in previous speeches, advises that the issues addressed in the bill have been as a result of this vast array of different committees and reviews and these issues being the subject of consultation between the Commonwealth, the states and territory governments and New Zealand, as well as the food industry, consumer and public health groups and general members of the public. It is those assurances that lead us to be confident in our support for the bill, but, as I say, there are a range of issues that we had hoped the government might have been able to take further. The long gestation period for any of this legislation may well be a reason why changes later in the process are not necessarily welcomed by government, which I can understand. But I do think it will be important for us to keep an eye on developments as these provisions of the bill come into effect.

Turning to the main provisions of the bill, schedule 1 introduces new application and proposal procedures to the Food Standards Australia and New Zealand Act 1991. Schedule 1 also contains amendments to both the Agricultural and Veterinary Chemicals Code Act and the Food Standards Australia and New Zealand Act 1991. Items 72 and 73 of the schedule amend the Agricultural and Veterinary Chemicals Code Act to enable better coordination of assessments for maximum residue limits and to provide for joint consultation by the authority and the Australian Pesticides and Veterinary Medicines Authority when that is relevant.

The amendments in part 4 are amongst the most significant in the bill. Item 74 repeals the current procedures for amending food regulatory measures and developing new food regulatory measures, replacing them with new sections and divisions that reflect the new assessment pathways. The bill divides applications and proposals into different divisions for clarity and the new divisions deal with applications for the development of the variation of food regulatory measures.

New division 1 of part 3 deals with those applications brought by business and individual persons, whereas the new division 2 deals with the applications that are brought and initiated by FSANZ as distinct from those that are brought by individuals and business. These processes represent two of the three new streams of assessing applications and proposals by FSANZ. I will come to the third new process for high-level health claims in a moment.

The new division 3 of part 3 inserts four new sections concerning the capacity of the ministerial council to review applications, and changes the language slightly to accord with the new assessment processes. As the parliamentary secretary noted, this essentially retains the current operation of the act but the second ministerial council review stage in the process has been removed. Ideally, we hope that that will improve the speed of applications being processed without taking away the protections that obviously this regulatory framework is designed to ensure are in place.

The new division 4 describes a process for urgent applications and makes sure that, after an urgent application has been considered, the authority still undertakes the full process in accordance with the general procedure. There are various provisions for time frames and other things. It is not necessary for me to go through those, as they have been recorded already in the explanatory memorandum. If, however, as the explanatory memorandum claims, the time frames—a maximum of nine months for the general procedure, a maximum of three months for minor variations and a maximum of nine months for certain variations to the nutrition health and related claim standards—are achievable, they will indeed be a considerable improvement on the time frames that industry has currently been working under.

New section 109 also addresses the stop-the-clock provisions used by FSANZ and changes the instances where those provisions can come into effect. That will no doubt also be welcome. This provision was the subject of government amendment in the Senate, which I will come to shortly. Part 4 of schedule 1 also makes changes in relation to the rejection or abandonment of a proposal, public hearings being undertaken by FSANZ and the ability of FSANZ to utilise work undertaken by other government agencies.

I have outlined two of the three new streams for the application processes. Schedule 2 of the bill deals with the new assessment procedure for the third category, the high-level health claims; the third stream replacing the current one-size-fits-all approach. Under the new process each high-level health claim will be assessed by FSANZ with advice from an expert high-level health claims committee. The assessment will include a scientific pre-market assessment against substantiation requirements set out in the nutrition, health and related claims standard. States, territories and New Zealand will be consulted on these.

New section 50 outlines the matters which FSANZ must be satisfied about before approving an application for a draft variation to the list of high-level health claims. These considerations include important issues like the protection of health and safety, the provision of adequate information relating to food to enable consumers to make informed choices, the prevention of misleading conduct and the set of criteria set out in the nutrition health and related claim standards in relation to high-level claims. As I said at the outset, these are some of the issues that consumers are becoming, and rightly so, engaged in, wanting to ensure that claims on the packets of products they buy are accurate and able to be substantiated. We know now that there is a vast consumer movement for people who are worried about, for example, the childhood obesity crisis and are trying to make good choices for their children. The only way that can work is if claims that are made are actually able to be properly regulated and we can be sure that people are confidently relying on information that is accurate.

 Of course, there is a difference between those that are high-level health claims and other more general ones, and obviously there will be plenty of room for dispute, no doubt, in the coming years over that. But this is an important process. Enabling consumers to make informed choices is a very important criteria—certainly one that the Labor Party considers in assessing this bill, and it is part of our reason for supporting the government’s move. FSANZ must also take account of recommendations from the High-Level Health Claims Committee, any submissions received from the Food Regulation Standing Committee and any public submissions.

Item 12 sets out mirror provisions for proposals in relation to those high-level claims. This stream was developed in response to an identified need to encourage industry innovation in the area. The explanatory memorandum argues that the new process will protect commercially valuable material during that assessment process, allowing applicants to capture the commercial benefit of their innovation—a view which of course is appropriate.

However, I note here for the House that the food standard under which such high-level health claims will be permitted has not yet been finalised. Whilst we support the bill and the framework, including the introduction of the new process for the scientific pre-market assessment and approval of these high-level health claims, we do note our disappointment that the food standard for the assessment of high-level health claims is yet to be finalised. So we are getting some of the architecture in place, but the detail is yet to be finalised and negotiated. Labor calls for, as no doubt the government is also determined to achieve, the prompt finalisation of this standard so that the changes proposed in schedule 2 can commence, providing greater certainty for the industry. There is obviously also a clear public interest in the community in being able to have this resolved as quickly as possible.

Consistent with Australia’s obligations under the Australia New Zealand Joint Food Standards Agreement, schedule 3 will not take effect unless and until amendments to reflect this new process have also been made to the agreement with New Zealand. Again, Labor calls on the government to promptly negotiate the requisite amendments to the agreement so that the amendments in schedule 3 may come into effect as soon as possible.

These are the main provisions of the bill. I want to talk briefly in this place about the Senate committee process which has already been undertaken in the other place, but, as I have made clear, Labor does support this bill and the changes. We believe they do represent an effort to improve and streamline the process for assessing applications and proposals by FSANZ and we hope that the changes will improve the timeliness, as promised and, I am sure, anticipated by the government.

The bill was referred to a Senate committee at the end of March and the Standing Committee on Community Affairs conducted an inquiry. It received just 15 submissions relating to the bill and considered the bill at a public hearing in Canberra on 23 April. Submissions to the Senate inquiry highlighted a range of views concerning particular aspects of the bill. The AMA, for example, expressed disappointment that the bill seemed to place greater emphasis on improving processes for industry, reducing red tape and streamlining than it did on the public health implications of food regulation activities undertaken by FSANZ—a point that I have been making throughout my comments.

The AMA proposed the adoption of a clear definition of public health in the act and raised concerns in relation to changes to public consultation in some of the new assessment processes. As some people in the House may be aware—I will flag this later—we supported amendments in the Senate that were consistent with that recommendation by the AMA. The Senate committee in fact made recommendations about public health claims and the definition of public health that were not accepted by the government. Whilst we feel that this is a very important part of the act, we will not be moving that amendment again in this place given the government’s clear indication that they will not support such an amendment.

CHOICE raised a series of concerns about changes in the bill which it felt impacted poorly on consumer interests and the transparency of FSANZ’s processes. CHOICE particularly highlighted concerns about the new processes for assessing high-level health claims, arguing that they compromised consultation and transparency, therefore undermining FSANZ’s integrity and primary objectives. CHOICE was concerned about changes to public consultation in some of the new assessment processes and concerned that limitations on the capacity of ministers to request a review would limit their ability to protect the interests of consumers. Like the AMA, CHOICE noted the lack of definition of public health in the act. CHOICE supported the new stop-the-clock provision, noting that it would be illogical for FSANZ to consider an application where the ministerial council had not yet finalised policy guidelines.

In common with the AMA and CHOICE, the Public Health Association of Australia raised concerns in relation to changes to public consultation in some of the new assessment processes and again highlighted this issue in the lack of definition of public health. The Dietitians Association of Australia was critical of changes to public consultation in relation to new processes for assessing high-level health claims and called for more information concerning the establishment and membership of expert committees—an issue that is not provided for in the bill. I think that this is a concern the dietitians have had in relation to a number of other committees and that it is their view that their voice is not being adequately heard in some of these consultation processes. That is not a matter that can be fixed in the bill but it is a matter that we would like the government to consider in establishing the membership of these committees. The association also called for greater focus on the public health implications of food regulation activities.

The Cancer Council Australia raised concerns that weaker measures in relation to food regulation could potentially lead to negative health outcomes for the public. The Food and Grocery Council argued that the amendments provided a much more efficient approval process where it was appropriate and particularly supported the new high-level health claims process which, it argued, would address the significant free rider effect, making sure that those who were investing and being innovative were going to get the protection of this process. However, the council did raise concerns about the power of the ministerial council to amend standards and the lack of clarity in relation to the process for amending editorial notes. It suggested further amendments to ensure certainty for business. As I will flag, a number of these things were picked up by the Senate committee and then by the government in the other place and now form part of the bill that we are debating.

The Australian Beverages Council also raised concern around that lack of clarity and argued that the stop-the-clock provisions were unnecessary and inhibited innovation. Bayer CropScience, Monsanto and Dairy Australia similarly raised concerns about the stop-the-clock provision and some suggested further amendments that would ensure certainty for business.

The Senate Standing Committee on Community Affairs considered these submissions and raised a number of issues in their report, most of which I have touched upon. The committee made three majority recommendations, all of which Labor supports. The first—and unfortunately it is the one that the government did not see fit to support in the Senate—was that the Commonwealth consider clarifying the definition of public health in relation to the objectives of the Food Standards Australia New Zealand Act 1991 and the assessment of food standards.

As you would have heard, Mr Deputy Speaker, from my quick overview of the evidence provided to the Senate committee, a number of significant stakeholders shared Labor’s view that a definition would be helpful as part of the act. I record my disappointment that the government did not see fit to pick up that recommendation, which was, of course, made equally by its colleagues as ours. I would urge the government—we understand how the numbers in the House work and that that will not be successful here—to keep that as part of its consideration. As I say, a number of other things still have to happen for this bill to be fully effective. It may be that there will be an opportunity at a further point to define the precise parameters of public health. That would be something that we would strongly support.

The second recommendation that the committee made was that the definition of standard contained in proposed subsection 3(1) of the act be amended to clarify the process for amending editorial notes. Thirdly, the committee recommended that the stop-the-clock provisions contained in section 109 be amended to provide applicants with an option to proceed with the assessment process with the understanding that the approval might be rescinded or amended, if necessary, following any contrary policy decision by the ministerial council.

We are pleased that the government did move on the last two of those three amendments, proposing amendments in the Senate which now form part of the bill we are debating to address the committee’s recommendations dealing with editorial notes and the stop-the-clock provisions. We support these amendments because we think it is always important that everyone is clear as to the intended meaning of legislators in regulatory regimes. We support the effort to clarify the use of editorial notes in this legislation and accept that the government’s amendment to the stop-the-clock provisions will provide greater flexibility, as required by industry. As I say, we are disappointed that the government did not adopt the third recommendation. We will continue to pursue that when we can in future.

Labor is conscious that efforts to improve the processes for industry, reduce red tape, streamline assessments and provide greater protections for intellectual property must always be balanced with protecting the public health implications of food regulation activities undertaken by FSANZ. That is, after all, the purpose of regulating in this area. There will always be some tension, I think, in getting the balance right in those two things. I strongly believe that the movement in the community for much more consumer information and the campaigns for healthier eating and clear information about what we are eating mean that there will be a lot of pressure for there to be clear guidelines and a good assessment of high-level health claims as well as looking for an appropriate definition of what public health might mean.

In conclusion, I repeat that Labor support the bill and the amendments that I have noted. We believe that this package represents an effort by the government to improve and streamline processes for assessing applications and proposals. We urge the government to continue to take action in the areas where further treaty negotiation is required to ensure that this legislation will be fully effective. We hope that in future the government will consider some of our concerns in relation to consumers and public health claims. I commend the bill to the House.