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Australia New Zealand Food Authority Amendment Bill (No. 2) 1997

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(Circulated by authority of the Minister for Health and Family Services

 the Hon. Dr Michael Wooldridge, MP)



80933 Cat. No. 96 7374 1 ISBN 0644 497866









The Australia New Zealand Food Authority Amendment Bill (No. 2) 1997 (the Bill) makes a number of minor policy and technical amendments to the Australia New Zealand Food Authority Act 1991 (the ANZFA Act).  The amendments have been proposed in a number of internal and external reviews of the Australia New Zealand Food Authority (ANZFA) and its processes.  ANZFA is a Commonwealth statutory authority which develops uniform food standards for Australia and New Zealand and undertakes related functions.  It operates under the 1991 Commonwealth, State and Territory agreement in relation to the adoption of uniform food standards, and the 1995 Agreement between Australia and New Zealand establishing a system for the development of joint food standards.  These arrangements see standards, developed through the Authority's statutory processes, uniformly adopted by reference and without amendment into State, Territory and New Zealand laws.


These amendments facilitate the cooperative uniform food standards system.  Central to this system is an assessment process for variations to the Food Standards Code based upon community consultation, accountability, openness, transparency and timeliness.  The amendments seek to streamline and simplify this process.


The amendments also update the ANZFA Act to confer on the Authority the powers and functions of a modern statutory authority, including the ability to market its expertise and to employ staff on its own terms and conditions.


Finally, the amendments expand the existing regulations power to impose fees for ANZFA services by providing that the regulations may also make provision for a penalty for late payment, or a discount for early payment, of fees, and for the refund and remission of fees.





There are no costs or savings associated with this Bill.






                                                        NOTES ON CLAUSES



Clauses 1 and 2


These clauses set out the short title and commencement of the Bill.  The Bill is to commence upon Royal Assent.


Clause 3


This clause provides that the Australia New Zealand Food Authority Act 1991 (the Act) is amended as set out in the schedule to the Bill.





Item 1


When the Act was passed in 1991, the role of the Australia New Zealand Food Authority (the Authority) in education matters was limited to food safety education matters.  This amendment provides that the Authority can be engaged in food education matters generally, whether related to safety or to some other issue such as food labelling or fair trading.  The existing precondition, that the Authority may only embark upon an education activity “in conjunction with the States and Territories”, is to remain.


Items 2, 3 and 4


The Authority has been asked by the Government to explore opportunities to raise revenue through the marketing of its expertise.  These amendments provide the Authority with the relevant powers and functions to carry out this request, including the ability to establish “arms length” commercial bodies to undertake commercial activities without jeopardising the Authority’s independence.  However, the amendments are qualified by the proposed subsection 7(2), which ensures that the Authority's commercial operations are not exercised in a manner which impedes the performance of its existing functions.  This ensures the Authority's regulatory functions remain paramount.


Items 5, 6 and 8


This provision simplifies the Act in relation to applications.  The current section requires applications to be in a certain form and to contain certain information.  The proposed revision does away with the requirement as to form (the Authority will still have forms available to guide applicants, but their use will not be compulsory), and gives applicants more guidance as to what information may be required.  The provision improves the openness and transparency of the Authority’s processes.  It is a move away from prescription in favour of guidance.  Item 6 is a consequential amendment to remove a reference in a later provision to the "approved form" for applications.


Item 7


This amendment clarifies that an applicant may withdraw an application.  If an application is withdrawn, appropriate notices are sent to interested parties advising of the withdrawal.  This amendment improves the openness and transparency of the Authority’s processes.


Items 9, 10, 13 and 14


The Act currently requires the Authority, when it rejects an application or abandons a proposal, to publish in the Gazette and in a national newspaper a statement of reasons for its decision.  The Acts Interpretation Act 1901 provides that a statement of reasons includes a statement of the findings of fact by the decision maker, the evidence upon which the decision relies, any inferences of fact drawn by the decision maker as well as the reasons for the decision.  Such a notice can run to many pages, and is not appropriate to be published in the Gazette or in a newspaper advertisement.  Items 9 and 13 respectively repeal the requirement to publish reasons for rejecting an application or abandoning a proposal.  To retain the openness and accountability of Authority decision making, items 10 and 14 respectively provide that the Authority must instead make its full statement of reasons available to any person who so wishes, by notifying how such a statement of reasons may be obtained.


Items 11, 12, 15 and 16


The Authority, on completing its processes for assessing an application or proposal to vary the Food Standards Code, makes a recommendation to a council of Commonwealth, State, Territory and New Zealand Ministers responsible for public health.  This body is called the Australia New Zealand Food Standards Council (the Council).  Currently section 35 of the Act limits the time in which the Authority must complete its assessment of a standards matter, but there is no similar limit on the timeframe in which the Council must act upon the Authority’s recommendation.  The food industry has expressed concern that this lack of a time limit on the Council detracts from the timeliness and responsiveness of the food standards system.  The proposed amendments set an indicative time of 6 months, where practical, in which the Council is to make a decision on the Authority’s recommendation.  The amendments also state that this time limit is not to include any time taken by the Authority to provide the Council with any further information it requests in relation to the food standards matter.


In general, Council responds to Authority recommendations much earlier than the 6 months proposed.  Some matters have taken longer.  The intent of the provision is not to stifle debate on a standards matter truly in dispute within the Council, but rather to ensure a timely response to matters which are not contentious and which should be progressed without undue delay.



Item 17


When the Act was passed in 1991, it was not clear how the States and Territories would adopt the standards prepared by the Authority and approved by the Council.  The Act was accordingly drafted cautiously to provide that standards come into effect on a day “no later than” a date specified in the Gazette.  In practice, the States and Territories adopt standards on the date specified in the Gazette.  It would be more transparent and clear if the Gazette notifications could reflect this, and so the amendment provides for standards to come into effect on a specific date, rather than “not later than” a specific date.


Items 18 and 20


Section 34 of the Act relates to the ability of the Authority to require additional information relating to an application from the applicant.  This ability can, under the existing terms of the Act, only be used during the first half of the Authority’s assessment process, up to what the Act calls “full assessment”.  The problem is that after full assessment the Authority undertakes a round of public consultation, which the Act refers to as the “inquiry”.  During the inquiry, new information may be forthcoming which requires some response, but the current Act does not allow the Authority to require such a response from the applicant.  The amendment clarifies that the Authority may make such a request for further information in order to complete its inquiry process.  Item 20 makes a consequential amendment to subsection 35(4) of the Act.


Item 19


If a request for further information made by the Authority under section 34 is not answered by the applicant within a reasonable time, the application is deemed to have been withdrawn (section 34 of the Act).  This amendment requires the Authority to notify agencies and the public that the application has been deemed to be withdrawn.  This improves the openness and transparency of the Authority’s process.


Item 21


Section 35 provides that the Authority must, in general, complete its statutory processes for assessing an application within 12 months of the date on which the application is received.  The amendment provides that this time limit does not take into account any period during which a decision of the Authority in relation to the application is being reviewed by the Administrative Appeals Tribunal (AAT).  The ability to seek external, independent review of certain Authority decisions is important for the accountability of the Authority’s processes, but the reality of such external review is that it can take much longer than the 12 months given to the Authority to finalise its consideration of the matter.  The amendment addresses this problem by excluding from the statutory time limit any time taken by the AAT to undertake its review of the Authority’s decision.



Item 22


Section 36 provides that the Authority may omit steps from its statutory process where it is satisfied firstly that the matter is of minor policy significance or complexity only, and secondly that to omit steps from the process will not adversely affect the interests of any body or person.  The latter test can be read narrowly to defeat the intent of the section.  For example, a decision to omit a round of public consultation (the full statutory process has two such rounds of consultation) could be said to adversely affect a person simply by virtue of being denied the opportunity to comment on the matter.  The amendment clarifies that the adverse impact must be something significant or substantial, it must be a real impact rather than a theoretical one.


There remain important safeguards upon the Authority’s exercise of this power.  Most significantly, any person who feels his or her interests have been adversely affected by the Authority’s decision have a right to seek an independent review of the Authority’s decision before the Administrative Appeals Tribunal.  This right of review ensures that the Authority will continue to be mindful of the impact of its decision upon interested parties.


Items 23 and 29


The Authority at times receives applications from other government agencies (such as the National Registration Authority for Agricultural and Veterinary Chemicals) to vary the Food Standards Code.  In some cases, the agency has itself undertaken an assessment process, possibly including public consultations, prior to making the application to the Authority.  This amendment provides that the Authority may take any such assessment process into account, and avoid duplication of effort if those processes have some equivalence to the processes of the Authority.  As with other existing “fast track” provisions, the amendments include provision for regulations to be made facilitating such a decision by the Authority, and for external review should any person or body believe their interests have been significantly adversely affected by the Authority’s decision.  This amendment therefore seeks to bring about regulatory efficiencies while maintaining openness and accountability in decision-making.  It should be noted that the bodies whose processes can be taken into account are limited to Government departments and statutory authorities, that there is a public notification requirement and a right of review exists for persons affected by the decision.


Item 24


This amendment corrects an oversight in the original drafting of the Act.  Section 39 relates to the handling of confidential commercial information provided to the Authority during the assessment of a standards matter.  Such information may come from either the applicant or a person making a submission in relation to an application.  In general, the language of section 39 covers both eventualities, but in subsection 39(5) reference is only made to information provided by applicants.  The amendment fixes this oversight.



Items 25 and 26


These amendments permit the Authority to employ staff on its own terms and conditions, in addition to staff engaged under the terms of the Public Service Act 1922 .  This amendment ensures that the Authority can be flexible in engaging staff to perform its functions and exercise its powers.


Item 27 - See item 31.


Item 28


While not a statutory obligation, the Authority operates a public register where any interested person can inspect all documents relating to an application or proposal.  This service is provided in the interests of openness and accountability.  There is some concern, however, that the Authority may be liable should it include in its public register a defamatory letter received by the Authority in relation to an application.  The process of making the letter available for public inspection may mean that the Authority is a publisher of that defamatory material.  The public interest in maintaining open and accountable decision-making can still be served if the Authority is given a limited indemnity in relation to its public register service.  The amendment confers an indemnity for this purpose.


Items 30 and 31 (including item 27)


The amendments clarify an existing power to impose fees for services provided by the Authority.  Specific power is given for the regulations to impose a penalty for late payment, a discount for early payment, and to make provision for the remission or refund of fees.  Item 27 makes a consequential amendment to specify that the monies of the Authority (to be spent on its functions in accordance with budgets approved by the Minister) include any late payment penalties.


Item 32


Section 68 of the Act confers an indemnity on the Authority in relation to food in respect of which a standard has been set by the Council.  However, not all food is standardised.  New and novel food ingredients are being constantly developed, and there is no system or requirement for pre-market approval of such foods by the Authority.  The amendment extends the Authority’s immunity to cover all foods, not just those in respect of which a standard has been made.