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Food Standards Australia New Zealand Amendment (Forum on Food Regulation and Other Measures) Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 32, 2015-16 14 OCTOBER 2015

Food Standards Australia New Zealand Amendment (Forum on Food Regulation and Other Measures) Bill 2015 Paula Pyburne Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 2

Structure of the Bill ............................................................. 2

Background ......................................................................... 2

History of food regulation ....................................................... 2

Involvement of COAG .............................................................. 3

Reforming the council system ............................................... 3

Effect on FSANZ ..................................................................... 3

Food Regulation Standing Committee .................................. 4

Committee consideration .................................................... 4

Selection of Bills Committee.................................................... 4

Senate Standing Committee for the Scrutiny of Bills .............. 4

Policy position of non-government parties/independents ..... 4

Position of major interest groups ......................................... 4

Financial implications .......................................................... 4

Statement of Compatibility with Human Rights .................... 4

Parliamentary Joint Committee on Human Rights .................. 4

Key issues and provisions..................................................... 5

Schedule 1 ............................................................................... 5

Change of name .................................................................... 5

Appropriate government agency .......................................... 5

Publishing notices on the FSANZ website ............................. 5

References to the Nutrition, Health and Related Claims Standard ................................................................................ 6

Schedule 2—appointing members to the Board ..................... 6

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.

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Purpose of the Bill 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.

Background 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

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.

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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;

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.

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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

Committee consideration 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.

Policy position of non-government parties/independents At the time of writing this Bills Digest neither non-government parties nor independent members of the Parliament have 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, ‘there is no financial impact relating to this Bill’.23

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.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

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.

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Key issues and provisions 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 Regulation26 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

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).

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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:

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.

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(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 Council41

• one member nominated by consumer organisations42

• one member nominated by the CEO of the National Health and Medical Research Council43

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).

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• three members nominated by organisations, or public bodies, established for purposes relating to science or public health44 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 expertise51 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 members54 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.

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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