Jan McLucas (Queensland, Australian Labor Party, Shadow Minister for Ageing, Disabilities and Carers) Share this | Hansard source

We are now dealing with the Food Standards Australia New Zealand Amendment Bill 2007. 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 the Food Standards Australia New Zealand Authority, FSANZ, will be replaced by three different streams so that applications and proposals can be assessed according to their nature and scope.  Secondly, the bill contains amendments to strengthen the alignment of the policy-setting process 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 the standard. Fourthly, the bill introduces a new process for the scientific pre-market assessment and approval of high-level health claims. 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 mem-orandum, the purpose of this 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. The bill represents the government’s response to ongoing feedback from consumers, government and industry highlighting a number of areas for improvement in the framework for developing and assessing food standards by the authority. This framework originated in the National Food Authority, established in 1991 when states and territories entered into an arrangement with the Commonwealth. When New Zealand became a partner in the Australian food regulatory system in 1996, the Australia New Zealand Food Authority was established. In November 2000, the Council of Australian Governments, COAG, agreed to a new food regulatory system in response to the food regulation review recommendations contained in the Blair report.

The Food Standards Australia New Zealand Act 1991 established a new independent statutory authority, Food Standards Australia New Zealand—which we know as FSANZ—to develop and approve science based food standards, and conferred policy responsibility for the food regulatory framework on a ministerial council, comprising ministers representing all relevant portfolios. New Zealand, again, joined the system by way of a treaty. In 2004, the Food Regulation Standing Committee, comprising senior officials from the New Zealand, Australian and all state and territory governments, undertook a review of the food regulatory system aimed at identifying opportunities for reducing delays in the authority’s food standards assessment and approval processes and enhancing the protection of confidential commercial information. During 2005, as part of the review, industry and consumers were consulted on any additional concerns with the current standards development process.

A range of possible improvements was identified through these processes. These improvements included, firstly, the time frame for decision making. The average time taken to complete a full assessment of an application had blown out to 16.8 months, leading to a considerable backlog of applications. Secondly, the one-size-fits-all approach fixed in the legislation for developing or amending a food standard meant that virtually all applications and proposals were being processed in the same way regardless of whether they were for a major or minor amendment to a standard or for a new standard altogether. Under the current framework, even applications for minor technical amendments are subject to the full gamut of two rounds of public consultation, three sets of reports and the opportunity for two rounds of ministerial council reviews. Thirdly, problems were identified relating to the interaction between the role of FSANZ and the ministerial council. Crossover between the standards development process undertaken by FSANZ and the policy development and final checks-and-balances role of the council were resulting in long delays and uncertainty. Fourthly, there were substantial industry concerns around the ‘free rider’ effect that resulted from generic standards. Currently there is no capacity for industry to capture exclusive benefits because all of the details of their applications were immediately made publicly available and because, once amended, the new standard applies to everyone. The absence of protections for commercially valuable information was identified as a disincentive for innovation, particularly in relation to health claims and novel foods.

The government has advised that the issues addressed in the bill were the subject of consultation with Commonwealth, state and territory governments, the New Zealand government, the food industry, consumer and public health groups and members of the public. Consistent with Australia’s obligations under the Australia-New Zealand Joint Food Standards Treaty, schedule 3 does not take effect unless and until amendments to reflect this new process have been made to the agreement with New Zealand. 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. Labor supports these changes, representing as they do an effort to improve and streamline processes for assessing applications and proposals by FSANZ. It is hoped that these changes will improve the timeliness of FSANZ decisions, as the government has promised.

On 29 March this year, the bill was referred to the Senate Standing Committee on Community Affairs for inquiry. The committee received 15 submissions on the bill and considered it 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 Australian Medical Association expressed disappointment that the bill:

... seems to place greater emphasis on improving processes for industry (reducing red tape and streamlining) than it does on the public health implications of food regulation activities undertaken by FSANZ.

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.

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 and argued 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 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 also noted a lack of definition of ‘public health’ in the act.

CHOICE supported the new stop-the-clock provision and noted 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 raised concerns about changes to public consultation in some of the new assessment processes and noted the lack of a definition of ‘public health’ in the act.

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. The association called for greater focus on the public health implications of food regulation activities.

The Cancer Council of Australia raised concerns that weaker measures in relation to food regulation could potentially lead to negative health outcomes for the public.

The Australian Food and Grocery Council argued that the amendments provided for a 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. 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.

The Australian Beverages Council also raised concerns around the lack of clarity in relation to the process for amending editorial notes. The council argued that the proposed stop-the-clock provision was unnecessary and would seriously inhibit innovation and the competitiveness of Australian industry. Bayer CropScience, Monsanto and Dairy Australia similarly raised concerns with the stop-the-clock provision. Bayer CropScience and Dairy Australia suggested further amendments to ensure certainty for business.

The Senate Standing Committee on Community Affairs considered these submissions and raised a number of issues in its report: the assessment of applications; changes to clarify the status of editorial notes in the standards; the role of the ministerial council; and the stop-the-clock provision allowing for the suspension of an application by FSANZ under specified circumstances. It suggested further amendments to ensure certainty for business. It raised issues around new processes for assessing high-level health claims and the public health implications of food regulation activities.

The committee made three majority recommendations, all of which Labor supports: firstly, 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; secondly, that the definition of ‘standard’ contained in proposed subsection 3(1) of the act be amended to clarify the process for amending editorial notes; and, thirdly, that the stop-the-clock provisions contained in proposed section 109 be amended to provide applicants with an option to proceed with the assessment process, on the understanding that approval may, if necessary, be rescinded or amended following any contrary policy decision by the ministerial council.

We are pleased that the government has moved on two of these issues, proposing amendments to address the committee’s recommendations dealing with editorial notes and the stop-the-clock provisions. Labor support these amendments. As it is always important that everyone is clear as to the intended meaning of legislators in regulatory regimes such as the FSANZ bill, we support the effort to clarify the use of editorial notes in the legislation.

Labor also support the government’s amendment of the stop-the-clock provision for greater flexibility. However, we are disappointed that the government has not adopted the third recommendation of the Senate committee, to include a definition of ‘public health’ in the bill. Labor had intended to move amendments to strengthen the public health objectives of the act, and we are happy to support the Democrats amendment in this regard as it has the same result as our intention.

Labor is conscious that efforts to improve processes for industry—reducing red tape, streamlining assessments and providing greater protections for intellectual property—must always be balanced with protecting the public health implications of food regulation activities undertaken by FSANZ. The government has a third amendment in its package—to omit subsection 112(6), a provision that has been removed after consultation with FSANZ. It appears that the provision has never been utilised and there are no existing regulations to this effect. Under these circumstances Labor will support this amendment.

The Greens and Democrats have proposed a number of additional amendments. Labor will be supporting some of these amendments—notably those which reflect concerns raised during the Senate committee hearings—but I will wait until the detailed consideration of the bill to go through each of these individually. In conclusion, I repeat that Labor supports this bill and the amendments I have noted. We believe this package represents an effort to improve and streamline processes for assessing applications and proposals by FSANZ and hopefully to improve the timeliness of FSANZ decisions.