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1997
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
THE SENATE
AUSTRALIA NEW ZEALAND FOOD AUTHORITY
AMENDMENT
BILL (No. 2) 1997
EXPLANATORY MEMORANDUM
(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
AUSTRALIA NEW ZEALAND FOOD
AUTHORITY
AMENDMENT BILL (No. 2)
1997
OUTLINE
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.
FINANCIAL IMPACT
There are no costs or savings associated with this Bill.
AUSTRALIA NEW ZEALAND FOOD AUTHORITY
AMENDMENT
BILL (No. 2) 1997
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.
Schedule
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.