Food Regulation Agreement
AN AGREEMENT made the third day of November, 2000 between:
The COMMONWEALTH OF AUSTRALIA ('the Commonwealth') and
The STATE OF NEW SOUTH WALES;
The STATE OF VICTORIA;
The STATE OF WESTERN AUSTRALIA;
The STATE OF QUEENSLAND;
The STATE OF SOUTH AUSTRALIA;
The STATE OF TASMANIA;
The NORTHERN TERRITORY OF AUSTRALIA; and
The AUSTRALIAN CAPITAL TERRITORY
collectively called 'the States and Territories'.
WHEREAS -
A. The Commonwealth and the States and Territories agree that there is a need to implement a co-operative national system of food regulation with the following objectives:
(a) providing safe food controls for the purpose of protecting public health and safety;
(b) reducing the regulatory burden on the food sector;
(c) facilitating the harmonisation of Australia's domestic and export food standards and their harmonisation with international food standards;
(d) providing cost effective compliance and enforcement arrangements for industry, government and consumers;
(e) providing a consistent regulatory approach across Australia through nationally agreed policy, standards and enforcement procedures;
(f) recognising that responsibility for food safety encompasses all levels of government and a variety of portfolios; and
(g) supporting the joint Australia and New Zealand efforts to harmonise food standards.
B. The Commonwealth and the States and Territories agree that there is a need to ensure that all sectors in the food supply chain manage their food safety risks but recognise that the mechanisms for ensuring that this happens will vary from sector to sector.
IT IS AGREED THAT -
PART I - PURPOSE
1. The purpose of this Agreement is to give effect to a national approach to food regulation within Australia.
PART II - INTERPRETATION
2. In this Agreement -
(a) 'COAG' means the Council of Australian Governments;
'Codex Alimentarius' means the code of international food standards set by the Codex Alimentarius Commission to guide and promote the elaboration and establishment of definitions and requirements for foods, to assist their harmonisation and, in doing so, to facilitate international trade;
'consistent' means that the wording of the jurisdiction's provision may differ, if necessary, from the provision in Annex A or Annex B to this Agreement. However, the provision must deal with the same subject matter, in a manner appropriate for the legal regime of the jurisdiction, and must have the same intent and effect as the particular provision being enacted;
'Consultative Council' means the Food Regulation Consultative Council, to be established pursuant to Part III of this Agreement;
'food legislation' means the laws regulating the packaging, labelling, sale, handling and distribution of food;
'FSANZ' means Food Standards Australia New Zealand, to be established pursuant to Part III of this Agreement;
'in the same terms' means that the same words must be used in the provision in the jurisdiction's Food Legislation as is used in the provision in Annex A to this Agreement, subject to the Parliamentary conventions of the jurisdiction;
'jurisdiction' means the Parties to this Agreement and the Government of New Zealand;
'lead Minister' means a Minister who is a member of the Ministerial Council and is nominated by each of the Parties to be responsible to the Ministerial Council for the responses of that Party, pursuant to Part III of the Agreement;
'Ministerial Council' means the Australia and New Zealand Food Regulation Ministerial Council, to be established pursuant to Part III of this Agreement;
'Party' means a party to this Agreement;
'proposed standard' includes a proposed variation to an existing standard;
'Standing Committee' means the Standing Committee of Senior Officials to the Ministerial Council, to be known as the Food Regulation Standing Committee and to be established pursuant to Part III of this Agreement;
(b) a reference to a Part is a reference to a Part of this Agreement;
(c) a reference to a clause is a reference to a clause of this Agreement;
(d) words importing the singular include the plural and vice versa; and
(e) words importing a gender include the other gender.
PART III - ADMINISTRATIVE ARRANGEMENTS
Australia and New Zealand Food Regulation Ministerial Council
3. The Parties shall establish a Council, to be known as the Australia and New Zealand Food Regulation Ministerial Council, which will:
(a) have responsibility for:
(i) the development of domestic food regulatory policy;
(ii) the development of policy guidelines for setting domestic food standards;
(iii) the promotion of harmonised food standards within Australia between the Parties (harmonisation of domestic standards between States and Territories and of domestic standards with export standards) and with Codex Alimentarius (harmonisation of domestic and export standards with international food standards set by Codex Alimentarius);
(iv) the general oversight of the implementation of domestic food regulation and standards; and
(v) the promotion of a consistent approach to the compliance with, and enforcement of, food standards;
(b) consist of one or more members representing each Party, and the Government of New Zealand, who shall be the Minister for Health of each Party or Government and other Ministers nominated by that Party or Government with prime responsibility for matters with which this agreement is concerned;
(c) be Chaired by the Minister with responsibility for the Commonwealth Health portfolio and supported by a Secretariat provided by that Minister's portfolio;
(d) operate under the following arrangements:
(i) each Party, and the Government of New Zealand, shall have one vote on a proposed resolution of the Ministerial Council and this vote shall represent the views of all Ministers of the Party, or Government of New Zealand;
(ii) only a lead Minister shall have the right to vote on a resolution proposed by the Ministerial Council;
(iii) where none of the members representing a Party, or the Government of New Zealand, on the Ministerial Council is able to be present at a meeting at which a vote is to be taken, the lead Minister may advise the Chairperson of the Party's voting intentions in writing by mail, teleprinter, facsimile or other mode of electronic communication prior to the meeting;
(iv) a vote under clause 3(d)(iii) will have the same effect as if the members representing a Party, were present and voting at the meeting;
(v) a decision of the Ministerial Council may be made without a meeting being convened and held;
(vi) a vote on a resolution, either at a meeting or out-of-session, will be carried by a simple majority of all jurisdictions;
(vii) subject to this Agreement, the Ministerial Council may determine its own procedures and for that purpose make rules of procedure, including rules relating to notice of meeting, quorum and conduct of business at meetings, and may from time to time alter such rules; and
(viii) the Ministerial Council shall hold a meeting at least once in each calendar year;
(e) request FSANZ to review a proposed standard or an existing standard if a Party considers that one or more of the following criteria applies to the standard:
(i) it is not consistent with existing policy guidelines set by the Ministerial Council;
(ii) it is not consistent with the objectives of the legislation which establishes FSANZ;
(iii) it does not protect public health and safety;
(iv) it does not promote consistency between domestic and international food standards where these are at variance;
(v) it does not provide adequate information to enable informed choice;
(vi) it is difficult to enforce or comply with in both practical or resource terms;
(vii) it places an unreasonable cost burden on industry or consumers;
(f) request FSANZ, subsequent to a review undertaken under clause 3(e), to review a proposed standard a second time if it is agreed, by a majority vote, that one or more of the criteria in clause 3(e) applies to the standard;
(g) have the power to reject a proposed standard that has been reviewed a second time under clause 3(f) if it is agreed, by a majority vote, that one or more of the criteria in clause 3(e) still applies to the standard, provided the Ministerial Council publicly announces its reasons for doing so.
4. (a) Where FSANZ notifies the Ministerial Council of a proposed standard developed by FSANZ, other than a proposed standard resulting from a review of a proposed standard or an existing standard under clauses 3(e) or 3(f), FSANZ shall proceed to publish the proposed standard as notified to the Ministerial Council in the Commonwealth of Australia Gazette if the Ministerial Council does not request a review of the proposed standard under clause 3(e) within 60 days of being notified of the proposed standard by FSANZ.
(b) Where FSANZ notifies the Ministerial Council of a proposed standard resulting from a review of a proposed standard or an existing standard following a request under clauses 3(e) or 3(f), FSANZ shall proceed to publish the proposed standard as notified to the Ministerial Council in the Commonwealth of Australia Gazette if and when FSANZ is notified by the Ministerial Council that the Ministerial Council does not intend to request a second review of the proposed standard under clause 3(f) or to reject the proposed standard under clause 3(g).
(c) FSANZ shall not publish a proposed standard in the Commonwealth of Australia Gazette other than in accordance with clauses 4(a) or 4(b).
5. The Parties shall invite the President of the Australian Local Government Association, or his delegate, to participate in the activities of the Council as an observer.
Food Regulation Standing Committee
6. When establishing the Ministerial Council, the Parties shall also establish a Standing Committee of Senior Officials, to be known as the Food Regulation Standing Committee:
(a) with the functions of:
(i) co-ordinating policy advice to the Ministerial Council; and
(ii) ensuring a nationally consistent approach to the implementation and enforcement of food standards;(b) with its membership reflecting the Ministerial Council membership;
(c) which shall be chaired by the Secretary of the Department for which the Chairperson of the Ministerial Council has portfolio responsibility; and
(d) which is supported by the Ministerial Council secretariat.
7. The Parties shall invite the Australian Local Government Association to be a full participating member of the Standing Committee.
Food Standards Australia New Zealand
8. The Commonwealth shall establish a statutory authority, to be known as 'Food Standards Australia New Zealand':
(a) with functions including:
(i) developing proposed domestic food standards in accordance with the policy guidelines set down by the Ministerial Council;
(ii) notifying the Ministerial Council of proposed standards developed by FSANZ;
(iii) reviewing proposed standards or existing standards at the request of the Ministerial Council under clauses 3(e) or 3(f); and
(iv) notifying the Ministerial Council of the outcomes of reviews of proposed standards or existing standards following a request by the Ministerial Council under clauses 3(e) or 3(f).
(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:
(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.
Food Regulation Consultative Council
11. The Ministerial Council must establish, within 12 months of the first meeting of the Ministerial Council:
(a) a Food Regulation Consultative Council in accordance with clause 12; or
(b) an alternative means of consultation to provide stakeholder advice to the Ministerial Council, the Standing Committee, and FSANZ, if that alternative is agreed to by all the Parties.
12. If it is to be established by the Ministerial Council, the Food Regulation Consultative Council shall:
(a) have the functions of:
(i) providing advice to the Ministerial Council and Standing Committee regarding the development of domestic food regulation policy;
(ii) providing advice to the Ministerial Council and Standing Committee regarding the development of policy guidelines for the setting of domestic food standards;
(iii) providing advice to FSANZ on the setting of domestic food standards; and
(iv) providing advice to the Ministerial Council, Standing Committee and FSANZ on appropriate strategies for FSANZ to conduct consultation with their stakeholders; and
(b) comprise an independent and eminent person as Chairperson and a high level representative from organisations representing each of the following interests:
(i) Primary production;
(ii) Processed food;
(iii) Food retail;
(iv) Food service;
(v) Consumers;
(vi) Public health professionals;
(vii) Small business.
PART IV - INTRODUCTION AND AMENDMENT OF FOOD LEGISLATION AND ADOPTION OF FOOD STANDARDS
Introduction of Food Acts
13. The States and Territories will use their best endeavours to submit to their respective Parliaments, within twelve months of the date of signing this Agreement, and in accordance with clause 14, legislation which gives effect to the provisions listed at Annex A and Annex B of this Agreement which provide for the effective and consistent administration and enforcement of the Food Standards Code (including the Food Safety Standards).
14. The legislation submitted by each State and Territory to its respective Parliament:
(a) will contain provisions that are either
(i) in the same terms as all of those contained in Annex A of this Agreement, noting that the words in square brackets are optional; or
(ii) if the State or Territory has separate legislation governing safe primary food production, consistent with all of those contained in Annex A of this Agreement noting that the words in square brackets are optional;
(b) may contain whichever provisions it chooses to include from those contained in Annex B of this Agreement. These provisions are administrative in nature and, because of the differing administrative or enforcement arrangements of particular jurisdictions, do not need to be adopted in the same terms by the States and Territories but, rather, can be adopted in a manner consistent with the relevant provision in Annex B; and
(c) may contain additional provisions that do not conflict with any of the provisions enacted pursuant to clause 14(a) or 14(b).
15. Where a State or Territory prescribes a food production activity for the purposes of the definition of 'primary food production' in Annex A of this Agreement, it will advise the Ministerial Council of its intentions in order to promote national consistency.
16. States and Territories shall set penalties, whether by dollar amounts or by penalty units, for offences in the legislation submitted in accordance with clause 14 that are the same as, or as close as possible to (recognising the limits imposed by that jurisdiction's general penalty provisions scheme), the penalties for offences that are contained in Annex A of this Agreement and the penalties for offences that have been included from Annex B.
17. Each State and Territory will use its best endeavours to secure the passage and commencement of the legislation referred to in clause 14 within the Parliamentary session following introduction.
Amendment of the Annexes
18. Where a Party considers that Annex A or the intent of any of the provisions of Annex B should be amended, that jurisdiction will recommend its proposed amendments to the Ministerial Council.
19. Where the Ministerial Council agrees, by a majority vote, to a recommendation under clause 18, it will refer the proposed amendments to the Parliamentary Counsels' Committee for drafting.
20. Where the Ministerial Council does not agree, by a majority vote, with the proposed amendment, the amendment will not be made.
21. A State or Territory may introduce into Parliament, a Bill to amend its Act if it is necessary to do so as a matter of urgency in order to ensure continuous and effective administration or enforcement of its Act. The State or Territory must immediately report any such Bill introduced to the Ministerial Council. The Ministerial Council, at its next meeting, will consider any inconsistencies between the introduced Bill and the Annex A provisions and may agree, by majority vote, to include appropriate amendments to the relevant Annex of this Agreement in order to maintain national consistency.
22. After amendment of an Annex under clause 19, States and Territories will use their best endeavours to submit to their respective Parliaments in accordance with clause 14, legislation which gives effect to the amendment.
Adoption of Food Standards
23. The States and Territories will take such legislative or other steps as are necessary to adopt or incorporate as food standards in force under the food legislation of the State or Territory, the food standards (including variations to those standards) that are from time to time:
(a) developed by FSANZ; and
(b) published in the Commonwealth of Australia Gazette.
24. Such standards are to take effect on the date specified in the Gazette.
25. Subject to clause 28, no State or Territory shall, subsequent to the steps taken pursuant to clause 23, amend the food standards referred to in that clause.
26. No State or Territory shall, by legislation or other means, establish or amend a food standard other than in accordance with this Agreement.
27. It is hereby agreed that a food standard, developed by FSANZ and published in the Commonwealth of Australia Gazette, may include a provision in respect of a State or Territory or part of a State or Territory where the Ministerial Council is satisfied that the provision is necessary because of exceptional conditions in that State or Territory and that the provision would not present a risk to public health or safety or contravene Australia's international treaty obligations.
28. Where a State or Territory determines that an issue affecting public health and safety requires a new food standard, or variation of a standard adopted pursuant to clause 23, and that the circumstances affecting public health and safety would not allow time for the steps pursuant to clause 23 to be taken, the State or Territory may, under the food legislation of the State or Territory, adopt or vary a food standard accordingly, provided that:
(a) the State or Territory notifies FSANZ of its intention to adopt or vary the food standard;
(b) the new or varied food standard applies for a period of no longer than twelve months from the date of its adoption or variation; and
(c) the State or Territory makes, on so determining, an immediate application to FSANZ to adopt the new food standard or to vary the relevant food standard.
29. An application to FSANZ pursuant to clause 28(c) shall be decided within six months of the application being made.
30. Where a State or Territory determines that requirements relating to mandatory food safety programs are necessary in that State or Territory, the State or Territory may amend its food legislation to require mandatory food safety programs.
31. To promote national consistency, the States and Territories will work towards a best practice model for food safety programs.
PART V - COMMENCEMENT OF THIS AGREEMENT
32. The Parties acknowledge and agree that this Agreement cannot be given full effect unless and until:
(a) an agreement is entered into between the Government of the Commonwealth of Australia and the Government of New Zealand which either amends or takes the place of the agreement between those Governments made on 5 December 1995 establishing a system for the development of joint food standards; and
(b) Commonwealth legislation amending or replacing the Australia New Zealand Food Authority Act 1999 comes into force, to give effect to the provisions of this Agreement.
33. Until the agreement between Australia and New Zealand and the Commonwealth legislation referred to in clause 32 comes into force, the Parties shall implement this Agreement in the following way:
(a) a reference to FSANZ in clauses 23, 27, 28 and 29 of this Agreement shall be taken to be a reference to the Australia New Zealand Food Authority; and
(b) the Ministerial Council shall be known as the Australia New Zealand Food Standards Council and, in addition to the responsibilities included in clause 3(a), will undertake the functions of the Australia New Zealand Food Standards Council set out in theAustralia New Zealand Food Authority Act 1991;
(c) the standards referred to in clause 23(a) will be recommended by the Australia New Zealand Food Authority to the Ministerial Council and adopted by the Ministerial Council in accordance with the functions of the Australia New Zealand Food Authority and the Australia New Zealand Food Standards Council set out in theAustralia New Zealand Food Authority Act 1991; and
(d) clauses 3 (e), (f) and (g), 4, 9, and 10 will not come into effect.
34. (a) The Agreement between the Commonwealth of Australia, the States, the Northern Territory of Australia and the Australian Capital Territory in relation to the adoption of uniform food standards made on 30 July 1991 shall cease to operate upon this Agreement being given full effect.
(b) Prior to this Agreement being given full effect, those provisions of this Agreement which come into effect in accordance with this Part V shall override any provisions of the Agreement between the Commonwealth of Australia, the States, the Northern Territory of Australia and the Australian Capital Territory in relation to the adoption of uniform food standards made on 30 July 1991 which deal with the same subject matter as those provisions of this Agreement.
PART VI -REVIEW OF IMPLEMENTATION AND EFFECTIVENESS
35. The Parties, in establishing the Ministerial Council and Standing Committee, shall require them to report annually to COAG on the progress towards the implementation of the co?operative system set down in this Agreement and its effectiveness.
36. The Parties shall jointly conduct and conclude a review of the effectiveness of this Agreement no later than five years after the commencement of the Agreement.
PART VII - AMENDMENT OR VARIATION OF AGREEMENT
37. Where a Party considers that this Agreement should be amended, it may request consultations with the other Parties to this end, except in respect of amendments to Annexes A and B which may only be amended in accordance with clauses 18 to 22.
38. Amendments to this Agreement, other than amendments to Annex A or B, may only be made with the written consent of all Parties.
39. Any agreed amendments to the Agreement shall be contained in a document distributed to all Parties and which shall include a reference to the date on which the amendment shall come into force.
PART VIII - DISPUTE RESOLUTION
40. Where a dispute arises under this Agreement:
(a) the Parties shall require the members of the Ministerial Council to attempt to resolve the disputes in the first instance;
(b) if this fails, the Parties may refer the dispute to COAG to seek a resolution to the dispute through COAG processes.
PART IX - WITHDRAWAL AND TERMINATION
41. Any Party may withdraw from this Agreement provided it gives not less than 12 months notice in writing to each of the other Parties.
42. Withdrawal from the Agreement by any Party shall result in the Agreement being terminated.
43. Upon receiving notice from a Party that they wish to withdraw from the Agreement, the Commonwealth shall notify the Government of New Zealand to this effect.
IN WITNESS WHEREOF this Agreement has been executed as at the day and year first written above.
SIGNED by:
The Honourable John Winston Howard MP )
Prime Minister of the Commonwealth of Australia )
The Honourable Robert John Carr MP )
Premier of the State of New South Wales )
The Honourable Stephen Phillip Bracks MP )
Premier of the State of Victoria )
The Honourable Peter Douglas Beattie MLA )
Premier of the State of Queensland )
The Honourable Richard Fairfax Court MLA )
Premier of the State of Western Australia )
The Honourable John Wayne Olsen MP )
Premier of the State of South Australia )
Mr Jim Bacon MHA )
Premier of the State of Tasmania )
Mr Gary John Joseph Humphries MLA )
Chief Minister of the Australian Capital Territory )
The Honourable Denis Burke MLA )
Chief Minister of the Northern Territory of Australia )
Councillor John Ross )
President of the Australian Local Government Association )