Explanatory Statement
1. Authority
Section 13 of the Food Standards Australia New Zealand Act 1991 (the FSANZ Act) provides that the functions of Food Standards Australia New Zealand (the Authority) include the development of standards and variations of standards for inclusion in the Australia New Zealand Food Standards Code (the Code).
Division 1 of Part 3 of the FSANZ Act specifies that the Authority may accept applications for the development or variation of food regulatory measures, including standards. This Division also stipulates the procedure for considering an application for the development or variation of food regulatory measures.
The Authority accepted Application A1163 which sought to amend the definition of ‘herbs and spices’ in subsection 1.5.3—4(3) of the Code. The Authority considered the Application in accordance with Division 1 of Part 3 and has approved a draft variation.
Following consideration by the Australia and New Zealand Ministerial Forum on Food Regulation, section 92 of the FSANZ Act stipulates that the Authority must publish a notice about the standard or draft variation of a standard.
Section 94 of the FSANZ Act specifies that a standard, or a variation of a standard, in relation to which a notice is published under section 92 is a legislative instrument, but is not subject to parliamentary disallowance or sunsetting under the Legislation Act 2003.
2. Purpose
The Authority has approved a draft variation to amend subsection 1.5.3—4(3) of the Code to clarify the meaning of the terms ‘herbs’ and ‘spices’ for the purposes of food irradiation and to ensure consistent interpretation and enforcement.
3. Documents incorporated by reference
The variation to a food regulatory measures does not incorporate any documents by reference.
4. Consultation
In accordance with the procedure in Division 1 of Part 3 of the FSANZ Act, the Authority’s consideration of Application A1163 included one round of public consultation following an assessment; and the preparation of a draft variation and associated assessment summary. Submissions were called for on 6 June 2019 for a six-week consultation period.
A Regulation Impact Statement (RIS) was not required because the proposed variation to Standard 1.5.3 is likely to have a minor impact on business and individuals and is deemed to be deregulatory in nature (see OBPR reference number: 25085).
5. Statement of compatibility with human rights
This instrument is exempt from the requirements for a statement of compatibility with human rights as it is a non-disallowable instrument under section 94 of the FSANZ Act.
6. Variation
Item [1] amends Standard 1.5.3 by omitting subsection 1.5.3—4(3) and substituting a new subsection 1.5.3—4(3). The new subsection will provide that, in section 1.5.3—4, the term ‘herbs and spices’ includes (but is not limited to) a herb or a spice described in Schedule 22.
This is an inclusive definition. Its effect will be that the terms ‘herb’ and ‘spice’ in section 1.5.3—4 include (but are not limited to): plant material that meets the general description of a ‘herb’ or ‘spice’ in Schedule 22; and/or plant material that is listed in the list of commodities provided in Schedule 22 for ‘herbs and spices’. The definition’s phrase ‘includes (but is not limited to)’ makes clear that a ‘herb’ and ‘spice’ for the purposes of section 1.5.3—4 also includes any plant derived material that is not covered by the latter description or list but which falls within the commonly accepted and ordinary meaning of ‘herb’ or ‘spice’
Overview
The Food Standards Australia New Zealand Act 1991 (FSANZ Act) is the legislative foundation that governs the development and enforcement of food standards in Australia and New Zealand, managed by Food Standards Australia New Zealand (FSANZ). To address the need for clear and consistent definitions in the Australia New Zealand Food Standards Code (Code), particularly concerning food irradiation, the Authority under the FSANZ Act has approved a draft variation to amend the definition of ‘herbs and spices’ in subsection 1.5.3—4(3) of the Code. This legislative instrument aims to ensure consistent interpretation and enforcement of food regulatory measures by providing a more inclusive definition of ‘herbs’ and ‘spices’. The Authority followed the procedure outlined in Division 1 of Part 3 of the FSANZ Act, including a round of public consultation, and determined that the variation was deregulatory in nature and did not require a Regulation Impact Statement. The approved draft variation is subject to the statutory requirements of the FSANZ Act and will be published following the consideration by the Australia and New Zealand Ministerial Forum on Food Regulation.
Scope and Application
The Act applies to the Food Standards Australia New Zealand Authority, which is responsible for the development and variation of food regulatory measures, including standards, in the Australia New Zealand Food Standards Code. This encompasses the processes for accepting applications, public consultations, and the subsequent approval of draft variations. The geographic reach of this Act extends to both Australia and New Zealand as it pertains to the Food Standards Australia New Zealand Authority. The Act exempts the approved draft variation from parliamentary disallowance or sunsetting under the Legislation Act 2003. The variation specifically targets the clarification of the definitions of 'herbs' and'spices' for the purposes of food irradiation, ensuring consistent interpretation and enforcement across both countries. The amendment does not incorporate any external documents by reference and has been subject to one round of public consultation following an assessment. This Act does not require a Regulation Impact Statement as the proposed changes are considered to have a minor impact on businesses and individuals and are deregulatory in nature. Additionally, it is exempt from the need for a statement of compatibility with human rights as it is a non-disallowable instrument under section 94 of the FSANZ Act.
Key Provisions
The main operative sections of this legislation, as detailed in the explanatory statement, include sections 13 and 92 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act), which outline the functions of Food Standards Australia New Zealand (the Authority) in developing and varying food regulatory measures such as standards. Section 92 of the FSANZ Act requires the Authority to publish a notice about a draft variation of a standard after consideration by the Australia and New Zealand Ministerial Forum on Food Regulation. Section 94 specifies that a standard, or a variation of a standard, in relation to which a notice is published under section 92 is a legislative instrument but is not subject to parliamentary disallowance or sunsetting under the Legislation Act 2003.
The obligations and requirements imposed by this Act on the parties it governs include the duty of the Authority to consider applications for the development or variation of food regulatory measures in accordance with Division 1 of Part 3 of the FSANZ Act. This process involves accepting applications, conducting a round of public consultation, and preparing a draft variation and an associated assessment summary. The Authority must also publish a notice about the standard or draft variation of a standard as required by section 92 of the FSANZ Act. Additionally, the Authority must ensure that the variation aligns with the purpose of clarifying the definition of 'herbs' and'spices' for the purposes of food irradiation and ensuring consistent interpretation and enforcement.
Any offences, penalties, or civil or criminal consequences for breach of the provisions of this legislation are not explicitly stated in the explanatory statement. However, it is noted that the variation is a legislative instrument and is not subject to parliamentary disallowance or sunsetting under the Legislation Act 2003. This suggests that while there may be consequences for non-compliance with the food standards or regulatory measures outlined in the Code, the specifics of these consequences are not detailed in the explanatory statement. The absence of a Regulation Impact Statement also indicates that the variation is likely to have a minor impact on businesses and individuals and is considered deregulatory in nature.
Given the inclusive nature of the definition provided in the variation, any failure to comply with the clarified definitions of 'herbs' and'spices' could potentially lead to inconsistencies in the enforcement of food irradiation standards. While specific penalties are not outlined, non-compliance could result in regulatory actions or other enforcement measures taken by relevant authorities. The exemption from the requirements for a statement of compatibility with human rights suggests that the variation is unlikely to have significant human rights implications, but it does not preclude the possibility of other legal consequences for non-compliance.