Food Standards (Application A1270 – Food derived from herbicide-tolerant and insect-protected corn line DP51291) Variation

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Legislation au F2024L00181 In force Legislative Instrument

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EXPLANATORY STATEMENT 

 

Food Standards Australia New Zealand Act 1991 

 

Food Standards (Application A1270  – Food derived from herbicide-tolerant and insect-protected corn line DP51291) Variation  

 

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 A1270 which sought to amend the Code to permit the sale and use of food derived from a new food produced using gene technology (GM food) - corn line DP51291. Corn line DP51291 has been genetically modified for tolerance to the herbicide glufosinate and protection from coleopteran insect pests. The Authority considered the application in accordance with Division 1 of Part 3 and has approved a draft variation –

 the Food Standards (Application A1270 – Food derived from herbicide-tolerant and insect-protected corn line DP51291) Variation.  

 

Following consideration by the Food Ministers’ Meeting (FMM), section 92 of the FSANZ Act stipulates that the Authority must publish a notice about the approved draft variation.

 

2. Variation is a legislative instrument

 

The approved draft variation is a legislative instrument for the purposes of the Legislation Act 2003 (see section 94 of the FSANZ Act) and is publicly available on the Federal Register of Legislation (www.legislation.gov.au).

 

This instrument is not subject to the disallowance or sunsetting provisions of the Legislation Act 2003. Subsections 44(1) and 54(1) of that Act provide that a legislative instrument is not disallowable or subject to sunsetting if the enabling legislation for the instrument (in this case, the FSANZ Act): (a) facilitates the establishment or operation of an intergovernmental scheme involving the Commonwealth and one or more States; and (b) authorises the instrument to be made for the purposes of the scheme. Regulation 11 of the Legislation (Exemptions and other Matters) Regulation 2015 also exempts from sunsetting legislative instruments a primary purpose of which is to give effect to an international obligation of Australia.

 

The FSANZ Act gives effect to an intergovernmental agreement (the Food Regulation Agreement) and facilitates the establishment or operation of an intergovernmental scheme (national uniform food regulation). That Act also gives effect to Australia’s obligations under an international agreement between Australia and New Zealand. For these purposes, the Act establishes the Authority to develop food standards for consideration and endorsement by the FMM. The FMM is established under the Food Regulation Agreement and the international agreement between Australia and New Zealand, and consists of New Zealand, Commonwealth and State/Territory members. If endorsed by the FMM, the food standards on gazettal and registration are incorporated into and become part of Commonwealth, State and Territory and New Zealand food laws. These standards or instruments are then administered, applied and enforced by these jurisdictions’ regulators as part of those food laws.

 

3. Purpose

The Authority has approved a draft variation amending the table to subsection S26—3(4) in Schedule 26 of the Code to permit the sale and use of food derived from corn line DP51291, in accordance with the Code. Corn line DP51291 has been genetically modified for tolerance to the herbicide glufosinate and protection from coleopteran insect pests.

4. Documents incorporated by reference

 

The approved draft variation does not incorporate any documents by reference.

 

5. Consultation

 

In accordance with the procedure in Division 1 of Part 3 of the FSANZ Act, the Authority’s consideration of application A1270 included one round of public consultation following an assessment and the preparation of a draft variation and associated report. Submissions were called for on 3 August 2023 for a six-week consultation period.

 

Changes have been made to the Impact Analysis requirements by the Office of Impact Analysis (OIA) [1]. Impact analysis is no longer required to be finalised with the OIA. Prior to these changes, the OIA advised FSANZ that a Regulatory Impact Statement was not required for applications relating to GM foods. This is because applications relating to permitting the use of GM foods that have been determined to be safe are considered to be minor and deregulatory in nature, as the use of the GM food will be voluntary if the draft variation related to the application is approved. Under the new approach, FSANZ’s assessment is that a regulatory impact statement is not required for this application.

 

6. 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 44 of the Legislation Act 2003.

 

7. Variation

 

Clause 1 of the variation provides that the name of the variation is the Food Standards (Application A1270  – Food derived from herbicide-tolerant and insect-protected corn line DP51291) Variation.

 

Clause 2 of the variation provides that the Code is amended by the Schedule to the variation.

Clause 3 of the variation provides that the variation will commence on the date of gazettal of the instrument.

Item [1] of the Schedule to the variation amends Schedule 26 of the Code by inserting, in alphabetical order, a new paragraph ‘(zg)’ into the column headed ‘Food derived from:’ for item 2 of the table to subsection S26—3(4) of the Code. Item 2 of this table is headed Corn’.

The new paragraph (zg) refers to ‘herbicide-tolerant and insect-protected corn line DP51291’.

The effect of the variation is to permit the sale and use of food derived from that corn line in accordance with the Code.

 

[1] Regulatory Impact Analysis Guide for Ministers’ Meetings and National Standard Setting Bodies | The Office of Impact Analysis (pmc.gov.au)

Overview

The Food Standards Australia New Zealand Act 1991 was enacted to provide a robust framework for the development and management of food standards across Australia and New Zealand. The Act establishes Food Standards Australia New Zealand (FSANZ) as the body responsible for creating and updating food standards, ensuring they are based on the best available scientific evidence and that they are appropriate for the protection of public health and safety. This legislative instrument amends the Australia New Zealand Food Standards Code to permit the sale and use of food derived from corn line DP51291, which has been genetically modified for herbicide tolerance and insect protection. This variation was approved by FSANZ following a process that included public consultation and an assessment of the application. The amendment is intended to allow the safe use of this genetically modified corn in food products, thereby expanding the options available for food production and ensuring continued compliance with food safety standards.

Scope and Application

The Food Standards Australia New Zealand Act 1991, through its provision for the development of variations to the Australia New Zealand Food Standards Code, applies to entities and industries involved in the production, sale, and use of food products, including genetically modified foods. Specifically, this Act applies to Food Standards Australia New Zealand (FSANZ), which is responsible for considering and approving applications for the development or variation of food regulatory measures. In this instance, the Authority has approved a draft variation to permit the sale and use of food derived from herbicide-tolerant and insect-protected corn line DP51291. This variation will apply across the Commonwealth, state, and territory jurisdictions in Australia and New Zealand, given that the FSANZ Act facilitates the establishment of a national uniform food regulation scheme. This Act, however, does not specify exclusions or thresholds for its application. The approved variation is a legislative instrument and is not subject to disallowance or sunsetting provisions, as it facilitates an intergovernmental scheme and international obligations. The FSANZ Act ensures that any approved variations, following endorsement by the Food Ministers’ Meeting, are incorporated into and become part of food laws in the respective jurisdictions, thereby governing the use of genetically modified foods.

Key Provisions

Section 13 of the Food Standards Australia New Zealand Act 1991 (FSANZ Act) empowers Food Standards Australia New Zealand (the Authority) to develop standards and variations for inclusion in the Australia New Zealand Food Standards Code (the Code). This legislation permits the Authority to accept applications for the development or variation of food regulatory measures. In this case, the Authority accepted Application A1270, which sought to amend the Code to allow the sale and use of food derived from a genetically modified (GM) corn line DP51291, engineered for herbicide tolerance and insect protection. Following its consideration, the Authority approved a draft variation to permit this use. The Act imposes specific obligations on the Authority, including the requirement to consider applications in accordance with the procedures outlined in Division 1 of Part 3 of the FSANZ Act. This includes conducting public consultations and preparing a draft variation and associated report. For Application A1270, the Authority followed these steps, including a six-week public consultation period beginning on 3 August 2023. Additionally, the Authority is mandated to publish a notice about the approved draft variation following its consideration by the Food Ministers’ Meeting (FMM). The approved draft variation is classified as a legislative instrument under the Legislation Act 2003, and it is publicly available on the Federal Register of Legislation. Notably, this instrument is exempt from disallowance and sunsetting provisions of the Legislation Act 2003 because it facilitates the establishment or operation of an intergovernmental scheme involving the Commonwealth and one or more States, and it gives effect to an international obligation of Australia. The Authority's role in developing food standards is integral to the national uniform food regulation scheme established under the FSANZ Act, which is endorsed by the FMM and subsequently incorporated into Commonwealth, State, Territory, and New Zealand food laws. In terms of potential breaches and consequences, the FSANZ Act does not specify particular offences, penalties, or civil/criminal consequences for non-compliance with the Food Standards (Application A1270 – Food derived from herbicide-tolerant and insect-protected corn line DP51291) Variation. However, non-compliance with the Food Standards Code, once the variation is gazetted and becomes part of the law, could lead to enforcement actions by food regulators in the relevant jurisdictions, potentially including fines and other regulatory sanctions. The exact penalties would depend on the specific provisions of the local food laws where the non-compliance occurs.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.