EXPLANATORY STATEMENT
Food Standards Australia New Zealand Act 1991
Food Standards (Application A1314 – Permitting small dogs and cats in aircraft cabins) 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 purpose of the application was to permit companion cats and dogs onboard aircraft cabins under controlled conditions. The Authority considered the application in accordance with Division 1 of Part 3 and has approved a draft variation - the Food Standards (Application A1314 – Permitting small dogs and cats in aircraft cabins) Variation (the approved draft 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 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 purpose of the approved draft variation is to amend clause 24 of Standard 3.2.2 of the Code to allow a food business that is an airline to permit a cat or a dog to be present on an aircraft in an area that is used for dining, drinking or both drinking and dining if certain conditions are met.
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 A1314 included one round of public consultation following an assessment and the preparation of a draft variation and associated assessment summary. FSANZ called for submissions on the draft variation from 19 March 2025 to 30 April 2025. Further details of the consultation process, the issues raised during consultation and by whom, and the Authority’s response to these issues are available in an approval report published on the Authority’s website at www.foodstandards.gov.au.
A working group of representatives from state and territory government food regulatory agencies provided advice to the Authority during the development of the draft variation.
A Regulation Impact Statement was not required because the proposed variation to Standard 3.2.2 is likely to have only a minor impact on consumers, industry and government.
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
References to ‘the variation’ in this section are references to the approved draft variation.
Clause 1 of the variation provides that the name of the variation is the Food Standards (Application A1314 – Permitting small dogs and cats in aircraft cabins) 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 Standard 3.2.2 (Food safety practices and general requirements) by repealing subclause 24(3) of that Standard and substituting it with a new subclause.
Subclause 24(3) provides an exception to the requirement imposed by paragraph 24(1)(a) of the Code that a food business must not permit live animals in areas in which food (other than seafood or other fish or shellfish) is handled.
The current subclause 24(3) provides that a food business may permit a dog that is not an assistance animal to be present in an outdoor dining area. Subclause 24(4) provides definition for the terms ‘assistance animal’ and ‘outdoor dining area’.
New paragraph 24(3)(a) restates the current subclause 24(3). The paragraph provides that, despite paragraph 24(1)(a), a food business may permit a dog that is not an assistance animal to be present in an outdoor dining area.
New paragraph 24(3)(b) provides that, despite paragraph 24(1)(a), a food business may permit a cat or dog that is not an assistance animal to be present on an aircraft in an area that is used for dining, drinking or both drinking and dining if both the following conditions are met: the animal is in a container; and that container is leak proof and prevents physical contact between a food handler and the animal. Subclause 24(4) defines what is an ‘assistance animal’ for the purposes of the paragraph.