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 2 of Part 3 of the FSANZ Act specifies that the Authority may prepare a proposal for the development or variation of food regulatory measures, including standards. This Division also stipulates the procedure for considering a proposal for the development or variation of food regulatory measures.
The Authority prepared Proposal M1020 to consider amending certain maximum residue limits (MRLs) in the Code for residues of agricultural and veterinary chemicals that may occur in food. The Authority considered the Proposal in accordance with Division 2 of Part 3 of the FSANZ Act and has approved a draft variation to the Code.
Following consideration by the Food Ministers’ Meeting (formerly 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. Variation will be 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 Food Ministers Meeting (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 to Schedule 20 to vary maximum residue limits (MRLs) for residues of agricultural and veterinary chemicals in food commodities. Section S20—3 currently lists the MRLs for agricultural and veterinary chemicals which may occur in foods. If an MRL is not listed for a particular agricultural or veterinary chemical food combination, there must be no detectable residues of that chemical in that food. This general prohibition means that, in absence of the relevant MRL in the Code, food may not be sold where there are detectable residues.
MRL variations may be required to permit the sale of foods containing legitimate residues. These are technical amendments following changes in use patterns of agricultural and veterinary chemicals available to chemical product users. These changes include the development of new products and crop uses, and the withdrawal of older products following review. In regard to Australia’s WTO obligations, MRLs may be harmonised with international or trading partner standards. Internationally, farmers face different pest and disease pressures and therefore agricultural and veterinary chemical use patterns and the legitimate residues in food associated with these uses may vary accordingly.
A risk assessment including a dietary exposure assessment is conducted before MRLs are varied to ensure that the proposed limits pose negligible public health and safety concerns to consumers.
4. Documents incorporated by reference
The draft variation does not incorporate any documents by reference.
5. Consultation
In accordance with the procedure in Division 2 of Part 3 of the FSANZ Act, the Authority’s consideration of Proposal M1020 included one round of public consultation following an assessment and the preparation of a draft variation and associated reports. Submissions were called for nationally on 23 March for a 5-week consultation and internationally (via a World Trade Organisation notification) on 4 April for a 8-week consultation period.
A Regulation Impact Statement (RIS) was not required because the approved draft variation is likely to have a minor impact on business and individuals. The Office of Best Practice Regulation provided FSANZ with a standing exemption (ID 12065) from preparing a RIS for MRL proposals and applications.
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
Item [1] of the Schedule to the Variation amends Schedule 20 of the Code .
Item [1.1] omits all entries for the chemicals listed.
Item [1.2] inserts chemicals not currently listed, in alphabetical order, including chemical name, their corresponding residue definition(s), food commodities and associated MRLs.
Item [1.3] omits the food commodities and associated MRLs for the chemicals listed.
Item [1.4] inserts in alphabetical order, the food commodities and associated MRLs for the chemicals listed.
Item [1.5] omits the food commodities and associated MRLs for the chemicals listed, substituting them with new MRLs.
8. Commencement of the Variation
Clause 3 of the Variation provides that the instrument shall commence on the later of:
(a) the day after the instrument is registered on the Federal Register of Legislation; and
(b) the day the Food Standards (M1019 – Review of Schedule 22 – Foods and classes of foods - Consequential Amendments) Variation commences.
However, clause 3 also provides that the instrument shall not commence at all if the event mentioned in paragraph (b) does not occur.