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 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.
FSANZ prepared Proposal P1018 to remove restrictions on the presence of companion dogs in outdoor dining areas of food premises. The Authority considered the Proposal in accordance with Division 2 of Part 3 and has approved a draft Standard.
Following consideration by COAG Legislative and Governance Forum on Food Regulation[1], 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 Legislative Instruments Act 2003.
2. Purpose and operation
The Authority has approved amending Standard 3.2.2 to remove the restriction on the presence of companion dogs in outdoor dining areas. This move will allow for greater consistency across jurisdictions and would effectively be a deregulation.
3. Documents incorporated by reference
The variations to food regulatory measures do not incorporate any documents by reference.
4. Consultation
In accordance with the procedure in Division 2 of Part 3 of the FSANZ Act, the Authority’s consideration of Proposal P1018 has included one round of public consultation following an assessment and the preparation of a draft Standard and associated report. Submissions were called for on 2 May 2012 for a six-week consultation period.
A Regulation Impact Statement (RIS) was not required because the proposed variations to Standard 3.2.2 are likely to have a minor impact on business and individuals and is deemed to be a de-regulation.
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 omits clause 24 in Standard 3.2.2 and substitutes a new clause to provide food businesses with the discretion to permit dogs other than assistance animals to be present in outdoor dining areas.
The new clause does not expressly limit the discretion to dogs that are companion animals. This avoids the need for the new clause to define a companion animal and to incorporate legal tests of ownership of or effective control over dogs that food businesses must apply in determining when to allow a dog to be present . In practice, the dogs present will be customers’ companion animals and food businesses retain the right to exclude for any reason any dog that is not an assistance animal. Food businesses also remain subject to the Code’s other food safety requirements.
The new clause prohibits a dog other than an assistance animal from being in an area used for the preparation of food. Assistance animals are restricted to areas used by customers.
[1] Previously known as the Australia and New Zealand Food Regulation Ministerial Council
Overview
The Food Standards Australia New Zealand Act 1991, as supplemented by the explanatory statement for Proposal P1018, addresses the issue of regulating the presence of companion dogs in outdoor dining areas of food premises. Enacted by the Australian Parliament, the Act establishes Food Standards Australia New Zealand (FSANZ) as the authoritative body responsible for developing and varying food standards to ensure food safety and consistency across jurisdictions. In line with its mandate, FSANZ has proposed amendments to Standard 3.2.2 to remove restrictions on companion dogs in outdoor dining areas, effectively deregulating the current rules. This amendment was approved following a consultation process, as required by the Act, and is intended to promote greater consistency in regulations across different states and territories. The changes do not require a Regulation Impact Statement as they are considered to have a minor impact and involve the removal of existing restrictions rather than the imposition of new requirements.
Scope and Application
The explanatory statement outlines the legislative process for amending Standard 3.2.2 of the Australia New Zealand Food Standards Code through the removal of restrictions on the presence of companion dogs in outdoor dining areas of food premises. This amendment applies to food businesses across Australia, including food premises and any persons or entities operating within these premises. The amendment aims to provide greater consistency across jurisdictions by allowing food businesses discretion in permitting companion dogs in outdoor dining areas, while still allowing businesses to exclude dogs for any reason other than them being assistance animals. The amendment does not incorporate any documents by reference and has undergone a single round of public consultation. The proposed variations are likely to have a minor impact on businesses and individuals and are considered a de-regulation, hence a Regulation Impact Statement was not required. The amendment is a legislative instrument under the Food Standards Australia New Zealand Act 1991 and is exempt from the requirements for a statement of compatibility with human rights as it is a non-disallowable instrument.
The amendment extends to all food businesses within Australia and operates nationally, in accordance with the FSANZ Act. The amendment does not impose any exclusions or exemptions, and the threshold for its application is the presence of companion dogs in outdoor dining areas of food premises. The amendment's application may be extended or restricted through subordinate instruments, although no such instruments are mentioned in the explanatory statement.
Key Provisions
The primary sections of the legislation involve the development and variation of food regulatory measures by Food Standards Australia New Zealand (FSANZ), as outlined in the Food Standards Australia New Zealand Act 1991 (FSANZ Act). Section 13 of the FSANZ Act empowers the Authority to create standards and variations for inclusion in the Australia New Zealand Food Standards Code (the Code). The procedure for considering proposals for developing or varying food regulatory measures is specified in Division 2 of Part 3 of the FSANZ Act. The Authority has prepared Proposal P1018 to remove restrictions on the presence of companion dogs in outdoor dining areas of food premises. After the necessary considerations and public consultation, the Authority approved a draft Standard, which was then subject to a notice under section 92 of the FSANZ Act. This notice must be published to inform the public of the standard or draft variation of a standard, as required by section 92. According to section 94 of the FSANZ Act, such a standard or variation is considered a legislative instrument but is exempt from parliamentary disallowance or sunsetting under the Legislative Instruments Act 2003.
The approved variation to Standard 3.2.2 removes the restriction on the presence of companion dogs in outdoor dining areas of food premises, which aims to provide greater consistency across jurisdictions and effectively represents a form of deregulation. This change grants food businesses the discretion to permit dogs other than assistance animals in outdoor dining areas. However, this discretion does not explicitly limit the type of dogs to those that are companion animals, thereby avoiding the need to define what constitutes a companion animal and to incorporate legal tests of ownership or effective control over dogs. The new clause also prohibits dogs other than assistance animals from being present in areas used for food preparation, while restricting assistance animals to areas used by customers. Despite these variations, food businesses remain subject to the Code's other food safety requirements and retain the right to exclude any dog that is not an assistance animal for any reason.
The legislation imposes specific obligations and requirements on food businesses and FSANZ. Food businesses must now consider the new clause when determining whether to permit dogs in outdoor dining areas, while still adhering to other food safety requirements stipulated in the Code. FSANZ is obligated to follow the procedure outlined in Division 2 of Part 3 of the FSANZ Act when considering proposals for developing or varying food regulatory measures. This includes conducting one round of public consultation following an assessment and the preparation of a draft Standard and associated report. FSANZ also has the responsibility to publish a notice about the standard or draft variation of a standard, as required by section 92 of the FSANZ Act.
There are no specific offences, penalties, or civil/criminal consequences outlined in the Explanatory Statement for breaches of the approved variation to Standard 3.2.2. However, food businesses remain accountable for ensuring compliance with the Code’s other food safety requirements and must exclude any dog that is not an assistance animal if they choose to do so. Failure to comply with these requirements could result in enforcement actions under other provisions of the FSANZ Act or related food safety legislation, although such specific penalties are not detailed in this particular Explanatory Statement.