Food Regulatory Compliance Framework in Australia

© 2006 Lawmedia Pty Ltd
January 18, 2006

The Australian Food Regulation System

Each State Parliament has the power to pass legislation on any subject matter including powers which exist concurrently but not inconsistently with Commonwealth powers.

Each State and Territory has adopted the Australia New Zealand Food Standards Code (ANZFSC) by enacting legislation based upon the Model Food Act. Even though Food Standards Australia New Zealand (FSANZ) and the Australia New Zealand Food Regulation Ministerial Council have been set up under Commonwealth Acts, it is the function of the State Health departments and local municipal councils to administer and enforce the provisions of their own Food Acts. Each State has its own regulatory system for enforcing laws, codes, regulations, by-laws and ordinances. In some States, a whole-of-government approach has been adopted and a separate agency has been created to oversee the regulatory functions of food law compliance and food safety across all levels of the food chain from production to consumption. An example of such agency is the New South Wales Food Authority which is involved in food policy enforcement in such diverse areas as agricultural production and consumer protection against false claims being made in relation to food in New South Wales.

The Commonwealth retains direct enforcement powers in such cases as import and export laws, quarantine and customs.

Although there are hundreds of pieces of relevant legislation and regulation in all the States and Territories pertaining to foods, the starting point is generally the Food Act (or its equivalent) of that State or Territory. Each of these incorporates (by reference in the Act or by regulation) a legal obligation to enforce the Australia New Zealand Food Standards Code (ANZFSC) (with or without reservations) and imposes penalties for non-compliance. The main Food Acts are as set out below. Amongst the other legislation that is important, another helpful list is available at the bottom of this page.

ACT Food Act 2001 (ACT)

New South Wales Food Act 2003 (NSW)

Victoria Food Act 1984 (Vic)

Queensland Food Act 2006 (QLD) Food Production (Safety) Act 2000 (QLD)

Tasmania Public Health Act 1997 (Tas) Food Act 2003 (Tas)

Western Australia Health Act (WA) 1911 Health (ANZ Food Standards Code Adoption) Regulations (WA) 2001 Health (Food Hygiene) Regulations (WA) 1993 Health (Food Standards) (Administration) Regulations (WA) 1986 Health (Meat Hygiene) Regulations (WA) 2001 Food Bill 2005 (WA)

South Australia Food Act 2001 (SA)

Northern Territory Food Act (NT)

Relevant Food Regulation Authorities

The Constitution of Australia gives the Commonwealth Parliament powers to legislate on various aspects of food law concurrently with all the States. This division of power between the States and the Commonwealth can lead to a confusion over the rightfull jurisdiction governing food law issues.

During the 1980s, in order to develop uniformity between the different Australian States and Territories in relation to regulating food businesses or food suppliers, the governments of the various Australian jurisdictions, with the encouragement of the Commonwealth, agreed to adopt a national set of food standards that ultimately became the Food Standards Code (now called Australia New Zealand Food Standards Code). This code prescribes compositional, chemical, microbiological, labelling, food safety and other standards for food being offered for sale in Australia.

The Australia New Zealand Food Authority Act 1991 (Cth) (incorporating amendments made for the inclusion of New Zealand from the National Food Authority Amendment Act 1995 (Cth)) established initially the Australia New Zealand Food Standards Council and the Australia New Zealand Food Authority. The Governments of Australia and New Zealand entered an Agreement in December 1995 establising a system for the development of joint Food Standards between the two countries (although New Zealand reserved the right not to adopt every such standard, and New Zealand has in fact opted out of some of the standards that apply only to the Australian jurisdictions). In November 2000, the Prime Minister of Australia, together with State and Territory Heads of Government signed and Inter-Governmental Food Regulation Agreement which expressed the intention to implement regulatory reforms that arose from recommendations of the Blair Committee on Food Regulation Review. An updated Agreement was signed in 2002 and superseded the 2000 Agreement. In 2001, the Australia New Zealand Food Authority Amendment Act 2001 (Cth) was passed to rename the Australia New Zealand Food Authority to Food Standards Australia New Zealand and the Australia New Zealand Food Standards Council was renamed the Australia New Zealand Food Regulation Ministerial Council. The 1991 Act was also renamed the Food Standards Australia New Zealand Act 1991 (Cth).

The Australia New Zealand Food Regulation Ministerial Council (ANZFRMC) is the body that consists of the relevant Ministers of each jurisdiction who are responsible for food law within their respective jurisdictions, and considers and, if appropriate, approves Food Standards prepared and recommended by Food Standards Australia New Zealand (FSANZ), and generally oversees the implementation and operation of the uniform food standards adopted as part of the Australia New Zealand Food Standards Code (many of the initiatives for food law changes are now initiated by the Food Standards Implementation Sub-Committee of the Food Regulation Standards Committee ("FRSC") of senior officials from the various jurisdictions who meet regularly in accordance with a series of work programmes of different food law issues). Each of the jurisdictions has a provision in its relevant food legislation or regulations that adopts the Food Standards Code by reference and the legislation of each State or Territory is generally consistent with the standards. The States and Territories are responsible for enforcing the food laws and imposing penalties for non-compliance. New standards are usually adopted as part of the Food Standards Code on publication in the Commonwealth of Australia Gazette.

Food Standards Australia New Zealand (FSANZ) was established with the purpose to develop, vary and review standards and make recommendations to the Australia New Zealand Food Regulation Ministerial Council about those standards where appropriate. It superseded another body that was known as the Australia New Zealand Food Standards Authority (ANZFA) which had previously performed various similar functions. Click here for more information on the role of FSANZ.

The enforcement of the Australia New Zealand Food Standards Code and other laws and regulations is shared between several different government enforcement bodies.

The State and Territory health departments or food authorities as well as local municipal governments have the responsibility of enforcing their respective Food Acts. Therefore, the majority of food related law enforcement for food businesses operating in Australia is undertaken by these bodies.

The enforcement of the food laws in relation to imported and exported food products is undertaken by the Australian Quarantine and Inspection Service (AQIS). AQIS is responsible for ensuring that all foods that are imported into Australia comply with the Australian Food Standards and foods exported from Australia meet certain certification requirements such as Halal. More information about the role of AQIS in regulating Australian exports can be found in the December 2006 FoodLegal Bulletin.

The Australian Competition and Consumer Commission (ACCC) is responsible for the enforcement of the provisions of the Trade Practices Act 1974 (Cth) and each State and Territory of Australia has a Fair Trading Office which enforces the Fair Trading Acts of each State and Territory which is legislation that mirrors the Commonwealth Trade Practices Act 1974. The reason for the duplication is that in relation to trade practices, the Commonwealth government only has the power to legislate for corporations. Therefore, State and Territory legislation is required to cover business and trade practices undertaken by individuals not associated with a corporation.

The Trade Practices Act contains provisions relevant to food businesses such as sections 52 and 53 which prohibit misleading or deceptive conduct and the making of false or misleading representations. There are also product safety provisions and product recall requirements in the Trade Practices Act.

The competition provisions in the Trade Practices Act also affect food businesses by regulating mergers and acquisitions, cooperation agreements between companies, supply contracts, and other agreements or actions which may have an impact on fair competition between businesses in a particular market.

In 2004 the ACCC signed a Memorandum of Understanding with FSANZ which sets up consultative arrangements and information sharing between the two government agencies in relation to areas of overlap between the Trade Practices Act and the Australia New Zealand Food Standards Code, particularly in the area of false or misleading labels.

Relevant Industry Bodies and Standards Bodies

SAI Global is a company which is responsible for the publication of Australian Standards. Australian Standards are a separate body of Standards from the Australia New Zealand Food Standards Code. Their relevance to the food industry is mainly in the areas of food packaging standards and standards for the construction and maintenance of food handling premises. The Standards have varying levels of legal effect. Some are given legislative power under the Food Acts, the Food Standards Code or the Trade Practices Act. Others may not have legislative effect but failure to comply with Standards such as those for product safety may present a strong argument for the ACCC or State food authorities to begin an investigation.

Individual industry bodies such as the Australian Food and Grocery Council and Australian Egg Corporation set their own Standards or codes for their relevant industries. These standards operate either as voluntary industry compliance schemes or are imposed contractually on food suppliers by most of the larger Australian food retailers as a prerequisite for supplying the retailer. The standards address such issues as food compositional and hygiene specifications, traceability of the food product to each source of supply or transport in the food supply chain, and testing for contamination or residues or other tests

Standards set by international standards bodies may also be relevant. For example, the Official Methods of Analysis set by AOAC International are relevant for chemical testing of claims such as “fat free” or “gluten free”. The Australia New Zealand Food Standards Code requires that such claims only be made where an AOAC Official Method of Analysis test returns no detectable trace of the substance.

Further voluntary standards are set by endorsement bodies such as the National Heart Foundation as part of endorsement programs such as the National Heart Foundation Heart Tick program. The Heart Tick program is a good example where a private company has the authority to endorse a product for its benefit to the heart regardless of any legal requirements for the making of health claims under the Australia New Zealand Food Standards Code.