FoodLegal

by Joe Lederman © Lawmedia Pty Ltd, May 2007
FoodLegal
Food Lawyers and Consultants

Food law policy settings in Australia are managed through a Food Regulation Secretariat based in Canberra. Many people are unaware of the role played by a number of separate government bodies that operate through this Food Regulation Secretariat and play a quite separate role to the food standard-setting body Food Standards Australia New Zealand (‘FSANZ’). In this article, we explain more about who really sets the agenda in government for the future food regulatory policy direction.

Disclaimer: This article should not be read as providing legal advice. Accordingly, readers must not rely upon this article as the basis for making any decisions whether of a legal or commercial or technological nature. Information contained herein was written in May 2007. This article will NOT be updated to reflect future changes.

The Australian Federal system of power-sharing between the Commonwealth government and the governments of the Australian States and Territories has created a complex web of policy-making bodies by which the Commonwealth can manage the direction of food law policy-making in Australia.

Policy development is essentially performed through 3 bodies that have a shared secretariat based on Canberra (known as the “Food Regulation Secretariat”): 

1. The Australia New Zealand Food Regulation Ministerial Council (“the Ministerial Council”);
2. The Food Regulation Standing Committee (“the FRSC” but also known as “the Standing Committee”); and
3. The implementation sub-committee (also known as “the ISC”) for the FRSC.

The following is an explanation of the role that each of these 3 bodies plays:

1. The Ministerial Council:

The Ministerial Council is the body primarily responsible for endorsing and putting into place the policy guidelines for food standards development. The functions of the Ministerial Council as stated an inter-governmental agreement made in 2002 (“the 2002 Inter-government Agreement”) are:

• Development of domestic food regulatory policy;
• Development of policy guidelines for setting domestic food standards;
• Promotion of harmonised food standards within Australia between the parties (harmonisation of domestic standards between States and Territories and of domestic standards with export standards) and with Codex Alimentarius Commission (harmonisation of domestic and export standards with the international food standards set by Codex Alimentarius Commission which are the international food standards that are recognised by the World Trade Organisation).
• Oversight of the implementation of domestic food regulation and standards; and
• Promotion of a consistent approach to the compliance with, and enforcement of, food standards.

The Ministerial Council is comprised typically of the Minister of Health of each government although the Agriculture ministers or other Ministers can play a role as the Ministerial Council Ministers are required to provide input by a “whole-of-government” approach that is not confined to their respective Health Departments.

2. The Food Regulation Standing Committee (“FRSC”):

This is the body which is delegated to do work to reach conclusions and make recommendations for the Ministerial Council, in terms of policy development.

The FRSC mentioned earlier drives longer term policy objectives for food law formation. The functions of the FRSC are as specified in the 2002 Inter-governmental Agreement as being:

• To co-ordinate policy advice to the Ministerial Council; and
• To ensure a nationally consistent approach to the implementation and enforcement of food standards.

While the Ministerial Council is comprised of elected government Ministers, the FRSC is comprised of senior civil servants from the relevant departments of the respective governments of the Commonwealth of Australia and all the State and Territory governments (as well as the representative of the New Zealand Government): see A strategy for consistent implementation of food regulation in Australia.

3. The Implementation sub-committee (“the ISC”):

Within the FRSC is the sub-committee known as the ISC. (This should not be confused with a government superannuation regulatory agency that operated by that acronym before the creation of APRA).

The ISC has numerous ongoing projects, that operate within the terms of reference drafted by the FRSC and endorsed by the Ministerial Council in August 2003 (see http://www.health.gov.au/internet/wcms/publishing.nsf/Content/foodsecretariat-isc.htm). In each of these projects, the ISC works in various areas to develop for implementation a national approach to enforcement to be endorsed by the FRSC (see page 4 of A strategy for consistent implementation of food regulation in Australia) that will:

• gain cross-jurisdictional agreement on the key elements of compliance and enforcement systems;
• ensure consistent approaches across jurisdictions to the implementation of domestic and export food regulations and standards, including harmonisation to the extent possible;
• develop a framework for implementation that clearly identifies the respective roles of industry and regulators, with appropriate protocols to ensure consistency;
• facilitate the integration of compliance verification services and the cross-designation of public and private sector service providers, including local government, through mutual recognition of compliance verification procedures, such as inspection and audit; and
• provide evaluation and verification mechanisms, including management of industry complaints of anomalies in enforcement, to monitor progress and facilitate continuous improvement.

As can be seen from the abovementioned terms of reference, the ISC is supposed to ensure that that there is a consistent common approach to the implementation and enforcement of food regulation in Australia. Theoretically, this role makes the ISC a powerful committee since the role may encompass that of initiating policies relating to practical experiential issues in food policy formation across all governments in Australia and pushing for nationwide adoption of a uniform approach. Since the ISC does the primary work for the FSRC and effectively is the body setting an agenda for inter-governmental policies to be implemented as law in all the Australian jurisdictions, its role is critical. This ability of the ISC under the August 2003 protocol to agree upon the inter-governmental policies on policy implementation also provides an effective brake on any State or Territory jurisdiction digressing from the nationally agreed policies. These are often formulated by the ISC before being endorsed by the FRSC and then being formally adopted by the Ministerial Council.

One question to be asked is how policy objectives are set by the FRSC and its ISC. There are consultative processes by these bodies with important stakeholders through the Food Regulation Secretariat structure. This allows industry knowledge to be conveyed and policies to be formulated. However, this consultative process is less transparent than the FSANZ consultative process, which takes place later on, relating to actual food standards formation. FSANZ has a limited role confined to that of formulating food standards on a scientific basis.

The early consultative process through the Food Regulation Secretariat can possibly have a more important bearing than the FSANZ process of further consultation in relation to the creation or variation of a food standard. This is because the abovementioned agencies operating under the umbrella of the Food Regulation Secretariat can always override FSANZ.

This framework for setting government policy was created to satisfy a desire by the Federal government to have policy formation take precedence over the unpredictability of food politics. The Commonwealth Government has always been concerned by the risk of delays in developing any contentious food standards. A clash of interests between business and consumer groups or between international and domestic food suppliers could potentially arise on various issues. One example in the late 1990’s concerned GM food. This issue triggered Commonwealth Government concern over a clash of process between food standards formation and a Federal Government policy intention to develop an Australian biotechnology industry that could promote GM food technology products. Food politics appears to have been the trigger for the creation of a separation of powers between policy formation on the one hand (through the Food Regulation Secretariat umbrella organisations of the FRSC and its ISC) as against the process of food standards’ formation and consultation through FSANZ. Previously, the Australia New Zealand Food Authority (“ANZFA”), which many regard as FSANZ’s predecessor, actually combined the role of recommending policy with the process of developing food standards. By contrast FSANZ now has the more limited role of articulating actual wording for food standards and providing commentary. It is neither a policy-setting organisation nor does it have any law enforcement or prosecutory role. 

While ANZFA existed, the Ministerial Council consisted of Health Ministers who did not take regard of a broader range of government-driven food policy considerations, such as from the Federal Department of Agriculture Forestry and Fisheries or the concern of the Federal government to balance the need for domestic food regulation with a desire by the Federal government to encourage greater de-regulation of international free trade.

Policy guidelines developed by the FRSC and ISC for the policy direction in formulating new standards and other work-plans for development of policy and food standards can exist 3 years in advance of the commencement of the FSANZ consultative process. In effect, the policy guidelines of the FRSC and ISC establish the parameters by which it is intended the food laws will evolve. When FSANZ takes submissions in its own public consultative process, the potential impact of the FSANZ consultative process might be less than many would believe. The evidence suggests that the FSANZ consultative processes will generally not result in deviation from the pre-determined policy direction set by the Ministerial Council on the recommendations of the FRSC and ISC.

Click here to go to the Food Regulation Secretariat website.

Click here to read Disclaimers in relation to this article

This is general information rather than legal advice and is current as of 30 Oct 2021. We recommend you seek legal advice for your specific circumstances before making any commercial decisions.