AUSTRALIA NEW ZEALAND FOOD AUTHORITY AMENDMENT ACT 1999 NO. 200, 1999 - SCHEDULE 1 - Amendment of the Australia New Zealand Food Authority Act 1991

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AUSTRALIA NEW ZEALAND FOOD AUTHORITY AMENDMENT ACT 1999 NO. 200, 1999 - SCHEDULE 1

- Amendment of the Australia New Zealand Food Authority Act 1991 Part 1—Amendments

1 Title

Omit " food standards ", substitute " food regulatory measures ".

2 After section 2

Insert:

2A Object of Act

The object of this Act is to ensure a high standard of public health protection throughout Australia and New Zealand by means of the establishment and operation of a joint Food Authority to achieve the following goals:

(a): a high degree of consumer confidence in the quality and safety of food produced, processed, sold or exported from Australia and New Zealand;
(b): an effective, transparent and accountable regulatory framework within which the food industry can work efficiently;
(c): the provision of adequate information relating to food to enable consumers to make informed choices;
(d): the establishment of common rules for both countries and the promotion of consistency between domestic and international food regulatory measures without reducing the safeguards applying to public health and consumer protection.

3 Subsection 3(1)

Insert:

code of practice means a code of practice developed by the Authority under Part 3. However, a code of practice is not a standard.

4 Subsection 3(1) (definition of food )

Repeal the definition, substitute:

food has the meaning given by section 3A.

5 Subsection 3(1)

Insert:

food regulatory measure means a standard or a code of practice.

6 Subsection 3(1) (definition of New Zealand standard )

Repeal the definition.

7 Subsection 3(1) (paragraph (a) of the definition of standard )

After "adopted", insert ", or taken to have been adopted,".

8 After section 3

Insert:

3A Meaning of food

(1): Food includes:

(a): any substance or thing of a kind used, capable of being used, or represented as being for use, for human consumption (whether it is live, raw, prepared or partly prepared); and
(b): any substance or thing of a kind used, capable of being used, or represented as being for use, as an ingredient or additive in a substance or thing referred to in paragraph (a); and
(c): any substance used in preparing a substance or thing referred to in paragraph (a); and
(d): chewing gum or an ingredient or additive in chewing gum, or any substance used in preparing chewing gum; and
(e): any substance or thing declared to be a food under a declaration in force under section 3B.

(It does not matter whether the substance, thing or chewing gum is in a condition fit for human consumption.)

(2): However, food does not include a therapeutic good within the meaning of the Therapeutic Goods Act 1989 .
(3): To avoid doubt, food may include live animals and plants.

3B Declaration of what is food

(1): After consulting the Authority, the Minister may make a written declaration that a substance or thing is food for the purposes of this Act.
(2): The Minister must cause a copy of the declaration to be published in the Gazette and in the New Zealand Gazette.
(3): A declaration takes effect on the day specified in the declaration. That day must not be a day before the declaration is published.
(4): A declaration is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 .

9 Subsection 7(1)

Repeal the subsection, substitute:

(1): The functions of the Authority are:

(a): in accordance with this Act , to develop draft standards and draft variations of standards, to make recommendations to the Council in relation to those drafts where necessary and to review standards; and
(b): in accordance with this Act, to develop draft codes of practice and draft variations of codes of practice for industry and to review codes of practice; and
(c): to develop guidelines to assist the interpretation of the Australia New Zealand Food Standards Code on its own initiative or in consultation with the States, the Territories and any other body or person that the Authority considers appropriate; and
(d): to promote consistency between standards in Australia and New Zealand with those used internationally, based on the best available scientific evidence; and
(e): in consultation with the States and Territories, or on its own initiative, to facilitate the harmonisation of State and Territory laws relating to food; and
(f): in consultation with the States and Territories, or on its own initiative, to co-ordinate the development of procedures required to implement requirements set out in standards; and
(g): in consultation with the States and Territories, to co-ordinate the monitoring, surveillance and enforcement of activities relating to food available in Australia; and
(h): in consultation with the States and Territories, or on its own initiative, to conduct research and surveys in relation to any of the matters that may be included in a standard; and
(i): in co-operation with the States and Territories, to develop food education initiatives, including the publication of information to increase public awareness of food standards and food labels; and
(j): in co-operation with the Department administering Division 1A of Part V of the Trade Practices Act 1974 , to co-ordinate the recall of food under that Division; and
(k): at the request of the States and Territories, to co-ordinate action by the States and Territories to recall food under State and Territory laws; and
(l): to develop assessment policies in relation to food imported into Australia; and
(m): to provide advice to the Minister on matters relating to food; and
(n): to participate in international, regional and bilateral negotiations on matters that may be included in standards; and
(o): to make the Authority's knowledge, expertise, equipment, facilities and intellectual property available to other persons on a commercial basis; and
(p): at the request of New Zealand, to perform functions for New Zealand similar to the functions that the Authority may perform in relation to the States and Territories; and
(q): at the request of New Zealand, to perform functions for New Zealand similar to the other functions that the Authority may perform; and
(r): any functions incidental to any of the foregoing functions.

10 Subsection 7(2)

Omit "(1)(la)", substitute "(1)(n)".

11 Subparagraph 8(1)(e)(i)

Omit "standards" (wherever occurring), substitute "food regulatory measures".

12 Paragraphs 9(1)(e) and (f)

Repeal the paragraphs, substitute:

(e): the knowledge, skill, health and hygiene requirements for people dealing with food;
(f): the responsibilities of businesses that are dealing with food relating to any hygiene requirements in force under paragraph (e) for people involved in the business who are dealing with food;
(g): the responsibilities of businesses that are dealing with food to ensure that information in connection with hygiene requirements in force under paragraph (e) that is provided by individuals involved in the business and who are dealing with food remains confidential except in specified circumstances;
(h): the use of devices of a particular standard to measure the temperature of food;
(i): the design, construction, maintenance and cleanliness of:

(i): premises (including fittings and fixtures) at which food is dealt with; or
(ii): equipment (including single use items) used to deal with food; or
(iii): vehicles used to transport food;

(j): the information that a business that deals with food may be required to give about the business to State or Territory authorities;
(k): restrictions on the premises at which, and the persons by whom, particular food may be sold or otherwise supplied;
(l): restrictions on the publications that may contain advertisements for particular food;
(m): requirements relating to animals and pests at premises in which food is dealt with, or in vehicles in which food is transported;
(n): the interpretation of other standards;
(o): the application of standards;
(p): such other public health matters relating to food as are prescribed.

13 At the end of section 9

Add:

(2): Without limiting subsection (1), a standard may relate to:

(a): a type of food generally; or
(b): a particular brand of food.

14 At the end of section 9

Add:

(3): In this section:

dealing , in relation to food, means producing, packaging, storing or handling food.

15 After section 9

Insert:

9A Codes of practice

Codes of practice, and variations of codes of practice, may deal only with matters that may be included in standards.

16 Section 10

Repeal the section, substitute:

10 Objectives of the Authority in developing food regulatory measures and variations of food regulatory measures

(1): The objectives (in descending priority order) of the Authority in developing food regulatory measures and variations of food regulatory measures are:

(a): the protection of public health and safety; and
(b): the provision of adequate information relating to food to enable consumers to make informed choices; and
(c): the prevention of misleading or deceptive conduct.

(2): In developing food regulatory measures and variations of food regulatory measures, the Authority must also have regard to the following:

(a): the need for standards to be based on risk analysis using the best available scientific evidence;
(b): the promotion of consistency between domestic and international food standards;
(c): the desirability of an efficient and internationally competitive food industry;
(d): the promotion of fair trading in food.

17 After Section 10

Insert:

10A Authority to develop three year plan

(1): Not later than 30 June in each year, the Authority must develop and publish a three year forward plan for applications, proposals and types of applications and proposals on which it intends to develop standards or variations to standards.
(2): In developing a three year forward plan, the Authority must consult interested persons.

18 Part 3 (heading)

Repeal the heading, substitute:

Part 3—Food regulatory measures

19 Division 1 of Part 3 (heading)

Repeal the heading, substitute:

Division 1—Applications for the development and variation of food regulatory measures

20 Subsection 12(1)

Omit "standard", substitute "food regulatory measure".

: Note: The heading to section 12 is altered by omitting " standard " and substituting " food regulatory measure ".

21 At the end of subsection 12(2) (before the note)

Add:

(c): be accompanied by an application fee being the sum of:

(i): the charge (if any) fixed under section 66 in relation to the making of the preliminary assessment of the application; and
(ii): the charge (if any) fixed under section 66 in relation to the giving of notices under section 14 in relation to the application.

22 Subsection 12(2) (note)

Omit "standards" (wherever occurring), substitute "food regulatory measures".

23 Sections 12A, 13, 14, 15, 16 and 17

Repeal the sections, substitute:

12A Withdrawal of application

(1): The applicant may withdraw the application by giving written notice to the Authority at any time before:

(a): unless paragraph (b) applies—the Authority makes a recommendation to the Council under section 18 in relation to a draft food regulatory measure, or a draft variation of a food regulatory measure, prepared as a result of the application; or
(b): the Authority makes a decision in relation to the draft under subsection 20A(2).

(2): If the Authority receives notice of the withdrawal of the application after the application has been accepted (see section 13A), the Authority must give written notice of the withdrawal to:

(a): each appropriate government agency; and
(b): each other body or person who made a submission within the specified period in response to a notice given under section 14, 16 or 17; and
(c): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 16 or 17.

12B Refund of charge if application is withdrawn

(1): If:

(a): an application has been accepted by the Authority under section 13A and the applicant has paid to the Authority a charge mentioned in subsection (2) in relation to the application; and
(b): the application is withdrawn under section 12A;

(2): For the purposes of subsection (1), the charges are charges (if any) fixed under section 66 for:

(a): making the full assessment of the application under section 15; and
(b): preparing a draft food regulatory measure, or a draft variation of a food regulatory measure, under section 15 as a result of the application; and
(c): giving notices under section 16, 17 or 17A in relation to the application; and
(d): giving notices under section 30A in relation to a notice that the Authority is required to give under section 16, 17 or 17A in relation to the application; and
(e): holding an inquiry under section 16 in relation to a draft food regulatory measure, or a draft variation of a food regulatory measure, prepared as a result of the application.

13 Authority to make preliminary assessment of application

(1): The Authority must make a preliminary assessment of the application.
(2): In making a preliminary assessment of the application, the Authority must have regard to the following matters:

(a): whether the application relates to a matter that may be developed as a food regulatory measure, or that warrants a variation of a food regulatory measure, as the case requires;
(b): whether the application is so similar to a previous application for the development or variation of a food regulatory measure that it ought not to be accepted;
(c): whether costs that would arise from a food regulatory measure developed or varied as a result of the application outweigh the direct and indirect benefits to the community, Government or industry that would arise from the measure or variation;
(d): whether other measures (available to the Authority or not) would be more cost-effective than a food regulatory measure developed or varied as a result of the application;
(e): any other relevant matters.

13A Outcome of preliminary assessment

(1): After making a preliminary assessment of the application, the Authority must accept or reject the application.
(2): If the Authority accepts the application, the Authority must notify the applicant in writing:

(a): that the application has been so accepted; and
(b): that the Authority will make a full assessment of the application; and
(c): that the applicant may make written submissions to the Authority on matters relevant to the application within a specified period.

(3): If the Authority rejects the application, the Authority must notify the applicant in writing that it has been so rejected and give reasons for the rejection.
(4): The Authority must refund the charge mentioned in subparagraph 12(2)(c)(ii) if:

(a): the Authority decides to reject the application; and
(b): no application is made to the Administrative Appeals Tribunal for a review of the decision within the prescribed time (within the meaning of section 29 of the Administrative Appeals Tribunal Act 1975 ).

The charge must be refunded as soon as practicable after that time.

(5): The Authority must refund the charge mentioned in subparagraph 12(2)(c)(ii) if:

(a): the Authority decides to reject the application; and
(b): application is made to the Administrative Appeals Tribunal for a review of the decision; and
(c): the application for review is finalised; and
(d): the decision of the Authority to reject the application is affirmed.

The charge must be refunded as soon as practicable after the application for review is finalised.

14 Authority to invite submissions

(1): After accepting the application, the Authority must:

(a): give public notice of the matters mentioned in subsection (3) by public announcement and dissemination in a form the Authority considers will be effective in alerting interested parties to the proposal and which will make the details of the proposal generally accessible; and
(b): give written notice of those matters to each appropriate government agency.

(2): The Authority may give notice of the matters mentioned in subsection (3) to another body or person.
(3): A notice under subsection (1) or (2) must:

(a): state that the Authority has received an application for the development or variation of a food regulatory measure (as the case requires) on the date specified in the notice; and
(b): state that the Authority has accepted the application after making a preliminary assessment of it; and
(c): state that the Authority will make a full assessment of the application; and
(d): state how to obtain further information about the application; and
(e): invite written submissions on matters relevant to the application to be made to the Authority within the period specified in the notice.

15 Full assessment of application

(1): The Authority must make a full assessment of an application that it accepts under section 13A.
(2): However, the Authority must not make a full assessment of the application unless the applicant pays to the Authority the sum of the charge (if any) fixed under section 66 in relation to:

(a): the making of the full assessment of the application; and
(b): the giving of notices under section 16, 17 or 17A in relation to the application; and
(c): the giving of notices under section 30A in relation to a notice that the Authority is required to give under section 16, 17 or 17A in relation to the application; and
(d): the preparation under section 15A of a draft food regulatory measure, or a draft variation of a food regulatory measure, in relation to the application.

(3): In making a full assessment of the application, the Authority must have regard to:

(a): any submissions made to it within the specified period in response to a notice given under section 13A or 14; and
(b): the objectives listed in section 10; and
(c): whether costs that would arise to bodies or persons from a food regulatory measure developed or varied as a result of the application outweigh benefits that would arise to the public from the measure or variation; and
(d): whether there are any alternatives (available to the Authority or not) which are more cost-effective than a food regulatory measure developed or varied as a result of the application; and
(e): any other relevant matters.

15A Outcome of full assessment

(1): After making a full assessment of the application, the Authority must:

(a): prepare in writing a draft food regulatory measure or a draft variation of a food regulatory measure; or
(b): reject the application.

(2): The Authority must refund the charge mentioned in paragraph 15(2)(d) if:

(a): the Authority decides to reject the application; and
(b): no application is made to the Administrative Appeals Tribunal for a review of the decision within the prescribed time (within the meaning of section 29 of the Administrative Appeals Tribunal Act 1975 ).

The charge must be refunded as soon as practicable after that time.

(3): The Authority must refund the charge mentioned in paragraph 15(2)(d) if:

(a): the Authority decides to reject the application; and
(b): application is made to the Administrative Appeals Tribunal for a review of the decision; and
(c): the application for review is finalised; and
(d): the decision of the Authority to reject the application is affirmed.

The charge must be refunded as soon as practicable after the application for review is finalised.

16 Notice following preparation of draft food regulatory measure or variation (charge fixed under section 66)

(1): This section applies if:

(a): the Authority prepares a draft food regulatory measure, or a draft variation of a food regulatory measure; and
(b): a charge has been fixed under section 66 in relation to the holding of an inquiry into such a draft.

(2): The Authority must give written notice to the applicant that:

(a): states that the draft has been prepared; and
(b): invites the applicant to request the Authority to hold an inquiry to consider the draft; and
(c): sets out the effect of subsection (4).

(3): The applicant may then ask the Authority to hold an inquiry to consider the draft. The request must be in writing.
(4): However, the Authority must not hold the inquiry unless the applicant pays to the Authority the charge fixed under section 66 in relation to the holding of the inquiry.
(5): If the applicant pays the charge referred to in subsection (4) to the Authority, the Authority must:

(a): by written notice to the applicant, invite written submissions for the purpose of the inquiry to be made to the Authority within the period specified in the notice; and
(b): give written notice of the matters mentioned in subsection (6) to:

(i): each appropriate government agency; and
(ii): each other body or person who made a submission within the specified period in response to a notice given under section 14; and
(iii): the public by announcement and dissemination in a form the Authority considers will be effective in alerting interested parties to the proposal and which will make the details of the proposal generally accessible.

(6): A notice under paragraph (5)(b) must:

(a): state that the Authority has prepared a draft food regulatory measure, or a draft variation of a food regulatory measure, and how to obtain further information about it; and
(b): state that the Authority will hold an inquiry to consider the draft; and
(c): invite written submissions for the purpose of the inquiry to be made to the Authority within the period specified in the notice.

17 Notice following preparation of draft food regulatory measure or variation (no charge fixed under section 66)

(1): This section applies if:

(a): the Authority prepares a draft food regulatory measure or a draft variation of a food regulatory measure; and
(b): no charge has been fixed under section 66 in relation to the holding of an inquiry into such a draft.

(2): The Authority must give written notice of the matters mentioned in subsection (3) to:

(a): the applicant; and
(b): each appropriate government agency; and
(c): each other body or person who made a submission within the specified period in response to a notice given under section 14; and
(d): the public by announcement and dissemination in a form the Authority considers will be effective in alerting interested parties to the proposal and which will make the details of the proposal generally accessible.

(3): A notice under subsection (2) must:

(a): state that the Authority has prepared a draft food regulatory measure, or a draft variation of a food regulatory measure, and how to obtain further information about it; and
(b): state that the Authority will hold an inquiry to consider the draft; and
(c): invite written submissions for the purpose of the inquiry to be made to the Authority within the period specified in the notice.

17A Notice following rejection of application

(1): If the Authority rejects an application under section 15A, the Authority must give written notice of the decision, and the reasons for it, to the applicant.
(2): The Authority must also give written notice of the decision to:

(a): each appropriate government agency; and
(b): each other body or person who made a submission within the specified period in response to a notice given under section 14.

(3): A notice under subsection (1) or (2) must also state how to obtain further information about the decision.

17B Authority must approve or reject codes of practice

(1): If the Authority holds an inquiry to consider a draft code of practice or a draft variation of a code of practice, the Authority must approve or reject the draft.
(2): If another code of practice would be wholly or partly superseded because of the Authority's decision under subsection (1), the Authority must:

(a): revoke the other code of practice (if it would be wholly superseded); or
(b): vary the other code of practice (if it would be partly superseded).

(3): The Authority must give written notice of its decision under subsection
(1): or (2) to:

(a): the applicant; and
(b): each appropriate government agency; and
(c): each other body or person who made a submission within the specified period in response to a notice given under section 14.

(4): The notice must:

(a): specify the date of effect of the decision; and
(b): state how to obtain further information about the decision and the reasons for it.

24 Subsection 18(1)

Omit "After", substitute "Subject to section 20A, after".

: Note: The heading to section 18 is altered by adding at the end " about draft standards etc. ".

25 Section 19

Repeal the section, substitute:

19 Authority must notify outcome of inquiry about draft standards etc.

(1): If the Authority holds an inquiry to consider a draft standard or a draft variation of a standard, the Authority must give written notice of the matters set out in subsection (2) to:

(a): the applicant; and
(b): each appropriate government agency; and
(c): each other body or person who made a submission within the specified period in response to a notice given under section 16 or 17; and
(d): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 16 or 17; and
(e): the public by announcement and dissemination in a form the Authority considers will be effective in alerting interested parties to the proposal and which will make the details of the proposal generally accessible.

(2): The notice must:

(a): set out the nature of the recommendation made to the Council under section 18; and
(b): state how to obtain further information about the recommendation and the reasons for it.

: Note: The heading to section 20 is altered by adding at the end " about draft standards etc. ".

26 After Division 1 of Part 3

Insert:

Division 1A—Authority may deal with less significant applications for draft standards etc. 20A Authority (rather than Council) may deal with less significant applications for draft standards etc.

(1): After holding an inquiry to consider a draft standard developed as a result of an application, the Authority may decide that it need not make a recommendation to the Council under section 18 about the draft standard because:

(a): the draft standard raises issues of minor significance or complexity only; and
(b): the Council has approved a general approach to be applied in such cases; and
(c): the Authority has not received any substantive objections to the proposed standard from submissions, including submissions made by consumer or public health bodies.

(2): After making a decision under subsection (1), the Authority must decide that:

(a): the draft standard should be taken to be adopted by the Council; or
(b): the draft standard should be taken to be adopted by the Council subject to such amendments as the Authority considers necessary; or
(c): the draft standard should be taken to be rejected by the Council.

(3): If another standard would be wholly or partly superseded because of the Authority's decision under subsection (2), the Authority may decide that the other standard should be taken to be:

(a): revoked by the Council (if it would be wholly superseded); or
(b): varied by the Council (if it would be partly superseded).

20B Notice of decisions under section 20A

(1): The Authority must give written notice of its decisions under subsections 20A(2) and (3), and the reasons for them, to:

(a): the Council; and
(b): the applicant; and
(c): each appropriate government agency; and
(d): each other body or person who made a submission within the specified period in response to a notice given under section 16 or 17; and
(e): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 16 or 17.

(2): The notice must set out the following:

(a): the draft standard that should be taken to be adopted or rejected by the Council;
(b): the amendments to the draft standard that the Authority considers necessary;
(c): the other standard that should be taken to be revoked by the Council;
(d): the nature of the variation of the other standard that should be taken to be made by the Council;
(e): the effect of section 20C.

20C Council taken to have adopted etc. draft standard etc.

(1): If the Authority gives written notice to the Council under subsection 20B(1) about a draft standard, the Council is taken, for the purposes of this Act, to have (as set out in the notice):

(a): adopted the draft standard (with any amendments set out in the notice); or
(b): rejected the draft standard; or
(c): revoked the other standard; or
(d): varied the other standard in the way set out in the notice.

(2): The adoption, rejection, revocation or variation takes effect on the 29th day after the date of the notice.
(3): However, if a member of the Council gives written notice to the Authority, within 28 days after the date of the Authority's notice under subsection (1):

(a): that it disagrees with the Authority's decision under subsection 20A(1); and
(b): setting out the reasons for its disagreement;

then, the Council must deal with the draft standard under section 20 as if it had been the subject of a recommendation made under section 18 on the date on which the Authority received the first of any such notices.

(4): The Authority must give written notice of any disagreement to the Council and the applicant.

20D Division applies to draft variations of standards

This Division applies to a draft variation of a standard in the same way that it applies to a draft standard.

27 Division 2 of Part 3 (heading)

Repeal the heading, substitute:

Division 2—Proposals by the Authority for the development and variation of food regulatory measures

28 Subsection 21(1)

Omit "standard", substitute "food regulatory measure".

: Note: The heading to section 21 is altered by omitting " standard " and substituting " food regulatory measure ".

29 Section 22

Repeal the section, substitute:

22 Authority to invite submissions

(1): After preparing a proposal for the development or variation of a food regulatory measure, the Authority must:

(a): give public notice of the matters mentioned in subsection (3); and
(b): give written notice of those matters to each appropriate government agency.

(2): The Authority may give notice of the matters mentioned in subsection (3) to another body or person.
(3): A notice under subsection (1) or (2) must:

(a): state that the Authority has prepared a proposal for the development or variation of the measure; and
(b): state that the Authority will make a full assessment of the proposal; and
(c): state how to obtain information about the proposal; and
(d): invite written submissions on matters relevant to the proposal to be made to the Authority within the period specified in the notice.

30 Paragraph 23(3)(a)

Omit "standard" (wherever occurring), substitute "food regulatory measure".

31 Sections 24 and 25

Repeal the sections, substitute:

24 Notice following preparation of draft regulatory measure or variation

(1): If the Authority prepares a draft food regulatory measure, or a draft variation of a food regulatory measure, the Authority must give written notice of the matters mentioned in subsection (2) to:

(a): each appropriate government agency; and
(b): each other body or person who made a submission within the specified period in response to a notice given under section 22.

(2): The notice must:

(a): state that the Authority has prepared the draft and how to obtain further information about it; and
(b): state that the Authority will hold an inquiry to consider the draft; and
(c): invite written submissions for the purpose of the inquiry to be made to the Authority within the period specified in the notice.

25 Notice following abandonment of proposal

(1): If the Authority abandons a proposal under section 23, it must give written notice of that decision to:

(a): each appropriate government agency; and
(b): each other body or person who made a submission within the specified period in response to a notice given under section 22.

(2): The notice must state how to obtain further information about the decision and the reasons for it.

25A Authority must approve or reject codes of practice

(1): After holding an inquiry to consider a draft code of practice or a draft variation of a code of practice, the Authority must approve or reject the draft.
(2): If another code of practice would be wholly or partly superseded because of the Authority's decision under subsection (1), the Authority must:

(a): revoke the other code of practice (if it would be wholly superseded); or
(b): vary the other code of practice (if it would be partly superseded).

(3): The Authority must give written notice of its decision under subsection
(1): or (2) to:

(a): each appropriate government agency; and
(b): each other body or person who made a submission within the specified period in response to a notice given under section 22.

(4): The notice must:

(a): specify the date of effect of the decision; and
(b): state how to obtain further information about the decision and the reasons for it.

32 Subsection 26(1)

Omit "After", substitute "Subject to section 28A, after".

: Note: The heading to section 26 is altered by adding at the end " about draft standards etc. ".

33 Section 27

Repeal the section, substitute:

27 Authority must notify outcome of inquiry about standards etc.

(1): After holding an inquiry to consider a draft standard or a draft variation of a standard, the Authority must give written notice of the matters set out in subsection (2) to:

(a): each appropriate government agency; and
(b): each other body or person who made a submission within the specified period in response to a notice given under section 24; and
(c): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 24.

(2): The notice must:

(a): set out the nature of the recommendation made to the Council under section 26; and
(b): state how to obtain further information about the recommendation and the reasons for it.

: Note: The heading to section 28 is altered by adding at the end " about draft standards etc. ".

34 After Division 2 of Part 3

Insert:

Division 2A—Authority may deal with less significant proposals for draft standards etc. 28A Authority (rather than Council) may deal with less significant proposals for draft standards etc.

(1): After holding an inquiry to consider a draft standard, the Authority may decide that it need not make a recommendation to the Council under section 26 about the draft standard because:

(a): the draft standard raises issues of minor significance or complexity only; and
(b): the Council has approved a general approach to be applied in such cases; and
(c): the Authority has not received any substantive objections to the proposed standard from submissions, including submissions made by consumer or public health bodies.

(2): After making a decision under subsection (1), the Authority must decide that:

(a): the draft standard should be taken to be adopted by the Council; or
(b): the draft standard should be taken to be adopted by the Council subject to such amendments as the Authority considers necessary; or
(c): the draft standard should be taken to be rejected by the Council.

(3): If another standard would be wholly or partly superseded because of the Authority's decision under subsection (2), the Authority may decide that the other standard should be taken to be:

(a): revoked by the Council (if it would be wholly superseded); or
(b): varied by the Council (if it would be partly superseded).

28B Notice of decisions under section 28A

(1): The Authority must give written notice of its decisions under subsections 28A(2) and (3), and the reasons for them, to:

(a): the Council; and
(b): each appropriate government agency; and
(c): each other body or person who made a submission within the specified period in response to a notice given under section 24; and
(d): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 24.

(2): The notice must set out the following:

(a): the draft standard that should be taken to be adopted or rejected by the Council;
(b): the amendments to the draft standard that the Authority considers necessary;
(c): the other standard that should be taken to be revoked by the Council;
(d): the nature of the variation of the other standard that should be taken to be made by the Council.

28C Council taken to have adopted etc. draft standard

(1): If the Authority has given written notice to the Council under subsection 28B(1) about a draft standard, the Council is taken, for the purposes of this Act, to have (as set out in the notice):

(a): adopted the draft standard (with any amendments set out in the notice); or
(b): rejected the draft standard; or
(c): revoked the other standard; or
(d): varied the other standard in the way set out in the notice.

(2): The adoption, rejection, revocation or variation takes effect on the 29th day after the date of the notice.
(3): However, if a member of the Council gives written notice to the Authority, within 28 days after the date of the Authority's notice under subsection (1):

(a): that it disagrees with the Authority's decision under subsection 28A(1); and
(b): setting out the reasons for its disagreement;

then, the Council must deal with the draft standard under section 28 as if it had been the subject of a recommendation made under section 26 on the date on which the Authority received the first of any such notices.

(4): The Authority must give written notice of any disagreement to the Council.

28D Division applies to draft variations of standards

This Division applies to a draft variation of a standard in the same way that it applies to a draft standard.

35 After section 30

Insert:

30A Authority may give notice

(1): If the Authority is required to give notice of a matter to a body or person under this Part, the Authority:

(a): must give public notice of the matter; and
(b): may also give notice of the matter to another body or person (if it considers it appropriate to do so).

(2): A notice given under subsection (1) in relation to a matter need not be in the same terms as the notice that the Authority is required to give in relation to the matter.

30B Manner of giving notice

Notice that the Authority is required or permitted to give under this Part may be given in Australia or New Zealand in any manner that the Authority considers appropriate and efficient.

36 At the end of section 32

Add:

(3): As soon as practicable after the Council is taken to have adopted a draft standard, or a draft variation of a standard, under section 20B or 28B, the Authority must:

(a): cause a copy of the draft to be published in the Gazette and in the New Zealand Gazette; and
(b): specify in the Gazette and in the New Zealand Gazette the date on which the draft takes effect.

(4): If another standard is wholly or partly superseded because the Council is taken to have adopted a draft standard, or a draft variation of a standard, a notice published under subsection (3) must:

(a): identify the other standard that is taken to have been revoked (if it has been wholly superseded); or
(b): set out the details of the variation that is taken to have been made to the other standard (if it has been partly superseded).

37 Subsection 33(1)

Omit "standard", substitute "food regulatory measure".

: Note: The heading to section 33 is altered by omitting " standards " and substituting " food regulatory measures ".

38 Subsection 33(2)

Omit "standard" (wherever occurring), substitute "food regulatory measure".

39 Subsection 33(3)

Omit "28", substitute "28D".

40 Paragraph 34(1)(a)

Omit "standard", substitute "food regulatory measure".

41 Paragraph 34(1)(b)

Omit "standard" (wherever occurring), substitute "food regulatory measure".

42 At the end of subsection 34(2)

Add:

The Authority must give written notice of that fact to the applicant.

43 Subsection 34(3)

Repeal the subsection, substitute:

(3): If the Authority accepts an application under section 13A but the application is taken to have been withdrawn under this section, the Authority must also give written notice of the withdrawal to:

(a): each appropriate government agency; and
(b): each other body or person who made a submission within the specified period in response to a notice given under section 14, 16 or 17; and
(c): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 16 or 17.

44 Subsection 35(1)

Repeal the subsection, substitute:

(1): Subject to subsection (1A), if the Authority prepares a draft standard or a draft variation of a standard, it must make a recommendation to the Council concerning that draft standard or variation within 12 months or such shorter period as may be prescribed after the receipt of the application that gave rise to that draft standard or variation.
(1A): In the case of a draft standard or draft variation of a standard arising from an application considered in year 2 or 3 of the Authority's work plan, the Authority must make a recommendation to the Council concerning that draft standard or draft variation of a standard within 12 months of the beginning of the work plan year in which the application was considered.

45 Subsection 35(2)

Repeal the subsection, substitute:

(2): The Authority may extend the period if it is not practicable for the recommendation or decision to be made within the period.

46 After subsection 35(4)

Insert:

(5): If:

(a): a body or person applies to the Authority for the development or variation of a standard; and
(b): the applicant is required by subsection 15(2) to pay an amount before a full assessment of the application is made;

the assessment notice period is not to be included in the period set or prescribed for the purpose of subsection (1) or set for the purpose of subsection (3).

(5A): If:

(a): the Authority prepares a draft standard, or a draft variation of a standard, as a result of an application; and
(b): the applicant is required by subsection 16(4) to pay an amount before the Authority holds an inquiry to consider the draft;

the inquiry notice period is not to be included in the period set or prescribed for the purpose of subsection (1) or set for the purpose of subsection (3).

47 Subsection 35(7)

Omit "subsection (6)", substitute "this section".

48 Subsection 35(7)

Insert:

assessment notice period , in relation to an application made under section 12, means the period:

(a): beginning on the day on which notice is given to the applicant under paragraph 13A(2)(a); and
(b): ending at the end of the day when the applicant pays the amount referred to in subsection 15(2) to the Authority.

49 Subsection 35(7)

Insert:

inquiry notice period , in relation to an application made under section 12, means the period:

(a): beginning on the day on which notice is given to the applicant under subsection 16(1); and
(b): ending at the end of the day when the applicant pays the amount referred to in subsection 16(4) to the Authority.

50 Subsection 36(1)

Repeal the subsection, substitute:

(1): This section applies in relation to:

(a): an application made under section 12; or
(b): a proposal prepared under section 21.

(1A): The Authority may decide not to do something that the Authority is required to do under this Part (except sections 13, 13A, 15, 15A and 23) in relation to the application or the proposal if the Authority is satisfied that:

(a): omitting to do the thing will not have a significant adverse effect on the interests of anyone; or
(b): the application or proposal raises issues of minor significance or complexity only.

(1B): If the decision relates to an application, the Authority must give written notice of its decision to:

(a): the applicant; and
(b): each appropriate government agency; and
(c): each other body or person that has made a submission within the specified period in response to a notice under section 14, 16 or 17; and
(d): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 16 or 17.

(1C): If the decision relates to a proposal, the Authority must give written notice of its decision to:

(a): each appropriate government agency; and
(b): each other body or person that has made a submission within the specified period in response to a notice under section 22 or 24; and
(c): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 24.

51 Subsection 36A(2)

Repeal the subsection, substitute:

(2): If the decision relates to an application, the Authority must give written notice of its decision to:

(a): the applicant; and
(b): each appropriate government agency; and
(c): each other body or person that has made a submission within the specified period in response to a notice under section 14, 16 or 17; and
(d): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 16 or 17.

(2A): If the decision relates to a proposal, the Authority must give written notice of its decision to:

(a): each appropriate government agency; and
(b): each other body or person that has made a submission within the specified period in response to a notice under section 22 or 24; and
(c): each other body or person who made a submission within the specified period in response to a notice given under section 30A in relation to a notice that the Authority is required to give under section 24.

(2B): The notice must:

(a): identify the government agency referred to in subsection (1); and
(b): contain a brief statement of the work the agency has done or the process it has gone through.

52 Subsection 37(3)

After "16", insert ", 17".

53 Paragraph 37(3)(d)

Omit "that section", substitute "section 15A or 23".

54 Paragraph 39(4)(c)

Omit "standard", substitute "food regulatory measure".

55 Subsection 42(3)

Repeal the subsection.

56 Paragraph 42(4)(b)

Omit "of Human Services and Health", substitute "that is primarily responsible for public health".

57 Paragraph 42(4)(c)

Omit "of Primary Industries and Energy", substitute "that is primarily responsible for agriculture".

58 After paragraph 57(1)(ab)

Insert:

(ac): money paid to the Authority under section 66 or 66A; and

59 Subparagraph 63(1)(a)(i)

Omit "13", substitute "13A".

60 Subparagraph 63(1)(a)(ii)

Omit "15", substitute "15A".

61 Paragraph 63(1)(b)

Repeal the paragraph, substitute:

(b): for review of a decision under section 36 or 36A not to do something.

62 Paragraph 64(1)(b)

Repeal the paragraph, substitute:

(b): written notice is given that a decision of a kind referred to in paragraph 63(1)(b) has been made;

63 Section 66

Repeal the section, substitute:

66 Charges relating to the Authority's costs

(1): The regulations may fix charges to be paid to the Authority by a body or person for services and facilities the Authority provides to the body or person. The regulations may also deal with the time for payment of charge.
(2): A charge fixed under subsection (1) must not be such as to amount to taxation.
(3): This section does not apply to services or facilities that the Authority provides under contract.
(4): Regulations made for the purposes of this section must not specify New Zealand as a person or body by whom charges are payable.
(5): Charge under this section may be recovered by the Authority as a debt due to the Authority.
(6): A charge may only be fixed where:

(a): in relation to the development or variation of a food standard, the development or variation of that food standard would confer an exclusive, capturable commercial benefit on the person or body that made the application; or
(b): an application has been included in the second or third year of a three year plan and the applicant elects to have the application included in the first year of the work plan.

(7): Development of, or variation to, a food standard for which a charge is fixed under this section must not displace the development of, or variation to, any other food regulatory measure in a three year plan.
(8): The processing of an application under subsection (6) must not displace the development of, or variation to, any other food regulatory measure in a three year plan.
(9): For the purpose of subsection (6) an exclusive, capturable commercial benefit applies where:

(a): the applicant can be identified as a person or body that may derive a financial gain from the adoption of the draft standard or draft variation of the standard that would be prepared in relation to the application; and
(b): any other unrelated persons or bodies, including unrelated commercial entities, would require the agreement of the applicant in order to benefit financially from the approval of the application.

(10): For the purposes of subsections 6,7 and 8, a three year plan means a three year forward plan of the Authority developed under section 10A.

66A Charge—late payment penalty

(1): The regulations may provide that, if any charge under section 66 remains unpaid by the body or person liable after the time when it became due for payment, the body or person is liable to pay to the Authority, by way of penalty, an amount calculated at the rate of:

(a): 20% per year; or
(b): if the regulations specify a lower percentage—that lower percentage per year;

on the amount unpaid computed from that time.

(2): A penalty under this section may be recovered by the Authority as a debt due to the Authority.

66B Charge—discount for early payment

The regulations may make provision for and in relation to discounts for early payment of charge under section 66.

66C Charge and late payment penalty—remissions and refunds

(1): The regulations may make provision for and in relation to the method of working out an amount of refund of charge for the purposes of subsection 12B(1).
(2): The regulations may make provision for and in relation to:

(a): the remission or refund, in whole or in part, of charge under section 66 in circumstances specified in the regulations; and
(b): the remission, in whole or in part, of late payment penalty under section 66A in circumstances specified in the regulations.

(3): Regulations made for the purposes of subsection (1) or (2) may confer powers on the Authority.

64 Subsection 68(2)

After "adopted", insert ", or taken to have been adopted,".

65 Paragraph 69(e)

After "Council", insert ", or a decision under subsection 20A(2),".

66 Section 71

Repeal the section.

Part 2—Saving and transitional provisions

67 Saving—regulations under paragraph 9(f)

Despite the repeal of paragraph 9(1)(f) of the Principal Act by item 12, a regulation in force under that paragraph as in force immediately before the commencement of that item continues in force after that commencement as if it had been made under paragraph 9(1)(p) of the Principal Act as in force after that commencement.

68 Saving—nominations under paragraphs 42(4)(b) and (c)

Despite the amendments of paragraphs 42(4)(b) and 42(4)(c) of the Principal Act made by items 56 and 57, nominations under those paragraphs as in force immediately before the commencement of this item continue in force after that commencement as if they had been made under those paragraphs as in force after that commencement.

69 Transitional—application of amendments

To the extent that the amendments made by this Schedule relate to draft standards, or draft variations of standards, that may be developed under the Principal Act, the amendments apply only to:

(a): applications for the development of such standards, or variations of standards, that are made on or after the commencement of this item; and
(b): proposals for the development of such standards, or variations of standards, that are initiated on or after the commencement of this item.

70 Meaning of Principal Act

In this Part:

Principal Act means the Australia New Zealand Food Authority Act 1991 .

[ Minister's second reading speech made in—
House of Representatives on 14 October 1999
Senate on 6 December 1999 ]
(198/99)

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