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ECONOMICS LEGISLATION COMMITTEE - 30/10/2009 - Food Standards Amendment (Truth in Labelling Laws) Bill 2009

Senator Hanson Young —I want to go to the conclusion of your submission. You have said that the key reason that you are opposed to the bill is that it is in contradiction to COAG arrangements and would override state and territory law.

ACTING CHAIR —I am confused, we do not have a submission before us.

Senator Hanson Young —I thought we had.

Mr McCutcheon —We did not make a submission. I did make a statement at the beginning of this hearing.

Senator Hanson Young —Sorry, I thought this was yours.

Mr McCutcheon —We are not opposed or supportive. We do not have a view. That is not our role.

Senator Hanson Young —If all of your concerns about these things not being in your jurisdiction—if we are to be able to give consumers a better understanding of the product they are buying, with a panel that says, ‘These are the health implications: this is your daily dietary intake and this is the salt intake,’ surely being able to add to that so that consumers can make a choice about how much of this product they want to consume based on where it comes from would be consistent.

Mr McCutcheon —I guess there are some of the same outcomes in terms of providing consumers with information. But, again, our legislation is very much designed around the health and safety of the population not on the information that consumers may want to guide purchasing decisions for other reasons. The point I should make here and I did make at the beginning, to draw you back to the legislation, is that, even if the Commonwealth were to make changes to the legislation to go down the path that you are suggesting, at the end of the day it is unlikely that that legislation would be enforced, because the standards that we develop at FSANZ that are eventually adopted into the Food Standards Code are then adopted by the states and territories into their laws. So that is when they become law.

Senator Hanson Young —This was my question about the COAG agreement.

Mr McCutcheon —The food regulation agreement does not contemplate the Commonwealth unilaterally making decisions through legislation to require specific things on labels. That is not contemplated in the food regulation agreement, so to give effect to some of the suggestions you would really need to get the agreement of the states and territories to include that in the matters they would adopt.

Senator Hanson Young —But surely that should not be a barrier to whether we should do it. We are asking your opinion as the body responsible for food standards, not for constitutional law. What I want to know is whether you foresee any problems, beyond what you have just stated in terms of the constitutionality and state agreements, that would stop people from having access to more information on a label so that they could make a decision. Surely from a food standards perspective there would be no problem with that.

Mr McCutcheon —Again, whatever is in our legislation is what—

Senator HEFFERNAN —Is your legislation triggered by a complaint, or are you proactive?

Mr McCutcheon —Perhaps a bit more information might be helpful, Senator. When you say ‘triggered’ what do you mean?

Senator HEFFERNAN —One of the great mysteries of the bureaucratic world is the role of the Inspector of Transport Security. We have not ever been able to work out what he does, but at least Mick Palmer did tell us at the last estimates that he only does something when he is asked to do it. Are you a surveillance operation? Are you triggered by complaints? Do you get together the information, as the senator has just been pointing out, from all the states and put it into a desktop study? Are you out there scientifically searching for mistakes, or are you triggered by a complaint?

Mr McCutcheon —There are several points I could make here. Firstly, the development of new or the review of existing standards can have a number of triggers. It can be, for example, an application from industry wanting to have a new permission or the like. It can be a request from the ministerial council for us to make some changes to a standard or to develop a new one. It can be initiated by the FSANZ board itself if there is a particular problem that has occurred with a standard or if a new issue has come along.

Senator HEFFERNAN —How often does that happen?

Mr McCutcheon —We are constantly reviewing our standards and making adjustments when necessary. But under our legislation—and, again, I keep harking back to our legislation—we have a very open and transparent process so that, whenever we contemplate a change to a standard, we have to go out into a public consultation.

Senator HEFFERNAN —In the last year, how many times have you had a complaint that has triggered an investigation and a change in standards, roughly?

Mr McCutcheon —We get lots of issues raised about standards. There would be multiple times, 10 or 20, where we would get suggestions about, ‘We think this standard should change.’

Senator HEFFERNAN —But in terms of the health aspects, for which we all rely on you for judgment, you actually do not have the tools to know, other than that you rely on the states report to you, whether you have made the right judgment.

Mr McCutcheon —No, I would not necessarily agree with that. We gather information from a wide range of sources. For example, if there is a problem occurring—

Senator HEFFERNAN —But if there is an inspection regime, as you said earlier, which the states have got control of—

ACTING CHAIR —Is this the single question that you said you had? We are over time, so I want to know what burning question—

Senator HEFFERNAN —Okay, I surrender.

Senator Hanson Young —Can I finish what I was asking about earlier?

ACTING CHAIR —Yes, you were cut off before.

Senator Hanson Young —Mr McCutcheon, I still do not think you have answered my question. Correct me if I am wrong but if your concern is that there are hurdles which need to be worked through in order to get agreement, perhaps we should just have one overarching national set of standards and that might help the situation. Why would the truth in labelling bill, if we could resolve those other issues, be a bad thing for consumers?

Mr McCutcheon —I am not saying it is a bad thing for consumers.

Senator Hanson Young —So it could be a good thing?

Mr McCutcheon —It could be a good or a bad thing. We do not have a view on that. Essentially we operate within our legislation. All we were trying to do in our opening statement was point out that amending the act in itself may not achieve the outcomes that you are seeking because of the Food Regulation Agreement.

Senator Hanson Young —Putting inside the purposes for this bill in relation to wanting to ensure clarity about where products come from and who produces them and some truth in labelling on those aspects, in terms of the things that you do for the safety and health concerns of consumers would it make your job easier if it was just nationally done?

Mr McCutcheon —It is nationally done.

Senator Hanson Young —If you did not have to negotiate with the different state legislations?

Mr McCutcheon —We do not have to negotiate with state legislations. The Food Standards Code as it currently sits under the Food Regulation Agreement means that when a standard goes into that code it is automatically adopted into state or territory law.

Senator Hanson Young —But if the Commonwealth had ultimate control and we did not have to necessarily rely on enforcement through state law, would it make your job simpler?

Mr McCutcheon —I do not think it would make our job simpler. We have a very good working relationship with the states and territories. We work closely with them, for example, in terms of surveillance and monitoring and through the federal ministerial council we are the national coordinator for a lot of the surveillance and monitoring work that goes on. So I do not think it would necessarily lead to any improvement.

Senator Hanson Young —If there was a change in a health standard that needed to be applied—maybe we have found consumers need to be told about a certain product—would it make it easier if we did not have to negotiate through the COAG agreement and the ministerial council?

Mr McCutcheon —We do have provisions in our legislation so that where an urgent issue or an immediate problem comes up in a public health and safety context we can invoke our urgency provisions to put in place a standard. In fact, we did that last year with a particular standard around infant foods for special medical purposes. So we do have that provision, but then we have to go through the normal process after that of actually revising the standard and going out for public consultation and the like. So, again, I think the system as it is currently set up provides sufficient scope to deal with those particular emergency situations.

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