Stephen Jones (Throsby, Australian Labor Party, Shadow Parliamentary Secretary for Regional Development and Infrastructure) Share this | Hansard source

This is the second time that the bill has come before the House, albeit in another form, and, we say, a symptom of a government that is in chaos. Our support for much of the bill is straightforward. Labor is generally supportive of most of the technical amendments in the bill. We support the technical components contained within it. We support the clarification of the role of the High Level Health Claims Committee. We support the need for notices to be published online. We support the renaming of the 'ministerial council' to the Forum on Food Regulation, or the forum—a sensible amendment. And we support the clarification of the appointment process for the CEO. And, of course, we support the work of Foods Standards Australia and New Zealand and the men and women who act in the service of public health by appropriately regulating and maintaining a safe food system in Australia. Indeed, Labor is supportive of the vast majority of the bill.

These amendments are largely mechanical in nature. A significant amendment is to remove references to the defunct Australia and New Zealand Food Regulation Ministerial Council and replace them with references to the Australia and New Zealand Forum on Food Regulation, which replaced it during 2011. It makes perfect sense that we bring the legislature up to date with the existing regime. A significant change is to allow Food Standards Australia and New Zealand to inform government agencies that it believes have an interest in its actions rather than every agency, which is currently defined within the act. Currently, each of the following agencies are required to be notified by FSANZ of a range of actions: a department of State of the Commonwealth, the CEO of the National Health and Medical Research Council, the Gene Technology Regulator, the department of state of each state and territory that is primarily responsible for public health in that jurisdiction, all relevant state or territory food and health authorities, a department of state of New Zealand, the New Zealand department of health, and any relevant New Zealand food authorities. It is an exhaustive list.

Labor believes that the change proposed by the government is benign. This change does not preclude any other government agency from requesting FSANZ to inform them of their relevant actions, nor does it preclude FSANZ from continuing to inform them. It will remove the requirement that every notification be sent to each defined agency on every occasion. Further, FSANZ will still be required to publicly report on its website about its consideration of food regulatory measures so that the information will always be accessible to those who have an interest in it, including the public.

Labor has objections to the changes to the composition of the board which are contained within the bill. For the purposes of clarity, I specifically mention Labor's support for item 127 in the bill, which amends section 128(3) and (4) of the act. This corrects an error and clarifies that it is the board and not the minister which appoints the CEO of Foods Standards Australia and New Zealand. We support that provision. Our objections to changes to the board composition do not extend to the government's amendments to section 128(3) and (4). Let us be very clear: we support them.

I will say a little about the role of the board of FSANZ. The board sets the culture and the direction of the agency. It is the key decision-making body in FSANZ charged with developing and implementing the food code. It approves the draft variations to the food code. The board must meet at least five times a year. This year to date it has met six times. It has approved 15 draft variations to the food code, ranging from maximum residue limits to voluntary addition of vitamin D in breakfast cereals to Gluten Claims about Foods containing Alcohol. The board has a key role in the food safety system. Labor, therefore, does not support changes to the composition of it on the basis that the board is currently finely balanced. Labor does not support the bill in its current form.

This bill would make a number of changes, principally to the composition of the board, which Labor seeks to amend. In moving these amendments, Labor seeks the House's agreement that the FSANZ board composition remains unchanged. We are concerned that the minister is given discretion to appoint a bloc of members to the board from a range of expertise criteria. These include science, industry and consumer rights. Our concern is that if the minister were to appoint a bloc of consumer rights members, for instance, the board may lose its focus on public health; or, similarly, if a bloc of food industry members were appointed, we are concerned that the board would become captive to those it regulates. We are concerned that, by omitting the National Health and Medical Research Council nominee from the composition of the board, we may well diminish expertise in relation to the conduct of trials, scientific rigour, the quality of evidence and a level of independence and objectivity. Replacing the NHMRC nominee with a science nomination does not replace the independence of the NHMRC, because an appointee nominated because of their understanding or expertise as a scientist may well be working for a commercial laboratory or perhaps have scientific qualifications but may not be actively engaged in research.

The changes to the board overall are of deep concern to Labor. Labor is concerned that there is a reduction in the minimum number of public health and science based and NHMRC positions on the board. In fact, they are cut in half from four to two. Potentially, however, the new maximum number of appointees from consumer focus rises from one to four, and those from food industry on the board stand to double from two to four, depending on the discretion of the minister of the day. Potentially four members out of seven ministerial appointees could actually come from industry. Combine that with section 116(1)(c) of the new legislation, which gives the New Zealand minister the capacity to appoint two members from industry, and section 116(1)(a), which permits the chair to be from a food industry background, we are concerned that, however unlikely, there is at least a mathematical possibility that seven members of the 12-member board could in fact come from an industry background. This may not, on its own, represent a capture of the regulator by those it regulates, but it does highlight a deeply concerning shift away from science and from public health and a disruption to the finely balanced board as we know it.

In an article in 2012 called The complexity of regulatory capture: Diagnosis, causality and remediation, Sidney Shapiro had this to say:

Deciding whether an agency is captured can be complicated. In some situations, such as the BP oil spill, there is an abject failure to protect the public in circumstances where regulated entities had considerable influence over the agency, suggesting a clear case of capture. In other situations, an agency adopts policies favored by regulated entities, but the regulatory issues are contestable, making it unclear whether the policies constitute regulatory failure.

I raise this to highlight what could very well become a situation where the prescribed balance under the act gives way to disproportionate influence, even without a numerical majority on the board, of industry groups over the agency. There are times when the food industry differs in views from government, consumers and, indeed, FSANZ itself. I make no criticism of this. It is entirely the role of being a strong advocate for the interests of industry. FSANZ and, indeed, all members of this place have a higher purpose—and that is the public interest.

Creating a board with disproportionate influence of this group or any other group is not conducive to an independent board with a scientific and public health capacity to adequately deal with the challenges that we know the FSANZ board must deal with. In saying this, I do not malign any group or any representative on the board. I want to make it clear that the Australian food industry operates with the highest standards, produces some of the world's highest food standards and is regarded as, typically, very cooperative and engaged with government. I highlight the participation of 26 food industry companies in the front-of-pack labelling initiative as a demonstration of their social responsibility and commitment to decent ethical standards. So do not for a moment misinterpret what I have said. My criticism is of the government and the minister, and that this provision in schedule 2 of the bill is unweighted. These changes represent a reduction in the value of science at the heart of health regulation.

Labor believe that the current board composition serves the nation and the organisation well. We do not pretend that the juggling of expertise on the board is not a difficult challenge for the minister, whoever the minister is from time to time. However, we are concerned that, by granting so much flexibility, the board may lose its focus or its independence. Should there have been an argument for a change to the composition to the board, we have not heard it. The government has failed to outline a case why this change should occur. And, so, we cannot support it.

If the minister had a perfect track record in this regard, we might have a different disposition. We might be less concerned. But this is not the case. Indeed, one of the first acts of the newly minted minister was to pull down the Health Star Rating website. The Health Star Rating website had been produced with years of consultation between government, food and health agencies, consumers and industry. Indeed, on 11 February 2014, in a response to a question from Senator Wong in the other place on why the Health Star Rating website had been removed, the minister responsible told the Senate that the website had been 'inadvertently placed' in the first place. Documents obtained by The Australian under freedom of information laws and reported on 16 April 2014 indicated that the minister received advice from her department a week before the website had been launched. So it is hard to reconcile the statements by the minister and the paper trail that followed.

The minister was, of course, censured by 37 votes to 31 in March last year in the Senate for refusing to produce documents that would have demonstrated whether any measures were put in place to manage the conflict of interest in her office and for misleading the Senate. As Senator Wong said during the debate on the censure motion:

… the Senate, the press gallery and the Australian public have been treated with contempt by an Assistant Minister for Health who has an unhealthy tendency to mislead.

It is the very same minister that is now asking the parliament for permission to appoint a large section of the FSANZ board from any prescribed categories. In asking for this permission, the minister gives absolutely no justification why this change to the composition of the board should proceed. We may as well have been asked to accept with a wink and a nod—'Trust me; I'll do the right thing.' I must make the point that it makes no difference who the minister is from time to time. The balances that have been put in place, carefully crafted and placed within the act have served the country and, indeed, all parties to the Food Standards Australia New Zealand arrangements very, very well.

The importance of consumer confidence in the food regulation system is absolutely critical. The perceived change to the independence of the board may undermine confidence in the system. One of the key roles of FSANZ and its board is to give Australians confidence that the food they eat is safe. Food should be safe; sometimes it is not. We know that from the recent food-borne hepatitis A outbreak this year, where 28 people contracted hepatitis A from the Australian food supply chain, it is critically important to maintain food safety. There have been examples where people have tragically died from the food that they have eaten. It is our job as legislators, it is our job as parliamentarians, to give as much confidence to the industry and to the consumers as possible.

One of the key roles that FSANZ—and, critically, the FSANZ board—plays is to give confidence to Australians that, whilst there may have been an incident, the system remained safe, independent and informed by science and a public health agenda. Ensuring that consumers and industry are represented but not dominating this board strengthens it, bringing with them key perspectives. So even if the minister were to give an assurance of 'Trust me, I won't mess with the board, I won't use this discretion that you have given me,' the Australian public will be left with the question: can we trust a board that may have lost its finely-honed balance that is protected within the act itself?

It is the view of Labor that confidence in the food system may well be undermined by these changes. So Labor's proposed amendment deletes the changes to the composition of the board. If accepted, the board will continue in its current composition, finely balanced and independent. We call upon the minister, the government and all members opposite to do the sensible thing and adopt the sensible amendments proposed by Labor. Labor believes that Australians have the right to know that the food they eat is safe. The security of the Australian food supply chain is of critical importance to Australians, and the Australian government must act to ensure that this remains a reality.

The bill does nothing to improve food safety. Indeed, the public need be forgiven for wondering why changes to the composition of the board are needed. Why is the minister, who was responsible for interfering with the health star-rating website, now interfering with the board of the food regulator? There is much within this bill that we can support, but we call upon the government to accept our sensible, modest amendments to the legislation that is before the House. Had this bill proceeded in its original form—when the minister introduced it into the House a few months ago—it would enjoy our full-throated support, but today we cannot support it in its current form. I commend the bill in an amended form to all members of the House.

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