Jan McLucas (Queensland, Australian Labor Party, Parliamentary Secretary for Disabilities and Carers) Share this | Hansard source

I concur. It is a very difficult process to get agreement from states and territories around making food regulation. It is the nature of a federated system that those delays occur. But I do acknowledge the frustration that Senator Siewert and Senator Xenophon are expressing.

We believe that the policy objectives underlying the bill could be met in other ways. We think there are better ways to provide more effective mechanisms to ensure that consumers are informed, while minimising the uncertainty on industry and working within Australia's existing food regulation system.

We note that the intention of the bill is to amend the Food Standards Australia New Zealand Act 1991 to require Food Standards Australia New Zealand to develop and approve labelling standards to be used by food producers, manufacturers and distributors of food containing palm oil. The aim of this is to ensure that consumers are provided with clear, accurate information about the inclusion of palm oil in food. However, it is our view that the mechanisms for achieving this as currently drafted are unlikely to be effective.

The Commonwealth, as Senator Moore put on the table, has limited direct power under the Constitution over food regulation. Food laws and their implementation and enforcement are mainly undertaken by state and territory governments. However, the three levels of Australian governments have worked together over many decades in a cooperative manner to provide Australians with the benefit of consistent national food standards. The food regulation system is also bi-national; it includes the government of New Zealand.

We note that the bill fails to conform to the Australian food regulation system and does not recognise the role of the Australia and New Zealand Food Regulation Ministerial Council within that framework. The FSANZ Act has of itself no effect in state or territory law, due to those constitu­tional restraints. The adoption, monitoring and enforcement of a standard is dependent on states and territories placing the standard into their law and meeting the conditions of their agreement with the Commonwealth. Therefore, a standard developed in accord­ance with the proposed section 16B of the bill may not be likely to become law, because states and territories are not bound to adopt something that is developed outside the current food regulatory framework.

The bill would require FSANZ to develop and approve a standard requiring palm oil to be specifically listed as an ingredient of food. If the bill is enacted, FSANZ would be required to make that standard—which would be unlike any other food standard that it can now make under its enabling legislation. The proposed standard would not have been made with regard to matters such as the protection of public health and safety, scientific evidence, consistency with international standards, or policy guidelines formulated by the ministerial council that FSANZ has a statutory obligation to consider based on the best available scientific evidence. I want to now talk about the impact on industry. The bill in its current form may have serious ramifications for industry which do not appear to have been fully considered. Potential adverse effects reach beyond manufacturers to retailers, distributors and importers and could affect business and trade in a very wide range of products. The Australian Food and Grocery Council has indicated that the costs to industry, including small business, are likely to be substantial. It is important to note that it could affect every supermarket and corner store in this country. We are debating a bill that has not been subject to any regulatory impact assessment. If passed, this bill is likely to impose more than minimum effec­tive regulation and therefore would be at odds with the COAG principles for national regulation and assessment. These principles are directed at achieving minimum effective regulation, taking into account economic, environmental, health and safety concerns.

Australian national competition policy requires proposals for new regulation to demonstrate that the competitive effects of regulation are no more restrictive than is necessary in the public interest and that the benefits of the regulation outweigh the likely costs. An analysis of the regulatory impacts of the bill, including an analysis of all the costs and benefits, has not been undertaken.

In addition, we have concerns about the proposed penalty provisions which would amend the Australian Consumer Law and which are contained in the amendments that we will debate shortly. We received those amendments at 8.30 last night. Again, in the current form of the bill there is an issue about the legal efficacy of the provision and the degree of certainty that it creates for consumers. Australian Consumer Law is subject to an intergovernmental agreement which provides that any amendments must be the subject of consultation with the states and territories. The national approach to consumer protection legislation serves Australian consumers well, and we have concerns about one-off proposals that undermine the integrity and consistency of the laws and the scheme established in the agreement.

There is doubt that amending section 33 of the Australian Consumer Law in this way would produce the desired outcome that Senators Xenophon and Brown are seeking. Food-labelling standards are not enforced as part of Australian Consumer Law. This amendment has the potential to be ineffectual and increase confusion for both business and consumers. The limited nature of the carve-out for palm oil will only increase compliance costs for businesses and create uncertainty for consumers. Under this amendment, for example, why can olive oil be labelled as vegetable oil but not palm oil?

Moreover, the proposed amendments to the ACL appear to reach far further than food to a range of other products where palm oil is used. These include soap, detergent, cosmetics, lubricants and biodiesel. These are the sorts of issues that need to be considered in a proper form. In the normal process of policy development there should be an opportunity to seek feedback from stakeholders and experts in the field. I have to say that it does make a nonsense of parliamentary process to move amendments to a law when we have no confidence that they will actually achieve their stated aims. This only creates more red tape, more regulation for business and more confusion for consumers. I will have a series of questions in the committee stage that go to these Australian Consumer Law issues.

The Australian Consumer Law was introduced with the support of those opposite after a long and thorough consultation process. It involved a Productivity Com­mission report and the cooperation of the states and territories and it passed both houses of parliament. Each state and territory subsequently passed its own version of the Australian Consumer Law. It was introduced so that we could cut the red-tape burden and make consumer protection laws easy to interpret for consumers and business alike. If we go about making ad hoc changes to the Australian Consumer Law we will begin to unravel the very thorough policy process that underpins this reform. Seeking to amend the ACL in this way flies in the face of the intergovernmental agreement on the ACL that the Commonwealth and all states and territories have entered into.

The uniform national law for consumer protection has been built on the cooperation of all Australian governments. By unilat­erally making a change, particularly one that may have unintended consequences and create confusion and uncertainty for consumers, this bill would be breaking the agreement that we have signed. After having voted to implement the Australian Consumer Law, those opposite, if they vote for this bill as they have indicated, would be breaking apart the fruits of that cooperation. The ACL is an important microeconomic reform that has helped to reduce the compliance burden of business and improve the level of consumer protection in our country. It also flies in the face of good policymaking. Without any input from the states and territories, without any consideration of the regulatory impacts and without any thorough examination of the efficacy of the amendments, the actions of those opposite could seriously undermine the cooperative work that has been undertaken in the development of the Australian Consumer Law.

The government has already engaged in a process of considering the recommendations of the report into food labelling, Labelling logic: review of food labelling law and policy, which covers these matters. Palm oil labelling is one of the issues that has been considered by the review and there are recommendations in the report about the way forward. We have always said to the other parties in this chamber that we would be happy to consult with them throughout the process of considering the recommendations of the report. I say again: we share the aim of all senators in this chamber that consumers should be appropriately informed, but it has to be done without imposing inappropriate costs on business. If this bill is passed it will pre-empt a considered response to the labell­ing review report due in December of this year.

As Senator Moore noted, the Senate Community Affairs Legislation Committee reported on this bill. In the majority report of Labor and coalition senators, the committee noted that while the objectives of the bill had merit, the drafting of the bill would possibly not achieve those objectives without circum­venting the current regulatory environment. It further found that concerns could be more adequately dealt with through COAG and the government's labelling review. Given that the final amendments to the bill were not circulated until 8.30 last night, it has not been possible for affected stakeholders and industries to be properly consulted or for us to receive any legal advice. It has not been possible to fully assess any unintended consequences. The approach adopted broadens the category of items subject to the amendments from food to all goods, with the effect that the proposal will have a much broader impact on industry and potentially cover many manufacturers, importers and retailers beyond the food industry. It is of concern that senators in this chamber are faced with making a decision on this bill without appropriate consultation with affected stakeholders, including con­sumers, small business and manufacturers, across the country. For these reasons, we believe this bill is premature without further consideration of those important issues. I might make the point that it is interesting that the opposition have come to this place with a desire to support this legislation. In the committee stage I would like the opposition to indicate why, if this is such an important issue, they did not do something about this in their years in government.

As I said at the outset, the government does consider it is important to provide appropriate information to consumers so that they can make informed decisions about the food they purchase and they consume. The government does recognise and shares the concern of all Australians about the impact of deforestation on the orangutan population. We believe that the bill in its current form may not achieve those laudable objectives. Moreover, it has been conceived hastily, with the final amendments circulated barely 12 hours ago, with almost no consultation with affected stakeholders, including con­sum­ers and small business. There is considerable uncertainty about how the bill will work in practice. However, we recognise that many senators have strong views about the importance of this bill and its intent and we understand the community interest in the issue. Given that, we will not be opposing the bill.