Commonwealth: Food Standards Australia New Zealand Amendment Act 2007 (Cth)

Food Standards Australia New Zealand Amendment Act 2007 No. 98, 2007 An Act to amend the law relating to food regulatory measures, and for related purposes Contents 1 Short title 2 Commencement 3 Schedule(s) Schedule 1—New application and proposal procedures Part 1—Amendments consequential on new application and proposal procedures Food Standards Australia New Zealand Act 1991 Part 2—Aligning cross‑references to provisions renumbered by Part 3 of this Schedule Food Standards Australia New Zealand Act 1991 Part 3—Restructuring and renumbering the Food Standards Australia New Zealand Act 1991 Food Standards Australia New Zealand Act 1991 Part 4—New application and proposal procedures Agricultural and Veterinary Chemicals Code Act 1994 Food Standards Australia New Zealand Act 1991 Part 5—Application and transitional issues relating to Parts 1 and 4 of this Schedule Schedule 2—High level health claims Food Standards Australia New Zealand Act 1991 Schedule 3—Council review of approved draft standards Part 1—Amendments Food Standards Australia New Zealand Act 1991 Part 2—Further amendment of section 84 Food Standards Australia New Zealand Act 1991 Food Standards Australia New Zealand Amendment Act 2007 No. 98, 2007 An Act to amend the law relating to food regulatory measures, and for related purposes [Assented to 28 June 2007] The Parliament of Australia enacts: 1 Short title This Act may be cited as the Food Standards Australia New Zealand Amendment Act 2007. 2 Commencement (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table The day on which this Act receives the Royal Assent. 28 June 2007 2. Schedule 1, Parts 1 and 2 A single day to be fixed by Proclamation. 1 July 2007 However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. (see F2007L01822) 3. Schedule 1, items 64 to 67 Immediately after the commencement of the provision(s) covered by table item 2. 1 July 2007 4. Schedule 1, items 68 to 70 Immediately after the commencement of the provisions covered by table item 3. 1 July 2007 5. Schedule 1, item 71 Immediately after the commencement of the provision(s) covered by table item 4. 1 July 2007 6. Schedule 1, Parts 4 and 5 Immediately after the commencement of the provision(s) covered by table item 5. 1 July 2007 7. Schedule 2 A single day to be fixed by Proclamation. 28 December However, if any of the provision(s) do not commence within the period of 18 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 2008 8. Schedule 3, Part 1 The day on which an amendment of the Agreement between the Government of Australia and the Government of New Zealand Establishing a System for the Development of Joint Food Standards, signed at Wellington on 5 December 1995, enters into force to reduce from two to one the number of occasions on which the Council may request the Authority to review a draft standard or a draft variation of a standard. 6 July 2010 However, if no such amendment of the Agreement is made, the provision(s) do not commence at all. 9. Schedule 3, Part 2 Immediately after the commencement of Part 1 of Schedule 3. Does not commence However, if Part 1 of Schedule 3 does not commence before Schedule 2, the provision(s) do not commence at all. Note: This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent. (2) Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act. (3) The Minister must announce by notice in the Gazette the day on which the amendment of the Agreement between the Government of Australia and the Government of New Zealand Establishing a System for the Development of Joint Food Standards, signed at Wellington on 5 December 1995 (mentioned in item 8 of the table in subsection (1)) enters into force. 3 Schedule(s) Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms. Schedule 1—New application and proposal procedures Part 1—Amendments consequential on new application and proposal procedures Food Standards Australia New Zealand Act 1991 1 Subsection 3(1) Insert: Agvet Code means the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 of the Commonwealth. 2 Subsection 3(1) Insert: APVMA means the Australian Pesticides and Veterinary Medicines Authority continued in existence by section 6 of the Agricultural and Veterinary Chemicals (Administration) Act 1992. 3 Subsection 3(1) (definition of committee) Repeal the definition. 4 Subsection 3(1) (definition of Council) Omit "Food Regulation Agreement 2000", substitute "Food Regulation Agreement". 5 Subsection 3(1) Insert: exclusive capturable commercial benefit has the meaning given by section 8. Note: After the Act is renumbered by Part 3 of this Schedule, section 3D will become section 8. 6 Subsection 3(1) Insert: Food Regulation Agreement means the Food Regulation Agreement, as amended from time to time: (a) that is between the Commonwealth, the States, the Northern Territory and the Australian Capital Territory; and (b) that was first made on 3 November 2000 or that was made: (i) in substitution for that agreement; or (ii) in substitution for a prior substituted agreement. 7 Subsection 3(1) (definition of Food Regulation Agreement 2000) Repeal the definition. 8 Subsection 3(1) Insert: Food Regulation Standing Committee means the Committee established under the Food Regulation Agreement. 9 Subsection 3(1) Insert: general procedure means: (a) in relation to the consideration of an application—the procedure set out in Subdivision D of Division 1 of Part 3; and (b) in relation to the consideration of a proposal—the procedure set out in Subdivision D of Division 2 of Part 3. 10 Subsection 3(1) Insert: Maximum Residue Limits Standard means the Maximum Residue Limits Standard as in force from time to time, or any standard in force in substitution for that standard. 11 Subsection 3(1) Insert: policy guideline means a guideline formulated by the Council for the purposes of paragraph 18(2)(e). Note: After the Act is renumbered by Part 3 of this Schedule, section 10 will become section 18. 12 Subsection 3(1) Insert: public notice has the meaning given by section 7. Note: After the Act is renumbered by Part 3 of this Schedule, section 3C will become section 7. 13 Subsection 3(1) (at the end of the definition of standard) Add: However, neither of the following is taken to be part of a standard: (c) text identified as an editorial note; (d) text identified as an example. 14 Subsection 3B(1) Omit "make a written declaration", substitute ", by legislative instrument, declare". 15 Subsection 3B(2) Repeal the subsection, substitute: (2) The Minister must cause a copy of the declaration to be published in the New Zealand Gazette. 16 Subsection 3B(4) Repeal the subsection, substitute: Declaration not subject to disallowance or sunsetting (4) Section 42 and Part 6 of the Legislative Instruments Act 2003 do not apply to the declaration. 17 After section 3B Insert: 3C How is public notice given? The Authority satisfies a requirement under this Act to give public notice of a particular matter by: (a) publishing notice of the matter on the Authority's Internet site; and (b) giving written notice of the matter to each appropriate government agency; and (c) if the requirement to give notice arises in the course of considering an application to develop or vary a food regulatory measure—giving written notice of the matter to the applicant; and (d) if the Authority has called for submissions in the course of considering an application or proposal for the development or variation of a food regulatory measure—giving written notice of the matter to each of the persons invited to make a submission who made a submission within the relevant submission period; and (e) giving written notice to any other person or body whom the Authority considers appropriate. 3D When is an exclusive capturable commercial benefit conferred on an applicant? An exclusive capturable commercial benefit is conferred upon a person who applies for the development of a food regulatory measure or the variation of a food regulatory measure under section 22 if: (a) the applicant can be identified as a person or body that may derive a financial gain from the coming into effect 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. 18 After paragraph 7(1)(i) Insert: (ia) to provide information, on request by a member of the public, about the Australia New Zealand Food Standards Code; and 19 Subsection 10(3) Omit "on the Internet", substitute "on the Authority's Internet site". 20 At the end of section 10 Add: (6) A policy guideline formulated by the Council for the purposes of paragraph (2)(e) is not a legislative instrument. 21 At the end of section 10A Add: (3) The Authority must review and update the plan at least every 3 months. 22 At the end of section 11 Add: (5) A direction given under subsection (1) is not a legislative instrument. 23 Subsection 39(3) Repeal the subsection, substitute: (3) Subsection (1) does not preclude the disclosure of confidential information in respect of food to any court in any proceeding. However, the Authority must apply to the court for an order preventing disclosure of that information to any other person otherwise than for the purpose of the proceedings, if it is within the jurisdiction of the court to make such an order. 24 Paragraph 39(7)(a) Omit "paragraph 38(a)", substitute "paragraph 137(a)". Note: The existing section 38 is repealed and a new section to the same effect added at the end of Division 3 of Part 4 under Part 4 of this Schedule. The new section is numbered section 137. 25 Paragraph 39(7)(b) Omit "paragraph 38(b)", substitute "paragraph 137(b)". 26 Paragraph 39(7)(ba) Omit "paragraph 38(ba)", substitute "paragraph 137(c)". 27 Paragraph 39(7)(c) Omit "paragraph 38(c)", substitute "paragraph 137(d)". 28 Subsection 39(8) Omit "section 38", substitute "section 137". 29 Subsection 50(6) Omit "the Internet", substitute "the Authority's Internet site". 30 Subsection 52B(3) Repeal the subsection, substitute: (3) The Chief Executive Officer is not authorised to act on behalf of the Authority under: (a) paragraph 33(1)(a); or (b) subsection 35(1); or (c) paragraph 41(2)(a); or (e) paragraph 63(1)(a); or (f) subsection 65(1); or (g) paragraph 69(2)(a); or (i) subsection 84(6) or 85(6); or (j) subsection 97(1); or (k) subsection 101(1); or (l) subsection 104(2). Note: The cross‑references are to new sections inserted under Part 4 of this Schedule. 31 Division 3 of Part 4 (heading) Repeal the heading, substitute: Division 3—Staff, consultants and assistance from other agencies 32 At the end of Division 3 of Part 4 Add: 137 Arrangements with Commonwealth Departments etc. The Authority may make arrangements: (a) with an Agency Head (within the meaning of the Public Service Act 1999) or the Chief Officer of any Commonwealth authority; or (b) with the Secretary of a Department of the Public Service of a State or Territory, or the Chief Officer of a State or Territory authority; or (c) with the chief executive of a Department of State of New Zealand or the Chief Officer of a New Zealand authority; or (d) with the Chief Officer of any other authority or body; for: (e) the services of officers or employees in those Agencies, Departments, authorities or bodies to be made available to the Authority; or (f) officers or employees in those Agencies, Departments, authorities or bodies to give advice to the Authority. 33 Section 61 Repeal the section. 34 Subsection 62(1) Omit "in the course of a final assessment", substitute "to assist the Authority in the consideration of an application or proposal, or in the assessment or review of a resulting food regulatory measure,". 35 Subsection 63(1) Repeal the subsection, substitute: (1) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal: (a) by an applicant for the development or variation of a standard, for a review of: (i) a decision by the Authority under paragraph 26(1)(b) to reject an application, other than a decision to reject the application because it does not comply with subsection 22(2); or (ii) a decision by the Authority under paragraph 30(1)(b) to reject an application; or (iv) a decision by the Authority under paragraph 96(1)(b) to reject an application; or (b) by a person whose interests are affected by one of the following decisions, for a review of that decision: (i) a decision by the Authority under subsection 56(1) to abandon a proposal; (ii) a decision by the Authority under paragraph 60(b) to abandon a proposal; (iii) a decision by the Authority under paragraph 96(2)(b); or (c) for review of a decision under section 112 not to do something. Note: The cross‑references are to new sections inserted by Part 4 of this Schedule. 36 Subsection 66(1) Omit "The regulations may also deal with the time for payment of charge.". 37 After subsection 66(1) Insert: (1A) The regulations may also: (a) provide for the charge to be paid by instalments; and (b) fix the times at which instalments are due to be paid. 38 Subsections 66(6) to (10) Repeal the subsections, substitute: (6) A charge may only be fixed if: (a) it relates to an application to develop or vary a standard; and (b) either of the following apply: (i) the development or variation of the standard would confer an exclusive capturable commercial benefit on the applicant; (ii) the applicant has elected to have the consideration of the application expedited. (7) The consideration of an application in relation to which a charge is fixed under subsection (6) must not displace the development of, or variation to, any other food regulatory measure in a three year plan. (8) For the purposes of subsection (7), a three year plan means a three year forward plan of the Authority developed under section 20. 39 Subsection 66C(1) Omit "subsection 12B(1)", substitute "subsection 24(2)". Note: The cross‑reference is to a new section inserted by Part 4 of this Schedule. 40 Subsection 67(1) Repeal the subsection, substitute: (1) The Board may, by resolution, delegate to a member of the Board, or to a senior member of the staff of the Authority, all or any of its powers under this Act, other than its powers to act on behalf of the Authority under: (a) paragraph 33(1)(a); or (b) subsection 35(1); or (c) paragraph 41(2)(a); or (e) paragraph 63(1)(a); or (f) subsection 65(1); or (g) paragraph 69(2)(a); or (i) paragraphs 84(6)(a), (b) or (c) or 85(6)(a), (b) or (c); or (j) subsection 97(1); or (k) subsection 101(1); or (l) subsection 104(2). Note: The cross‑references are to new sections inserted by Part 4 of this Schedule. 41 Subsection 68(1) Repeal the subsection, substitute: (1) No civil or criminal proceeding, and no action or suit of any other kind, lies against any of the following: (a) the Commonwealth; (b) a member of the Board; (c) a person assisting the Authority in the performance of its functions; in relation to any loss or injury directly or indirectly sustained by a person because of the consumption of, or other dealing with, food. (1A) No civil or criminal proceeding, and no action or suit of any other kind, lies against any of the following: (a) the Commonwealth; (b) a member of the Board; (c) a person assisting the Authority in the performance of its functions; in relation to anything done, or not done, by the Authority or the person in the performance of functions or the exercise of powers under this Act, provided that the Authority or the person (as the case requires) acts honestly and reasonably in doing, or not doing, that thing. 42 Section 69 Repeal the section, substitute: 69 Annual report The members must include in each report on the Authority under section 9 of the Commonwealth Authorities and Companies Act 1997 for a financial year particulars of: (a) the number of applications that were considered under Subdivision D of Division 1 of Part 3 during that year; and (b) the number of applications that were considered under Subdivision E of Division 1 of Part 3 during that year; and (c) the number of applications that were considered under Subdivision F of Division 1 of Part 3 during that year; and (e) for each of those Subdivisions, the number of applications considered under that Subdivision that were disposed of during that year and the manner of their disposal; and (f) for each of those Subdivisions, the average time taken to dispose of applications during that year; and (g) the number of applications made during that year in relation to which a charge fixed under section 146 was payable; and (h) the number of applications made during that year in relation to which no charge fixed under section 146 was payable; and (i) the average number of days that elapsed between the acceptance or rejection under section 26 of an application made during that year in relation to which no charge fixed under section 146 was payable, and the commencement of the assessment of the application under section 29; and (j) each occasion during that year on which the consideration period under section 109 elapsed without the Authority completing the procedure that the Authority must, under Subdivision C of Division 1, adopt in considering the application; and (k) each occasion during that year on which the Authority extended the consideration period under subsection 109(4), and the reasons for that extension; and (l) the number of proposals made by the Authority under section 55 during that year; and (m) the number of proposals made by the Authority under section 81 during that year; and (n) the number of proposals so made that were disposed of during that year and the manner of their disposal; and (o) the average time taken to dispose of proposals under each of Subdivisions D, E, F and H of Division 2 of Part 3 during that year; and (p) the average number of days that elapsed between the preparation of a proposal during that year under each of sections 55 and 81 and the commencement of the assessment of the proposal under section 59; and (q) the number of applications made to the Administrative Appeals Tribunal during that year for review of decisions of the Authority; and (r) the results of the applications made to the Administrative Appeals Tribunal that were determined during that year; and (s) the number of standards made during that year; and (t) the number of draft standards and draft variations approved during that year under each of the following: (i) section 33; (ii) section 41; and (u) the number of occasions during that year when requests were made by the Council under Division 3 of Part 3 for a review of a draft standard or draft variation; and (v) the number of occasions during that year when a draft standard or draft variation was rejected by the Council under Division 3 of Part 3; and (w) the number of occasions during that year when requests were made by the Council under Division 3 of Part 3 for a review of a standard or variation; and (x) the number of occasions during that year when a standard or variation was revoked or amended by the Council under Division 3 of Part 3; and (y) a summary of policy guidelines notified to the Authority during that year; and (z) such other matters (if any) as are specified in the regulations. Note: The cross‑references are to new sections inserted by Part 4 of this Schedule, or sections as renumbered by Part 3 of this Schedule. Part 2—Aligning cross‑references to provisions renumbered by Part 3 of this Schedule Food Standards Australia New Zealand Act 1991 43 Subsection 3(1) (definition of food) Omit "3A", substitute "5". 44 Paragraph 3A(1)(e) Omit "3B", substitute "6". 45 Subsection 9(3) (note) Omit "3(1)", substitute "4(1)". 46 Subsections 39(1) and (4) Omit "54", substitute "136". 47 Paragraphs 40(2A)(b) to (g) Repeal the paragraphs, substitute: (b) section 117; (c) section 119; (d) section 120; (e) section 121; (f) section 126; (g) section 127. 48 Paragraph 49(b) Omit "47(5)", substitute "122(5)". 49 Subsection 50(4) Omit "49", substitute "124". 50 Paragraph 52(2)(b) Omit "50", substitute "125". 51 Subparagraph 52(2)(d)(ii) Omit "45(2)", substitute "120(2)". 52 Paragraph 57(1)(a) Omit "55", substitute "138". 53 Paragraph 57(1)(ab) Omit "65A", substitute "145". 54 Paragraph 57(1)(ac) Omit "66 or 66A", substitute "146 or 147". 55 Subsection 62(1) Omit "39", substitute "114". 56 Paragraph 64(1)(a) Omit "63(1)(a)", substitute "143(1)(a)". 57 Paragraph 64(1)(b) Omit "63(1)(b)", substitute "143(1)(b)". 58 Subparagraph 64(1)(c)(i) Omit "63(1)(a)", substitute "143(1)(a)". 59 Subparagraph 64(1)(c)(ii) Omit "63(1)(b)", substitute "143(1)(b)". 60 Subsection 66A(1) Omit "66", substitute "146". 61 Subsection 66B Omit "66", substitute "146". 62 Paragraph 66C(2)(a) Omit "66", substitute "146". 63 Paragraph 66C(2)(b) Omit "66A", substitute "147". Part 3—Restructuring and renumbering the Food Standards Australia New Zealand Act 1991 Food Standards Australia New Zealand Act 1991 64 Part 2 (heading) Repeal the heading, substitute: Part 2—The Authority 65 Section 10A Move the section to the end of Part 2 and renumber as section 10B. 66 Section 11 Move the section to immediately after section 8 and renumber as section 8A. 67 Section 11A (first occurring) Renumber as section 10A. 68 Before section 6 Insert: Division 1—Establishment, functions and powers of the Authority 69 After section 8A Insert: Division 2—Food regulatory measures 70 After section 10A Insert: Division 3—Forward planning 71 Renumbering sections (1) The sections of the Food Standards Australia New Zealand Act 1991 are renumbered in accordance with the following table: Section renumbering in the Food Standards Australia New Zealand Act 1991 Item This section ... is renumbered as .. 1 1 1 2 2 2 3 2A 3 4 3 4 5 3A 5 6 3B 6 7 3C 7 8 3D 8 9 4 9 10 5 10 11 5A 11 12 6 12 13 7 13 14 8 14 15 8A 15 16 9 16 17 9A 17 18 10 18 19 10A 19 20 10B 20 21 39 114 22 39A 115 23 40 116 24 41 117 25 43 118 26 44 119 27 45 120 28 46 121 29 47 122 30 48 123 31 49 124 32 50 125 33 51 126 34 52 127 35 52A 128 36 52B 129 37 52C 130 38 52D 131 39 52E 132 40 52F 133 41 52G 134 42 53 135 43 54 136 44 55 138 45 57 139 46 58 140 47 60 141 48 62 142 49 63 143 50 64 144 51 65A 145 52 66 146 53 66A 147 54 66B 148 55 66C 149 56 67 150 57 68 151 58 69 152 59 70 153 (2) A reference in an instrument or document made before the commencement of this item to a provision of the Food Standards Australia New Zealand Act 1991 that has been renumbered under this item is to be construed as a reference to that provision as so renumbered. Part 4—New application and proposal procedures Agricultural and Veterinary Chemicals Code Act 1994 72 Section 3 of the Code set out in the Schedule Insert: Maximum Residue Limits Standard means the Maximum Residue Limits Standard, made under the Food Standards Australia New Zealand Act 1991, as in force from time to time, or any standard in force in substitution for that standard. 73 After section 13 of the Code set out in the Schedule Insert: 13A Notifying Food Standards Australia New Zealand (1) If it is likely that a chemical product in relation to which an application for registration is made would, if used, be present in foods (as defined for the purposes of the Food Standards Australia New Zealand Act 1991) at a level that is not already permitted under the Maximum Residue Limits Standard, the APVMA must notify Food Standards Australia New Zealand of the application. (2) The notice must: (a) be in writing; and (b) set out: (i) particulars of the product and its active constituents other than confidential commercial information; and (ii) any other matters that the APVMA thinks appropriate; and (c) be given to Food Standards Australia New Zealand at least 30 working days before notice of the application and public invitation for submissions is published in the Gazette under section 13 or otherwise. Food Standards Australia New Zealand Act 1991 74 Divisions 1 to 5 of Part 3 Repeal the Divisions, substitute: Division 1—Applications for the development or variation of food regulatory measures Subdivision A—Overview 21 Steps in the consideration of an application The following is a simplified outline of the procedure for considering an application for the development of a food regulatory measure, or the variation of a food regulatory measure, other than a high level health claims variation. Step 1. An application is made. Step 2. The Authority decides whether to accept or reject the application. If the application is accepted, the Authority proceeds to step 3. Step 3. The Authority notifies the applicant of acceptance. Step 4. The Authority gives public notice of the application, indicating when the Authority proposes to undertake key steps in considering it. Step 5. The Authority assesses the application. The Authority may, after assessing the application, either reject it or proceed to the next step. If the application is for a new food regulatory measure or a major variation of a food regulatory measure, the next step is step 6. In any other case, it is step 7. Step 6. The Authority calls for public submissions. Step 7. The Authority prepares a draft food regulatory measure or a draft variation of a food regulatory measure, as the case requires. If the Authority has called for submissions under step 6, the Authority must have regard to the submissions in doing so. Step 8. If the application is for a minor variation, the Authority calls for submissions from the applicant and appropriate government agencies. In any other case, the Authority calls for public submissions. Step 9. If the draft is a draft standard or a draft variation of a standard, the Authority must decide whether to approve or reject it and prepare a report, having regard to any submissions made. If approved, the Authority notifies the Council and the public of the approval and proceeds to step 10. If the draft is a draft code of practice or a draft variation of a code of practice, the Authority must revoke or vary any existing code or practice and give public notice of its decision. No further steps are taken in relation to measures of this kind. Step 10. The standard or variation comes into effect after it has been considered by the Council and published. Subdivision B—Applications 22 Applications (1) A body or person may apply to the Authority for the development of a food regulatory measure or the variation of a food regulatory measure. (2) The application must: (a) be in writing; and (b) if the form in which the application is to be made is specified in guidelines made under section 23—be in the form specified; and (c) include all of the information that, under guidelines made under section 23, is to be included with the application; and (d) include each thing that, under guidelines made under section 23, is to be included with the application; and (e) identify the procedure that, in the applicant's view, applies to the consideration of the application. 23 Application guidelines Authority may make guidelines (1) The Authority may, by legislative instrument, make guidelines: (a) specifying the form in which applications for the development of a food regulatory measure, or the variation of a food regulatory measure, are to be made; and (b) specifying the information, or the kinds of information, to be included with such applications; and (c) specifying any thing, or kind of thing, to be included with such applications. (2) The Authority may only specify information, or kinds of information, under paragraph (1)(b) in relation to an application if the inclusion of that information, or information of those kinds: (a) would enable the Authority to assess the application and develop the relevant food regulatory measure, or the relevant variation of a food regulatory measure; or (b) would enable the Authority to determine whether a charge fixed under section 146 is payable to the Authority in relation to the application. (3) The Authority may only specify a thing, or a kind of thing, under paragraph (1)(c) in relation to an application, if the inclusion of that thing, or things of those kinds, would enable the Authority to assess the application and develop the relevant food regulatory measure, or the relevant variation of a food regulatory measure. Guidelines not subject to disallowance or sunsetting (4) Section 42 and Part 6 of the Legislative Instruments Act 2003 do not apply to guidelines made under subsection (1). 24 Withdrawal of applications (1) An applicant may withdraw the applicant's application by giving written notice of the withdrawal to the Authority at any time after the Authority has accepted the application under paragraph 26(1)(a), but before: (a) the Authority approves a draft food regulatory measure, or a draft variation of a food regulatory measure, as a result of the application; or (b) the Authority notifies the applicant that the Authority has rejected the application. (2) If the Authority receives notice of the withdrawal of an application after the applicant pays a charge fixed under section 146, the Authority must refund to the applicant so much of the charge as is equivalent to the sum paid by the applicant but not expended from the charge, calculated in accordance with the regulations. (3) If the Authority receives notice of the withdrawal of an application after public notice of the application has been given under section 28, the Authority must give public notice that the application has been withdrawn. Subdivision C—Procedures for considering applications 25 Which procedure is appropriate? The Authority must adopt the general procedure in considering an application for the development of a food regulatory measure or the variation of a food regulatory measure, unless: (a) the application is one to which Subdivision E applies (application for a minor variation of a food regulatory measure); or (b) the application is one to which Subdivision F applies (application for the development of a new food regulatory measure or a major variation of a food regulatory measure); or (d) the application is declared to be an urgent application for the purposes of this Part under section 95. Subdivision D—General procedure 26 Accepting an application (1) The Authority must, within 15 business days after an application is given to the Authority: (a) accept the application; or (b) reject the application. (2) In determining whether to accept or reject the application, the Authority must have regard to the following matters: (a) whether the application complies with subsection 22(2); (b) whether the application relates to a matter that may be developed as a food regulatory measure, or that warrants the variation of a food regulatory measure; (c) whether the application is so similar to a previous application or proposal for the development or variation of a food regulatory measure that it ought to be rejected; (d) any other relevant matter. (3) If an application is rejected because it does not comply with subsection 22(2), the application must be disregarded for the purposes of determining whether a later application or proposal for the development or variation of a food regulatory measure is so similar to a previous application that the later application or proposal ought to be rejected. 27 Notice of acceptance If the Authority accepts an application, the Authority must notify the applicant immediately in writing: (a) that the application has been accepted; and (b) of the procedure the Authority will adopt in considering the application; and (c) in the case of an applicant who has applied for the development or variation of a standard and on whom an exclusive capturable commercial benefit would be conferred if the standard were made or varied in the manner sought in the application: (i) that the applicant must pay the charge fixed under subparagraph 146(6)(b)(i) or, if the charge is payable in instalments, the first instalment of the charge, within 20 business days after the notification is given; and (ii) that the application will be rejected if the charge, or the first instalment of the charge, is not paid within that period; and (d) in any other case—that the applicant may, if the applicant elects to have the consideration of the application expedited, pay the charge fixed under subparagraph 146(6)(b)(ii) or, if the charge is payable in instalments, the first instalment of the charge. 28 Public notice of the application (1) If the Authority accepts an application, the Authority must also give public notice of the matters mentioned in subsection (2). Content of notice (2) The notice must: (a) state that the Authority has received an application for the development of a food regulatory measure or the variation of a food regulatory measure, as the case requires; and (b) state the date on which the application was received by the Authority; and (c) state the name of the applicant; and (d) give a summary of the application; and (e) state that the Authority has accepted the application; and (f) identify the procedure that the Authority will adopt in considering the application; and (g) indicate when the Authority proposes to undertake the key steps in that procedure; and (h) state how to obtain further information about the application. Period within which notice must be given (3) The notice must be given: (a) if the applicant pays a charge, or the first instalment of a charge, mentioned in subparagraph 27(c)(i) within the period mentioned in that paragraph—within 5 business days after that payment; or (b) if the applicant pays a charge, or the first instalment of a charge, mentioned in paragraph 27(d) within 20 business days after notice is given to the applicant under section 27 (the early payment period)—within 5 business days after that payment; or (c) in any other case—within 25 business days after notice is given to the applicant under section 27. Exclusive capturable commercial benefit—fee not paid (4) If an applicant: (a) who applies for the development or variation of a standard; and (b) on whom an exclusive capturable commercial benefit would be conferred if the standard were made or varied in the manner sought in the application; does not pay the charge, or the first instalment of the charge, mentioned in subparagraph 27(c)(i) within the period mentioned in that subparagraph: (c) the Authority must reject the application; and (d) the Authority need not give notice under this section. Fee to expedite consideration paid after early payment period (5) If an applicant pays a charge, or the first instalment of a charge, mentioned in paragraph 27(d) after the end of the early payment period, the Authority must, within 5 business days after that payment, again give public notice of the matters mentioned in subsection (2), including an update on when the Authority now proposes to undertake the key steps in the procedure. 29 Assessing the application (1) If the Authority accepts an application, the Authority must assess the application. (2) In assessing the application, the Authority must have regard to the following matters: (a) 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 development or variation of the food regulatory measure; (b) 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; (c) any relevant New Zealand standards; (d) any other relevant matters. Note: See also section 18, which sets out the objectives of the Authority in developing food regulatory measures and variations of those measures. 30 Preparing a draft variation (1) After assessing an 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) If: (a) the Authority prepares a draft food regulatory measure or a draft variation of a food regulatory measure as a result of an application; and (b) the draft measure or draft variation differs from that sought in the application, or was not sought in the application at all; the Authority must give the applicant notice in writing of that fact and state in the notice that the Authority will call for submissions for the purpose of assessing the draft measure or draft variation. (3) The Authority must not give public notice under section 31 within 10 business days immediately after notice is given to the applicant under subsection (2) of this section. 31 Calling for submissions (1) After preparing a draft food regulatory measure or a draft variation of a food regulatory measure as a result of an application, the Authority must give public notice of the matters mentioned in subsection (2). (2) The notice must: (a) state that the Authority has prepared a draft food regulatory measure or a draft variation of a food regulatory measure, as the case requires; and (b) include: (i) a copy of the draft food regulatory measure or draft variation; and (ii) a summary of the results of the Authority's assessment of the application; or state how a copy of those documents can be obtained; and (c) call for written submissions, for the purpose of the Authority's consideration of the draft measure or draft variation, to be given to the Authority within the period specified in the notice (the submission period). 32 Alternative steps to be followed (1) If an application results in the development or variation of a standard, the Authority must follow the steps set out in sections 33 and 34. (2) However, if an application results in the development or variation of a code of practice, the Authority must follow the steps set out in section 35. 33 Approving the draft standard or draft variation (1) After the submission period, the Authority must: (a) do one of the following: (i) approve the draft standard or draft variation; (ii) approve the draft standard or draft variation subject to such amendments as the Authority considers necessary; (iii) reject the draft standard or draft variation; and (b) prepare a report under this section. Note: The Board must not delegate its powers to act on behalf of the Authority under paragraph (a)—see section 150. (2) The Authority must have regard to all submissions made during the submission period in making a decision under subsection (1). (3) The report must include each of the following: (a) the reasons for initially accepting the application; (b) a summary of the results of the Authority's assessment of the application; (c) a summary of the submissions received by the Authority in relation to the draft standard or draft variation; (d) the Authority's response to the issues raised in those submissions; (e) whether the draft standard or draft variation was amended after submissions were made and, if so, the reasons for those amendments; (f) the Authority's reasons for approving or rejecting the draft standard or draft variation; (g) a copy of the draft standard or draft variation on which submissions were received; (h) if the draft standard or draft variation was amended after submissions were made—a copy of the draft standard or draft variation as amended; (i) a Regulation Impact Statement. 34 Notifying the Council (1) If the Authority approves a draft standard or a draft variation of a standard, the Authority must, within 10 business days after the approval: (a) give the Council: (i) a written notification of the approval; and (ii) a copy of the report prepared by the Authority under section 33; and (b) give public notice of the approval, together with information about where further information about the draft standard or draft variation may be obtained; and (c) publish in a generally circulating newspaper, in each State or Territory and in New Zealand, a notice: (i) stating that the draft standard or draft variation has been approved; and (ii) stating that the Council has been notified that the draft standard or draft variation has been approved; and (iii) stating that the Council may request the Authority to review the draft standard or draft variation under Division 3; and (iv) stating where further information about the draft standard or draft variation may be obtained. (2) If the Authority has notified the Council under subsection (1), the Council may direct the Authority to give the Council such information as the Council reasonably requires for the purpose of assisting the Council to make a decision about the draft under Division 3. Note: The process followed by the Council after receiving notification under this section is set out in Division 3. 35 Alternative to steps set out in sections 33 and 34—approving the draft code of practice or draft variation (1) After the submission period, the Authority must: (a) approve the draft code of practice or draft variation; or (b) reject the draft code of practice or draft variation. Note: The Board must not delegate its powers to act on behalf of the Authority under this subsection—see section 150. (2) If another code of practice would be superseded, in whole or in part, by 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 public notice of its decision. (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. (5) The Authority must also give written notice of its decision to the Council. Subdivision E—Modification of general procedure for minor variations 36 Application of Subdivision This Subdivision applies to an application for the variation of a food regulatory measure that, if made, would not directly or indirectly: (a) impose, vary or remove an obligation on any person; or (b) create, vary or remove a right of any person; or (c) otherwise alter the legal effect of the measure. Note: For example, a variation would fall within this class if its only effect would be: (a) to correct a typographical error; or (b) to update a reference to another document; or (c) to change a cross‑reference within a food regulatory measure; or (d) to omit provisions of a food regulatory measure that have ceased to have effect. 37 Adopt the general procedure with the modifications set out in this Subdivision The Authority must adopt the general procedure in considering the application, with the modifications set out in this Subdivision. 38 Modification of step set out in section 29 Paragraphs 29(2)(a) and (b) do not apply. Note: Paragraphs 29(2)(a) and (b) require the Authority to do a cost benefit analysis. This is unnecessary given the minor nature of the variation. 39 Modification of step set out in section 30 Subsections 30(2) and (3) do not apply. Note: Subsections 30(2) and (3) deal with the case where the draft variation differs from that sought in the application, or was not sought at all. 40 Modification of step set out in section 31 (1) Section 31 does not apply. (2) However, after preparing a draft variation of the food regulatory measure as a result of an application, the Authority must give written notice to the applicant and appropriate government agencies: (a) stating that the Authority has prepared a draft variation of a food regulatory measure; and (b) including: (i) a copy of the draft variation; and (ii) a summary of the results of the Authority's assessment of the application; or stating how a copy of those documents can be obtained; and (c) calling for written submissions, for the purpose of the Authority's consideration of the draft variation, to be made to the Authority within the period specified in the notice (the submission period). 41 Modification of steps set out in sections 32, 33, 34 and 35 (1) Sections 32, 33, 34 and 35 do not apply. (2) However, after the submission period, the Authority must: (a) do one of the following: (i) approve the draft variation; (ii) approve the draft variation subject to such amendments as the Authority considers necessary; (iii) reject the draft variation; and (b) prepare a report under this section. Note: The Board must not delegate its powers to act on behalf of the Authority under paragraph (a)—see section 150. (3) The report must include each of the following: (a) the reasons for initially accepting the application; (b) a summary of the results of the Authority's assessment of the application; (c) the Authority's reasons for approving or rejecting the draft variation; (d) a copy of the draft variation. (4) If the draft variation is of a standard and the Authority approves the draft variation, the Authority must, within 10 business days after the approval: (a) give the Council: (i) a written notification of the approval; and (ii) a copy of the report prepared by the Authority under this section; and (b) give public notice of the approval, together with information about where further information about the draft variation may be obtained; and (c) publish in a generally circulating newspaper, in each State or Territory and in New Zealand, a notice: (i) stating that the draft variation has been approved; and (ii) stating that the Council has been notified that the draft variation has been approved; and (iii) stating that the Council may request the Authority to review the draft variation under Division 3; and (iv) stating where further information about the draft variation may be obtained. (5) If the Authority has notified the Council under subsection (4), the Council may direct the Authority to give the Council such information as the Council reasonably requires for the purpose of assisting the Council to make a decision about the draft under Division 3. Note: The process followed by the Council after receiving notification under this section is set out in Division 3. Subdivision F—Modification of general procedure for developing new food regulatory measures and major variations 42 Application of Subdivision This Subdivision applies to: (a) an application for the development of a new food regulatory measure; and (b) an application for the variation of a food regulatory measure that: (i) involves such scientific or technical complexity that it is necessary to adopt this procedure in considering it; or (ii) involves such a significant change to the scope of the food regulatory measure that it is necessary to adopt this procedure in considering it. 43 Adopt the general procedure with the modifications set out in this Subdivision The Authority must adopt the general procedure in considering the application, with the modifications set out in this Subdivision. 44 Additional step after step set out in section 29 (1) The Authority must, after assessing the application under section 29 but before undertaking the step set out in section 30, give public notice of the matters set out in subsection (2). (2) The notice must: (a) state that the Authority has assessed the application; and (b) include a summary of the results of the Authority's assessment of the application, or state how a copy of the summary can be obtained; and (c) call for written submissions on matters relevant to the application to be given to the Authority within the period specified in the notice (the submission period). 45 Matters to which Authority must have regard in making a decision under section 30 The Authority must have regard to all submissions made during the submission period in making a decision under section 30. Note: This does not limit the other matters to which the Authority must have regard in making a decision under section 30. Division 2—Proposals for the development or variation of food regulatory measures Subdivision A—Overview 54 Steps in the consideration of a proposal The following is a simplified outline of the procedure for considering a proposal for the development of a food regulatory measure, or the variation of a food regulatory measure, other than a high level health claims variation. Step 1. A proposal is prepared. Step 2. As the Authority prepares the proposal, there is no equivalent to step 2 of the applications procedure in which the application is accepted or rejected. Step 3. As the Authority prepares the proposal, there is no equivalent to step 3 of the applications procedure in which the Authority notifies the applicant of acceptance. Step 4. The Authority gives public notice of the proposal, indicating when the Authority proposes to undertake key steps in considering it. Step 5. The Authority assesses the proposal. The Authority may, after assessing the proposal, either abandon it or proceed to the next step. If the proposal is for a new food regulatory measure or a major variation of a food regulatory measure, the next step is step 6. In any other case, it is step 7. Step 6. The Authority calls for public submissions. Step 7. The Authority prepares a draft food regulatory measure or a draft variation of a food regulatory measure, as the case requires. If the Authority has called for submissions under step 6, the Authority must have regard to the submissions in doing so. Step 8. If the proposal is for a minor variation, the Authority calls for submissions from the applicant and appropriate government agencies. In any other case, the Authority calls for public submissions. Step 9. If the draft is a draft standard or a draft variation of a standard, the Authority must decide whether to approve or reject it and prepare a report, having regard to any submissions made. If approved, the Authority notifies the Council and the public of the approval and proceeds to step 10. If the draft is a draft code of practice or a draft variation of a code of practice, the Authority must revoke or vary any existing code of practice and give public notice of its decision. No further steps are taken in relation to measures of this kind. Step 10. The standard or variation comes into effect after it has been considered by the Council and published. Subdivision B—Proposals 55 Proposals (1) The Authority may, on its own initiative, prepare a proposal for the development or variation of a food regulatory measure. (2) The proposal must be in writing. 56 Abandonment of proposals (1) The Authority may abandon a proposal at any time. (2) However, if the Authority abandons a proposal after public notice has been given under section 58, the Authority must give public notice of the matters mentioned in subsection (3). (3) The notice must: (a) state that the Authority has decided to abandon the proposal; and (b) state how to obtain further information about the decision and the reasons for it. Subdivision C—Procedures for considering proposals 57 Which procedure is appropriate? The Authority must adopt the general procedure in considering a proposal for the development of a food regulatory measure or the variation of a food regulatory measure, unless: (a) the proposal is one to which Subdivision E applies (proposal for a minor variation of a food regulatory measure); or (b) the proposal is one to which Subdivision F applies (proposal for the development of a new food regulatory measure, or a major variation of a food regulatory measure); or (d) the proposal is one to which Subdivision H applies (proposal for a variation of the Maximum Residue Limits Standard); or (e) the proposal is declared to be an urgent proposal for the purposes of this Part under section 95. Subdivision D—General procedure 58 Public notice of a proposal (1) If the Authority prepares a proposal, the Authority must give public notice of the matters mentioned in subsection (2). (2) The notice must: (a) state that the Authority has prepared a proposal for the development or variation of a food regulatory measure, as the case requires; and (b) state the date on which the proposal was made; and (c) give a summary of the proposal; and (d) identify the procedure that the Authority will adopt in considering the proposal; and (e) indicate when the Authority proposes to undertake the key steps in that procedure; and (f) state how to obtain further information about the proposal. 59 Assessing a proposal (1) If the Authority prepares a proposal, the Authority must assess the proposal. (2) In assessing the proposal, the Authority must have regard to the following matters: (a) whether costs that would arise from a food regulatory measure developed or varied as