Food Bill

We move to the debate on Part 5, which is clauses 314 to 406, plus schedules 5 to 7.

I am very pleased to take a call on Part 5 of the Food Bill. I want to, first, acknowledge the Hon Kate Wilkinson, who is in the Chamber. She did a significant amount of the heavy lifting on this bill, and I want to acknowledge the contribution that she has made. Look, this part is quite wide in terms of the regulations and exemptions, but I want to make a number of points that have actually been made in the debate already that tie up with this part.

The first thing that we heard from the Labour members was that if they were in office, they would get rid of the role of the Ministry for Primary Industries in this area and they would have an independent food safety authority. The point that I would like to make there is that we have just had an independent inquiry. We have had experts internationally say in the independent inquiry that the typical comments that came from submitters across New Zealand were that biosecurity and food safety are two sides of the same coin and that the ministry and industry both benefit from the synergies between food safety and facilitating trade. There was a very common theme there. People do not want to go back. That is the first point that I would make. It is important to acknowledge, though, that we must ensure the role of the regulator is quite separate from what we are doing in terms of facilitating trade, but I want to acknowledge what the independent inquiry said. We want the merger to work in terms of the Ministry for Primary Industries and food safety roles.

The second point that I want to make, which is tied to our miscellaneous provisions in this area, is around compliance and enforcement. You cannot have a good food safety system without having not only good legislation but also good authority, like what the Ministry for Primary Industries is currently doing in terms of its role, and having the dial turned appropriately in terms of compliance and enforcement. I think some of the provisions in this bill are going to be incredibly important in terms of people’s confidence in our food safety system. I want to acknowledge Steffan Browning in terms of his Supplementary Order Paper 449. The point that I would make around his amendment is that, actually, the law currently puts requirements on the chief executive of the ministry to ensure there is adequate compliance, so we do think that the amendment is redundant.

The other point I would like to make following the conversations that we have had, Steffan, around ensuring that enforcement is there is that I completely agree with you. That is why one of the powers in this bill that is so important in terms of ensuring that compliance is fines for things like labelling. At the moment the issue is not that we do not investigate these incidents; the issue is that the Food Act is so outdated that we cannot actually punish these people unless we take them to court. So these fines are going to be incredibly important in terms of the integrity of our labelling system.

The next point I want to make is that there have been a number of comments in terms of the balance. Damien O’Connor has made a number of comments around the cost versus ensuring that we have appropriate regulations in this area. Let me be very clear: the whole point of this bill is that there actually will be businesses in New Zealand that will have more compliance costs out of this, because they will have higher-risk food. They will be the people who will be at the forefront. If they get it wrong, people will actually die. So we need to acknowledge that the whole point of this bill is that, yes, there will be less regulation for some people, but for some people who are producing higher-risk food, the compliance will be stronger. So I just regret any assertion that this bill has not got the balance right in terms of compliance versus the risks of food.

The next comment is very relevant in terms of this part, and also the whey protein concentrate inquiry. I want to say to Mr O’Connor, and let me be really clear, that the recall provisions that came to the Primary Production Committee have been at the heart of the whey protein concentrate incident. It is about understanding that we have to have an appropriate threshold here when there is an uncertain situation. With whey protein concentrate, there was some uncertainty. Obviously, there have been a number of investigations in that area, but people have died in other countries in areas of food like brussels sprouts because there has been uncertainty but not the ability to act. I think this Parliament has absolutely got those recall provisions right. We have changed the test, basically lowering the test to enable officers to act.

That brings me on to the next point, which David Shearer raised, that is, effectively, around food safety officers. This bill absolutely acknowledges that there has to be a balance there to make sure that for those small businesses in New Zealand there is not a heavy-handed approach where it is not proper to have that approach, unless people are at risk. But I want to make this point and I want to acknowledge the situation that Damien O’Connor referred to. There are two things. One is that in terms of food safety officers, for 30 years we have had powers in terms of entry. So the point that David Shearer raises has actually been in the law for 30 years. The difference here is that, because we are actually enabling less regulation for certain people who may have home-based businesses, if there is an outbreak of listeria tomorrow and we have mums at risk of losing their babies, we absolutely need to go in. That is the only change that has been made. It is about food safety.

The second point I would make is in terms of the situation Damien O’Connor raised around a particular company. I do not want to go into the detail of that, but what I want to say is that that member knows very well that, actually, the point we made to him is that we would be ignoring the law and breaking the law if we had enabled people to put something into food that had not been agreed to by the code. The point that I make to him is that I agree with him generally that it is very important that when we are thinking through this legislation we have that appropriate balance of the powers in terms of the law versus officers and versus the Ministry for Primary Industries. But there are certain situations where you just do not let people add stuff to wine if it has not actually been agreed to in the code. That was the situation we both dealt with.

Overall, can I just say again that there has been amazing support across the Committee and huge work from the Opposition to really improve this bill. Finally, in terms of country-of-origin labelling, the points that I made before are that this side of the Chamber is not convinced of comprehensive country-of-origin food labelling because you have got an inquiry just being initiated in Australia—our closest trading partner—that has said that this is confusing and that it is adding complexity and costs to business. The other point that I would make to Mr O’Connor and to members of this Committee who want to vote for Mr O’Connor’s amendment—and I understand the good intentions there—is that they need to know that the way that his amendment is worded, it would actually tie New Zealand for eternity to whatever Australia does in country-of-origin labelling. And for the Green Party here, which constantly raises issues of sovereignty, to be voting for Mr O’Connor’s amendment, which ties us for eternity to Australia’s position, I think is wrong.

The second point that I would make is that I do understand Mr Browning’s amendment, and although we are not going to vote for that amendment, we have made the point that we do support voluntary country-of-origin labelling. I am doing more work in this area. I do support, as much as possible, getting more of that country-of-origin labelling, in terms of single ingredient foods. It is actually pretty meaningless, complex, and costly when you take the Labour Party’s position of comprehensive country-of-origin labelling. The point is that to pass that in a primary statute would breach, we believe, the treaty between Australia and New Zealand. The whole point is that we have a flexible code that can be amended and that does not require Parliament to keep coming back every time we want to change labelling. That is the point. It is not at all that I do not support your intention, Mr Browning, of having consumers know as much as possible about the source of single ingredient foods. The point is about what the appropriate vehicle is.

So can I say that I want to acknowledge all members across the Committee for their outstanding contributions and their support for passing this bill. We may disagree on certain aspects that have been put up, but I commend this bill to the Committee.

I guess you may allow a little bit of scope in my speech. Although I acknowledge the theological approach of the Minister in the chair, the Minister for Food Safety, I doubt there is much that we do in this place that will be for eternity. I acknowledge the point that she raises about the word in the Food Bill that says “must” and could be amended to “may”—

💬 David Shearer: Intended to be in the bill.

—yes, but I still do not understand it, and her attempt to dance on the head of a pin around country-of-origin labelling has not convinced me. I know that the Minister and her Government are trying the best that they can to do some work around the branding of our country and the New Zealand Story and all the rest of that, but it will not amount to anything unless we can clearly identify that which is grown and produced in New Zealand as being a product of New Zealand. It is called country-of-origin labelling and it will enable us to build a brand and to sell that around the world.

If I can just step back from that and point to another strange situation, I will say that the Minister in the chair does not actually have a ministry. So it is a bit confusing when she advocates so strongly for the Ministry for Primary Industries to oversee food safety when, as the Minister, she does not actually have a ministry. The Ministry for Primary Industries answers to the Hon Nathan Guy. So this is where some foreign authorities, like China, have difficulty in understanding our regime—that is, we have a food safety regime embedded in the Ministry for Primary Industries, overseen by the Minister for Food Safety, who has no real ministry, and yet the Minister for Primary Industries, who is in charge of forestry, fishing, agriculture, horticulture, biosecurity, and food safety—

💬 David Shearer: It’s confusing, isn’t it?

Well, little wonder. People have enough trouble understanding the English language, let alone Kiwi ways, which leads to the confusion that we have been having on a fairly regular basis—and are still having—with Chinese authorities, over our food and health standards. At the moment we have still got some dilemmas around dairy and our ability to convince Chinese officials that we can produce safe products for infant formula. In fact, Fonterra has not done it yet. None of the base product from Fonterra is currently able to be exported to China.

I do not wish to regurgitate the botulism thing. The Minister referred to independent reports done on food safety. There are a couple of them. One makes reference to—and it is in my press statement—the need for clearly and authentically identifying the source of the product, or authentication of the product, through, some might say, country-of-origin labelling. The second thing pointed out in the independent report was that there is the potential for conflicts within the Ministry for Primary Industries over food safety and other obligations. In the first report that the Minister has on her desk—I have not got the wording in front of me, and she knows that, which is right. I do not have time to go through it, and I could; in fact, I might do that. The point is that I think we have a bill that has general support across the Committee, but I do not in any way apologise for scrutinising each and every bit of it, because it is arguably the most important piece of legislation for our economy. Our reputation and that which we are hoping to build around the production, provision, manufacture, and sale of safe food is absolutely paramount. We cannot in any way compromise that.

I think that the Primary Production Committee and the silent members over there probably endorse the fact—if they choose to take a call, they might—that we have made great progress. The Food Bill has taken a long time to get here. I come back to the key point, which is about why we believe that we need an independent authority. We need clear accountability, clear responsibility, certification, authentication—all of that—and clearly tied back to a Minister who has responsibility, not one who is well meaning, smart, intelligent, and who is nurturing this bill through her colleagues in the Committee, but who actually has no ministry with which to administer the provisions that we are laying down in the bill. I do not want to be unnecessarily negative, but I want the Committee to take note of a few qualifications that the Opposition is laying on the table. This is a good bill but it requires resources, independent authority, monitoring, and implementation of all these provisions to be really effective. Then we will get on and produce the finest, high-quality food for the world into the future, be recognised for that, and then paid for it, which is really, really important, so that the Chairman can get fair return for his efforts. Thank you very much.

I just want to touch on a couple of things that the Minister in the chair, Nikki Kaye, spoke of before. One of them is whether the joint partnership between Australia and New Zealand on food standards is the right place to be addressing food standards and particularly labelling. The amendment of Damien O’Connor certainly might have locked us in and we might have lost some sovereignty, but what I would say is that we have lost that already. The Minister is one Minister out of 10 when it comes to decisions coming out of that body. What my amendment would have done is to say “Let’s do it here in New Zealand.” The Food Bill is the right place to do it, because it needs only to say that we will set country-of-origin labelling regulations in New Zealand. It is the right vehicle, and it may be that the Minister does another Supplementary Order Paper herself to give us that level of sovereignty.

My concern is around sovereignty, and this may take a couple of calls to finish. I started earlier in Part 3 on the genetic engineering issue, and went through the process by which New Zealanders can make a submission to the process, and if they do not like it, the High Court is the only place that they can go.

My concern is that successive Ministers—and it goes right back through to the Labour Governments, as well—are being given advice that is not up to it. They have been given advice to say that this food has been checked, that it is OK, that the science is robust, and that there has been independent peer reviews or whatever around that, and that they could accept that. But you know, as a Minister—the Minister knows, and others who have been in that same position here know—about the advice that you get.

I want to touch on some of that advice. The advice said, accepting that an organisation like GE-Free New Zealand was likely to seek a review of the approval—and it did, through the Regulations Review Committee—“MPI is confident that the correct processes …”. What does it know? We do not have proper, independent advice going into our Ministry for Primary Industries, or the Institute of Environmental Science and Research, when it comes down to it. Certainly, when it comes in, it is not independent, nor is the advice going to Food Standards Australia New Zealand independent.

When the independent scientists in the world come out—Séralini, Judy Carman, even our Professor Jack Heinemann in Christchurch—they get criticised, snap, like that, all around the world. Why? Because there are such big vested interests from agribusiness for these foods—these bad, poor-quality, very unhealthy, and risky foods—to come in. Big business wants that because it has got the patents and it has got the control. Since the last time that happened, we had the Food Standards Australia New Zealand scientists in front of the select committee here, and I put it to them that one of their chief advisers was not independent. They said: “Oh, we barely talk to him.” Rubbish! That same man, Langridge from the University of Adelaide, gets direct funding from one of the companies that applies for these things. Not only that but he was the chair of a committee to look at new technologies that they wanted to take on so that they do not go through the system.

Those are the people who are advising you, Minister, to say that this stuff is good for New Zealanders, and it is not. I have given you a tome of information on that, as I did with Kate Wilkinson when she was the Minister for Food Safety. They say that not accepting the approval was “Inconsistent with scientific evidence.” I would say that that is wrong. They said that “A majority of FoFR members”—you are one in 10—“are likely to vote to accept the FSANZ approval.” New Zealanders would not expect this, but they said: “New Zealand would be obliged to accept a majority decision”—where is our sovereignty now—“as there are no ‘exceptional grounds’ for us to ‘opt out’.” A unilateral decision by New Zealand to, you know, exercise its sovereignty to reject the Food Standards Australia New Zealand approval “would be a breach of the Food Treaty and would undermine the joint food system, which underpins the valuable trade in food between the two countries.” Well, whoopee-do! If this stuff is not fit for purpose and it is bad for New Zealanders to be consuming, why are we just bowing over because of the discomfort, maybe, in a trade deal? This is not good enough.

The next point was: “A unilateral rejection of the approval, which is based on international guidelines, may also be inconsistent with New Zealand’s WTO obligations.” I do not think so. The last one in there was: “If a New Zealand response is delayed beyond 8 April”—that was for that early approval, or the option to go back and seek more information—“this may cause irritation in the joint food system relationship.”

Do you know what this is about, everyone? This is about a food that is going to be doused with 2,4-D, glufosinate ammonium, and glyphosate—three herbicides—with no inspection or checking on the health and safety of those being used in conjunction, as they would be used. What do these guys in Food Standards Australia New Zealand do? They look at each one independently, check out its maximum residue limits and things, and see whether it is going to be an issue. Not only that, but they put up the maximum residue limits so that the producers can do it. Three different herbicides, let alone whatever else, not looked at properly, not safe, and they are telling you: “Tick it through, please, because it will be an irritation to trade if you do not.” Well, that is not fair to New Zealanders. I think we do need to get that independence back, and we need to be doing it in New Zealand.

Of course, they tell you: “We will work with your office on a communications strategy in relation to any proposals by GE Free NZ or other groups to seek a review of the decision by the Regulations Review Committee.” Yes, they will get your messaging right and they will get your public relations right, but New Zealanders are stuck with it, and they are stuck with it through this bill if we do not implement it properly. We could have that sort of food in here, and all people can do is go to the High Court. If it were the Resource Management Act and you wanted to put up a three-storey building, you would have your notification, you would go to the council, you would see other people’s submissions, and you would get a decision. If you did not like it, you could have a hearing de novo at the Environment Court, then you might go to the High Court. You have got all those opportunities to comment.

This is our food. This is the food for our kids. It is coming through into the blood supply of women. It is going into foetal blood, the different parts of it. This is not good enough, and it is time that New Zealand stood up and had genuine sovereignty. That is why people want sovereignty. They know as well that the Codex Alimentarius Commission—which is a fantastic organisation in principle, because if we are importing stuff we want to know that it is safe; we want to know about the international trade stuff—has been taken over. We know how we do the dairy part of it. We make sure we get in there for that influence. But these same companies, which do not give a toss apart from their bottom line for their unknown shareholders—Monsanto, Dupont, Dow—do not care about New Zealanders’ health, but they are in there, influencing those decisions. It changed from its original, genuinely independent people. I know people who worked on it and said that it was great, but it changed.

So we do need sovereignty, and Part 5 of the bill is about that. There are opportunities there. I implore the Minister and I implore this Committee to make sure that we turn round the 80, almost 90, different types of GE food that have been allowed in New Zealand, and it is not understood, except the independent science is coming out and it needs to be listened to. That might be in a minority because it is independent—there are no vested interests driving it—but I am hoping that this Minister will look at this in a much more robust way and at least have some further discussion with me on it. But do make some changes.

You can see why I want GE food labelled. You could have made it labelled. The rules are there. They are not comprehensive enough—some GE food does not have to be labelled. But the stuff that is there is meant to have been labelled. The Food Standards Australia New Zealand stuff says that it is labelled, but since 2003 there has been no monitoring, and even in 2003, what did it do? It tried to put out of business the people who were trying to be GMO-free. When it found 0.008 percent, and some of that was intentionally going GMO-free but clearly it had been contaminated, it fined the hang out of them. It put them off labelling GMO-free, but that then seemed to be the trigger not to bother monitoring—

I move, That the question be now put.

I am pleased to speak on Part 5 of the Food Bill. I really just wanted to focus on the provisions relating to immunity, delegation, and review in Subpart 2. I think it is very important when we are conferring powers on to particular officers or bodies that there be some balance or review that can be applied. But on my reading of these provisions, there is pretty much complete immunity for the chief executive, right down to food safety officers, from any civil or criminal liability in the exercise of their powers under the legislation. That is a very black pass that we are providing to those officers, and we do not want to see a situation whereby an overzealous officer or verifier, or whoever is exercising their rights under this bill, is able to get—on my reading of this—a free pass from any civil or criminal liability, however it may arise, for any acts or omissions that they may be doing in the performance of a requirement under this legislation. That is a real broad, black pass that you can get.

I would like to think that there would be some proportionality or some sort of countermeasure to just giving them open slather to do anything in the exercise of their functions. I am thinking that when you talk about civil and criminal liability, that is very broad. I am thinking about the instance of serious economic damage to a firm, to a company, through an erroneous food safety exercise of powers or a requirement under the Act that caused real serious damage to a firm or its brand, or, for instance, a criminal act that may have occurred through exercising those requirements. There is complete immunity—complete immunity—for these officers.

I do understand that the intent of the bill is that we maintain confidence in our food safety regime. That is a given and we do support that general aim. But when you give complete immunity to all of these powers, to all of these people who are exercising powers under this Act, it does give rise to abuse, and there should be some check, some review, some mechanism. I am thinking of the Tūhoe raids as an example. That was a completely different arm of the police, but that was an overreaching and a totally disproportionate act by the police at that time. At least their actions were subject to a review, but under this complete immunity that is passed on to the chief executive and all the way down, there is a free pass that they have. I am very concerned about that because I would expect that the integrity of the jobs and the roles that they carry out needs to be paramount, and that there would be appropriate training given to these food safety officers, all the way through to verifiers and the like—people who are exercising their requirements under the Act.

On the face of it, it is very broad. I will just go over it again. They are protected from civil liability and criminal liability, however it may arise. It can also be in the performance of their functions or duties, but it also goes further, to the purported performance of a power or a requirement that they have under the Act. That is an extremely broad immunity, and I think we need to be very careful as a Parliament if we give out these blank free passes to these persons who are exercising these functions. I think we need to be very careful as a Parliament that we make sure that we do not just give all these powers away and that people get a free pass. It is very dangerous. It is a slippery slope. We want to see some proportionality in terms of the exercising of functions. An officer might think “Oh, I can just get away with anything.”, and that he or she can just waltz into any premises and exercise any search and seizure, secure any documents or information, demand a whole bunch of things, and know that they are actually immune—no matter what damage it may cause to the business or if they commit a criminal act. Who knows? They might have bowled over a person in the process and hurt them or caused serious injuries, yet they will get a free pass under this bill. I would think that this needs to be closely looked at, because we do not want to be giving all of this power and a free pass and immunity away, because it could lead to some disproportionate acts being able to be given a free pass. Cheers. Kia ora.

I move, That the question be now put.