Animal Welfare (Regulations for Management of Pigs) Amendment Bill

Members, the House is in committee on the Animal Welfare (Regulations for Management of Pigs) Amendment Bill. We start with Part 1. This is the debate on clauses 4 to 9, “Amendments to principal Act”, and Schedule 1. The question is that Part 1 stand part.

Thank you very much, Madam Chair. I just want to give a very brief context for the complexity of the subject matter in the bill. While the bill is not particularly long, there are a lot of important details that we need to prosecute.

The main determinations being decided here are to do with four impacts on the way that pigs are farmed, the primary one being the use of farrowing crates, the second one being the size of the weaner and the grower pig pens, the third one being the use of mating stalls, and the fourth one being the availability of manipulable materials. So that’s to give context to the subject matter in that.

Also, questions around the scientific advice the Associate Minister of Agriculture has received and the location of NAWAC—the National Animal Welfare Advisory Committee—and its influence on that advice; thirdly, there is the question of the extent to which the Minister has considered economic matters or industry financial matters or viability matters as against the obligation of considering the Animal Welfare Act; and probably the final one is the impact on the Animal Welfare Act and its intent.

In this Part 1, the amendment to the principal Act, “Section 71 amended (Public notification)”, we are immediately greeted with the attempt—one might say—to curtail the ability of the National Animal Welfare Advisory Committee to give strong advice that is, as my colleague Damien O’Connor alluded to, almost invariably accepted by the Minister. This section, clause 4 and clause 5, is the place where, essentially, NAWAC is hog-tied—not wishing to make a pun, but they are neutered to being obedient to the Minister’s determinations on what the code should contain.

I would put it to the Minister that that sets a very challenging precedent through this legislation that relates exclusively to pigs, but it sets a very challenging precedent for any legislation or any code of regulations that relate to animal welfare in so far as it, essentially, gives the power of the Minister to, through a trick of legislative formula as expressed in these sections, allow NAWAC, that exists as an independent welfare adviser, to be overridden by a preferred code of the Minister of the day. We’re talking about pigs today, but we could be talking about the code of welfare for any number of animals in the future.

💬 Hon Simon Watts: What’s the question?

Well, my question to him is—I have actually asked a question, Simon Watts.

💬 Hon Andrew Hoggard: Yeah, I’ve got it.

Yeah. My question is about the extent of his concern about that precedent being set. I would put it to him that that defeats the very elegant structure of our animal welfare laws and codes and regulations, which allows there to be independent advice that the Minister can take despite the strong voices that will invariably come from industry. My concern is that the Minister is setting a dangerous precedent for how we treat our animal welfare laws in general. I’ll allow him to answer on that and take another call soon. Thank you.

I thank the member Steve Abel for his question. Just firstly, he raised what consideration was put around economic matters. Now, that primarily relates to the transition time. When I looked at the economic impact, it was around that’s why we need a transition time, and that was critically important for that decision. In terms of where we sat at, we needed to achieve—you know, that met the requirements of the Act. Whatever regulations we came up with, they needed to meet the requirements of the Act. Now, we could have had many different scenarios that met the requirements of the Act—so long as they met the requirements of the Act, then of course we can look at, “OK, what makes practical sense, what makes economic sense?”, but, first and foremost, they need to meet the purposes of the Act in terms of that welfare.

Now, in terms of sections 71, 73—or the points there, where you’re talking about sections 71, 73, and 75, amended by clauses 4, 5, and 6 respectively. To be honest, when I first read that, I asked “What precisely does this mean?”, although I used quite different language. When I finally managed to get my head around this, after talking to the lawyers quite a bit, I guess where we’ve got to start with is the fact that, historically, how codes have been developed—well, we develop the code first, and then you’ve got the code written down, and then that code, there’ll be suggestions around regulations. The regulations are then made after the code has been developed. Because of the time pressure we’ve got with this one—we’ve got the initial transition period finishing next week, so we had to do these regulations first, and we’re still working on the code.

The key thing is, whilst we’re still going to be working on this code, we need to make sure that whatever the National Animal Welfare Advisory Committee (NAWAC) feels that they should recommend to me, they’re not constrained by feeling like, “Oh, no, we can’t do that do that because we’re hamstrung.” We need to make sure that what’s in the code works with these regulations—that is the intent.

I would just add in terms of the compliance—sorry, not compliance; the independence of NAWAC. What you described is not what is intended here; it is not restricted by the bill. The amendments that are made in the bill do not dictate what NAWAC can recommend, nor what minimum standards or recommendations the Minister can use. The provisions provide that any standards that NAWAC or the Minister are satisfied are needed to give effect to, or for consistency with, regulations 25 and 27 must be treated as meeting the purposes of the Act. It really is about trying to get—an example would be if we wanted to have minimum standards around deformable or manipulable material. In the development of this code, we decide we need to have some minimum standards around that—that we’re not constrained in any way by what’s in the code. That is the intent, it is not to hamstring NAWAC in anyway—forgive the pun. It does ensure their independence.

Steve Abel—one more call.

Thank you, Mr Chair, I appreciate that. To take a broader interpretation of those sections—I appreciate the answer, Minister Hoggard—the High Court judgment in 2020 found that the status quo was unlawful and that was the basis on which a time frame was set for moving beyond farrowing crates. Now, the effect of this bill is to, essentially, defeat that judgment. We know, because this information has been released, that Crown Law has advised that there is a risk that, if a change is not made within the time frame you just mentioned, by 18 December, farmers still using farrowing crates under the status quo will be liable to be taken to court. That is the reason for the rush. One could say that that was entirely predictable, and we’ve known about this for five years, so this could have been dealt with sooner. That is broadly understood and agreed upon: that there’s a risk that those farmers become illegal after the end of December.

The way to fix that would be to pass a regulatory solution, but the risk is that that regulation would not be superior to the primary legislation in the Animal Welfare Act and, therefore, still subject to judicial review or a court challenge. By passing through these opening sections in primary legislation—I’m reading from clause 4, which inserts new section 71(5)—defining that “Subsection (1)(b) must be treated as being met in relation to proposed standards and recommendations in a draft code of welfare if the National Animal Welfare Advisory”—the effect of this is to say that the laws, the code, and the regulations do meet the Act, even if, in a material sense, they don’t meet the Act. Because the Act requires the five domains, the expression of a good life for an animal and any material evaluation by independent scientific welfare experts who find that putting pigs in cages for seven days does not meet the Act on a pure material assessment now get overridden by this part of the legislation, which says, by default, “If it’s said to meet the Act here, it does meet the Act.”

Do you contest that the effect of this legislation is, effectively, to say what is put in the regulations meets the Act by default?

Look, just in regard to the High Court, the High Court ruled that the previous regulations for farrowing crates were made incorrectly and therefore invalid, OK? It was how they were made; that was what made them invalid. Now, whilst they didn’t ban farrowing crates at that point, the clear implication was that the use of crates for 33 days didn’t meet the purposes of the Act. Our view is that the proposed shortened use does.

Thank you, Mr Chair. I’d just like to begin by speaking to my intent in terms of how I wish to prosecute this particular bill through the committee stage. Members will note that we have two parts and each part refers to a schedule, and so this morning I will be speaking substantially to Part 1.

I also note that there have been a substantial number of amendments to this bill from myself, from my colleague Arena Williams, and from members of the Green Party. Arena Williams’ amendments talk specifically to the early part of Part 1, across clauses 4, 5, 6, and 7, and so I’m just signalling that my colleague Arena Williams will want to take some calls to speak to her amendments in those parts of the bill. In terms of Part 1, I have some amendments to clause 8 that I’m going to wish to talk to quite specifically, which are around elements of the retroactivity in terms of this bill.

The other matter that I wish to note just at the beginning of this part of the discussion this morning is that we did have a truncated select committee process. When the Associate Minister of Agriculture first introduced this bill into the House, he put forward a February report-back date. The Primary Production Committee elected to report back earlier—in November—and what that meant was there was less time available at the select committee for select committee members to hear from the public and to recall officials for further advice, particularly in relation to some elements in Part 2 which relate to the science. We’ll get to that in Part 2, but I’m just noting for the record right now that as a member of the select committee that voted against that truncated process, there were a lot of unanswered questions, and this is now the appropriate opportunity for us to be able to answer those questions due to that truncated process.

Now, I’m just going to speak specifically to clause 6, and I have a question for the Minister specifically related to clause 6. In the explanatory note, at page 4, it says that “Clause 6 amends section 75, which provides for the Minister to issue a code of welfare that is recommended by NAWAC. It also provides for the Minister to refer the code back to NAWAC or to decline to issue the code. Clause 6 inserts new section 75(4A) and (4B)”, and there are some matters related to that that we can interrogate further. Essentially, the report prepared by the National Animal Welfare Advisory Committee (NAWAC) after a code is referred back to it by the Minister “must be treated as complying with the purposes of the principal Act if NAWAC is satisfied”, and so it is pleasing to see that the second part to this does give NAWAC that responsibility to be satisfied that the code gives effect to and is consistent with those regulations.

I have some specific questions around the drafting of new section 75(4A) and (4B), which is over on page 3—so we’re looking at clause 6 in Part 1. It says here in new subsection (4A) that “Standards and recommendations in a code of welfare issued under this section must be treated as complying with the purposes of this Act if the Minister is satisfied that they are needed to give effect to, or for consistency with, any of regulations 25 to 27 of the Animal Welfare (Care and Procedures) Regulations 2018.”, and so my understanding is that the code of welfare is drafted by NAWAC and is then referred to the Minister. New subsection (4B) includes the phrase “Recommendations in a report under subsection (2)(a)”.

My question to the Minister is this—what is confusing in this part is that back in the explanatory note, it, essentially, gives the Minister the opportunity to decline that code of welfare and to refer it back to NAWAC, but when reading through new subsections (4A) and (4B), it doesn’t actually refer to that process. It doesn’t stipulate how that process works. It’s potentially a drafting issue, and, again, this speaks to the truncated part of the select committee. I’d like some answers from the Minister about exactly how that referral-back process works and where it’s actually stipulated in the legislation, and I would ask on what criteria the Minister would refer something back to NAWAC for, essentially, declining a code and referring it back to NAWAC. That’s my first question to the Minister.

I guess I can just give an example, in terms of the Minister referring the dairy code back to the National Animal Welfare Advisory Committee (NAWAC) a while ago. It also came there, sent it back to NAWAC for consideration, so that’s—

💬 Rachel Boyack: Where is it?

They’re working on it, and they’ll be bringing it forward very shortly.

In terms of the wording, I guess all I can reiterate is what I said to the member Steve Abel, in terms of sections 71 and 75. That is, from my understanding—and I know the wording is confusing, but that’s all there is for you—the important fact here is that we are trying to ensure that where we arrive to with the code, we are not going to have a confusion issue with the regulations.

I’m not satisfied with that answer, because the purpose of the committee stage is actually so that, for example, the Hansard can be referred to in court when things are unclear. You’ve acknowledged in your response to me that it’s unclear. Why are we passing this bill today if it’s unclear?

I’m just coming back to page 3—and I’ll keep this contribution short. It’s subclause (4B) in clause 6 amending section 75 “Recommendations in a report under subsection (2)(a)”. So whose report? Subsection (2)(a) of the Animal Welfare Act. Again, he may wish to take some advice from his officials on how this actually works. You can talk about an example where it’s worked in practice, that’s fine, but we need more detail in the legislation, we need more detail on the Hansard, because if something—you know, what is the criteria the Minister uses to refer back? What is the specific part in law that is referred to in the explanatory note, because the clauses don’t actually detail that.

If the Minister refers something back because he doesn’t like it, let’s say he gets a code of welfare from the National Animal Welfare Advisory Committee (NAWAC), he thinks it goes too far, so he sends it back—on what grounds can that then be challenged? Like, do we end up going back and forth between the Minister and NAWAC—a stalemate going back and forth and, in the end, we have no certainty for industry?

These are important questions, because we have had legal cases on this particular matter. What’s the process? Where is it stipulated in the legislation? This is up to the Associate Minister of Agriculture, really. If he wants to put on Hansard today that the process is unclear and leave it to the courts to determine, well, that’s on him; it’s not on us. I’m keen to get to the bottom of it, get it on to the Hansard. Maybe take some more advice from officials and come back to us with a more detailed and substantive answer. Thank you.

Thank you, Mr Chair. Good morning to the Associate Minister of Agriculture. Thank you for his enthusiastic engagement in this committee of the whole House stage. I am not an expert on the animal welfare regulations, but my interest in this is from the perspective of the retroactive provisions and the way that the regulations apply.

This is an unusual way to make regulations, and I want to ask the Minister, first, about new clause 5, which is under subclause (7) of his tabled amendment. I want to understand this, and I’m prepared to be corrected, but I think I’ll set out for the Minister what I think he’s set up here in clause 5, and then he can help me with whether that’s right or not. You’ve got the publication of the draft code as a sort of protection rules that are set out in section 71(1)(b) of the Animal Welfare Act. When you publish it, you have to comply with the purposes of the Act. That was what the High Court case was interested in.

The purposes of the Act, and there are a number, the ones that the High Court case was interested in—they weren’t all of them; they were about the actual treatment of animals by the people who keep them, but, actually, what’s being amended here is all of them. The way I read it, the purposes of the Act, which prohibit a number of things there: you know, you must take all reasonable steps to ensure physical, health, and behavioural needs. That was an issue in the court, but there are a number of other things, like in accordance with the scientific knowledge and good practice of the time—that’s about, sort of, the public temperature of New Zealanders; that’s about international best practice and those issues, which is a more sort of values-based judgment as well.

When you then have this, sort of, protection baked into the regulation-making power, those regulations are made under section 183 of the Animal Welfare Act. This, I think, is intended to remove that protection only as it relates to the regulations for pigs, which are sections 25 to 27 of the animal welfare code—great. That makes sense in the context of what he’s doing now, and the committee understands that, and, though we disagree with it and it’s not what we would do, that’s the intention here, and it fits with the policy advice. I just want to ask him whether there is a set of circumstances which should be better protected here, or at least better understood, that we’re not doing, and that Parliament doesn’t intend to pass, which is that if you deem the regulations as having been met, because—

💬 Suze Redmayne: You should have come to the select committee.

I should have—I do enjoy regulations. If you deem the regulations as being met, regardless of whether they comply with the purposes of the Act, what about a situation we are not envisioning here, where other parts of the regulations that apply to give effect to section 25 to 27 of the code of welfare for pigs are changed? Not by him—because with the regulation-making power, he’s got an in to making the regulations; so do the National Animal Welfare Advisory Committee (NAWAC). If NAWAC were to propose a set of regulations which are not anticipated by this policy intention, later—now, he’s removed them from the protection, which is that they must publish those guidelines only if they’re satisfied that it meets the purposes of the Act; and the purposes of the Act are broad. They include things like, say, restrictions on surgeries around animals. That’s nothing to do with the policy intent here, but that protection doesn’t apply. So are we in a situation, now, where we have created—basically, you’re sort of relying on the situation now, I think, where we think and we hope that NAWAC’s temperature on how protective the regulation should be will always be higher than the Minister’s, will always want further protections.

That’s the only thing that we’ve got to rely on here, I guess: that you would land in a window of public acceptance of those regulations, that if we remove the protection, as it does in his new clause 5, then, if you have a situation where NAWAC is changing regulations about something completely different, there’s no requirement to check that it complies with the purposes of the Act. That’s really the question I have for him: is that right? Is that what he intends to do, and, if so, how does it apply to other, ordinary practices of making regulations, because they always need to comply with the Act or they’re unlawful?

Just in relation to Rachel Boyack’s question of where the report-back process happens or where is it detailed, that is in the main Act in Part 5, section 75 of the report-back process.

Just to one of the earlier questions that Arena Williams had, the bill does not change the ways the code is made under the Act; the question is about matters outside of the bill.

Thank you very much, Mr Chair. I just want to follow up on a couple of the responses from the Associate Minister of Agriculture to clause 6, regarding the amendment to section 75. Minister, you said the wording is confusing and that what we’re trying to do is avoid confusion and we share in that objective, obviously.

One thing I want to clarify is the effect of new subsection (4A), “Standards and recommendations in a code of welfare issued under this section must be treated as complying with the purposes of this Act” where the code of welfare, no matter what it is, is treated as complying with the purposes of the Act even if an objective interpretation of the purposes of the Act would say that that code does not comply. For example, saying that you can keep pigs in a cage for five weeks at a time, or for seven days at a time in this instance, may be interpreted by an objective evaluation to be inconsistent with the purposes of the Act. But this provision says by fiat, in a sense, that that wording must be treated as complying—a code can, essentially, override the purpose. I just want clarification as to whether I’m understanding that correctly.

Secondly, who has the final say on the code of welfare—recognising that the Minister will receive a recommendation from the National Animal Welfare Advisory Committee, who has the final say on accepting that code? The second part of that section goes on to say, “if the Minister is satisfied that they are needed to give effect to, or for consistency with, any of regulations 25 to 27 of the Animal Welfare (Care and Procedures) Regulations 2018.” Who has the final say on those new regulations? Obviously, that’s a determination of Parliament that the Minister will be the one with the final say—that’s my understanding. If he could clarify that, I’ve got a follow-up question if the Chair will allow. Thank you.

I thank the member for his question. Again, in terms of section 75, the point here is that we’ve got these regulations—you laid them out at the start. Again, I use the example that one of those regulations is around the provision of manipulable and deformable materials. Now, if in the code we define what that looks like—is it straw, is it whatever?—then we need to have this provision so that when the National Animal Welfare Advisory Committee makes recommendations in the code around this and we sign them off, they are then meeting what that is. That is the entire intent, OK? It’s not to create something that’s completely unrelated to those regulations. Where things help provide clarity for codes, provide clarity for those regulations, that is the intent—to make sure we don’t have any more confusion.

Sorry, I forgot your last question—oh, I remember now. In terms of who has the final say, the Minister does.

Thank you very much, Mr Chair. I’m ably assisted by lots of legal minds here that are a lot sharper than mine. I’ll just go back to a couple of principles. We are on Part 1 here and I’ve got a couple of questions to the Associate Minister of Agriculture. He states, of course, that we’re not changing the Act. If we go back to how this dilemma occurred, maybe we pushed the boundaries on the Act—that is, we in Government tried to provide some transitional arrangements for the industry on the basis that at the end of that, which is this year, on the 18th, then they would meet the objectives of the Act, and they refused to. They thought that they’d go to a political battle and “We’ll just kind of sound this out with the incoming Government and we’ll see if we can get some changes.” Indeed, the industry’s done a lot of very effective lobbying.

Can I come back to the legal judgment, of course, that said that our transitional provisions were not legal because they did not meet the objectives of the Act? The Minister just said in one of his responses that we have judged that these new provisions will meet the objectives of the Act. He may be wrong. In fact, the Government is often wrong. The coalition Government has been wrong. So my question is: will this piece of legislation be subject to challenge as well? I suggest that it might be because the regulations that we thought in good faith were within the objectives of the Act, and would have provided that transition, were deemed by the High Court to be illegal.

If the Minister, as he states, is not changing the Act, we’re still in the same dilemma. The same Animal Welfare Act provisions will apply to the code. The National Animal Welfare Advisory Committee (NAWAC) may, in good faith, come back with an adjusted code, and the Minister has effectively made legal the retrospective part of that and said we’ll carry that forward, but that actually may be challenged as well.

The point I consistently make here to the industry is that this doesn’t offer certainty. In accepting the mistake made by us in Government to provide a transitional regime that was deemed to be illegal but was going to run out of time, instead of the industry saying, “Actually, if we’re going to abide by the Act, we’re going to have to make some changes to our systems—more than what is provided for in this piece of legislation here.”, my question to the Minister is: is he going to change the Act? If not, how does he think—because he said that we have judged that these new provisions will meet the objectives of the Act. Where did that advice come from and what happens if it’s wrong?

In terms of how we have judged, that is through all the scientific work that has been done, collated by the Ministry for Primary Industries and their team of experts around looking at all the scientific literature that is out there and judging that “Yes, these, what we have arrived at, will meet the purposes of the Act.” They believe that this will be sufficient.

In terms of this argument that somehow the industry refused to adapt and change, they had no idea what they were supposed to change to. The previous Government created a transition period with no stake in the ground as to what the end outcome was supposed to be.

💬 Rachel Boyack: Yes, there was.

No, there was nothing. There were no codes. There were no minimum standards. There were no regulations that they had to move towards. You set up a transition period for five years. You know, here is the code that arrived with me in 2024; that only left two years for the industry at that point. We had to work through and find out, and get to a point where we’d have something that was workable. That’s why we need a new transition period. If you had done it and given them 10 years at that point, and if you had had the opportunity to accept the previous National Animal Welfare Advisory Committee code—you didn’t. That’s where we’re at.

Look, thank you. I just want to follow on. I accept the Associate Minister of Agriculture’s point that there was some uncertainty that we had consulted on a proposal. That’s not what we’re talking about here, though. That’s different. Indeed, the discussion—which was not easy; the industry always pushed back. There was some debate and some of those things had not been concluded. I accept that.

Can I just move on to the point he makes around the scientific analysis of the Ministry for Primary Industries (MPI). I’d suggest to him that he should go back and check it very carefully and I’d suggest the author of that, who identified himself at the Primary Production Committee, I understand, as the Prime Minister’s Chief Science Advisor—hopefully that is robust science, because the point I made in my first speech here in the second reading is that if we deviate from the integrity of scientific advice in this country, we are in trouble—we are in big trouble. I’d suggest that MPI’s scientific advice may not be as robust as it should be, and that leaves the industry exposed, which is the point I ask of him: is he confident that this will not be subject to legal challenge?

I accept that there’s a transitional period; I think it’s needed by the industry. The point here, I think, is that it’s kicking it out too far, and people who understand the need for a transition are saying that it goes out far too far. It’s kind of unrealistic and it exposes us to not just international scrutiny but the social licence for the pork industry within our own country.

We are trying to help the industry to move to a sustainable space, but some of the signals have not been taken up. I accept that if we’d been really clear and gone out, then the industry would have been up in arms and said they were all going to collapse. Perhaps we should have done that. Perhaps we should have just said, “That’s it. Move on.” and made the major transition, but what this bill is doing is just creating more uncertainty, I’d suggest.

The question is around: is he confident that the scientific evidence and assessment done by MPI is robust enough to stand up to a High Court scrutiny?

Yes, I am. I’ve known John Roche, the Chief Science Advisor at MPI, for a number of years. He is an excellent person; very knowledgeable in all areas of animal welfare. His team looked across a range of studies. They looked across a whole range of studies and then went, “All right, what does the average sort of tell us here? What is the scientific consensus?”, as the Green Party would like to talk about. That is where we landed and so I take that on board. You can point to one study here and one study there, but, actually, if you want to get a balance, you’ve got to sort of look at them all in combination, which is what they did, and go, “Where, on average, do things land?”

Thank you, Mr Chair. I’m interested, later on, in exploring some of the science a bit further with quite specific questions to the Associate Minister of Agriculture based on advice that I have received. But before I do that, I want to come back to some of the clauses in Part 1, and specifically as they relate to three of my tabled amendments that I lodged in the House yesterday.

The first one I’m just going to speak to amends clause 8, and what the effect of that amendment would do is remove, from new section 203(1), the words “immediately before and”, because one of the matters we have been exploring somewhat in this committee—but, in my view, not to enough of an extent—is that what this bill also seeks to do is not only make the regulations enforceable after this bill comes into force but prior to. Now, that is a retroactive clause in this bill. This is explicitly where it sits, in clause 8. There are three of them, which I will just talk to my amendments in relation to them.

The issue that was raised with the Primary Production Committee by the Regulations Review Committee—and I note that the chair of that committee is sitting next to me, and may wish to make some calls around this as well. The committee wrote to the Primary Production Committee and advised that we should remove the clauses that are retroactive, because what they do is they create uncertainty in law and they undermine the role of the courts in interpreting the law. They also noted that these three clauses assert that a certain legal status existed formerly, despite that the law at that point in time may have provided for a different effect. Essentially, by having retroactive clauses in this, it creates real legal uncertainty. That’s problematic in this instance because what it sets up is a situation whereby what now is status of that High Court ruling—does that need to be thrashed in the courts again and tested out again? It actually creates legal risk for Government. The first amendment I’ve put on the Table is to delete the words “immediately before and”.

Then, if you look at new section 203(2) and 203(3), inserted by clause 8—I also have amendments to those—which would remove the piece that says, “and always has been”. It’s really interesting when the Parliament tries to say that time that has already passed, you can’t go back and look at that time again, that somehow the law was different at that time. Parliament should always be very, very careful when those types of clauses are inserted into legislation. There needs to be a reason for it. It’s not clear why officials have advised the Associate Minister of Agriculture that we need to take these three steps around making the law retroactive. It’s not actually clear what problem it’s trying to solve. In the views of the Regulations Review Committee, it’s not necessary. Again, this speaks to the truncated, shortened version of the select committee process that we had, in that, again, we’re not able to spend enough time interrogating these matters with officials.

I have three amendments that would remove the retroactivity components, which I think the Government should look seriously at supporting. We should always take real care, as a Parliament, when we put retroactive clauses into a bill. We have not taken enough care in this instance.

The advice of officials—just to be clear: the view is that section 203 is not retrospective; it just validates and continues what has always been the case. Now—

💬 Dr Lawrence Xu-Nan: That is retrospective.

Here we go. The words “always has been” is common drafting in New Zealand legislation for such a statutory validation as it avoids potentially implying that there is any point at which the regulations have not been valid.

All right. Members, now we’ll be looking for reasonably specific—particularly around amendments—from henceforth rather than broad-based statements. I think we’ve covered most of the contextual matters.

Thank you, Mr Chair. I can refer to the amendment, but, also, because the conversation has kicked off around the science, I’m loath to not address some questions to the Associate Minister of Agriculture around that, if this is the appropriate time.

It relates, specifically, to mention of regulations 25 to 27, which are mentioned in clause 6. I presume we will get to them later in the schedule, as well. It relates to the scientific advice that the Minister referred to that he received from the Prime Minister’s Chief Science Advisor, Dr John Roche. I wonder—and I have got an amendment in regard to regulation 25, as well, if the Chair would like me to articulate that—if the Minister has seen the response of the SPCA to that advice, which says that it does not accurately represent scientific evidence and it characterises animal welfare science, an area in which New Zealand is world class and has world-class expertise, as entirely subjective.

Further, has the Minister seen the evaluation of John Roche’s paper by statistician Dr Jason Kurz from Waikato University? Mr Roche presented this to us at the Primary Production Committee during scrutiny, with this Mondrian-type diagram that was somewhat incomprehensible to any layperson. This is the paper that the Chief Science Advisor relied on, the Averos et al. paper. Mr Kurz assessed the Chief Science Advisor’s evaluation of that paper, and said that the Government’s summary that there needed to be no improvement in the welfare above the k-value—the k-value, for clarity, is the determination on the size of the grower pens by which this Minister has decided that they can increase by a certain amount and how much that should be. The critique of that summary from Waikato University said that the logical flaw in the behaviour or welfare was a misinterpretation of the model and the threshold; that it also took selective citation of the weakest subset; that it was a misuse of uncertainty and non sequitur; that there was a category error; and that the policy or economic arguments were being disguised as science. Has the Minister seen that critical analysis? I’m happy to table it or give it to him.

To pick up on my colleague Damien O’Connor’s point, is it not deeply concerning if there is a suggestion—as this paper concludes—that animal welfare, as distinct from production efficiency, is measurably compromised at lower space allowances for grower pigs, and that, if there is any suggestion that the Chief Science Advisor has presented an interpretation of science that happens to very conveniently align completely with the preferences of the New Zealand pork industry, shouldn’t you, as animal welfare Minister, concerned about accurate independent science, be concerned that that is the very risk for the credibility of the decisions that you are making based on that advice?

Thank you, Mr Chair. Because the Associate Minister of Agriculture has brought the science into the conversation—technically, it probably sits more with Part 2, but the Minister has brought it in, and my colleague Steve Abel has just referred to a paper that I also intend to seek leave to table. Mr Abel has, quite rightly, raised the paper, which reflects on the Ministry for Primary Industries (MPI) science summary’s reliance on Averos and that the inferences in that science summary are incorrect. I want to just commend his comments, because I agree with them.

The other document I want to refer to—again, has the Minister seen this?—is an article in the Listener published on 24 November by Andrea Graves, the title of which is “Caged hogwash”. There are comments in here where the journalist spoke to a number of animal welfare experts, and here are some of the comments in the article related to that science summary: “Eight animal welfare experts the Listener spoke to”—eight—“including university scientists, veterinarians, and former Nawac members, described the summary as ‘appalling’, ‘incomprehensible’ and ‘biased’.”

💬 Hon Member: Oh, come on.

Someone across the Chamber says, “Oh come on.” Are they a scientist? This is what scientists have said to this journalist. A further comment, from animal welfare scientist Karin Schutz, who says, “The conclusions are not supported by recent research, and … you have to provide a methodology for how you selected your papers”.

It talks quite a bit around nest building, and again, I’m going to leave the detail, to talk about nest building, until we actually get to Part 2. I’m not going to go into the detail of that right now, but the fact is that scientists are critical of the MPI Science Advisor’s science summary. They’re critical of that, and we have that on record.

This particular paper that Mr Abel referred to. I’d like to take a point of order, to seek to table these two documents.

CHAIRPERSON (Barbara Kuriger): Point of order—leave is sought.

I seek leave to table the paper prepared by Dr Jason Kurz, who is a statistician from the University of Waikato, titled Critical Analysis of Government Justification on Space Allowance and the Averos Model. This is not a paper that is available in the public domain.

CHAIRPERSON (Barbara Kuriger): Leave is sought for that purpose. Is there any objection? There is none.

Document, by leave, laid on the Table of the House.

A further point of order, Madam Chair. I seek leave to table the article printed in the Listener on 24 November.

CHAIRPERSON (Barbara Kuriger): That one should be publicly available.

It should be.

I won’t put that point of order. I’m going to take a call from Lawrence Xu-Nan. I was waiting—I’ve only briefly come into the Chamber; I was watching before I came in. I was waiting for a question in that last speech that we had. I was in the Chamber yesterday, and I saw some great dialogue going on between the Hon Rachel Brooking and the Hon Chris Bishop in a Q and A session, and that is what we’d be looking for in a session like this. I see a lot of it has been covered off, but that’s what I am expecting: very concise questions which haven’t yet been asked to the Associate Minister of Agriculture.

Thank you, Madam Chair. I’m happy to have a little back and forth with the Associate Minister of Agriculture. I want to focus on a specific section that he hasn’t covered, because I think this bill presents two different interests and opportunities: one of interest to my colleagues Rachel Boyack and Steve Abel, from an animal welfare perspective, and the other side is for the likes of Arena Williams and myself, from a regulation-making power perspective.

I want to focus on Schedule 1, which is technically clause 9 of Part 1, and I want to particularly focus on new Part 3 inserted, clause 8(3). I know that we talked a little bit about the reporting and the content of the report, etc., but I wanted to just focus on the wording of this. My first question to the Minister, before I talk about an amendment, is that it’s very unusual and peculiar to see that if a report—

CHAIRPERSON (Barbara Kuriger): Sorry, just for the Minister’s purposes, could you just repeat the clause?

Oh, yep. Schedule 1, new Part 3 inserted, clause 8(3). This is page 6 of the bill and page 7 of the Minister’s Amendment Paper 471.

CHAIRPERSON (Barbara Kuriger): Yep, I’ve found it. Thank you.

The first question to the Minister is that it’s very peculiar to have a report or a code being made or being able to take effect before the commencement of anything, really—before the commencement of the Act. Can I just check with the Minister: what is the rationale of, basically, legitimising a code before commencement?

Further to that, like I said, the idea of legitimising a code or a particular regulation, etc.—and this is also a very interesting bill in the sense that we are making changes, and we can talk more about that in Part 2, but we are making changes to regulations that are secondary legislation within a primary legislative setting—i.e., the House. Legitimising something before commencement is very peculiar, so one of my amendments that I want the Minister to consider is that, rather than “before commencement”, the normal standard of wording that we tend to use is “on the day” or “the day after commencement”. That will actually be, I think, a more appropriate framing.

If the Minister—I see he has just received some advice—wouldn’t mind considering that. I’ll get him to respond to that, because I saw that the Minister just got some advice, then I’ll ask my next question.

Look, this is just enabling the transition clause. It’s similar to what I described earlier regarding sections 71, 73, and 75.

If it’s a transitional clause, that’s even more, in some ways, concerning, because that’s not how, normally, we would assume a transitional clause is framed in here. So just to give an example, yesterday we had the Fast-track Approvals Amendment Bill, where the Minister responsible for RMA Reform released an amendment that’s specifically to account for situations of transitional savings and concerns by having two separate commencement dates, where there is a first commencement date that potentially could be, in this context, set in place when the report is made, and the second commencement date when the report is taken into effect—without having to legitimise the report before commencement. Again, it’s almost like we are now saying that laws will take effect before they even commence, which is, again, something we talked about in terms of retrospectivity, but this is very peculiar wording.

💬 Suze Redmayne: Rabbit hole.

I actually would disagree. I would say that the very purpose of committee stage is for us to do this, especially in the context that there have been High Court challenges, and there’s a judiciary challenge on something like this. The fact that we are in the rabbit hole will be very appreciated by the judiciary in the future.

The next thing I want to check with the Associate Minister of Agriculture, the Hon Andrew Hoggard, is my amendments, and I’m going to move from clause 8(3) of Schedule 1 to clause 8(1)(c), which is that “the code contains standards or recommendations that the Minister is satisfied”. I think there are two things over here, and, again, I don’t see any particular checks and balances in terms of the regulation-making power in this particular case. I don’t see there’s any sort of ability for the Minister to review. It is technically within the Minister’s power because it is secondary legislation, so we’re not seeing a “Henry VIII” clause here, at least I don’t know, unless the Minister is able to enlighten whether this is going to be a “Henry VIII”—I’m seeing head shaking. But the fact that the Minister unilaterally can make something like this without any form of checks and balances is a concern.

I would ask the Minister to consider two of my amendments. One of them is whether the Minister would consider inserting that “the code contains standards or recommendations that the Minister, after consulting with the National Animal Welfare Advisory Committee”—NAWAC—unless that’s something the Minister’s going to plan on doing anyway. Or alternatively, “the code contains standards or recommendation that the Minister, after consulting with relevant animal welfare or advocacy organisations, is satisfied are needed to give effect to, or consistency with,”. These two amendments are the ones that are tabled at 11.52.14 and 11.52.15.

In terms of the finalised code, we will be doing further consultation with various groups and the National Animal Welfare Advisory Committee on that.

Thank you, Madam Chair. I also want to take the Associate Minister of Agriculture to Schedule 1. Following on from Dr Lawrence Xu-Nan’s questions, I want to clarify with him the info between this and his clause 5, which amends section 73(6) of the principal Act. It’s a simple question. When he was intending to basically insert by primary legislation something into the code—which is what Schedule 1 does—did he have advice on whether he should leave that route open for the Minister?

Because my reading of this—and I think he can nod or give me an indication—I think that Schedule 1, this is a one-time only. If this is a one-time only, what are the trade-offs he was making there for the Minister to be able to change these provisions 25 to 27? Really, why I’m asking you that is because now that Parliament has had a debate about the policy that applies to 25 to 27, even if we don’t agree with you, this is now sort of a matter that is like making primary legislation normally and isn’t a matter that you would expect, then, the Governor-General by Order in Council to amend, but you’ve left that open at your new clause 5.

We would love this. We would love it if the Order in Council later amended the policy to give effect to a policy that we agreed with, and that those could be minor tweaks to achieve the policy aims of the Labour Party. But that would be inappropriate. It would be inappropriate to do that, because Parliament has made a choice here not to pass a law, which is the farrowing crates primary law—Act, bill—in the name of Andrew Hoggard, and that’s your choice but then we’ve left open this power at clause 5 to amend it.

I also want to ask the Minister: are those still regulations? Regulations 25 to 27, in his mind, are those still secondary legislation? Would it be appropriate for the lawmaker to make a different decision that departed from his policy intent?

Look, the question is: are we trying to leave the door open to extend the extension again? No, it’s 10 years. It’s done.

I sense Arena Williams has got one more quick question.

I do. Thank you to the Associate Minister of Agriculture. Yes, I’m interested in whether the door is left open to a further extension of time, but also, is the door left open to the Governor-General coming back and having a second go after the Minister has had a go? I’m not advocating for that. I think that would be the wrong thing to do, because when Parliament has a debate about policy, the lawmaker who is a part of the executive Government—it’s not appropriate to change that, even though that is a position that we would agree with.

I move, That debate on this question now close.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 4, section 71(5), to change “must be treated” to “may be treated” be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 4, section 71(5), to reference the minimum standards of an animal’s physical, health, and behavioural needs be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 5, section 73(7), to change “must be treated” to “may be treated” be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 5, section 73(7), to reference the minimum standards of an animal’s physical, health, and behavioural needs be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 6, section 75(4A), to require consulting with the National Animal Welfare Advisory Committee be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 6, section 75(4A), to require consulting with relevant animal welfare or advocacy organisations be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 6, section 75(4B), to change “must be treated” to “may be treated” be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 6, section 75(4B) to reference “the minimum standards of an animal’s physical, health, and behavioural needs” be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 to delete clause 7 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 8 to delete new section 203 be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 471 amending clause 8, new sections 204(1)(b) and 205, to provide for “an earlier date set by Order in Council” be agreed to.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 471 be agreed to.

Amendments agreed to.

Arena Williams’ six tabled amendments to insert words after “of the Animal Welfare (Care and Procedures) Regulations 2018” are out of order as not being in the correct form of legislation.

The question is that Arena Williams’ tabled amendment to clause 4, section 71, to insert new subsection (6) be agreed to.

The question is that Arena Williams’ tabled amendment to clause 5, section 73, to insert new subsection (8) relating to “the environment supports natural behaviours” be agreed to.

The question is that Arena Williams’ tabled amendment to clause 5, section 73, to insert new subsection (8) relating to “the practices of people in charge of pigs” be agreed to.

The question is that Arena Williams’ tabled amendment to clause 5, section 73 to insert new subsection (8) relating to “no confinement system imposes an unreasonable or avoidable restriction on movement or behaviour” be agreed to.

The question is that Arena Williams’ tabled amendment to clause 5, section 73, to insert new subsection (8) relating to “the cumulative impact of the housing, handling, and management systems” be agreed to.

The question is that Arena Williams’ tabled amendment to clause 5, section 73, to insert new subsection (8) relating to “the best scientific knowledge available at the time” be agreed to.

The question is that Arena Williams’ tabled amendment to clause 6, section 75(4A), to provide that “the National Animal Welfare Advisory Committee is satisfied” be agreed to.

The question is that Arena Williams’ tabled amendment to clause 6 to insert section 75(4C) requiring that “the National Animal Welfare Advisory Committee has reviewed the code and confirmed that the standards and recommendations are needed” be agreed to.

The question is that Arena Williams’ tabled amendment to clause 6 to insert section 75(4C) requiring the Regulations Review Committee to review the code of welfare be agreed to.

The question is that Arena Williams’ tabled amendment to clause 6 to insert section 75(4C) requiring that “the Minister and the National Animal Welfare Advisory Committee are satisfied the standards and recommendations are needed” be agreed to.

The question is that Arena Williams’ tabled amendment to clause 6, to insert section 75(4C) requiring the approval of the Regulations Review Committee of the standards and recommendations be agreed to.

Arena Williams’ tabled amendment deleting clause 7 is out of order as being inconsistent with a previous decision of the committee.

Arena Williams’ tabled amendment deleting the text of clause 7 is out of order as not being in the correct form of legislation.

The question is that Arena Williams’ tabled amendment to clause 7, section 183A(11A), to require the agreement of the National Animal Welfare Advisory Council be agreed to.

Arena Williams’ tabled amendment to clause 7, section 183A(11A), providing that subsection (11A) does not apply in relation to pigs is out of order as being contrary to the principles and objects of the bill.

The question is that Arena Williams’ tabled amendment to clause 7, section 183A(11A), to provide that “subsection (6) continues to apply to regulation 26” be agreed to.

The question is that Arena Williams’ tabled amendment to clause 7, section 183A(11A), to provide that “subsection (6) continues to apply to regulation 27” be agreed to.

The question is that Rachel Boyack’s tabled amendment to clause 8, new section 203(1), to delete “immediately before and”, be agreed to.

The question is that Rachel Boyack’s tabled amendment to clause 8, new section 203(2), to refer to “the day after Royal assent”, be agreed to.

The question is that Rachel Boyack’s tabled amendment to clause 8, new section 203(2), to refer to “the day of Royal assent”, be agreed to.

The question is that Rachel Boyack’s tabled amendment to clause 8, new section 203(2), to refer to “six months after Royal assent” be agreed to.

Rachel Boyack’s tabled amendment to clause 8, new section 203(3), to refer to “the day after Royal assent” is out of order as being inconsistent with a previous decision of the committee.

Rachel Boyack’s tabled amendment to clause 8, new section 203(3), to refer to “the day of Royal assent” is out of order as being inconsistent with a previous decision of the committee.

Rachel Boyack’s tabled amendment to clause 8, new section 203(3), to refer to “six months after Royal assent” is out of order as being inconsistent with a previous decision of the committee.

Steve Abel’s tabled amendments to Amendment Paper 471 amending clause 8 inserting new subsection (1AAA) of section 204 and replacing “2035” with “2028” are out of order as being inconsistent with a previous decision of the committee.

Steve Abel’s tabled amendments to Amendment Paper 471 amending clause 8 replacing “2035” with “2028” are out of order as being inconsistent with a previous decision of the committee.

Steve Abel’s tabled amendments to Amendment Paper 471 amending clause 8 inserting new subsection (1AAA) in section 204 and replacing “2035” with “2032” are out of order as being inconsistent with a previous decision of the committee.

Steve Abel’s tabled amendments to Amendment Paper 471 amending clause 8 replacing “2035” with “2032” are out of order as being inconsistent with a previous decision of the committee.

Rachel Boyack’s amendment to Amendment Paper 471 to clause 8, new section 204(1), set out on Amendment Paper 447 is out of order as being inconsistent with a previous decision of the committee.

The question is that Rachel Boyack’s remaining amendment to clause 8 set out on Amendment Paper 447 be agreed to.

Rachel Boyack’s tabled amendment to Amendment Paper 471 amending clause 8, new section 204(1), to change the date to “2027” is out of order as being inconsistent with a previous decision of the committee.

The question is that Rachel Boyack’s remaining tabled amendment to clause 8, to change the date to “2027”, be agreed to.

Arena Williams’ four tabled amendments to Amendment Paper 470 amending clause 204(1)(b) are out of order as not being in the correct form of legislation.

Arena Williams’ three tabled amendments to Amendment Paper 470 amending clause 204A are out of order as not being in the correct form of legislation.

Steve Abel’s amendment to clause 8, new section 204, set out on Amendment Paper 461 is out of order as being inconsistent with a previous decision of the committee.

Steve Abel’s remaining amendment to clause 8, new section 205, set out on Amendment Paper 461 is out of order as being the same in substance as a previous amendment.

Steve Abel’s amendments to Part 1 set out on Amendment Paper 462 are out of order as being the same in substance as a previous amendment.