That won't do, pigs!

The Government’s decision to continue indefinitely the use of farrowing crates and mating stalls for pigs should outrage anyone who cares about animal welfare. And the way the Government is attempting to enact these changes should outrage anyone who cares about democracy.

On October 1, the Government quietly introduced legislation into the House. That legislation – the Animal Welfare (Regulations for Management of Pigs) Amendment Bill – would seek to amend the Animal Welfare Act to allow for regulations that permit the indefinite use of mating stalls and farrowing crates in commercial pig farming operations.

Mating stalls are used to make artificial insemination of a sow an easier process (for the inseminator), and farrowing crates are used when a sow is giving birth to and feeding her piglets. Although there are some differences between them, they both achieve the same ends: they prevent the sow from turning around. For sows giving birth, farrowing crates impose an additional deprivation: the inability to show normal maternal behaviour, such as nest-building and bonding with their piglets.

Just let that sink in. The sow cannot turn around, nor can she care for her piglets as she normally would. It’s hard for us bipeds to imagine what it would be like, but think about being stuck in an economy class seat. For seven days. Having just given birth in that seat. That starts to get us in the ballpark of how cruel this practice is.

In November 2020, the High Court ruled that regulations permitting the use of both of these crates were unlawful and invalid. It did so because the use of those crates did not meet the Animal Welfare Act’s obligations to ensure the physical, health and behavioural needs of animals, including the “opportunity to display normal patterns of behaviour”. That meant any regulations that did permit their use needed to be time-limited with a view to phasing out the practice.

In response to the High Court striking down those regulations, the then Labour-led Government agreed to new regulations that permitted the continued use of crates with tighter restrictions and with a five-year phasing out period. That period is due to end on December 18 2025.

For a time, that looked like it was going to happen. Extensive research by the independent National Animal Welfare Advisory Committee – a body comprising scientific and policy experts who recommend standards and regulations – led to two proposals put to the public for consultation in 2022: a complete ban on farrowing crates, or a very-limited period of confinement within a larger pen only after nest-building was completed. That consultation period ended with the committee providing its recommendation of the free-farrowing option to the Government in 2023, but no decision was made before the election that year.

Under the current Government, there has been no further public consultation about what will happen after December. No clarity on whether the welfare advisory committee’s proposals would be accepted. No word on what would happen when that phase out period ended. In the meantime, the clock kept ticking, and it became increasingly difficult for the Government to legally allow the continued use of crates after December.

It was only last Thursday the minister responsible – Associate Minister of Agriculture (Animal Welfare) Andrew Hoggard – revealed his hand. He trumpeted the changes as a win for pigs: in 10 years’ time, they would only need to be in the crates for three days before – and four days after – giving birth!

He also claimed the changes were the result of five years of consultation with “industry, key stakeholders, veterinarians and the public”. That omits the fact these proposals are entirely different from what was put to the public in 2022, entirely different from what its own independent agency – National Animal Welfare Advisory Committee – proposed and recommended, and blindsided key stakeholders such as the SPCA. It also elides the fact the changes reflect exactly what the pork industry wanted all along; members of which seem to be the only folk the minister was regularly meeting and listening to over the last two years.

The Government had run out of runway to legally implement these changes. To be clear, the proposed changes are unlawful under the Animal Welfare Act, and the Government knew that if it tried to implement them, they would face significant and immediate legal challenge. That’s because in New Zealand’s constitutional system, Governments (the executive) can make regulations, but only to the extent that they are empowered to do so by Parliament (the legislature) through primary legislation. Regulations that are inconsistent with the relevant legislation are unlawful.

So what does it propose to do? Change that pesky law, of course! The amendment bill seeks to carve out an exception from the present legislation to specifically allow for the enactment of these otherwise unlawful regulations. The provisions are truly extraordinary, and if not unique, then very weird. They deem that the changes meet the requirements under the act – even though they don’t. For example, one provision says: “Regulations 26 and 27 [which permit the farrowing crates] are, and always have been, validly made under section 183A(2) [providing strict requirements for the creation of regulations].” But they weren’t. And they can’t be! It is almost a comical paraphrasing of Orwell’s classic example of doublethink in Nineteen Eighty-Four: “We have always been at war with Eurasia.”

Just like Big Brother, with a majority in Parliament, the Government can legally do whatever it wishes. A statute can validate something as legal when it was hitherto illegal. That doesn’t mean the Government should do this. Only when it is clearly in the public interest should Parliament take the extraordinary step of declaring something is legal when it would otherwise be illegal. That has happened in the past when Parliament has enacted validating legislation to cure genuine and unforeseen errors in the law. This is not such a case.

The Government had five years to work out what to do after the phasing out period ends in December. The Government can’t claim it ran out of time: it was completely foreseeable (hence the public consultation on options for phase out). The only logical conclusion is that the Government, working closely with industry, ran the clock down deliberately; forcing itself into a corner where the only option would be to pass validating legislation preventing the phase out and allowing the practice to continue. It is a manufactured crisis.

The bill is due to receive its first reading on Tuesday. If the minister wants to hold himself out as someone who cares about science-led animal welfare and not be beholden to industry, he would withdraw it. If the Government wants to hold itself out as a responsible lawmaker in Parliament that cares about the rule of law and sound policy development, it would withdraw it. Otherwise, this legislation is a betrayal of the public, a betrayal of the independent National Animal Welfare Advisory Committee and, most of all, a betrayal of the pigs. Its passage does nothing less than make a mockery of our democracy.