Animal law – a need for dignity and compassion

New Zealand’s first ever animal law conference took place on Saturday 1 July 2017, organised by the New Zealand Animal Law Association (NZALA). Dr Jane Goodall opened the conference, providing inspiration and perspective on the reasons why it is important to care about and advocate for animals. Her talk focussed on the importance of attending to “minds and hearts” when it comes to these issues. As Dr Goodall stated, “We need to link up our intellectual brains with our human hearts … We need to be compassionate people.”

Hon Kirby Dr Goodall

NZALA President Danielle Duffield provided an overview of the Animal Welfare Act 1999 (the Act). Ms Duffield noted that the Act ostensibly provides for the “five freedoms” in relation to animals – proper and sufficient food and water, adequate shelter, the opportunity to display normal patterns of behaviour, physical handling that minimises unreasonable or unnecessary pain or distress and protection from significant injury or disease.

However, the Act also has 18 codes of welfare which set out minimum standards for particular species of animals/industries. These are not directly enforceable, but compliance with a code can be a defence under the Act where an animal would otherwise be considered as having been ill-treated. Ms Duffield asserted that these codes in effect allow for intensive confinement systems and undermine the five freedoms outlined above. Ms Duffield conceptualised this as a rule of law issue – 98% of domesticated animals are farmed animals, which are disallowed from exhibiting their natural behavioural patterns (for example), due to intensive farming. A law that is effective in regards to only 2% of the population lacks a true meaning, with animals receiving different treatment under the Act on an arbitrary basis.

Next, a panel of animal welfare prosecutors considered issues relating to prosecutions. Crown Solicitor for Manukau, Natalie Walker, presented the recent guideline sentencing decision of the Court of Appeal (Erikson v MPI [2017] NZCA 271). She also discussed animal welfare prosecutions and the importance of recognising the link between domestic violence and animal abuse, noting the clear body of evidence which documents this link.

Mike Bodie of the Department of Conservation (DOC) also discussed prosecutions from a DOC perspective and considered how prosecutors can get judges to engage with animal welfare prosecutions, for example through “thorough submissions”. Similarly, “rich discussions with the bench have been well received”, and “judges love photographs”.

Finally, Nicky Wynne, Prosecutor for BVA | The Practice, who appears for the SPCA, noted the better results prosecutors are starting to see as regards prosecutions – including higher fines and longer imprisonment times.

Former Judge of the High Court of Australia, the Hon Michael Kirby AC CMG, began his keynote address by stating: “All of us have a long way to go in achieving human rights, human dignity and for the dignity and rights of animals. And that is why we are gathered together in Auckland to consider one of the great issues of the world.” He touched on the role of the United Nations, the achievement of universal human rights and the connection between such endeavours and the new ethical frontier – our treatment of animals.

The Hon Mr Kirby considered New Zealand’s animal welfare law to be “strong on symbolism, strong on values, not strong on implementation”, and introduced “ten animal welfare commandments”, as follows:

  • give the aspirations of the Act enforceability;
  • give sentience meaning in the Act;
  • increase collaboration between veterinarians and lawyers;
  • improve education on these issues in schools (for example teaching children about kindness to animals at the primary school-level);
  • reach out to members of industry (industry is a very important player);
  • target/increase funding for welfare and enforcement in animal law;
  • work closer with government – consider removing animal welfare from the prerogative of the Ministry of Primary Industries;
  • increase male presence in advocating for animal welfare issues;
  • have conferences (like the NZALA conference) with media present; and
  • get the United Nations to be involved in this issue, in the same way it is involved in human rights and climate change.

Marcelo Rodriguez Ferrere, senior lecturer at Otago University of Law, discussed animal sentience and the law in the wake of the Act’s recognition of animal sentience in the long title of the Act. Essentially, sentience means that animals have a degree of awareness – of both themselves and their surroundings.

This recognition of sentience in New Zealand’s animal welfare legislation was the first of its kind in a common law jurisdiction. However, its location is telling – it simply tells us what the Act is about. It is not defined. It is not incorporated into the offence sections. And in Mr Rodriguez Ferrere’s view, it is more of a symbolic change than a substantively significant one. In fact, MPI has specifically recognised that its inclusion in the Act does not impact on the rights, duties and obligations set out in the Act proper.

The recent Court of Appeal case of Erikson would have been the perfect opportunity for the Court to specifically address what sentience means and to apply it, and it chose not to discuss this at all. Furthermore, this case distinguishes between companion animals and farm animals, asserting that “rational differences must be acknowledged” (at para [34]). Such an approach goes against the idea of sentience, which cannot be said to apply to some animals more than others. In Mr Rodriguez Ferrere’s view, genuinely adopting sentience as a “core criterion [of the Act] would require a paradigm shift”.

Vernon Tava, a former Green party member and current member of the Waitemata local board, discussed animals and their legal standing. He reviewed precedents for this – such as in Bolivia, where the constitution gives equal rights to nature. In New Zealand, he noted the recognition of legal personhood (the characteristic of a non-living entity regarded by law to have the status of a legal person) in the Whanganui River which took place earlier this year. Mr Tava noted this was the first instance in New Zealand where a part of nature was granted legal personhood.

Finally, Danielle Duffield, Marcelo Rodriguez Ferrere, Vernon Tava and Arnja Dale formed a panel discussing law reform in the area of animal law. Mr Tava discussed the reality that animal welfare is largely an “invisible topic” in the political realm today, and that politicians are not going to exhibit moral leadership on this without some kind of public direction. Inspiring such sentiment and action on the part of the public was a part of what this conference aimed to achieve, in bringing together almost 300 students, lawyers and other practitioners to discuss advocating for animal welfare via the law.

NZALA acknowledges the generous support of its various sponsors, including AUT Law School, BVA | The Practice, the New Zealand Companion Animal Trust, the University of Otago Faculty of Law, the New Zealand Law Foundation, Victoria Heine, Wellington, Duncan Cotterill and the Jane Goodall Institute New Zealand.

For more information about NZALA and its work, visit www.nzala.org

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