Crafar Farms and Cattle Rustling: Who Polices the Animal Welfare Act 1999?

Introduction
Last week, Crafar Farms skulked back into the news.  And so did cattle rustling, a phenomenon most of us last encountered in a Spaghetti Western.  However, Sunday last week, the Herald reported the theft of 1,000 to 2,000 cows.  To quote:

Michael Stiassny is missing a few cows – more than 1000. Stiassny was appointed receiver of the Crafarms group in October after the family-owned company collapsed under heavy debts and multiple prosecutions for effluent discharge.

The stolen cows have a commercial value in excess of one million dollars.  So what is Crafar’s receiver to do?  Call the police, of course:

Stiassny … said he would be approaching police.

This is probably no surprise.  After all, cattle are property.  Stealing cattle is theft.  Theft is a crime.  When a crime is committed, you call the police.  Simple.  But a different logic applied in September, when Crafar was outed for gross violations of the most basic welfare standards.  Breaches of the Animal Welfare Act 1999 (the Act) are crimes, but no one called the police on Crafar.  Why not?

I suggest the difference can be explained by the property status of animals.  To explain this, I will summarise the issues around Crafar over the last few months, outline the legislative framework under the Act, discuss the practical reality under the Act, and conclude with an attempt to connect this to the theory of animals as property.

But, first, a disclaimer: It seems that the current cattle kidnapping is much more complicated that that as there are disputes about ownership between receivers and share-milkers, but I want to focus on the disparity between responses here.  For the full details of the cattle kidnapping, see: ‘Heifer Heist Mystifies Crafar Receiver’.

Crafar: The Story So Far
Until quite recently, Crafar Farms – or as their website reads, CraFarms – was a rural New Zealand success story.  A family-owned dairying and drystock operation, headed by Allan Crafar, built up over three generations and thirty years, it operated fifteen farms, employed 200 people, owned $35 million in land, and possessed 20,000 to 30,000 head of cattle at its peak.  No other privately held dairy farm pumped more milk into Fonterra’s tankers.  The family lived and breathed dairy farming:

Everyone is heavily into dairying to the exclusion of all else, says Allan. “We don’t drink, we don’t smoke, and we haven’t had time to play sport. We gave that up when we become serious. It’s not a hobby. It’s our life and our religion and our work.”

Then he cracks a smile: “I’ve ended up in the greatest job in New Zealand – I’ve 20,000 girlfriends, I get to play with tits all my life, and my wife doesn’t get jealous.”

It sounds like the New Zealand dream, complete with swannis and stubbies, although apparently no Speights.  There were challenges, certainly; a home invader attacked the family in 1998, tying them up and holding them at gunpoint.   These were not big city executives, but family farmers, very different from Fonterra’s appearance as a faceless corporate giant.  They were a family who, with hard yakka and long hours, built an empire in this most Kiwi of industries.

But cracks showed.  In 2008, Green Party co-leader Russell Norman cited CraFarms as an egregious example of ‘dirty dairying’, renaming it ‘CrapFarms’.  That year, the Environment Court fined Crafar $375,000 for discharging effluent into waterways – the largest ever fine of its kind.  This had a very real human cost; the two sharemilkers who blew the whistle on the ineffective effluent system were bankrupted.  Three other ‘dirty dairying’ convictions under the Resource Management Act 1991 followed, the last from August 2009.  Crafar had expanded too far, too fast, borrowing heavily.  With some $200 million of debt, Alan Crafar tried to sell CraFarms to a Chinese company, but failed.

I have no way of knowing when CraFarms’ failures began to take their toll on the animals the Crafars farmed.  Indeed, even at its best, dairy farming is incompatible with animal liberation and, I would suggest, industrialised dairy farming is incompatible with decent animal welfare standards.  To quote Gary Francione: ‘There is probably more suffering in a glass of milk than in a pound of steak.’

However, in September 2009, Interest.co.nz broke the worst story yet: CraFarms had been starving its cattle.  Interest.co.nz received a video of Crafar’s 1,800-acre, 1,800-cow farm at Bennydale, from an unknown source.  The Herald quickly picked up the story.  Dozens of calves starved to death. With no mother to suckle from, some of the surviving calves even attempted to suckle from other calves.  Rather than being taken to the meat-works for slaughter, these calves lay starving to death in the mud and in their own faeces.  Rather than the ‘humane’ killing at the works, Crafar’s employees killed them with hammers and knives, on site.  Fonterra did nothing.  The Ministry of Agriculture and Fisheries (MAF) had visited, but did nothing until after the video’s release.  Then they visited again – after first tipping off the farm manager – and killed several suffering cows.  However, according to MAF, this was a ‘management issue’ not a welfare problem.

This was by no means the first welfare issue exposed at CraFarms.  In 2006, the SPCA found dozens of ‘distressed and dying’ cows at a Crafar-owened farm.  The farm’s manager pleaded guilty to 56 charges, each of which provided for a maximum penalty of $125,000.  The company pleaded to 49 charges.  The Court sentenced the manager to 300 hours’ community work, and charged him $750 in costs.  It fined the farm $200.

Allan Crafar’s responses alternated between the vitriolic and the remorseless.  In the face of the suffering videoed at his farm, he declared that he did not ‘condone’ it.  When the Interest.co.nz producer and editor arrived at Bennydale with a camera, farm manager Sam Webb yelled ‘I’ll take both of you bastards out’, grabbed the camera, and punched the producer.  Allan Crafar was more conversational:

“He should have hit you harder really,” Crafar said in a rambling conversation in which he accused environmentalists, politicians, Fonterra, banks and others of conspiring to bring down Crafar Farms and the dairy industry.

“It’s a civil war here. It’s a financial and media war which is just taking out the most productive New Zealanders,” he said.

Crafar disagreed that his farming group had grown too big, too fast and had taken on too much debt.

The problem (aside from the conspiracy of animal-welfare-obsessed, environmentalist bankers), Mr Crafar declared, was that he couldn’t visit each of his farms often enough: ‘They don’t get enough of me.’

This did not satisfy the public.  Fonterra declared that it would take ‘the strongest action’ were deliberate mistreatment proven.  David Carter MP, Minister of Agriculture, criticised Crafar extensively:

He’s certainly the type of person who potentially does huge damage to New Zealand’s reputation … From what we saw last night, it’s fairly clear to me that he’s a person we want out of the New Zealand agriculture industry …

When MAF investigated the other Crafar-owned farms they found more gross welfare problems:

Government inspectors have found further cases of animal neglect – including underweight animals, inadequate feed, overstocking and lack of shelter for calves – on farms belonging to the Crafar family.

The Agriculture and Forestry Ministry is deciding whether the farms’ managers and owners will be prosecuted.

During the investigation, about 50 dairy cows from at least five of the Crafars’ properties had to be put down.

Despite this, MAF prevaricated on laying charges:

He said who was charged would depend on who was expected to have given the calves care and protection. “Owners will not be charged if they can show or we uncover … that they had no knowledge of what happened or had nothing to do with it. We’re looking at what was done or not done and who was responsible.”

To quote the editor of Interest.co.nz:

MAF’s performance has been woeful. It was informed of this neglect on Saturday September 5 and took nearly 3 days to visit the farm. Before it arrived it tipped off the Crafars it was coming. The workers on the farm who hadn’t bothered or been trained to feed the calves then went around bludgeoning the sick and dying to death with hammers to avoid MAF seeing the worst of the near-dead calves jammed into this muddy shed. As it was, MAF still shot dozens more calves when it arrived on the afternoon of Monday September 7.

According to Allan Crafar, MAF’s inspector then said he would not be prosecuting. MAF’s line is different now because the scandal has become public, saying it is ‘still under investigation’. I have been chasing MAF for weeks. It was complacent about and, in my view, complicit in the neglect of these animals. MAF have known about the Crafars for years and have received numerous complaints. Yet it has done virtually nothing to fix the situation. MAF is an enabler of factory farming in New Zealand, aiming to help it produce more and get bigger, regardless of the cost.

As I write this, a month after the investigation ended, I can find no evidence of charges being laid.  Without going into the details of the offences under the Animal Welfare Act 1999, it appears unambiguous that CraFarms – or its owners and employees – clearly breached  the Act.  And yet, although this case is one of the clearest examples of criminal animal welfare violations in the last year, certainly the largest in scale, no one has even been charged.

In October 2009, CraFarms went into receivership. This was no great surprise to numerous commentators who had long alleged that Crafar was in too much debt.  The receiver declared that his first concern was to protect animal welfare, before promptly attacking MAF.  Then, at the end of October, over 1,000 cows…vanished.  Only then did the receiver decide to call the police.

So what’s going on here?  Allan Crafar, CraFarms, its associated share-milkers, and employees have all been breaching the Animal Welfare Act 1999.  Breaches of the Act are criminal offences.  Yet no one called the police until 1,000 cows up and vanished.  Why not?  The answer lies in the gulf between the theoretical structure and the practical reality of the Act and ultimately, in the property status of animals.

Enforcing Animal Welfare Act 1999: In Law
The Act grants significant enforcement powers to a class of people called inspectors.  While anyone can, in theory, lay an ‘information’ (the technical name for the document that charges someone with committing a crime), the Act intends inspectors to do this and gives them the powers needed to investigate animal welfare offences.  In this section, I first discuss who inspectors are under the Act, then give some examples of their powers.

Section 124 of the Act governs the appointment of inspectors.  You can find it here, but don’t worry about reading it now, because I’m going to break it down in simple terms.  First, under s 124(5) all members of the police are inspectors.  To quote:

Every member of the police is, by virtue of his or her office, deemed to be an inspector appointed to act generally throughout New Zealand for the general purposes of this Act.

I will come back to that later, but there are two other classes of inspectors.  You know about them already because they are the two groups who have investigated Crafar.  The first is under s 124(1):Government employees appointed as inspectors.  That is, MAF inspectors.  The second is under s 124(2): People recommended by approved organisations.  Approved organisations may be appointed by the Minister under s 121.  To my knowledge, there are two:  the SPCA and a group called AWINZ.  Thus, under s 124(2), SPCA employees (and volunteers!) can be appointed as inspectors (AWINZ certifies some councils’ employees as inspectors; it is not really relevant to farming issues and is a very small player).

So, what can inspectors do?  If they’re police officers, they have all the regular investigative powers of police.  However, the Act gives all inspectors significant powers.  Under s 127, inspectors can enter any property (other than a dwelling or marae), ship, or vehicle to inspect any animal there.  This power is without a search warrant and there is no other criteria limiting its use.  If you have an animal, an inspector may enter your property (but not your home) to inspect it, at any reasonable time.  The inspector doesn’t need to ask your permission.  A police officer, under s 127(2), can go further  and order vehicles to stop in order to inspect animals in them.  If an inspector reasonably believes that an animal is being wilfully ill-treated or the ‘physical, health, and behavioural needs of the animal’ make it desirable to seize the animal, the inspector may seize him or her ‘by force if necessary’.

The powers go further.  Section 130(1) allows an inspector acting under s 127 to ‘take all such steps as the inspector considers are necessary or desirable to prevent or mitigate the suffering of the animal’ and to require the animal’s owner to do the same.  If you fail to comply, you may be fined $5,000.  If a company fails to comply, it may be fined $25,000.

Section 131 allows inspectors to apply for search warrants.  Because of s 127, this is only really needed for inspectors  who want to search dwellings or marae.

Animal welfare inspectors may also detain animals, temporarily house them until a charge is heard, then permanently rehome them.  They can even seize ships and vehicles and hold them as evidence until the case comes to Court.

Thus, the Act sets out the police, MAF inspectors and SPCA inspectors as responsible for enforcing it and gives them powers to expedite the investigation and prosecution of animal welfare offences.

Enforcing Animal Welfare Act 1999: In Practice
The reality of the  Act’s enforcement is quite different, however.  The burden is shared between the police, the SPCA, and MAF – but it is not shared equally.  I will address the role each play in turn.

In this section, I rely heavily on two interviews I conducted in 2007, with a then-current SPCA inspector and a former inspector.  As I have not received their permission to republish their remarks, I will not disclose their names or positions, nor will I quote anything that could lead to their identification.

First: The police.  If you ask the average police officer about the Animal Welfare Act 1999, he or she won’t be able to answer you.  Most police officers do not even know the powers given to them by the Act, or even that they are inspectors under it.  In 2003, District Court Judge Everitt criticised the law for not allowing the police to investigate animal welfare offences, saying ‘there should be some change to the legislation, if it is not permissible that the police investigate these matters’: SPCA v Berryman DC Kaikohe CRI 01-027-583249 11 November 2003 at  [29].   That is, a Judge declared that the law needed to be changed…to be what it already is!

Flipping back for a moment, careful readers might have noticed that the Herald went to print before CraFarms’ receiver contacted the police:

Taupo police were unaware of the missing cows when contacted yesterday.

This confusion, mystification and simple lack of awareness typifies the police response to animal law in general.  Although one inspector I spoke to said that more police involvement could lead to greater respect for the Act, police generally refer all animal welfare offences they encounter to the SPCA.

Second: The SPCA.  There are approximately 100 SPCA inspectors nationwide (for completeness: by 2006, ten Waitakere City Council employees had been accredited as inspectors through AWINZ).  Sixty percent are volunteers and many are part time. In Auckland, there are six inspectors; count them.  Nationally, the SPCA aims to ‘advance the welfare of all animals in New Zealand’, through the prevention of cruelty, alleviation of suffering and promotion of welfare policies through education and advocacy.  Enforcing the law is not one of its objectives although it is – uneasily – one of its roles.

Despite this public role, the SPCA is an independent charity.  In 2008, the SPCA received a one-off grant of $300,000 from the government. It receives no other government funding.  It struggles to fund itself. In 2007, SPCA Auckland opened an ‘op shop’, and launched a fundraising drive to pay for a prosecution.   Because of budgetary and personnel restrictions, the SPCA does not patrol or carry out random inspections, they merely respond to (some of) the complaints they receive.  There is anecdotal evidence to suggest that if they could afford to door-knock to investigate (instead of door-knocking to fundraise) they would find more animal abuse.  One of the inspectors I spoke to described being filmed by a television crew, who wanted footage of him inspecting a property, so he knocked on the door of a randomly chosen house and found a malnourished dog.

Each year, the SPCA receives somewhere around 11,000 to 12,000 calls from the public about mistreated animals.  It lays 100 to 200 charges and secures 40 to 70 convictions.  One percent of complaints lead to charges with just under 50% of charges leading to convictions.  By comparison, in the criminal justice system as a whole, 85% of defendants who plead not guilty are convicted.  In 2004-2005, the Occupational Safety and Health Authority (OSH) secured a 76.5% conviction rate.  An SPCA inspector describes their difficulty in investigating without full police powers: ‘We can’t even make people talk to us’, thus he had dropped several cases where he ‘[knew] damn well he’s guilty, but can’t get the evidence’.

Generally, the SPCA focuses on urban animal welfare issues.  That is, the SPCA deals mostly with household pets. It has a memorandum of understanding with MAF, of which I cannot find neither the text nor even a  summary of the details.  Both the SPCA and MAF routinely refer complaints to the other.

Third, MAF:  One would assume from the Crafar coverage and from the importance of animal industries in New Zealand that MAF – the government’s main animal welfare enforcement operation – would have a sizeable inspectorate.  It doesn’t.  In 2008, the New Zealand Farmers’ Weekly described the grandly-titled MAF Animal Welfare Investigation Team as ‘emaciated‘.  This was a fair accusation.  Policing animal welfare nationwide, MAF employs five inspectors.  That’s right.  In a nation with 5.6 million dairy cows, MAF has five inspectors.  The inspectorate has been starved for a long time, with a peak of seven inspectors before 2007.  There is less than one MAF inspector for every ten million farmed animals in the country.  To quote MAF Investigations Team leader Greg Reid talking to the Farmers’ Weekly:

“(That’s been) at the cost of more standard processes which includes the balance around assessing criminal liability and prosecuting those farmers who fail the attitude test, who tell us to **** off the property immediately and who clearly have shown a real lack of appropriate inputs in terms of their decision-making around the managing of animals.

“The reality is at the moment we are so thin on the ground and we are running from bushfire to bushfire. A lot of what the public see is just the surface of it – it’s quite chaotic.”

The then minister, Jim Anderton could not be contacted.  But his office explained:

His spokeswoman’s response: “MAF’s limited resources in this area is why the Government works with the SPCA and why that organisation has joint enforcement powers with MAF, i.e. the ability to prosecute animal welfare abuse cases. The SPCA has a wide spread across the country.”

That is, the government-funded animal welfare inspectorate’s budget is so low that it works with the charity that does not get government funding.  And you’ll note, no doubt, that she neglected to mention the police, despite s 124(5).

In 2005-2006, MAF received 810 complaints and commenced 15 prosecutions (1.85%), with a 67% conviction rate.  By comparison, in 2005-2006 the SPCA commenced 30 prosecutions in Auckland alone.

Of course, MAF also has a huge conflict of interest, because it aims to promote the animal industries.  The Ministry’s website talks about an ‘ethos of continuous improvement’ that ‘pervades’ the dairy industry.  It provides grants to promote ‘sustainable farming’.  Thus, it has an interest in mitigation and in minimising negative publicity about the industries it is supposed to police.

In practice, the bulk of the Act’s enforcement burden falls on the SPCA with MAF dealing with a very limited number of offences and the police not dealing with – or even knowing about – animal welfare.

Enforcing the Act: CraFarms
Returning to the Crafar Farms story, we can now see why MAF’s investigations were so very ineffectual. The Animal Welfare Investigation Team is underfunded and lacking personnel.  Moreover, it is conflicted in its very goals.  Consider this statement in the Herald on the position of David Carter, MP:

Carter defended MAF inspectors’ decision to often notify farmers before they visit. He said MAF’s primary role was to stop animals suffering as quickly as possible, which might mean working with the farm managers to take immediate action.

Of course the MAF inspectorate’s role is to prevent suffering and promote welfare.  But in passing the Animal Welfare Act 1999, setting up criminal offences, Parliament chose a means by which MAF should do that.  By convicting people for animal welfare offences, the idea is that MAF would deter others and so promote welfare across the board, rather than only in the specific case.  But that is not the approach Carter advocates.  His justification is akin to defending a police officer tipping off a cannabis grower about an imminent raid by saying ‘Well, our primary goal is stopping cannabis growing, and he destroyed his plants because we tipped him off…’ Carter has, on behalf of MAF, abdicated the law enforcement role with which the Act charges it.

This abdication of responsibility is even more endemic to the police.  The majority of the police force do not even know that animal welfare is partly their business.  All the indications are that no one called the police over CraFarms, until someone kidnapped cattle.  But even if they had, the odds are that the police would have told them to call the SPCA, who would have told them to call MAF (who might well have told them to call the SPCA, who might tell them to call…).   There are 11,000 officers in the police force.  That means that there are about 11,105 animal welfare inspectors: Five MAF inspectors, 100 SPCA inspectors, and 11,000 policemen and policewomen.  These police officers have all the powers that MAF and SPCA inspectors have under the Act,  have full police investigate powers that other inspectors don’t have, have  resources (in funding and equipment) that MAF and the SPCA could only dream of, and have far greater numbers.  What they lack is training and specialist support.

But Why Weren’t the Police Called?
In 2006, the SPCA unveiled the CraFarms welfare offending.  In 2007, private citizens did so before MAF investigated.  And while Interest.co.nz challenged Fonterra and MAF to answer several questions, it made no mention of the police.  We can reasonably surmise that no one called the police.  So the question is: Why not?

There’s the simple, practical answer: People don’t know that the police investigate animal welfare offences.  But that’s only part of the story.

So, going deeper.  People perceive animal welfare offences as a different kind of crime from other crimes, if people even think of them as a crime.  Other crimes are about the infringement of rights.  When I steal your cows, I’m depriving you of your property, so I’m violating your rights.  Animal welfare offences, under the current legal paradigm, are not about rights.  They’re about legally protected interests that – even within the scheme of the Act – are subservient to rights.

Animal welfare offences cannot be about rights, because only persons hold rights.  Property has no rights and animals are property.  I mean, just imagine talking about breaching the rights of your table.   Sure, if you break someone else’s property, that’s a crime because you’re depriving him or her of his or her right to use that property.  It’s not about the property itself because property can’t have rights.  It’s about the rights of the owner.

But against whom is the animal welfare offence committed?  When Allan Crafar fails to train his staff and doesn’t bother checking that his cows are being fed, who is the victim?  It can’t be the property’s owner, because that’s him.  It would be nonsensical to say he was both offender and victim.  He was farming as a business, doing just what he had to do to make a profit.  You could claim that this, like drug use, was a victimless crime. Illegal because of society’s condemnation and society’s interests, not because of any particular victim.

But that is – even in the drugs example – mere sophistry.  Society purports to ban drugs because people think drugs hurt people.  Drugs are illegal, because drugs harm people.  For example, people trapped in a cycle of methamphetamine addiction are harmed by P-cooking.  So who do animal welfare offenders harm?  The answer can only be the animals.  It is the animals’ interest in not suffering that the law purports to protect.  This is expressed in the Act’s very purpose:

(i) to require owners of animals, and persons in charge of animals, to attend properly to the welfare of those animals: (emphasis added)

And there’s the difference.  Animal welfare offences are about protecting items of property against their owners.  They are about protecting the interests of property.  With any other kind of property, that would be meaningless.  It is as absurd to talk about a table’s interests as it is to talk about a table’s rights.  Of course, tables and animals are very different kinds of property. Outside the realm of legal abstraction, it’s nonsensical to claim that animals do not have interests.  They live, they feel and they can suffer.  So they have interests in still living, in experiencing and in not suffering.  Humanity has decided to protect these interests with animal welfare offences.

But we still don’t call the police, until someone steals the cows.  Because animals are, in law, just property.  You can’t kidnap property, you can’t torture property (except animals), but you can steal property.  If you torture your animal to death, society perceives that as your issue because society perceives ‘it’ as your animal.  His or her interests as an experiencing subject of a life are inferior to your rights as ‘its’ owner.  CraFarms starving its cows to death is a ‘management issue’.  The farm’s management problems threatened the property rights of the banks to whom Crafar owed money, and that is more important than the animals’ unimportant interest in not dying.  If, however, you torture someone else’s cows to death, you’re infringing on someone else’s property rights.  So, that’s a police matter.

There’s another oddity between the two sets of crimes and the associated media coverage.  The police weren’t called for the animal welfare offences and when the police were called no one talked about animal welfare.  Flip back to the Herald coverage:

He said the cattle-movers would have trouble hiding their stash: “I could put 100 cows in a back paddock and no one would know, but 1000?”

A month previously, the Minister, Fonterra, the Herald, and Interest.co.nz all strenuously condemned Crafar for starving his animals.  Yet, when some of those animals are stolen, the question is where the thieves are hiding their ‘stash’.  No one asks if the cows’ kidnappers will feed and look after the 1,ooo cows, because when push comes to shove, the cows are property first and living beings second.

Ultimately, I can only conclude that welfarism is: One, practically ineffective because it puts property rights ahead of animals’ lives; Two, jurisprudentially bankrupt because it pretends that animals are more akin to tables than beings.  Animal welfare law is premised on balancing property owners’ rights with animals’ interests and as the Crafar case shows, the animals invariably come off second-best.  Gary Francione describes people as ‘morally schizophrenic’ in their relationship with animals.  I disagree: This is an insult to the mentally ill.  Schizophrenia has more internal consistency.

 

Note: This post is not intended for discussion of any issues that may currently or shortly be before the Courts.