Animal Law

This category contains 33 posts

Whatever happened to the Auckland City Council Rodeo ban on Council land?

rope calf[Note: This is a cross-post from my personal site]

On 31 October 2010 Auckland Council inherited a policy from the legacy Auckland City Council that prohibited  rodeo events on council land in the former Auckland City area. The ban was not a bylaw, it was a resolution of the whole Council led by John Banks. Because it was not a bylaw, it was unclear if and how it would be carried over into the new Auckland Council. Continue reading

Surfing the (Laser) Shark

This morning’s news presented two pieces of shark-related absurdity. 

First, the Ministry for Primary Industries has confirmed that attempting to surf on the carcass of a shark is not a crime:

The Ministry for Primary Industries says it has found no breach of the Animal Welfare Act after complaints over a shark `surfing’ incident.

A spokesperson for MPI said the matter would not be investigated any further.

“We’ve determined that there has been no breach of the Animal Welfare Act as the shark had been dead for around 30 hours before video footage was recorded.”

Three men from the Bay of Plenty caused outrage when footage emerged of one man “surfing” behind a boat on the carcass of the thresher shark which was being towed by its tail.

Bay of Plenty Times, via the NZ Herald.

This is ridiculous on every possible level.  First, if you read the full story, you will see that two fishermen accidentally killed a shark, then decided to tow the carcass back out to sea to dump it.  And, because they’re fun loving, wacky, kiwi blokes they decided to…surf it…out…to sea.  I’m not entirely sure how anyone could come up with that.  Second, the whole Herald story is about how surfing a deceased shark is not a breach of the Animal Welfare Act 1999.

Here’s a hint, guys: The Animal Welfare Act 1999 applies to living animals.

And, third, slipped in there without fanfare is the renaming of the Ministry responsible for animal welfare.  The Ministry for Agriculture and Forestry, merged with Fisheries etc is now the Ministry for Primary Industries.  Would it be possible to make the ridiculous conflict of interest at the heart of New Zealand’s animal welfare regime more obvious?  The Ministry responsible for promoting primary industries (like, say, industrial farming) is responsible for prosecuting breaches of animal welfare (like, say, much industrial farming).

Wired magazine presents even more shark-related madness though: “Scientists” (hint: they’re not scientists) have mounted a laser on a shark:

Relax, Dr Evil. Your inspired request for “sharks with frickin’ laser beams attached” has finally been fulfilled in the real world.

Marine biologist-cum-TV personality Luke Tipple attached a 50-milliwatt green laser to a lemon shark off the coast of the Bahamas in late April. The escapade was sponsored by Wicked Lasers, a consumer-focused laser manufacturer based in Hong Kong that produces some of the most brilliant — and potentially dangerous — handheld lasers in the world.

“This was definitely a world first,” Tipple told Wired. “Initially, I told them no. I thought it was a frivolous stunt. But then I considered that it would give us an opportunity to test our clips and attachments, and whatever is attached to that clip, I really don’t care. It was a low-powered laser that couldn’t be dangerous to anyone, and there’s actually useful application of having a laser attached to the animal.”

Tipple said the experiment was instructive in a number of ways. For starters, he was able to further test his clamping apparatus, which is typically used for traditional data-aquistion equipment.


That’s right.  Clamping a laser to a shark was great scientific research.  Because it helped test the clamp.  Well, that addresses all my animal welfare concerns right there.

NZ’s ‘Dangerous Dog’ Laws to be Reviewed

Following a spate of dog attacks on children – six in the last month, half of them by pit bulls or pit bull crosses – the government has promised to dust off ‘stalled’ dog control legislation. There have been predictable calls from MPs to ban and destroy all dangerous dogs and dangerous breeds. Local Government Minister, Nick Smith, has promised that a review will be completed in March of this year. The last law changes in New Zealand were made in 2003 and resulted in the outlawing of four breeds of dog:  American pit bull terriers, Dogo Argentinos, Brazilian Filas and Japanese Tosas. Those already here must be muzzled on the street and kept behind fences at home.

But these laws have been tried around the world and have been shown not to work. There are no inherently dangerous breeds of dog, only dangerous owners. The dog control officers have a saying: “Show me ten bad dogs and I’ll show you nine bad owners”.

Anyone following these stories will notice that the dogs are almost always identified as Staffordshire or pit bull crosses. These are, indeed, dogs that were bred to fight and have a reputation for viciousness. It is this reputation and dangerous image that attracts the wrong kind of owner, those who see their dog as an accessory to their macho image or, in some cases, as a weapon. Yet owners who care for them well say that Staffordshires are among the most loyal and  gentle of dogs if they are raised and trained well and, perhaps most importantly for their interaction with humans, are properly socialised with people and other dogs.

While my heart goes out to the children who have been bitten and their parents, it must be noted that many dog behaviour experts recommend that children be kept away from dogs until they are of an age at which they understand how to behave around dogs. Many signs of human affection such as eye contact and placing heads close together are perceived as aggression by dogs. A child cannot resist pulling on ears and poking at noses but these exploratory gestures, as endearing as they are to us, can be all it takes to provoke an animal that cannot be expected to distinguish between clumsiness and attack to defend itself. A characteristic view is that of Owen Dance, President of the New Zealand Kennel Club who told Radio New Zealand that:

Such attacks happen once in a while and would continue until more parents properly educated their children about how to behave around dogs. It was hard to find examples of farmers’ dogs biting farmers’ children, he said. “And in nearly 40 years of the kennel club I have never heard of a kennel club member’s child being bitten by one of their dogs.”

Nevertheless, it is the dogs that are inevitably blamed. But there is little consistency over time in what dogs are the problem breeds. In past decades, Rottweilers, Dobermans, German Shepherds, Newfoundlands and even Bloodhounds have been considered to be dangerous breeds.

A good summary paper by Associate Professor Kevin Stafford (Institute of Veterinary Animal and Biomedical Sciences, Massey University) contains the following observations on an international review of academic literature on dog attacks finding that:

[T]he breeds most represented in dog bite data (1) vary over time, (2) are popular and (3) are not in proportion to their actual population. In almost all studies mongrels are the most common type of dog involved in attacks on humans. The variation in breed over time suggests that if specific dog breeds are legislated against, then another breed or type will be developed to meet demand for aggressive canines.

However, this view is not shared by all. Bob Kerridge, executive director of the SPCA in New Zealand has said that “the pit bull is the exception to the way we talk about dogs. No dogs are born bad, except pit bulls – owners make them bad”. The Auckland SPCA recently released a statement outlining why they will not adopt out pit bulls:

No dog will be considered for adoption if we believe it may pose a risk to the community by virtue of behaviour, temperament or the … potential to cause serious harm or injury. The Auckland SPCA considers the risks associated with adopting pit bulls or pit bull crosses too high given the Dog Control Act declares them to be dangerous and we believe we have a duty of care to the community.

So will law changes make much of a difference? How are they to be targeted? The Guardian recently published a piece on the ineffectiveness of the dangerous dog laws in Britain. In 1991, at the height of a tabloid frenzy sparked by a rash of dog attacks in England, the Major government passed a rushed piece of legislation which outlawed four breeds and made it an offence to ‘have a dog dangerously out of control in a public place’ –  although the majority of attacks take place in domestic settings. Yet, the number of dog attacks has increased and there are more of the prohibited breeds on the streets now than before the legislation was introduced.

Similarly in New Zealand, despite a toughening of the law in 2003, the Accident Compensation Corporation (ACC) has received 11,078 claims for dog attacks in the past year. This is a substantial increase from the 8,677 cases in 2003. Of the 2011 claims, 872 were children aged under four and 891 were for children aged between five and nine years.

In Auckland, submissions are being taken on Auckland Council’s proposal to introduce a new dog policy and bylaw for the region – which will replace the seven bylaws and policies inherited from previous councils. The new bylaw, which should be in operation by October, includes making seasonal start and finish times for dog access on beaches and parks uniform across the city, neutering ‘menacing’ and uncontrolled dogs and standardising dog access rules for playgrounds, sports grounds, carparks, campgrounds and footpaths. I will write more on the development of this policy  and the government review as they happen.

I can’t help but feel that while there is undoubtedly a problem with the number of dog attacks on humans, a greater focus on owner reponsibility and training rather than simply banning or victimising particular breeds is far more likely to result in a reduction of these than current policy settings.

Puppy mutilators avoid prosecution: SPCA lacks legal advice

From today’s Herald:

Sadists who hacked off an eight-week-old puppy’s ears with a pair of scissors have avoided prosecution because witnesses refused to give evidence in court.

After a lengthy investigation, Mr Blair established where the puppy came from and managed to find out what happened from several residents, but they refused to go on the record with their evidence, despite the SPCA’s numerous attempts to persuade them to.

As we have previously discussed, the bulk of the enforcement work under the Animal Welfare Act 1999 falls squarely (and heavily) on the SPCA’s unfunded shoulders.  In Auckland, the SPCA has the benefit of pro bono legal assistance

In Tauranga, it does not.  And it needs it.  Or, rather, if it is to keep fulfilling a law enforcement role, it needs to be treated like a law enforcement agent – meaning it needs to be funded to engage the firms holding Crown warrants (that is, Crown prosecutors) at the Crown rates. 

Here’s why:

71 Eligibility and compellability generally

(1) In a civil or criminal proceeding,-
(a) any person is eligible to give evidence; and
(b) a person who is eligible to give evidence is compellable to give that evidence.

That is section 71 of the Evidence Act 2006.  Any person (except the defendant/accused – s 73) is eligible to give evidence, and, if you are eligible to give evidence, you may be compelled to give evidence.  What does compelled mean?

It means that a person may be summonsed to give evidence.  If you don’t?  The Crimes Act 1961 kicks in:

352 Refusal of witness to give evidence

(1) If any witness, without offering any just excuse, refuses to give evidence when required, or refuses to be sworn, or having been sworn refuses to answer such questions concerning the charge as are put to him, the Court may order that, unless he sooner consents to give evidence or to be sworn or to answer the questions put to him, as the case may be, he be detained in custody for any period not exceeding 7 days, and may issue a warrant for his arrest and detention in accordance with the order.
(2) If the person so detained, on being brought up again at the trial, again refuses to give evidence or to be sworn or, having been sworn, to answer the questions put to him, the Court, if it thinks fit, may again direct that the witness be detained in custody for the like period, and so again from time to time until he consents to give evidence or to be sworn or to answer as aforesaid.
(3) Nothing in this section limits or affects any power or authority of the Court to punish any witness for contempt of Court.

Unless you have just excuse, if you refuse to give evidence, you may be jailed for a bit, then asked to give evidence.  If you refuse again, you can be jailed again, and the Court can damn well keep on jailing you until you change your mind.  And you’re in contempt of Court too.

And if you don’t refuse to give evidence, but just don’t turn up?  Section 351 allows a $500 fine and:

If any witness who has been summoned to give evidence at any trial … fails to attend at the time and place appointed, the Court may issue a warrant to arrest him and bring him before the Court, and may adjourn the trial.

Of course, if they don’t won’t to talk, they might not be very helpful in Court.  They’ll clam up.  But that’s okay for the prosecutor, because she can hit them with section 94 of the Evidence Act 2006:

94 Cross-examination by party of own witness

In any proceeding, the party who calls a witness may, if the Judge determines that the witness is hostile and gives permission, cross-examine the witness to the extent authorised by the Judge.

For non-lawyers, let me explain what cross examination means.  It means that instead of asking you open questions, the lawyer can put closed statements to you, for you to say “yes” or “no” to.  Not “What did you see?” but “You saw him hacking off that puppy’s ears, didn’t you?”

And if you lie on the stand, that’s perjury.  If you say something different from what you said in a prior (“off the record”) conversation with the SPCA inspector – that’s a prior inconsistent statement, and, well, yes, the prosecutor can most probably adduce it as evidence.

Of course, none of this would help the SPCA in their initial investigation.  There’s no point in getting someone on the stand if you don’t know what they saw, heard, or did.  But they’ve already told the SPCA:

“They spoke to me but they were quite clear in their minds that they wanted to remain anonymous because of fear of the people that were involved,” he told NZPA.

“It’s frustrating knowing who’s responsible but not being able to take that extra step to follow through, which is a common problem that the SPCA has because the animals don’t talk so we do rely on either a confession or witness statements.”

So why can’t the SPCA convict the puppy mutilators again?

Because they don’t have good legal advice.

And why don’t they have good legal advice?

Because they can’t afford it.

And why can’t they afford it?

Because they’re fulfilling the state’s law-enforcement function without any government funding and without the legal assistance offered to the formal law-enforcement branches of the state.

That is: They’re doing the government’s job, but the government isn’t paying (or helping).

That simple.

Strange Bedfellows: The Netherlands and NZ; Welfarists and the Far Right

Kosher and halal slaughter are now illegal in the Netherlands:

 Just one week after the acquittal of fiery far-right politician Geert Wilders, the Dutch parliament struck another blow against multiculturalism in the Netherlands yesterday with the passage of a bill banning ritual animal slaughter. The bill requires that all animals be stunned before being slaughtered, a requirement that conflicts with halal and kosher stipulations that animals be fully conscious.

At first glance, this looks like a classic example of the far-right undercurrent that lurks below the surface in much of Europe.  It evokes Switzerland’s controversial minaret ban, for example.  You can easily picture a pale, thin Dutchman with close-cropped chestnut hair apoplectic about immigrants, their funny cuisine, and their sick, sick, sick farming practices.

But there’s something more, and something stranger going on there. 

Foreign Policy continues:

The bill was initially proposed by the Party of the Animals, which holds two seats in the 146-seat Dutch parliament and maintains that ritual methods of slaughter are inhumane.

The Party for Animals?  Here in New Zealand, where only one Party has an animal welfare spokesperson, that seems outlandish, and extraordinarily progressive. 

Of course, the far right are still in the game: 

 It gained support from centrists on similar grounds, but Wilders’s Freedom Party has also been a longtime proponent. In fact, it was Wilders who first raised the issue in 2007 when he objected to halal meat being served at a public school in Amsterdam.

Strange bedfellows.  The Dutch animal welfare movement and the Dutch far right.

All movements, especially single-issue movements such as traditional animal welfarism or animal rights, must be careful with who they align themselves with and take real care to consider the unintended consequences of their actions.  In advancing the cause of animals, we must take care not to alienate natural allies.  Animal liberation should not come at the cost of oppressing human minorities.

New Zealand and the Netherlands are bedfellows also.  Both are in the handful of countries that have banned kosher slaughter.  In New Zealand, however, halal slaughter is legal. 

The process was very different.  No odd alliance of the SPCA and the National Front, but the slow, methodical, industry-backed process of Codes of Welfare.  Without hue or cry, we banned kosher slaughter. 

And then backed down:

Under pressure on human rights grounds the Agriculture Minister David Carter has granted an exemption to the Commercial Slaughter Code of Welfare for the local Jewish community, to be able to slaughter chickens without pre-stunning. He is also under heavy pressure to continue to allow a temporary exemption for sheep and cattle, despite it contravening the code of welfare.

What surprises me about this tale is that the state, without an Act of Parliament, banned a fundamental part of Jewish practice.  As a lawyer, I strongly suspect that this Code of Welfare could be open to legal challenge on the grounds that it is ultra vires, or outside the power that Parliament has given the executive.  But to forestall any such claims, David Carter MP backed down.

SAFE is campaigning for him to stick to his guns – but I’d pick an easier battle.  Campaigning against Jewish religious expression makes you an easy target.

Circus Animal Bans

As of 1 July 2010, the use of any animal in a circus has been banned in Bolivia. A handful of other countries have banned the use of wild animals in circuses but only Bolivia has banned exploitation of domestic animals in circuses as well.

The Bolivian law, which states that the use of all animals in circuses ‘constitutes an act of cruelty’ was enacted on 1 July 2009, with operators given a year to comply.

The bill took two years to pass through both chambers of the Plurinational Assembly, meeting stiff opposition from the eastern states of Bolivia where there was concern that the law would be expanded to include bullfighting, which is popular in rural villages. Bullfighting remains legal in Bolivia.

The legislature were eventually won over by a screening of videos shot by undercover circus infiltrators in Bolivia, Peru, Ecuador and Colombia co-ordinated and funded by Animal Defence International (ADI), a London-based NGO which found that ill-treatment and violence against animals in circuses is commonplace.

Continue reading

Animal Welfare on Farms: A lower standard for agricultural animals

A healthy flock of sheep

A report in the Dominion Post this week about a particularly nasty case of criminal neglect of sheep in the Manawatu highlights much of what is wrong with the enforcement and prosecution of animal welfare offences on farms in New Zealand:

75 sheep were found dead and another 25 had to be put down [immediately] because of alleged ill-treatment. SPCA officials raided the farm in August after being tipped off about the sheep. The 66-hectare farm is now under strict monitoring by vets and four SPCA inspectors. It is still being run by the farmer and has several hundred sheep.

Although full details have not yet been divulged by prosecutors, pending the laying of charges, it appears that the sheep were emaciated from starvation and severe neglect. The file is about to be sent to Crown Law for prosecution.

For reasons that will become clear, it is important to note that this was a raid carried out by the SPCA (Society for the Prevention of Cruelty to Animals). Under the Animal Welfare Act 1999, three bodies are statutorily-empowered to investigate and prosecute animal welfare cases; the Police, the Ministry of Agriculture and Forestry (MAF) and the SPCA. Only the Police and MAF are fully state-funded, the SPCA relies for 98% of its income on private donations. Continue reading

Against the Proposed New Elephant Enclosure at Auckland Zoo

Plans were approved in August this year to expand the elephant enclosure at Auckland Zoo to six times its current area.  The importation of another 9 elephants to join the current sole occupant, Burma, would make this the only elephant herd in Australasia. The planned extension into Western Springs Park is estimated (by many accounts, unrealistically) to cost $13 million and the zoo plans to expand into 22000 square metres of the park.

Two main arguments have been made for this. First, that Burma is in need of companions as elephants are intelligent, empathic, social animals and she has only recently lost her companion, Kashin. Second, that the herd will be valuable for conservation. Given a choice between sending one animal to a reserve overseas or committing to the hugely-expensive upkeep of ten elephants, the City has chosen the latter.

This goes against international trends to close elephant enclosures. As pointed out in SAFE’s excellent submission to the Auckland City Council Combined Committees, enclosures closed this decade include London (2002), San Francisco (2005), Detroit (2005), Lincoln Park, Chicago (2005), Alaska (2007), and Philadelphia (2009). A significant number of zoos have also committed to gradually phasing out their herds by not replacing elephants.

Continue reading

Cultural Significance v Animal Rights: The Constitutional Challenge to the Ban on Bullfighting in Catalonia

The oddly familiar-looking Constitutional Court of Spain

Bullfighting was banned in the autonomous Spanish region of Catalonia on 28 July this year, with the ban coming into full effect in 2012.

Now, three months to the day later, the Spanish Constitutional Court (housed in a rather Beehive-esque building) has accepted an appeal lodged by the Partido Popular (People’s Party, PP) challenging Catalonia’s ban on cultural, economic and administrative grounds. The PP is a conservative, nationalist party known for such other legislative projects as restricting immigration to Catalonia and deporting immigrants who have not learnt the Catalan language to proposed minimum standards.

If the appeal is successful, the Court may overturn the regional ban (I have written in detail on this ban here). However, the Court can take months or years to deliver a judgment.
The central constitutional provision is article 149, which provides that the State has exclusive jurisdiction over conditions governing ‘the equality of all Spanish in exercising their constitutional rights.’ This is advanced as the basis for the following three grounds of appeal: Continue reading

Sow Crates Are To Be Phased-Out: But ‘farrowing’ crates remain

The Minister for Agriculture, David Carter, has confirmed that the new Pig Welfare Code will phase out the use of sow crates in New Zealand within the next five years. The ban will come into full effect in early 2016.

Many readers will remember that SoLVe (the University of Auckland Law Faculty student group that was the genesis of this blog) hosted a seminar given by Peter Sankoff (to a packed lecture theatre) on this issue on May 27th 2009.

A ban on sow stalls included in the draft welfare code was leaked to SAFE (Save Animals From Exploitation) in February this year.

The draft code, developed by the National Animal Welfare Advisory Committee (NAWAC), was to be released for public notification in December 2009 but was delayed following legal threats from the New Zealand Pork Industry Board. NAWAC preferred a ban by December 2017, a full two years later than the deadline that has been decided.

Sow stalls have already been banned in the United Kingdom and Sweden and will be soon phased out in Finland, Switzerland, the Netherlands and Denmark. Continue reading