Catriona MacLennan: Flawed act fails to protect animals

COMMENT

A fifth anniversary is a good time for a stocktake. In the case of animal welfare laws, it provides the opportunity to mark a scorecard on progress.

The situation can be summed up by saying, "Making progress, but a lot more effort required".

The 1999 Animal Welfare Act replaced the 1960 Animals Protection Act, updating the law by imposing duties of care relating to animals, providing for minimum standards and setting rules relating to experiments.

The early years of the new act have revealed a number of flaws that require attention.

The codes of welfare have to date proved to be failures. They were designed to set minimum standards of care for different species and industries. However, only two codes have been completed - those for rodeos and broiler hens.

Other codes have simply been rolled over from the previous legislation because the issues have proved too hard.

Widespread public concern about battery hens and sow cages was illustrated by a huge volume of submissions on the codes, but has collided with the economics of cheap food production.

The act's core requirements for proper treatment of animals can be overridden when providing decent living conditions is considered to be too expensive for industry. That is allowing hundreds of thousands of animals to continue suffering pain and horrendously restricted lives.

Hunting is not included in the act because it was considered that it would be too difficult to enforce duties of care out in the bush. That was a mistake.

The law should be amended to cover it, so that hunters are required to kill animals speedily and not leave them to suffer.

Omitting hunting sends a message that it is acceptable to allow animals to be left in agony.

New Zealand has safari parks in which tourists pay large sums to shoot chosen animals. If the animals are not killed outright, they may suffer severe pain, dying slowly or undergoing repeated botched attempts at killing.

The national animal welfare advisory committee has the power to develop guidelines in relation to hunting if it is requested to do so. It should be lobbied to draw up rules.

Tail-docking of dogs is not covered by the act because the issue proved so contentious when the bill was going through Parliament. A private member's bill now seeks to ban tail-docking. If the bill does not succeed, the Government should amend the act to abolish the practice. It is cruel.

The forfeiture provisions of the act are not operating as intended.

In practice, the SPCA or other prosecuting agency is required to keep the animals while criminal prosecutions are going through the courts. That generally takes years, meaning the cruelty of the initial ill-treatment is being compounded by, for example, keeping dogs locked in cages instead of being able to find new homes for them.

Sections 136 and 172 of the act should be amended to make it plain that forfeiture can take place before conviction.

Section 172 should also allow forfeiture when a person in charge of animals is convicted of an offence, instead of only when the owner is convicted.

The section requires a conviction over a specific animal for forfeiture to apply. That is reasonable in cases involving a single cat or dog but completely impractical when thousands of farm animals are involved.

The time for laying charges under the act requires extension. Problems are arising because information must be laid within 12 months of the cruelty or neglect. That should be changed to allow the time to run from when the animals are discovered.

It is also time for a broader look at how New Zealand law overall treats animals.

At present, the philosophical basis of our laws relating to animals is that they are property: they are regarded as chattels belonging to humans and to which a value is assigned in the same way as that of a car or piece of furniture.

As animals are not even recognised as living beings, cruelty is generally regarded as irrelevant.

When an animal is killed, the owner may be compensated for the dollar value of the animal but no account is taken of the emotional loss.

In family law cases, animals are treated simply as another piece of property.

Until that attitude is changed, there will never be real progress in treating animals better.

The difficulties relating to forfeiture, for instance, have their origin in the fact that animals are treated by the law in the same way as other inanimate pieces of evidence required for court proceedings.

Enforcement of the legislation has been a problem since day one. The Ministry of Agriculture, the SPCA and the police all have power to bring prosecutions, but the Government has provided no resources for the job.

The bulk of prosecutions are initiated by the SPCA, with the ministry taking around 10 a year and the police almost none.

The SPCA is funded by donations and carries out myriad jobs apart from prosecutions. It simply does not have the resources to take all the cases which should go to court.

This means that people who should face criminal sanctions for cruelty are simply getting away with it.

The police are already grossly overworked and cannot be expected to take on the job unless given money to do it.

Auckland University law lecturer Scott Optican queries whether the failure to task police with animal welfare prosecutions is sending a message that animal cruelty is a minor matter not worthy of police attention.

That is a valid point requiring further consideration.

In summary, it is to be hoped that when it is time for a 10-year score card of the Animal Welfare Act, the picture will be a lot brighter.

* Catriona MacLennan is an Auckland barrister.