The law recognises that animals have emotions, but it's down to a charity to enforce it.
In May last year, a young woman heard a strange ‘whacking’ sound over her back fence.
She peered into the neighbouring property to see a man holding down Chase, a nine month old labrador puppy.
The man was beating Chase with a fence post.
"What the hell are you doing?” she shouted.
“It’s my fucking dog, you fucking egg,” the woman’s neighbour replied.
She asked the man why he was beating Chase, and he responded that it was because [the dog] he had ripped up the fence. “It’s called discipline, mate.”
The woman videoed the incident on her cellphone. [the video] It showed Chase being hit at least 13 times with the wooden post. She reported the man to the SPCA.
A vet found Chase was bruised where he had been hit. The bruising became worse over the next few days. The vet said the beating would have caused Chase unnecessary pain and psychological suffering.
His owner pleaded guilty to charges of beating his dog. He was fined $1500, and was ordered to pay a $520 vet fee to the SPCA and court costs of $130.
He was not disqualified from owning an animal.
In 2015, an amendment to New Zealand’s Animal Welfare Act recognised animals (non-human animals, excluding insects, to be precise) as sentient.
The addition of sentience to the long title of the Act is significant. New Zealand is the first country under the English legal system to do so.
“We would say that an animal is sentient if it has the capability of being conscious of its surroundings, its relationship with other animals and the sensations in it’s own body; pain, hunger, heat, cold, that sort of thing.”
At its introduction, the legislation was praised for putting New Zealand “at the forefront of progressive animal welfare legislation.”
But while some praised the new law, others - including Ferrere - say the move was largely symbolic, and does not put any further duties or responsibilities upon those in charge of animals. Ferrere says there is a disconnect between what’s on paper and what appears in practice.
New Zealand Animal Law Association President Danielle Duffield agrees.
The Otago-trained, Auckland-based lawyer says even if it looks good on paper, the Act has its limitations - we still allow factory farming, rodeo and live exports for breeding.
“So we can acknowledge animals are sentient, but unless the actual standards in the act change, it won’t really have any impact beyond symbolism.”
Duffield set up the Animal Law Association in 2014 to create a better understanding of animal law issues.
Tomorrow in Auckland, some of those issues will be discussed at the country’s first conference on animal law. Speakers include Ferrere and Duffield, alongside Dr Jane Goodall, former Australian High Court judge Michael Kirby and other experts in the area.
The main challenge in the maintenance of animal welfare in New Zealand, Duffield says, is that a charity is responsible for enforcing a good portion of the Animal Welfare Act.
The SPCA is expected to enforce the law where it relates to companion animals - from cats, dogs, rabbits and birds, to small numbers of cattle on a lifestyle block. This is despite only eight percent of its funding in 2016 ($520,000) coming from the Government.
“It’s a very unique situation,” Duffield says. “We don’t have any other situations of charities being charged with enforcing criminal law.” She says this is why we see so few animal welfare prosecutions relative to the number of complaints.
In 2015, the SPCA received and responded to more than 15,000 complaints, which were investigated by the charity’s 75 animal welfare inspectors. Charges laid led to 61 prosecutions and convictions.
It costs the organisation between $7 million and $9 million a year to run its national inspectorate.
“Relying on a charity to enforce the law chronically undermines the enforcement of that act,” Duffield says.
For farmed animals, the Ministry for Primary Industries (MPI) upholds the law. But there are only 17 full time animal welfare inspectors tasked with ensuring nearly 200 million farm animals are treated humanely.
“The maths doesn’t work out, most instances of animal cruelty won’t be detected… That’s why you see very few farm animal welfare prosecutions,” Duffield says.
“Most footage we see of animal cruelty is coming from activists - which I think demonstrates the fundamental problem with enforcement.”
Nicky Wynne is an animal welfare prosecutor in Palmerston North. She is responsible for managing the SPCA portfolio for whom BVA, her practice, conducts prosecutions nationally. She has also worked as a policy analyst in MPI’s animal welfare team.
She says another challenge of upholding an act that recognises animals as sentient is in cases where there is no evidence of physical injury.
Wynne says the Courts are not quite at the stage where prosecutions relating to the emotional suffering of animals can succeed.
“Historically, there’s always been this perception that animals aren’t able to experience things as human beings can. We all have instincts about animals, so we all as lay people can look at a dog and tell whether it’s scared or feeling or frustrated. But it’s very hard to put that into a submission to a court and bring a prosecution on that basis.”
In February, this year the owner of Chase, the nine month old labrador who was beaten with a fence post, was prosecuted in the Christchurch District Court.
Wynne said the legal team struggled to get the Court to accept the level of pain, suffering and psychological trauma he would have experienced.
“That’s one of the challenges that we face, and it’s perhaps because there’s more to do in assisting the court and educating that animal behaviour science is now accepted, we’ve gone from this phase in the science world of thinking that animals are machines and they’re not able to perceive or have emotions.”
*The inaugural NZALA Animal Law Conference, held at the WG403 Lecture theatre on level 4 of the Sir Paul Reeves Building in the AUT Auckland City Campus, begins tomorrow at 10am. To register, email email@example.com