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New Zealand Journal of Environmental Law |
Last Updated: 30 January 2023
Wildlife and the Animal Welfare Act 1999: Can “Cruel” Acts of Hunting ever be Prosecuted?
Peter Sankoff *
Tucked into the very back of the Animal Welfare Act 1999 is s 175, a clause that effectively exempts wildlife from the scope of New Zealand animal protection law. Ostensibly enacted to permit legitimate forms of hunting, fishing and pest control to remain immune from scrutiny, the clause has morphed into a comprehensive exemption. As a result, acts of ill-treatment that would clearly be punishable had the victims been domestic or farmed animals can be committed with impunity against wild animals. This article will consider how s 175 has been applied and examine its impact on wildlife. After proposing a more limited interpretation of the clause that would provide a modicum of protection for wild animals, the article proposes a number of reform options that would better balance the needs of wildlife and persons involved in the activities that cause them harm.
1. INTRODUCTION
In late 2007, John van Vliet detonated explosives on a portion of his apple orchard in the Wairarapa. His objective was neither mining riches nor demolition. Instead, van Vliet was pursuing a smaller target: a flock of starlings that was eating and otherwise damaging the apples from his orchard. Although
*Faculty of Law, University of Western Ontario. This article was written largely while the author was employed by the Faculty of Law at the University of Auckland. The author wishes to thank Vernon Tava for his research assistance, the funding for which was graciously provided by the University of Auckland’s Faculty Research Development Fund. Thanks are also owed to Rebekah Thompson who provided additional assistance and to Celeste Black, Deidre Bourke, Arnja Dale, Dominique Thiriet and Steven White for their helpful comments on an earlier draft of this article.
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starlings are regarded by many farmers as useful in reducing the presence of damaging insects, they can cause damage to some fruit crops.1 Van Vliet decided against other means of repelling the birds or reducing the damage they caused, and instead chose to blow up the nests altogether, killing the starlings in the process.2The results were predictable. Upon detonation, a massive fireball engulfed the starling roosts. Birds shot off in every direction. Many died instantly, but others were caught by the flames and crashed to the ground, writhing in pain. Neighbours claimed that thousands of birds were left wounded and helpless, suffering from singed feathers and broken limbs.3 The local inspector of the Wairarapa branch of the Society for the Prevention of Cruelty to Animals (SPCA) commented days after the incident that “there are still birds dying all around the place. It’s horrific and the most inhumane thing that could happen to innocent birds — simply souldestroying.”4 Hundreds of local residents registered their disgust by calling the SPCA to complain, with many of them demanding that legal action be taken against Mr van Vliet.
The outrage was certainly understandable. For over a century, New Zealand has forbidden wanton cruelty against animals, and the country prides itself as a nation that cares about the welfare of other sentient beings.5 Today, the limits of the type and degree of animal suffering that may be legitimately imposed by humans is addressed by the Animal Welfare Act 1999 (AWA), legislation that makes it an offence to cause an animal to suffer pain or distress that is unreasonable or unnecessary, punishing transgressions with up to five years’ imprisonment.6 While it is impossible to assert with certainty, it is difficult to imagine van Vliet’s acts being categorised as “reasonable” or “necessary”, especially considering the magnitude of suffering that resulted, and the other options to disperse the starlings that were available.7
Welfare Act 1999 215
Despite considerable public indignation and suggestions that the SPCA was investigating the matter,8 no prosecution ever ensued. Notwithstanding overwhelming evidence that the explosion took place, that van Vliet arranged it, that animals suffered considerably as a result, and that the suffering was intentionally caused,9 the case file was shut quickly after it opened. To under stand why, it is necessary to look to the very back of the AWA, where s 175 provides an unusual exception for otherwise cruel actions taken against animals, stating that “nothing in this Act makes it unlawful to hunt or kill ... any animal in a wild state”.According to the Ministry of Agriculture and Forestry (MAF), the gov ernment agency responsible for administering the legislation, s 175 rendered it impossible to pursue van Vliet in the courts. In a speech delivered shortly after the events in the Wairarapa, Jim Anderton — then the Minister of Agriculture and Forestry — made reference to the unfortunate incident, and stated that nothing could be done about it:10
The problem is, because [the starlings] were wild animals, there is no liability for cruel treatment ... The problem exists because, when the animal welfare bill was passed, it excluded wild animals. There was sensible thinking behind this — noone has direct responsibility for caring for a wild animal. They are, by definition, not owned. So making someone responsible in a particular case can lead to impractical legal liability. While none of us likes to think about
need to impose the suffering in the circumstances against the suffering endured, ideally to punish acts of cruelty that have no broader social benefit: see Peter Sankoff “The Welfare Paradigm: Making the World a Better Place for Animals?” in Peter Sankoff and Steven White (eds) Animal Law in Australasia (Federation Press, Sydney, 2009) at 18–25. While unlikely, it is conceivable that van Vliet could have defended his actions as being “necessary” for the protection of his crop relying on the fact that the orchard was suffering
$250,000 a year in losses due to damage by the roosting starlings. Still, it is difficult to imagine, given the immense suffering involved, that a court would accept the chosen means as being “reasonable”.
Lawanimals suffering, you can’t have the law requiring drivers to swerve off the road to avoid a possum.
In effect, Anderton concluded that s 175 made it impossible to prosecute van Vliet for his actions. Notwithstanding the fact that the explosion intentionally caused lengthy suffering for thousands of birds, the AWA had no application whatsoever, simply because the victims of the conduct were wild animals, as opposed to ones kept under human care.
This article will explore the correctness of this claim and consider some of the other difficulties raised by both the van Vliet case and the hunting and wildlife “exception” more generally. In part 2, s 175 will be examined for the purpose of defining its rationale and scope. The author rejects the notion that s 175 operates as a comprehensive exemption, and suggests instead that Parliament intended only to protect acts that fall within a reasonable definition of “hunt or kill”: conduct undertaken with the intent of killing or attempting to kill a wild animal or take it captive. Acts designed merely to cause pain to, torture, or molest the animal are not included. Building on this analysis, part 3 discusses a second major limitation of s 175 and contends that the exemption applies only to acts of hunting or killing and no further. In the author’s view, s 175 provides no immunity for unnecessary consequential suffering caused by hunting, and as a result, a person whose original act may well have been exempt from prosecution can nonetheless be held liable for subsequent acts and possibly even omissions where such conduct, or a related failure to act, causes a wild animal to suffer.
Part 4 of the article will attempt to explain why s 175 of the AWA is often treated in a manner broader than the interpretation suggested in parts 2 and 3, and examine the impact of this treatment. As the Anderton excerpt implies, many investigators and prosecuting agencies seem to believe — rightly or wrongly
— that wild animals are completely excluded from the AWA’s protection. The evidence to date shows that the section fails to provide investigating agencies with clear guidelines about when charges involving cruelty against wild animals can be brought, or whether they can even be brought at all, leading to paralysis. The result is the granting of an unbridled licence to commit whatever acts of cruelty one chooses upon wild animals in New Zealand.
Finally, in part 5, the article will provide a few suggestions for future reform. While the proposed interpretation in parts 2 and 3, if accepted, would reduce the existing ambiguity and provide limits upon what can be done to wild animals, it is not a comprehensive answer. Reform of the AWA is urgently required to address a gaping hole in the legislation, as, regardless of one’s view on hunting, fishing and pest control, s 175 needlessly immunises from prosecution acts against wild animals that should not be permitted. The author’s proposal is a moderate one that accords with the general theme of the AWA.
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After examining legislation in other jurisdictions, along with the underlying purposes of the AWA, two primary suggestions are made. First, acts undertaken against wild animals in an unreasonable manner should be treated in the same way as if they were committed against domestic animals. Second, in order to permit a proper assessment of the purposes for which particular conduct is undertaken, the definitions of hunting and killing should be decoupled, allowing for separate measurements of actions under these headings and an appropriate balancing of the purported benefits and harms that arise from the activities.
2 THE HUNT OR KILL EXEMPTION IN S 175: INTERPRETATION
216.1 Section 175 within the Broader AWA Framework
To appreciate the manner in which s 175 operates, it is first necessary to understand the basic framework of the AWA. Although the legislation has nine distinct parts, only two concentrate specifically on offences for imposing animal suffering.11 Part 1 sets out standards for the care of domestic and farm animals, and is mostly irrelevant where wild animals are concerned.12 Its focus is exclusively on animals in captivity, and the obligations imposed upon owners and persons in charge of such animals. It has no application to acts intended to harm animals in the wild.13
Part 2 is not restricted in this manner. Under the heading of “Conduct towards animals”, this part of the AWA focuses upon individual acts of ill treatment. In addition to a number of specific forms of conduct that are prohibited or controlled — including matters like animal fighting,14 the use of traps,15 branding, etc — the Act provides for three “general” offences: (1) ill treatment simpliciter, punishable by a maximum of 12 months’ imprisonment
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or a fine not exceeding $50,000 or both;16 (2) reckless illtreatment of an animal leading to permanent disability, serious harm or death, with a maximum penalty of three years or a fine not exceeding $75,000 or both;17 and, finally,
(3) wilful illtreatment causing serious harm, permanent disability or death, the most serious offence in the AWA, punishable by a maximum of five years’ imprisonment, or, in the case of an individual, to a fine of $100,000.18
At first glance, all three of the illtreatment offences would seem to extend to acts involving domestic animals or wildlife equally. The sections apply to any improper conduct committed against an “animal”, defined in s 2 of the Act to include “any live member of the animal kingdom” that is a mammal, bird, reptile, amphibian, fish or crustacean. The offence of illtreatment contains no exclusion for wildlife, and is committed any time an animal is forced to suffer “by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary”.19The key to the special treatment of wild animals is found not in Part 2 but in Part 9 of the AWA, in a section of the legislation entitled “Miscellaneous provisions”. There, settled amongst clauses addressing agricultural compounds, the ability to recover costs, and various transitional provisions, ss 175–178 provide the following:
175 Hunting or killing
Subject to sections 176 to 178 and Part 6, nothing in this Act makes it unlawful to hunt or kill—
(a) any animal in a wild state; or(b) any wild animal or pest in accordance with the provisions of—
(i) the Wildlife Act 1953; or(ii) the Wild Animal Control Act 1977; or
(iii) the Conservation Act 1987; or
(iv) the Biosecurity Act 1993; or
(v) any other Act; or
(c) any wild animal or pest; or
(d) any fish caught from a constructed pond.
Welfare Act 1999 219
(1) Subject to section 178 and Part 6, nothing in this Act makes it unlawful to hunt a wild animal that is available for hunting in a safari park.(2) Notwithstanding subsection (1) and section 175, where a person has hunted and captured a wild animal in a safari park (not being an animal that has been captured for the purpose of facilitating its imminent destruction), this Act applies in relation to that person as the person in charge of that animal.
(1) Notwithstanding section 175, but subject to subsection (2),—(a) where a person has in captivity an animal captured in a wild state (not being an animal that has been captured for the purpose of facilitating its imminent destruction), this Act applies in relation to that person as the person in charge of that animal; and(b) where a person has in captivity an animal captured in a wild state (not being an animal caught by fishing) for the purpose of facilitating its imminent destruction, section 12(c) applies in relation to the killing of that animal.
(2) Nothing in subsection (1) applies in relation to a wild animal that is hunted and captured in a safari park.
(3) Nothing in section 175 limits the application of any of the provisions of this Act in relation to—
(a) deer kept in captivity for the purposes of farming (not being deer available for hunting on a safari park); or(b) mustelids kept in captivity as pets.
Sections 175 and 176 do not restrict the application of sections 34 and 36.
In combination, these sections carve out a sphere of conduct and make it immune from the regular application of the AWA. Section 175 is the primary clause, stating that “nothing in this Act makes it unlawful to hunt or kill” the animals listed in the various subparagraphs.20 Section 176(1) provides similar protection for the hunting of animals in safari parks.
(a) repeats that it is not unlawful to hunt or kill any wild animal or pest. Surely (c) renders
(b) unnecessary. The term “wild animal” is specifically defined by s 2 of the Wild Animal
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The exemption for hunting and killing is not unlimited, as ss 177 and 178 make clear. Where a person captures an animal, but does not kill it, the AWA applies to the person who comes to be “in charge” of that animal.21 Section 177(1) provides that where a person captures an animal that would otherwise be in a wild state the obligations imposed in Part 1 of the AWA apply unless the animal has been captured for the purpose of facilitating its imminent destruction. Where a person captures an animal for this purpose, they must do so in a way that complies with s 12(c) of the AWA, killing the animal so as to ensure that no unnecessary pain or distress is endured.22 Finally, the sections have no effect upon the use of traps and other devices, which are governed by ss 34 and 36 of the AWA.
216.2 The Meaning of Hunt or Kill in s 175
Even with the limitations provided in ss 177 and 178, the “hunting” exception23 in s 175 of the AWA retains the potential to exempt a huge amount of what might otherwise be considered as “illtreatment” from scrutiny. Some guidance is provided in s 2 of the AWA, which deems the term “hunt or kill” to include:
Control Act 1977, and restricted to particular species of nonnative animals. At first glance, the exemption does not apply to fish, except those caught from a constructed pond (subparagraph (d)). Still, fish are defined as “animals” in s 2 of the AWA, and those living in a wild state are undoubtedly captured by subparagraph (a).
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(a) hunting, fishing or searching for any animal and killing, taking, catching, trapping, capturing, tranquilising or immobilising any animal by any means:(b) pursuing or disturbing any animal;
The definition certainly appears to have a broad scope. In addition to the acts of hunting, fishing and killing, which would seem to cover a broad gamut of activity on their own, the definition includes a host of other terms, some of which — most notably the terms pursuing or disturbing — could be applied to exculpate all sorts of behaviour that causes harm to wild animals.
In an attempt to find meaning for this critical term, perhaps it is easiest to start by considering the contrary proposition discussed by Anderton in his speech about the van Vliet incident: that s 175 has no specific meaning, and simply constitutes a comprehensive “wildlife exemption”. Under this interpretation, the lengthy definition provided in s 2 is simply a convenient way of saying that any harm committed against a wild animal, aside from animals in captivity, is permitted.
There is some support for this interpretation. Though the commentary on this part was hardly uniform, many parliamentarians during the process of enacting s 175 drew a distinction between animals “under the control of an individual”, and those in the wild.24 Without question, some of the problems discussed during the parliamentary debates considered matters going beyond what might traditionally be defined as hunting or killing socalled “pest” animals,25 a fact which provides support to the notion that s 175 constitutes a broad exemption.26
Nonetheless, the legislative discussion on this point is hardly unanimous, which reduces its usefulness as an interpretative source. While the courts are certainly permitted to look to a statute’s parliamentary history, there is a reluctance to use this material where it is as ambiguous as the legislation being considered. As Lord BrowneWilkinson noted in Pepper v Hart,27 “references in court to parliamentary material should only be permitted where such material
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clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words”. There is no such clarity with regards to the purpose of s 175. For every comment referring generally to a “wild animal” exception one can locate another stressing that the exception was related to legitimate acts of hunting, fishing and pest control.28 Moreover, there is no evidence to suggest that this particular matter was ever considered in any meaningful way.The limited jurisprudence regarding the meaning of the term is also equivocal. While s 175 has never been considered judicially, similar termi nology in the Wildlife Act 1953 has been the subject of litigation. In Solid Energy New Zealand Limited v The Ministry of Energy,29 the High Court considered the meaning of s 63 of the Wildlife Act 1953, which prohibits the “hunting or killing” of any wildlife protected under the Act undertaken in the absence of lawful authority. As part of a plan to reduce harm to native fauna threatened by a mining project, Solid Energy intended to remove and relocate a collection of critically endangered kauri snails. The main issue in the litigation was whether Solid Energy needed to comply with the Wildlife Act 1953 in any situation where there was likely to be interference with wildlife by reason of its mining operations. It argued before the High Court that the “capture” being proposed did not engage the Wildlife Act 1953, as the purpose in moving the snails was beneficial, and the legislation was designed to apply only to harmful actions.
Mallon J disagreed with this approach, however. Despite recognising that harm or the potential for such harm was a common element of the terms used in the definition, she adopted a broad view of the activities capable of causing such harm, noting that acts involving the hunting or killing of wildlife may be comprised of actions at “the lesser end of the spectrum such as pursuing or disturbing wildlife where the harm may be only transitory [or] it may be harm at the more serious end such as taking the wildlife permanently from its habitat or killing the wildlife”.30 More importantly for our purposes, she concluded that there was no point in delineating between different types of harm:31
The section is intended to capture deliberate actions in relation to wildlife ... that interfere with the natural and ordinary activities of the wildlife that may harm the wildlife or carry with them that risk. The words in the “hunt or kill” definition should be interpreted in light of this intent.
Wildlife and the Animal Welfare Act 1999 223
As such, the Court in Solid Energy concluded that the term “hunt or kill” under the Wildlife Act 1953 has a nearly unlimited scope. Aside from accidental interferences with wildlife, which Mallon J seemed to exclude from scrutiny, any deliberate action taken against a wild animal constitutes the sort of hunting or killing with which the legislation is concerned. Extending this reasoning to s 175 of the AWA would effectively result in the section being treated as a comprehensive “wildlife exemption”.There are several reasons to be sceptical of Solid Energy’s applicability in the AWA context, however. First, the very different purposes of the two pieces of legislation need to be taken into consideration. Section 63 of the Wildlife Act 1953 is intended to protect entire species of wildlife and ensure that any action with the potential to cause harm to wildlife is properly scrutinised by the Department of Conservation.32 In this setting, it makes sense for terms in the Act describing harmful conduct to be interpreted as broadly as possible. A narrow view of “hunt or kill” would have the effect of sanctioning activities that did not fall within an ordinary understanding of this term notwithstanding their harmful impact on wildlife.
In contrast, the AWA was enacted to protect individual animals from unnecessary suffering, and s 175 derogates from this purpose. At the very least, the rationale for creating a broad inclusionary definition in Solid Energy — to comply with the purpose of the Wildlife Act 1953 — would appear to be missing in this context. More importantly, the approach taken in Solid Energy needs to be assessed within the context of the overall regulatory scheme for the protection of wildlife created by s 63, and in particular, the fact that hunting or killing will be permitted under the Wildlife Act 1953 where it is undertaken pursuant to lawful authority. As Mallon J recognised:33
A process of obtaining lawful authority is provided. That process does not purport to restrict the type of “hunting or killing” that might be approved. It appears to be available whether the hunting or killing is harmful to the wildlife or not. However, authorization applications would need to be assessed against the purpose of the Act. It is therefore difficult to envisage an authorization being given to catch alive or kill absolutely protected wildlife unless there is some greater good to wildlife served by the particular hunting or killing proposed. The authorization process, and the need to have “lawful authority”, enables there to be prior scrutiny by the Minister responsible for the wildlife for the good of the wildlife.
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This approach makes good sense. Under the Wildlife Act 1953, the Minister is tasked with weighing the complexities arising from any particular activity and granting approval where necessary in a manner that is most respectful of all competing interests. Taking a narrow view of “hunt or kill”, and excluding certain actions from oversight as a consequence, would create a means of bypassing the scheme in a manner that would be detrimental to its overall functionality. In contrast, the AWA has no approval scheme for examining particular types of hunting or killing, and consequently, no secondary mechanism of determining which acts are “good”, “bad” or respectful of the competing interests at stake exists. There is no need to create a broad inclusive definition in this context.Doing so would also seem to conflict with the purpose and structure of the AWA. When one examines s 175, and its place within the broader legislation, two additional arguments can be raised to support the suggestion that it was not designed as an exception for all suffering imposed upon wild animals. The first argument simply recognises that s 175 says nothing of the sort. On the contrary, it quite specifically refers to certain forms of activity. Applying the section as a comprehensive exemption conflicts with the principle that legislation should be interpreted in accordance with the wording utilised,34 and that contrary interpretations should not be adopted where Parliament avoided the use of language that could have easily accomplished the alternative approach being proposed.
A classic example of the latter type of reasoning occurred in the seminal Canadian decision of Re B.C. Motor Vehicle Act,35 where the Supreme Court of Canada first interpreted s 7 of the Charter of Rights and Freedoms, and, in particular, the meaning of the term “principles of fundamental justice”. The case was a critically important one, as s 7 demands that governments avoid depriving a person of life, liberty and security of the person unless it is done in accord with the “principles of fundamental justice”. Representatives of every legislature in Canada came before the Court and begged it to interpret the right as being procedural in scope only — a means of ensuring that legal deprivations of a person’s life, liberty or security of the person accord with basic due process rights required as a matter of natural justice.
The Supreme Court swept these arguments aside, concluding that s 7 had substantive power that could be used by the courts to ensure that any deprivation of the sort referred to in the Charter complied with fundamental
Welfare Act 1999 225
concepts inherent to a civilised legal system.36 There were many reasons for charting this path, but predominant in the Judges’ minds was the clear language that had been chosen by legislators. As Lamer J wrote for a majority:37
It seems to me that to replace “fundamental justice” with the term “natural justice” misses the mark entirely. It was, after all, clearly open to the legislator to use the term natural justice, a known term of art, but such was not done. We must, as a general rule, be loath to exchange the terms actually used with terms so obviously avoided.
This reasoning is equally applicable to those who might contend that s 175 actually constitutes a comprehensive exemption. Had Parliament wished to create such an exemption for wild animals, there was an extremely easy way of doing so. Consider by comparison the Animal Welfare Act 2006, the legislation protecting animals in the United Kingdom.38 In s 2 of the Act, a clear distinction is drawn between certain types of animals. For the purposes of the Act, an animal is a “protected animal” where:
(a) it is of a kind which is commonly domesticated in the British Islands,
(b) it is under the control of man whether on a permanent or temporary basis, or
(c) it is not living in a wild state.
Through its definition of “protected” animal, the Act distinguishes between wild and domesticated animals and, for the most part, creates protections only for the domestic animals that are under human care.39 There is no need to discuss hunting or any specific activity involving wildlife because conduct against wild animals is completely excluded from scrutiny unless the Act states otherwise. Subject to a few exceptional situations, an animal is only safe from illtreatment under UK welfare legislation if it is a “protected” animal.
A second argument against a broad exemption is that the approach seems contrary to the structure and intention of ss 175–178. If Parliament truly intended to exclude wild animals from the protection of the AWA, why should
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it institute standards for trapping and the capture of animals? It is somewhat nonsensical to create standards relating to specific forms of conduct like trapping when equally or more heinous modes of torturing animals remain legitimate. In enacting the AWA, parliamentarians spoke of the moral respon sibility that New Zealanders have to all animals, noting that animals “should be treated with respect and dignity”.40 Distinctions were not drawn between certain animals, and while what can be considered “necessary” harm and suffering will certainly vary by animal and use, it was never contended that wild animals are not deserving of moral concern.
What then was Parliament trying to accomplish? While it is impossible to ascertain the legislators’ intent with any certainty, and the speeches of parlia mentarians on this subject were inconsistent, there is reason to believe that s 175 had two primary rationales: (1) to create a limited exemption applicable to a sphere of conduct that remains popular and important to a large number of New Zealanders; and (2) to recognise that there are various methods of hunting and killing wildlife, and the need for certainty and fairness in application is best served by exculpating all legitimate acts without making distinctions between the means used.
The first rationale for s 175 stems from a concern that applying the standard “illtreatment” test to common forms of hunting, fishing, and pest control might cause difficulty in application. Although popular with a large segment of the public, the love for these activities is hardly universal, and many believe that the justifications for at least some types of hunting and fishing are not strong enough to rationalise the degree of suffering imposed.41 Since the standard test for illtreatment requires a balancing of the strength of the justification for imposing suffering against the harm imposed,42 Parliament was quite likely worried about many popular types of hunting and fishing suddenly being regarded as illegal — or at least being subject to greater scrutiny — a fact with the potential to undermine support for the new legislation. Given the common
Welfare Act 1999 227
view of “pests” in New Zealand,43 and the stated importance of eradicating them, there was likely a similar concern about limiting the manner in which ordinary New Zealanders deal with the many invasive species that are regarded as a scourge. To avoid some of the popular unrest tighter scrutiny of these activities would have caused, it made sense to exempt these activities from the scope of the AWA.The second rationale, premised on the need for certainty, arises from the nature of “wildlife” and the fact that human interactions in this area are not nearly as predictable as those involving domestic or farmed animals. The sheer volume of animal types encompassed by the legislation and the manner in which humans deal with them is enormous. Parliament undoubtedly did not wish for the judiciary to be drawn into disputes over mousetraps, pest control, and the legitimacy of 1080 poison drops.44
What remains unclear is whether these objectives require a comprehensive wildlife exemption in the face of wording to the contrary in s 175. An alternative approach would be to assume that Parliament intended a more limited exception intended to reflect four facts: (1) that much hunting, fishing and killing causes pain and suffering; (2) that New Zealanders by and large enjoy these activities, or, in the case of pest animals, believe them to be essential; (3) that hunting and killing are undertaken in a myriad of ways, some of which are less pleasant than others; and (4) that many of the activities impose suffering that might not be considered reasonable or necessary if they were subjected to a judicial balancing under the test for “illtreatment”. On this view, s 175 protects what most New Zealanders regard as legitimate conduct from being brought before the courts, and provides a “zone of protection” where activities of this sort are undertaken in a borderline manner, in order to allow people to proceed without risk of sudden prosecution. This broader protection is justified owing to a lack of consensus regarding the legitimacy of certain activities on the margins of acceptable conduct.
A complete exemption for acts committed against wild animals would go well beyond accomplishing the objectives. Consider the following two scenarios. In the first, a man decides for the purposes of his own enjoyment
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to throw rocks at a flock of wild ducks and causes them harm in the process.45 In the second, youths corner a wild animal for the purpose of torturing it, and proceed to inflict a slow and painful death upon the animal.46 A comprehensive exemption would inure the offenders in both scenarios from prosecution, even though neither scenario engages the acts of “hunting” or “killing” in a manner that Parliament probably regarded as having value. Indeed, it is hard to imagine the average hunter or fisherman as having any affinity for the offenders in these scenarios either.Treating s 175 as a “wildlife” exemption conflicts with both the plain wording of the statute and, very likely, Parliament’s intent in enacting it. Nonetheless, it still falls to consider whether the definition of “hunt or kill” can be interpreted in a more limited manner, a task that is more difficult than one might first imagine because of the terminology that is used. Take the word “kill” that is repeated in the wider definition set out in s 2. It is well established that the act of killing is not punishable under animal protection legislation, as “ill treatment” applies only to pain and suffering imposed while animals are alive.47 Thousands of animals are killed in New Zealand every day, and so long as this process takes place without the commission of unnecessary pain or suffering, the AWA is unconcerned.48 Thus, the term “kill”, in its ordinary meaning, adds nothing of value to s 175, and one can certainly argue that the word should be given a broader interpretation as a result. Under this approach, all acts leading to the death of a wild animal would be included in the definition with the result being that the torturers in the example discussed above would be exculpated on the ground that their acts constituted a “killing” of the animal.
Welfare Act 1999 229
Use of the term “hunt” in a separate manner is equally puzzling. What is hunting, if not the act of “taking”, “catching”, “pursuing”, etc an animal “by any means” as provided in s 2? One can imagine that the terms were included to ensure that the appropriate activities were all protected, but the breadth of the wording makes resolving the interpretation of the clause a difficult task.If one accepts that some limitations on s 175 are desirable, the only sensible way to read the list of terms used is to accept that the majority of words are simply different ways to describe what is, in actuality, the act of hunting as understood in common parlance: conduct that involves an attempt to kill or take an animal by pursuit, capture, immobilisation or other related means. Use of the term “kill”, which is otherwise redundant, should be understood within the context of New Zealand’s view of invasive species like possums, ferrets, stoats and weasels, and consistently with other legislation on the subject. Since it is set out so separately from the words that otherwise fall within a common definition of hunting, one can surmise that it refers to the killing of wild animals that is not part of an organised pursuit for the purposes of sport, but rather, for situations where wild animals are legitimately killed.49 Since the Wildlife Act 1953 and Wild Animal Control Act 1977 govern the manner in which wild animals can be killed without prior approval, it is not a huge stretch to guess that the AWA term refers to the killing of pest animals that is so encouraged in New Zealand, and is deemed to be legal by these pieces of legislation.50
It remains true, however, that some of the terms — like “disturbing” — have the potential to be regarded more broadly. In the examples proposed above, one could argue that throwing rocks at the duck or torturing the deer simply “disturbed” both animals. Interpretations of this sort need not be automatically accepted, however. There is nothing to prevent judges from restricting all of the terms in the hunting and killing definition to their core meaning. Where a more controversial application of a term is proposed — for example, the torturers contending to have “killed” the animal — a judge should be able to examine the activity undertaken by the individual and consider whether it falls within a reasonable understanding of the term utilised in the statute, keeping in mind the purpose of the AWA, and Parliament’s choice not to create a complete exemption for wildlife.
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This type of approach is supported by the writing of William Reppy, who has undertaken a study of exemptions in cruelty statutes in the United States.51 In his view, exemptions are designed to provide clarity for those involved in certain practices and ensure that the standards by which a practice is undertaken cannot be scrutinised by the courts for “reasonableness”. For example, in certain states veterinarians and those in the food industry are rendered exempt from prosecution. But even where such exemptions exist, Reppy makes the argument that they are not comprehensive:52
A commonsense approach would indicate some boundaries. Thus, a veterinary hospital employee who inflicts pain on an animal at the clinic for boarding and not medical care may likely be prosecuted, even though a large majority of veterinary hospitals also provide boarding services for pets. Similarly, under the “activities conducted for ... providing food” exemption, a restaurant chef probably cannot be prosecuted for cruelly killing a duck he or she is about to cook in the kitchen but can be prosecuted for brutally kicking a cat that has strayed into the restaurant’s dining area, since the cat has no direct relationship to the cook’s preparing a meal.
The same logic should apply in regards to s 175. Certain acts must have the capability to stray beyond what can be considered “hunting or killing” and judges should be permitted to decide whether an act comes within a reasonable understanding of those terms.53 Without question, part of this analysis will require assessment of the accused’s intent, a focus that is consistent with the small number of cases that have considered what constitutes hunting or killing in the context of wildlife legislation. In New Zealand Forest Service v Todd,54 for example, the Court held that a hunter who had observed a stag in the bush and gotten out of his vehicle to follow it — while carrying his rifle — was acting for the purpose of watching the stag rather than “pursuing” it as part of the act of hunting, even though his actions undoubtedly constituted a pursuit
51 William Reppy “Broad Exemptions in AnimalCruelty Statutes Unconstitutionally Deny Equal Protection of the Law” (2007) 70 Law and Contemporary Problems 255.
52 Ibid, at 260–261.
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in the ordinary sense of the word. In terms of the Wildlife Act 1953, the Court held that: “[W]hat it is aiming at in this part of the definition is people who follow wild animals with the intend [sic] to kill or capture them ... In my view it comes to a question of ‘intent’.”55This is a reasonable approach. A judge tasked with defining whether a particular act is “hunting” within the scope of s 175 should consider all available facts — including the defendant’s intention, as derived from those facts — and attempt to clarify what the defendant was doing when the suffering was inflicted. If the action in question was intended not to “pursue” or “disturb” or “capture”, but was really intended to harass or to torture, s 175 simply should not apply.
Further support for this approach can be found by again comparing the AWA to the Wildlife Act 1953. This legislation, referred to earlier, defines “hunt or kill” as:56
[T]he hunting, killing, taking, trapping, or capturing of any wildlife by any means; and also includes pursuing, disturbing or molesting any wildlife, taking or using a firearm, dog, or like method to hunt or kill wildlife, whether this results in killing or capturing or not; and also includes every attempt to hunt or kill wildlife and every act of assistance of any other person to hunt or kill wildlife.
Perhaps the most interesting distinction between the definition of hunt or kill in the Wildlife Act 1953 and that used in the AWA is the fact that the former’s definition includes “molesting”, a term that is notably absent from the AWA. The inclusion of this word in the Wildlife Act 1953 makes perfect sense. As discussed earlier, this legislation is designed to ensure the protection of wildlife and control the manner in which it can be taken. For this reason, an extremely broad definition is required. It would be troublesome if a person were allowed to throw rocks at a protected animal like a kiwi, to take one example, on the grounds that such conduct did not fall within an ordinary understanding of hunting, but was merely intended to harass or molest the bird.
Conversely, one can make a case that “molesting” was deliberately omitted from the AWA on the grounds that it was not the sort of conduct Parliament sought to exculpate. In its ordinary meaning, to molest means “annoy or pester in a hostile or injurious way”,57 and there is certainly room to distinguish this sort of conduct from other types of pursuing or disturbing. One can assume that
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certain acts done in preparation of hunting would “disturb” a wild animal — but the act of “molesting” an animal has a far different, more ominous, connotation. For certain, even under this approach, difficult cases are likely to emerge.Take, for example, the practice of “internet hunting”, a practice that first emerged in the United States in 2005.58 This is a method that uses a remote controlled firearm — aimed and fired with a computer mouse — to shoot an animal enticed into position by a baited feeding station. The first internet hunting website, LiveShot.com, was created as a way of providing an “authentic” hunting experience for disabled persons.59 This idea caused outrage across the spectrum of animal welfare advocates, progun and prohunting lobbies. Alliances were formed between such unlikely parties as the SPCA and the National Rifle Association to ban the practice. Many hunting groups claimed that “this is not hunting”,60 and a case of this nature would certainly test the limits of s 175, as a judge would have to determine whether the activity falls within a reasonable definition of “hunting” as that term is commonly understood.
Where a practice is deemed to fall within the scope of a protected activity, it remains to consider whether it is possible to impose a “reasonableness” criterion, and punish those who act in an unreasonable fashion. Consider a particularly odious example: the helihunting of Himalayan tahr that currently takes place in New Zealand’s South Island. In a 2010 feature in the Sunday Star-Times, this practice was described as follows:61
To a soundtrack of country music and a deafening roar of rotor blades, the video shows a Himalayan bull tahr being herded from the air, shot and wounded, and eventually taking refuge in a small cave in the South Island’s mountain wilderness. The American hunter provides a breathless narrative to what he describes as “organised chaos” and “ultimate fun”.
Filmed from the chopper, the video — posted on YouTube by helihunting opponents — shows the American being set down near the cave mouth, pointing his rifle into the darkened entrance and firing. “It’s so dark in here, I pretty much pointed where I thought he was gonna be,” says the hunter as he tentatively enters the cave, urged on by his New Zealand guide. He finds the dead tahr and says, “I tell you what, I’ve never seen something quite like that before.”
The guide, Mike Wilks of Kaikourabased South Pacific Safaris, is holding the camera and can be heard saying: “It’s not generally how we do it but he’s
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got exceptional horns this bull, so we took him.” He adds: “It would be near impossible to hunt these tahr without the use of a helicopter.”
As a practice, helihunting attracts considerable criticism from animal advo cates for the risks it poses, including the difficulty of getting a clean shot at the animal from a moving elevated platform. But many hunting associations decry the activity as well, stating that it is not true hunting, and amounts to cruel treatment. As one hunting association has suggested scornfully, animals are “driven to exhaustion by the helicopter and guides have been known to use shotguns to ‘sting’ animals and drive them towards waiting clients”.62
Nonetheless, given the nature of the activity, and the fact that it involves pursuing a wild animal for the purpose of killing it, notwithstanding the use of “nontraditional” technology that many “real” hunters avoid, this conduct would seem to be immune from scrutiny under the AWA. The reasonableness of the activity, the fact that there exist other ways of hunting the animal with a lower potential for suffering, and even the seemingly cruel practices do not seem to be matters for a court to consider. If they were, there would be no need for s 175. The reasonableness of the activity is exactly what would be measured under the standard application of “illtreatment”, and it is difficult to imagine what purpose the exemption would serve if “unreasonable” activities could be prosecuted under ss 28–29.
Taken together, these guiding principles help to inform a workable pre liminary understanding of s 175. In summary, the author proposes that:
(1) Actions taken against wildlife should be measured against the purposes of the AWA and a recognition that hunting, fishing and the extermi nation of pest species are regarded as having value that goes beyond the illtreatment suffered by the animals, even when the means utilised are questionable;
(2) Where an activity is not rationally related to these valuable activities, it should not be considered hunting or killing for the purposes of s 175. The courts should be able to assess whether the act in question falls within a reasonable understanding of what is ordinarily hunting or killing, and in doing so, should have regard to the accused’s intent, as ascertained from all available evidence;
(3) Molesting or harassing an animal for purposes unrelated to hunting or killing should not fall within the scope of s 175; and
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(4) So long as the activity falls within a reasonable understanding of the terms set out in s 175, the court should not assess whether the particular type of hunting or killing is reasonable.
For the sake of completeness, it is worth briefly addressing the manner in which s 175 and the AWA in general address unintentional acts that cause wildlife to suffer. In his remarks about s 175 in the context of the van Vliet situation, Minister of Agriculture and Forestry Jim Anderton noted that “while none of us likes to think about animals suffering, you can’t have the law requiring drivers to swerve off the road to avoid a possum”.63 It seems to have been assumed, correctly or otherwise, that s 175 is required in order to deal with this problem.
There is no reason to believe this is actually the case, however. With regards to unintentional acts, or those undertaken in an emergency — for example, running over the possum to avoid swerving off the road — it is virtually impossible to imagine a prosecution for illtreatment of an animal being sustained in these circumstances, even in the absence of s 175. To begin with, the act causing the harm was neither unreasonable nor unnecessary. Drivers are advised not to swerve around animals on the road where it is impossible to avoid them.64
Assuming that an animal is injured by a collision, it then falls to consider whether the driver is under an obligation to stop and provide assistance, and whether the failure to do so constitutes a punishable omission under the AWA. This would be highly unlikely. Parliament specifically considered and rejected such a clause when enacting the AWA.65 While this is not conclusive, it would be extremely unusual for a court to impose a duty on the public that Parliament examined and then refused to enact.
The concerns expressed by Anderton on this point seem more apparent than real and do not give rise to a justification for an unlimited hunting exception. Even in the absence of s 175, it is difficult to imagine a person ever being successfully prosecuted for accidental harm caused to a possum on a New Zealand motorway.
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3. OMISSIONS AND SUBSEQUENT ACTIONS
Though the scope of the hunting exception set out in s 175 may well be a matter of contention, it seems indisputable that where an act does fall within the definition of hunting or killing, it will not be the subject of a prosecution under the AWA. Still, the duration of the exception remains a matter of concern. To put it another way, can a person be punished for harm imposed on a wild animal if the harm arises subsequent to the act of hunting or killing that is otherwise exempt from prosecution?
The question is one of some importance and can be illustrated by the following example, where a hunter shoots a deer, but fails to kill it. As the animal limps away, the hunter follows it and imposes various acts of torture. Without ever taking the deer into captivity, the hunter — purely out of sadistic pleasure — causes the animal to suffer tremendously.
In part 2, I suggested that acts of torture should not fall within the s 175 exemption. Nonetheless, the acts in this case cause more difficulty. The initial act of shooting undeniably constitutes hunting, and is exempt from prosecution. But what about the subsequent torture? Here, the question to consider is whether the act of hunting can ever be completed to the point that subsequent actions must be assessed on their own merits within the broader context of the AWA.
Intuitively, it stands to reason that the answer to this question must be in the affirmative. A person’s actions are never static or frozen in time, and logically, it must be possible to commit new actions that must be assessed on their own merits. Indeed, ss 175–177 of the AWA appear to function on this assumption. For example, a hunter who wounds an animal by hunting it poorly is not liable for any injury imposed during the process. However, if the hunter then takes the animal alive into captivity, the obligations of the AWA apply in accordance with s 177. From that moment forward, the initially exempt actions of hunting are separate from whatever occurs later in captivity. The exemption no longer applies, and the hunter would most likely even be under the obligation to treat injuries that resulted from the hunting.66
It follows from this that both the act of hunting and the protection provided by s 175 have a demarcated end point. If one accepts that certain acts committed
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against wildlife are not protected by the exemption,67 a court must be able to assess when legitimate acts of hunting, fishing or killing have terminated, and decide at what point scrutiny of subsequent illtreatment can become culpable. Thus, the torturing hunter described above would be exempt from prosecution for the injuries suffered by an animal during the hunting process, but may well be liable for harms imposed afterward.This does not seem particularly controversial. The matter is complicated, however, by the fact that illtreatment is not concerned solely with acts of commission like those described above. On the contrary, illtreatment means “causing the animal to suffer, by any act or omission, pain or distress that in its kind or degree, or in its object, or in the circumstances in which it is inflicted, is unreasonable or unnecessary” (emphasis added). It follows that omissions, like intentional acts, can also be the basis for imposing liability.
This is where difficulty may eventually arise, for in the hunting context, omissions that cause harm are more likely to occur than the scenario involving torture described above. Consider a duck hunter who goes out for a day of shooting with friends. He decides early on that he is only interested in shooting. On several occasions, he shoots a duck and watches as it falls to the ground. While several of the ducks are injured, they do not die from the blast or the fall. The hunter then watches as the ducks struggle in pain, and many take hours to die.
Utilising the framework described above, it seems fairly certain that the original act of shooting, whatever the intent, cannot be scrutinised. The more interesting question is whether any subsequent refusal to take reasonable steps to terminate the ducks’ suffering could be treated as illegal conduct. The answer requires consideration of the criminal law’s general position regarding omissions, and an understanding of the limited circumstances in which the failure to act is punishable.
For the most part, the traditional focus of the criminal law has been to prevent people from committing harmful acts, and not to impose responsibilities to act in a certain way. As Simester and Brookbanks have noted:68
We value living in a society where citizens are respected as individuals — where they are free to live their own lives to act or intervene. The prohibition of omissions is far more intrusive upon individuals’ autonomy and freedom than is the prohibition of acts, which is why the systematic imposition of (criminal or civil) liability for failures to act is to be resisted.
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In addition to general concerns about liberty, there is a worry that compelling individuals to do something might put their own wellbeing at risk, especially in the situation where the omission relates to, for example, a failure to rescue.For centuries, the common law has enforced the notion that omissions should not be punishable.69 Nonetheless, there are exceptions to this principle. First, an omission will be culpable where the offender is under some sort of duty to act. Thus, parents cannot simply neglect to feed their sons and daughters, as omissions of this sort contravene the duty to provide the necessaries of life to children.70 The AWA contains duties of a similar nature. A farmer, to take one example, is under a duty to provide animals in his or her care with food, water, shelter and other necessaries, and the failure to comply constitutes a breach of duty that is punishable.71
These examples notwithstanding, the starting point with omissions is that they are not culpable unless specifically rendered liable, either by the imposition of some sort of duty to act, or through the wording of a particular statutory provision. To be clear, the definition of illtreatment — which refers specifically to omissions — does not in itself create a duty; it simply provides that culpable omissions can be prosecuted. In other words, the term “omission” in this context must be regarded as an “omission for which there exists a duty to act”.
In the hunting context, it does not take long to see that no such duties arise within the context of the AWA. In contrast with other activities for which an explicit duty of care is provided,72 the AWA offers no indication that those interacting with wildlife can be punished for omissions. This does not mean that no duty exists, however. It is also possible for a person to be prosecuted for a failure to comply with a duty owed under the common law, even though it does not occur very often.
The leading case on duties of this sort is the House of Lords decision of R v Miller,73 where the defendant, a vagrant, inadvertently set fire to a mattress upon which he was sleeping in a vacant house. Instead of taking any steps to extinguish the fire or summon assistance, he merely moved to another room and went to sleep. A blaze resulted and the house was burned. He was charged with arson, on the theory that he had caused damage to property by recklessness. The defendant cleverly argued that since the fire had started unintentionally, a
As we shall see, however, there are exceptions to this general rule, even at common law.
71 AWA, ss 4, 12.
72 There are many examples of this type. Section 11 of the AWA, for example, provides that “the owner of an animal that is ill or injured, and every person in charge of such an animal, must, where practicable, ensure that the animal receives treatment that alleviates any unreasonable or unnecessary pain or distress being suffered by the animal”.
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mere omission to put the fire out could not give rise to criminal liability in the absence of a positive duty to act. The House of Lords rejected the contention, and affirmed the defendant’s conviction. Relying upon the common law, Lord Diplock famously stated:74
I see no rational ground for excluding from conduct capable of giving rise to criminal liability conduct which consists of failing to take measures that lie within one’s own power to counteract a danger that one has oneself created, if at the time of such conduct one’s state of mind is such as constitutes a necessary ingredient of the offence.
In effect, the decision creates a particular sort of common law duty. Where a person has, by accident, created a state of affairs that would be punishable as a crime, then he or she is under a duty to take reasonable measures75 to counteract dangers created by such an act. Obviously, the omission will only be punishable if it meets with the other requirements of the crime for which the defendant has been charged.
There are at least three difficulties with extending Miller to the duck hunting scenario provided above. First, there is no guarantee that the basic premise of a common law duty to rectify dangerous situations arising from one’s own acts will be accepted in New Zealand, and no case appears to have expressly considered the matter.76 At the very least, however, one could say that there is a strong argument to be made for applying Miller. It is a precedent from the highest court in the United Kingdom, and decisions of the House of Lords have always been treated as being highly influential.77
Second, and more significantly, it is unclear whether a “danger” to animals is sufficient to warrant the imposition of a common law duty to act. Miller was quite obviously a situation where the defendant’s deliberate failure to counteract the fire he had caused created a major risk to life and property that allowed the House of Lords to overcome the general reluctance to punish omissions.
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Whether a court would find that the failure to alleviate suffering endured by an animal amounts to a sufficient “danger” to impose a duty to act is unclear. Undoubtedly, those charged in such a case would be able to argue that dangers to an animal are insufficient to warrant deviating from the general principle that the criminalisation of omissions should be resisted.Nonetheless, this is not an irrefutable argument. Some commentators interpret danger as “subsequent illegality”, rather than “danger to human life”,78 and with good reason. The principle in Miller is not geared to the nature of the potential harm, but rather reflects the notion that omissions are punishable where a person creates a situation for which a high likelihood of future mischief exists. In these situations, the person is deemed to have a special relationship to the harm, and, consequently, should have an obligation to make attempts to alleviate it.
Finally, one could argue that the wording of “illtreatment” could not be applied in this scenario because the alleged omission was not what “caus[ed] the animal to suffer” as required by the legislation. The need to establish causation could derail the possibility of prosecuting an omission, as a defendant in the hunting context could argue that his or her omission was not what caused the suffering, as it was the legitimate act of shooting the animal that was the proximate cause of harm. Of all the arguments suggested, this is probably the least convincing, however. The defendant in Miller undoubtedly argued that it was his dropping a cigarette, and not his failure to put out the fire, that was what caused damage to property. This contention clearly failed, as the House of Lords was quite prepared to find that his subsequent omission was at least a partial cause of the harm that followed,79 and enough to ground his conviction for arson.
Those objections aside, and it is recognised that the second objection in particular will prove somewhat difficult to overcome, the reasoning in Miller offers tantalising possibilities in the hunting context. First, so long as one accepts that the act of hunting can “end”, as set out above, s 175 is no obstacle to prosecuting an omission, for the legal nature of the original act does not preclude the extension of liability in this setting. Without question, Miller’s initial act — smoking in bed — was legal, notwithstanding its being extremely illadvised. This did not prevent the House of Lords from holding him liable for the subsequent omission to counteract the danger he had created. Similarly, the hunter who legally shoots an animal cannot be held liable for this act, but —
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assuming the court is willing to accept subsequent suffering by the animal as being a “danger” — such a hunter is under a duty, to use the very language set out in Miller, “to take measures that lie within one’s own power to counteract a danger that one has oneself created”.This narrowly targeted duty addresses the concerns surrounding omissions generally. To begin with, the duty is only engaged by a defendant’s wilful act. Thus, where one hunter shoots an animal, a fellow hunter cannot be punished for standing by and watching the animal slowly die — even if the suffering in such a case could be easily alleviated.80 The duty to act is restricted to the person who created the danger, and is not a general duty that falls upon all spectators. Moreover, the duty would simply require that the person take reasonable steps to alleviate the danger caused. Thus, where a person shoots an animal, it stands to reason that he or she is under an obligation to ensure that the animal dies without unnecessary suffering. As we shall see in part 5, this is not an unreasonable proposition, and it is one that accords with the standards set out in most voluntary hunting codes.81
While hardly a “sure thing”, any attempt to extend Miller to the hunting context in a situation along the lines of the example set out above would have at least a moderate prospect of success. It would be a welcome result, as it would at least impose obligations upon hunters to take reasonable measures to alleviate suffering caused by their hunting.
4. THE AMBIGUOUS NATURE OF S 175 OF THE ANIMAL WELFARE ACT
In the previous two parts of this article, an interpretation of s 175 was offered that would limit its potentially comprehensive nature. Without disparaging the analysis provided therein, it is worth pointing out its speculative nature, and to recognise the fact that no judicial interpretation of this provision has ever been attempted. Although it is unquestionable that a huge number of wild animals are forced to endure suffering initiated by New Zealanders on a daily basis — especially during hunting season — it would appear that no case involving a
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wild animal as “victim” has ever been prosecuted under the Animal Welfare Act 1999.This fact alone provides some reason to believe that, leaving aside any hypothetical construction of the clause along the lines discussed above, s 175 currently acts more as a prophylactic than a limited exemption, providing comprehensive protection to anyone who commits an act that causes harm to a wild animal. Evidence of this proposition can also be found in the van Vliet case discussed earlier.82 As noted above, shortly after the occurrence the Minister of Agriculture and Forestry decried the conduct, but added that despite his being ultimately responsible for initiating prosecutions under the AWA,83 there was nothing he could do. As he put it, “the problem is, because these were wild animals, there is no liability for cruel treatment”.84 This response is extremely troubling. Even if the section was only designed to exempt certain acts, the agencies responsible for administering the AWA, and likely those causing the acts of “hunting and killing” themselves, seem to believe that the exemption applies to all conduct involving wild animals.
In large part, this belief is caused by the section’s inherent ambiguity and breadth. Although a careful interpretation of s 175 reveals some limitations, these are not immediately apparent. The terms included within the definition of hunt and kill are worded in a broad manner and on a plain reading seem to encompass virtually every action that could be directed at causing pain to a wild animal. This demonstrates what may well be s 175’s greatest deficiency: its failure to articulate a framework governing the types of illtreatment that are permissible where wildlife is concerned. The exemption is simultaneously unfair to those committing harm against wild animals, those whose interests are notionally being protected, and those who believe that the current structure is inequitable.
4.1 Fair Notice to Affected Individuals
The importance of providing fair notice to individuals with the potential to be affected by law has been a theme of doctrinal criminal law scholarship for centuries. While it is not always thought of as such, the AWA is a penal statute
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with the potential to subject individuals to harsh penalties of up to five years’ imprisonment. As a consequence, it should provide fair warning to those who might engage in prohibited conduct as to when their actions will “cross the line”. As Simester and Brookbanks have suggested:85
The criminal law is not there solely to tell police and judges what to do after someone offends, but also to tell citizens what not to do in advance ... This requires both that the rule be stated in advance, and also that it be stated clearly. Clarity is essential if citizens are to have fair warning that by their prospective actions they are in danger of incurring a criminal sanction. If individuals understand the law, they will be able to properly decide what to do in light of the guidance that the law is meant to provide.
It can be argued that s 175 of the Animal Welfare Act 1999 fails to provide the guidance required to put those who harm wild animals on notice as to the limits of permissible conduct. While the MAF currently appears to treat the provision as a complete exemption, there is no guarantee this approach will prevail forever. It may well be that certain acts against wild animals do not constitute “hunting and killing”, and will be prosecuted at some point. Still, in the absence of a more precise definition, it is difficult to argue that an individual committing these acts could be said to have received proper notice of the propriety of his or her conduct in advance.86
4.2 Failing to Protect the Vulnerable
Hunters are not the only “parties” with an interest in the proper interpretation of the AWA. The existing ambiguity is even more troublesome for the beings whose interests are supposed to be protected under the legislation: the animals themselves. If s 175 was indeed designed as a limited exemption to exculpate only legitimate acts of hunting, fishing and pest extermination, it must be regarded as a complete failure. Those tasked with policing and enforcing the AWA are unsurprisingly unsure of the types of conduct committed against wild animals that may go beyond these acts and be regarded as culpable.
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In addition to providing notice to those likely to commit criminal acts, the law must provide guidance to those who enforce it. Where those limits are elastic or unclear, it stands to reason that the state — which bears the burden of proving that the exemption does not apply — will be unwilling or unlikely to prosecute, even if the activity seems to be exactly what the legislation is designed to punish.87 The result is a failure to protect the vulnerable animals for which the legislation was originally enacted.The problem is magnified in an area like animal protection law, where “owing to limited resources and organizational priorities, [the] authorities tend to focus on prosecuting animal cruelty cases with high chances of success, as opposed to running costly test cases”.88 Considering how difficult it is to get even strong cases of illtreatment prosecuted successfully, it is not surprising that no one has sought to test the limits of s 175. This is just another reason why the section acts as a comprehensive exemption, even if it was not intended to operate in this manner.
4.3 Impediment to Law Reform
Perhaps the most disappointing effect of the current situation is how the existence and wording of the exemption has completely forestalled highlevel discussion and law reform regarding the humane treatment of wildlife. Either s 175 actually is an exemption, or, through a de facto application of the factors discussed above, it operates as one. On either approach, wild animals are left completely unprotected by the AWA, and, in effect, the law sanctions any act of cruelty imaginable upon them.
Leaving aside the desirability of this position, the amorphous nature of s 175 quite likely has the effect of impeding reform, as not everyone shares the same view of its application. One cannot argue that wild animals are completely unprotected by the Act, because this position is difficult to prove with any degree of certainty. The definition of animal includes wild animals, and certain actions, such as those involving trapping and the like, remain punishable. On occasion, in discussing the plight of wild animals, I have been chided by animal advocates who maintain that s 175 is “not a complete exemption”, and that even
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unreasonable acts of hunting can be prosecuted. While I do not believe this to be the case, I recognise that arguments against this position are complex, and s 175’s inherent ambiguity allows people to take different views of its effect.This ongoing stalemate undermines what may well be one of the AWA’s greatest strengths: the fact that it keeps animal welfare issues firmly fixed in the public arena. New Zealand may not have the best system of animal protection in the world, but the AWA is commendable in that it requires Codes of Welfare to be regularly updated, and discussions surrounding any amendments to these codes must be published and available for public scrutiny.89 Notwithstanding the weaknesses inherent in this form of regulatory framework,90 the process ensures that issues surrounding animal welfare are discussed in a public forum on a regular basis.91
Whatever one’s view of the results that come from these discussions, the process itself has value, as it guarantees the ongoing discussion of animal welfare issues and requires New Zealanders to discuss the merits of various animal uses on a periodic basis. This contrasts dramatically with the treatment of wild animals, who are rarely the subject of debate insofar as welfare issues are concerned. As I have previously suggested, animals whose treatment lies outside of the public eye are in a catastrophic position, for “the greatest obstacle to the better legal treatment of animals is passivity and ongoing acceptance of the status quo; a status quo most effectively maintained through silence”.92
Despite the expression of sporadic outrage from the public when acts like van Vliet’s come to light, and the hollow statements from parliamentarians at the time of enactment that more public debate on this issue was required,93 there has been little sustained discussion regarding the extent to which the AWA should apply to wildlife since the legislation was enacted. Moreover, the ambiguous nature of this exemption renders plausible statements made by those who wish to defer reform by relying on the fact that egregious acts against wildlife can already be punished under the AWA. So long as the focus remains upon the scope of s 175, it cannot turn to the real matter of concern: whether s 175 deserves to remain in place at all.
Animal Law in Australasia (Federation Press, Sydney, 2009) 1 at 4.
Owen Jennings, New Zealand Parliamentary Debates, 578 NZPD 17441 (16 June 1999).
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4.4 Summary
For the reasons outlined above, I believe that however it might be interpreted in a courtroom, s 175 should be regarded as a poorly conceived law that is desperately in need of clarification. In its current form, it fails to provide those who hunt and kill animals with any indication of the legality of their conduct, inhibits prosecutors from bringing charges even in egregious cases of ill treatment, and simultaneously obscures the true position of Parliament toward wild animals. If wild animals are completely exempt from the protection of the AWA, subject to the limited situations set out in ss 177 and 178, this should be made clear in order to permit public discussion on the propriety of this situation. The current state of ambiguity — in which wild animals “may” or “may not” be protected — is a thoroughly unsatisfactory state of affairs.
5. THE CAUSE FOR REFORM
In 1999, Pete Hodgson, the Member of Parliament whose Private Member’s Bill provided the impetus for the eventual passage of the AWA, made the following statements on third reading of the new legislation:94
I want to put on the record of the House my view that within 10 years someone will note that there are issues concerning hunting and fishing that ought to have been addressed by codes of conduct but have not been addressed by them. It will be seen to have been, I think, a mistake not to allow codes of conduct through into legislation — probably the biggest gap in this legislation.
It has now been more than ten years since those words were spoken in the House, and as this article has attempted to demonstrate, Hodgson’s words were remarkably prescient.95 The refusal to address concerns about animal protection and its relationship to wildlife is, arguably, one of the biggest weaknesses of the AWA.
Concerns about the reasonableness of the hunting exemption have been raised at least a few times since the AWA was enacted. For example, in 2003, the New Zealand SPCA investigated the killing of an Asian water buffalo that took place in a safari park in the Reporoa district. A guest from the United States paid to hunt down a water buffalo with a bow and arrow. The witness
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statement provided to the SPCA described the events from the initial shot as follows:96
The arrow entered the shoulder and was obviously too high and too far forward of [the ideal kill area]. The animal walked forward and with some obvious discomfort broke the arrow off and tentatively continued to graze. The next shot disappeared into the animal high again and too far back ... He was followed and every available moment he was shot ... with an arrow in the endeavour to hit the right spot.
[The hunter] eventually ran out of arrows which I believe totalled 8, all of which were hits over various parts of the animal’s body. Then, in the absence of any more arrows, [he] fired 3 bullets from a 7mm Remington Magnum to finally have the animal run, and eventually jump into a lake and drown.
In all my years of hunting and farming I have never witnessed ... such a disgusting manner in the hunting and destroying of an animal in the pursuit of fame. It was obvious the gentleman was inexperienced and was using a weapon that was obviously unsuitable for the humanly [sic] purpose of killing this type of animal.
The events in question were enough to disgust a seasoned hunter, but not enough to attract prosecution. While the SPCA pursued the matter, it was eventually informed by the MAF that no action could be taken against the hunter or the safari park.97 Sections 175 and 176 of the AWA provided both parties with complete immunity from prosecution.
This is hardly an isolated example,98 and it raises numerous questions about the status quo. While parts 2 and 3 of this article provided a means of interpreting s 175 so as to narrow the clause’s potentially unlimited scope, this
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approach would not address many of the problematic situations that arise where wildlife is concerned. Neither Mr van Vliet nor the hunter in the safari park example would have any reason to fear the interpretation set out in this article.99 In both cases, a judge would almost inevitably conclude that the activities in question constituted the act of hunting, in the case of the safari park, or killing a pest species, in the case of the explosives. Unless the AWA is amended to provide a “reasonableness” criterion, or an enforceable “Code of Conduct for Hunting and Killing” is enacted to set limits on techniques and approaches, this lacuna in the legislation will continue to exist, and wild animals will continue to suffer accordingly.It is difficult to understand the reasons for resistance in this area. While New Zealand is certainly a nation populated by hunters and fishermen, it is also a nation of farmers. While hunters have received a “free pass” from the AWA thus far, the farming community has been exposed to considerable scrutiny, and those with an economic interest in the production of animals have been forced to make many changes to their way of doing business, all for the purpose of improving the lot of the animals in their care. In addition to farmers, people who care for animals in zoos, rodeos, circuses, research facilities and other settings have all had to take stock of their treatment of animals and, to some extent, revise their practices. While no one can validly claim that the suffering of animals has ceased, improvements in treatment have occurred.
Only the hunting community and those involved with the killing of pest animals have avoided scrutiny altogether. It is a perplexing development. Though this approach is hardly unprecedented in foreign jurisdictions, it does render New Zealand’s claim to be a “world leader” in animal welfare somewhat of an overstatement,100 at least where wild animals are concerned. One could easily make the case that New Zealand’s standards in this area, which amount to almost no standard whatsoever, are amongst the very worst in the Western world.
In contrast, consider the legislation currently in place in New South Wales. There, any game hunting licensee must adhere to the NSW Code of Practice
New Zealand Journal of Environmental Law
for Licensed Game Hunters,101 and it is an offence if these conditions are contravened.102 The Code includes the following mandatory provisions:103
An animal being hunted must not be inflicted with unnecessary pain. To achieve the aim of delivering a humane death to the hunted animal:
(a) it must be targeted so that a humane kill is likely, and(b) it must be shot within the reasonably accepted killing range of the firearm and ammunition or bow being used, and
(c) the firearm and ammunition, bow and arrow, or other thing used must be such as can reasonably be expected to humanely kill an animal of the target species.
If a lactating female is killed, every reasonable effort must be made to locate and humanely kill any dependent young.
If an animal is wounded, the hunter must take all reasonable steps to locate it, so that it can be killed quickly and humanely.
Although the provisions in the New South Wales legislation are the most detailed, most Australian cruelty laws also attempt to provide at least a modicum of protection to wildlife. Australian animal welfare legislation does not apply universally to wild animals, especially where they are designated to be a “pest” or “feral”, but there is at least a requirement that no unnecessary suffering be imposed on the animal and that any killing be done in a “reasonable” manner.104 The Australian provisions are not perfect, and one could level many criticisms at the exemptions, the lack of enforcement, and what is considered a “reasonable”
104 Prevention of Cruelty to Animals Act 1979 (NSW), s 24(1)(b); Animal Care and Protection Act 2001 (Qld), s 42; Animal Welfare Act 1993 (Tas), s 4(1); Prevention of Cruelty to Animals Act 1986 (Vic), s 9(1)( j); Animal Welfare Act 2002 (WA), s 24.
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manner of killing,105 but they are a far cry better than what exists in New Zealand, and at least send a signal that animal welfare is of some importance in the hunting context.More than ten years have now passed since the AWA was enacted, and one must ask why hunting and killing is still entirely exempt from scrutiny, and no movement is on the horizon to change matters. If the reasoning expressed earlier in this article is correct, and legislators were concerned that hunting as an activity would be deemed unnecessary or illegitimate altogether, there is an easy solution. The standard measurement of illtreatment considers the extent of animal suffering balanced against the legitimacy of the purpose for imposing such suffering, and the means utilised to do so. Still, there is no reason why hunting and killing must be assessed by using this test. It is, of course, possible for the legislature to create intermediate positions. It is not — as Parliament seems to have believed in enacting the provision — an “all or nothing” proposition.
The easiest way of addressing the worry that hunting in its totality will be targeted for prosecution is by removing any consideration of purpose from the equation. In other words, the AWA could be drafted to reflect that hunting, fishing and the killing of pest animals are legitimate activities, but insist that those activities be carried out reasonably. Instead of utilising the broad test for illtreatment, which requires a court to consider whether suffering was “in its kind or degree, or in its object, or in the circumstances in which it is inflicted” unreasonable or unnecessary, a more limited test could be adopted. For example, s 175 of the AWA could be amended to read as follows:
175 Hunting or killing
Subject to sections 176 to 178 and Part 6, nothing in this Act makes it unlawful to hunt or kill—
(a) any animal in a wild state; or(b) any wild animal or pest in accordance with the provisions of—
(i) the Wildlife Act 1953; or(ii) the Wild Animal Control Act 1977; or
(iii) the Conservation Act 1987; or
(iv) the Biosecurity Act 1993; or
(v) any other Act; or
(c) any wild animal or pest; or
(d) any fish caught from a constructed pond;
so long as the hunting or killing was undertaken in a reasonable manner,
105 See Dominique Thiriet “Recreational Hunting — Regulation and Animal Welfare Concerns” in Peter Sankoff and Steven White (eds) Animal Law in Australasia (Federation Press, Sydney, 2009) 259.
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taking into account the method utilised to hunt or kill the animal and the steps taken to reduce any unnecessary pain or suffering.
Obviously, other wording might achieve this purpose as well, but is this not a considerable improvement on the existing situation? Instead of leaving wild animals completely unprotected and at the whim of the incompetent, the uncaring and even the sadistic, it imposes a limited requirement to consider the means used and assess their appropriateness. Given the stated purpose of the AWA, a requirement of this sort seems to be the very least that could be imposed.106
Another possibility worth considering is to distinguish between hunting for recreation and the killing of pest animals for conservation purposes. While it is beyond the scope of this article to analyse this point in detail,107 there is an argument to be made that the latter activity has a more justifiable purpose and is one for which scrutiny over the humane standards of killing is less desirable.108 Although there are many who contest this notion, it is often suggested that the killing of pest animals must be accomplished in certain ways in order to be effective,109 even if this imposes considerable pain and suffering upon the victims. Further consideration of the validity of these points will ultimately be required, but it is hardly heretical to suggest that killing animals for conservation purposes is different, and potentially more laudable, than hunting for recreation.
By decoupling the two types of activities, Parliament could enact different standards of care. Hunting and fishing would need to be undertaken in a reasonable manner, as proposed above. The killing of pest species, on the other hand, could be regarded as legitimate unless the manner of extermination was demonstrably unreasonable and imposed extreme suffering. This is not to suggest that this approach should be adopted, as the matter is worthy of more detailed consideration, but it demonstrates that different and more finely nuanced solutions are indeed possible.
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6. CONCLUSION
Nearly twelve years after the enactment of the AWA, the hunting exception remains unaltered, and its continued existence is symbolic of Parliament’s unwillingness to grapple with the moral obligations humans owe towards wild animals. Without question, the relationship between humans and wildlife is more complex than that between humans and animals in our care, and the obligations set out in Parts 1 and 2 of the AWA cannot simply be adopted wholesale in respect of wildlife. Careful consideration is required to ensure that a proper balance is established.
That said, the status quo is intolerable. According to New Zealand animal protection law, it is currently reasonable to kill, maim and even torture a wild animal by any means. One can shoot a feral cat with a crossbow, blow up birds with explosives, and throw rocks at ducks for the purposes of amusement. Unless the victim happens to be a member of a species protected under conservation legislation like the Wildlife Act 1953, there will be no means of punishing the perpetrator.
A very recent example of the type of tragic event that occasionally unfolds in New Zealand highlights the downsides of the current approach. In March 2011, more than 100 shorebirds were senselessly shot on Kaipara Harbour. Many of the birds were injured and left to die in a horrible manner. As usual, there were expressions of anger and the matter received considerable attention in The New Zealand Herald.110 If caught, the offender will undoubtedly face prosecution. It turns out that some of the birds shot were dotterels, a protected species under the Wildlife Act 1953. The Act absolutely prohibits the imposition of any harm upon these rare birds, and for this reason alone, the slaughter will be investigated, and charges laid if possible. Amazingly, had the victims been of another species — say, a starling — nothing could have been done. Cruel or not, the callous shooting of birds and other unprotected animals for pleasure, even where the animals are left to die a slow and painful death, remains fair game in New Zealand.111
In this article, I have suggested an interpretation of s 175 that attempts to narrow the exemption and provide some measure of protection for wildlife. It is difficult to imagine most hunters or others involved in the killing of wildlife disagreeing with restraints on torture and harassment, and an obligation to take reasonable steps to end the suffering of animals they harm in the wild. This
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interpretation is not enough, however. For New Zealand to live up to its stated goal of being a nation that cares about its animals, steps need to be taken to provide some protection from illtreatment for wildlife. Prohibiting the hunting and killing of animals undertaken in an unreasonable manner — or even a substantially unreasonable manner — would be a good first step. So long as s 175 operates to give carte blanche to the incompetent, the sadistic and the uncaring, wild animals are likely to continue to be prime targets of cruelty, and those involved in the conduct will have no legal reason to act otherwise.
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