The Hon Michael Kirby AC CMG tells NZ Lawyer that although New Zealand is a trailblazer in recognizing the rights of animals, its law regime needs teeth
“New Zealand introduced legislation in 1999, the Animal Welfare Act, which in many ways was in advance of other countries of the world, certainly in advance of Australia. That legislation recognised, for example, the five essential freedoms that animals should enjoy. One of which, controversially, was that animals should be protected so that they can experience the range of behavioural conduct, which is natural to their species,” Kirby says. “But when it came to actually enforcing the five freedoms, the law was a bit light. It was strong on the principles, and that’s a good thing, but it was rather cautious and had many exceptions for enforcement.”
Kirby was one of the featured speakers of the first national animal law conference, which was hosted by the New Zealand Animal Law Association earlier this month at the AUT City Conference Centre in Auckland. He discussed the inherent flaws within New Zealand’s animal law regime during his talk at the event, which was attended by a 270-strong audience and also featured Dame Jane Goodall.
Kirby says that the Animal Welfare Act was strengthened in 2015 after certain provisions were made enforceable and certain pioneering provisions were added. However, more needs to be done, he says.
“[The amending act] also included, for the first time in national legislation, a recognition that animals are sentient beings and that they share that with human kind. That is a very important step forward in terms of symbolism. A similar provision had been adopted by the European Union but as a country, New Zealand was the first to insert that in its laws. Again, it is of symbolic value and giving it teeth is more difficult,” he says.
Kirby says that steps taken between the 1999 law and the 2015 amendment demonstrate that the animal law regime is a journey being taken by New Zealand and the wider world.
“Countries are on a journey, people are on an individual journey, and the journey is motivated by the growing appreciation of a point made today by Dr Jane Goodall. Human beings share sentience with other animals and those animals have fear, they have love, they feel pain, they have a whole range of experiences. And when you realise that, you cannot go on treating them in the biblical manner as things that are put on earth to be of benefit to humans,” he says. “We have to change our attitudes, we have to change our laws, and countries and individuals are in the process of doing that – but there is still a way to go.”
Leading the way
Kirby says that Pete Hodgson, who was minister in the New Zealand parliament and a major proponent of the 1999 legislation, says that there would be no substantial reforms to the act probably for another 50 years. After 15 years, there have been significant reforms and even those reforms, according to critics, don’t go far enough, Kirby says.
Despite the need for more reforms in New Zealand, its animal law regime could serve as a guide for Australia, where even more major reforms are needed in the area, he says.
“We are a long way behind New Zealand and the reforms in Australia will be needed in areas that also overlap with needs in New Zealand. [There is a necessity of change in particular areas like] factory farming, the treatment of sows, the way in which we deal with the live export of animals, the way in which we also deal with religious killing, halal and kosher killing and what the requirements of that should be, Kirby says.
In New Zealand, commentators suggest the law should have less symbolism and more enforceability.
“New Zealand has a more questioning society. It has a more civil society. That is evidenced by the large numbers of people who have showed up to this conference here in Auckland today. [New Zealand] tends to get to solutions more quickly than other countries, which have more complicated lawmaking systems, like the US or Australia. So I would think we’re going to see more progress and it’s not going to require 50 years,” he says.
That’s not to say that New Zealand isn’t trailing in some respects.
“For example, in terms of chicken farming and other mass farming, there’s definite room for greater progress when compared to the directives of the EU. But even in the EU, there is a division between the countries of Northern Europe, Scandinavia and the Netherlands, which are very forthright in protecting the animals in factory situations because that is the demand of their population, and countries of Southern or Eastern Europe, which are less vigorous in that respect,” he says.
Kirby says New Zealand is leading in terms of symbolism. It is in advance of other countries when it adopted the five freedoms that belong to animals in the 1999 and adopted the provision for recognition that animals are sentient and share that with human beings in the 2015 amendment act.
“And there has been, in 2015, some moves towards giving substance and application towards to the symbolism. I think that’s where we will see changes within New Zealand,” Kirby says.
Why animal law should be advanced
There are numerous reasons why animal law should be further championed, though it’s not going to be an easy effort, Kirby says.
“The bottom line is economic. There is no way that New Zealand or Australia are going to drop eating meat overnight. They are and will continue to be carnivore nations, as it’s part of their tradition,” he says. “But once you recognise sentience and once a body of public opinion gets behind the view that you cannot just treat animals for slaughter as things, then that will have a cost factor.”
He says that this realisation will mean chicken grown for meat or eggs will have to be humanely housed, sows will not be kept in close confines, and more.
“Animals will be entitled and there will be enforcement orders to ensure they have the range of experience, which is normal to their species. Once that is realised, there will be a cost factor to the production of bacon and eggs and other products. And if that means that fewer people are eating bacon and other meat products that may not be such a bad thing. It may be better for people to eat less meat,” he says.
Prime examples of the health benefits of eating less meat are countries in Asia, he says.
“Certainly it has been found that when countries of Asia, notably Japan, switched after the second world war into an American style meat eating tradition, their levels of stomach cancer went up. Therefore, reducing the intake of meat is good for you,” he says.
Kirby says he has stopped eating meat and poultry ever since he launched a book on animal law here in Australia and New Zealand in 2009, soon after he left the High Court of Australia.
“From that day on, I have never eaten meat. And that is natural when you learn what happens when animals are slaughtered,” he says. “But my partner continues to eat meat. I still eat a little bit of fish. My partner questions me, mercilessly, ‘don’t you think it hurts the fish when they take the hook?’ But the fact of the matter is, he is now eating less meat because of the circumstances of the kitchen and that’s good for him. And he recognizes it’s good for him.”
Kirby thinks that eating less meat should be promoted as a national policy, which is harder to promote in countries like Australia and New Zealand – not that it can’t be done.
“That’s harder to pursue in countries like Australia and New Zealand who have developed an important part of their economy on meat raising. For inventive people, there is always another opportunity, he says. “When I came to New Zealand in 1968, I drank the wine and it was undrinkable. Now New Zealand is one of the greatest wine producing countries in the world. So the motto of the story should be, ‘less meat, more wine.’”
For Kirby, the conference raises an interesting issue of whether gender roles could possibly have a bigger effect on the current state of animal law in New Zealand than initially thought. It’s one of the issues to look at, in addition to increasing awareness of the state of the animal law regime, promoting the teaching of animal law in law schools, and fostering more discussion of it including at conferences like the first animal law conference, he says.
“[Lawyers and the government] can turn their particular attention to why it is that a conference of this kind is overwhelmingly female. Why are men not here in equal numbers? What is it about the male experience in Australasia that makes it feel uncomfortable to be involved in animal welfare?” Kirby says. “Whatever it is, we’ve got to change the culture because preserving the planet, preserving the species, improving health, [and] improving the environment is a matter for all of us, not just for women.”
Kirby asked Dame Goodall about his observation.
“I asked Dame Jane Goodall why 70% of her audience today were women. She says, it’s because until now, women have been overwhelming fixed with the responsibility of child raising and empathy, and that is not something that men feel comfortable exhibiting. She says that is thought to exhibit a female streak in their personality,” Kirby says. “But maybe, if more men exhibited a female streak in their personality, the world would be a better and safer place. It’s boys with toys, and especially when the toys involve nuclear weapons, that are dangerous to the survival of the human species and of the biosphere. If we’re thinking in long-term goals, we should be trying to get more men interested in these issues because the future of the race and of the species and of the environment includes the future of men as well as women.”
New Zealand, Kirby says, may have a split personality in the area of animal law.
“It may be that New Zealand is evidencing the duality of that phenomenon. It is putting these nice things in its statutes in response to the demands of the women of New Zealand, but it’s holding back the enforcement and providing exceptions in response to the demands of the men of New Zealand. Somehow, the men and the women of New Zealand have to get together and resolve this.”
If there’s anyone who could get it done, it’s Kiwis, Kirby says.
“But unlike Australia, the men and the women of New Zealand got together on gay marriage and on other issues long before other countries did. So you can do it New Zealand, and you can give leadership to us on the other side of the ditch,” he says.
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