Royal New Zealand for the Prevention of Cruelty to Animals v Murray
[2023] NZHC 712
•3 April 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2022-409-102
[2023] NZHC 712
BETWEEN THE ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
AppellantAND
REBECCA MURRAY
Respondent
Hearing: 26 July 2022 Appearances:
G J C Carter for Appellant
G D Fletcher as Counsel to Assist
Judgment:
3 April 2023
JUDGMENT OF EATON J
This judgment was delivered by me on 3 April 2023 at 10.30 am pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS v MURRAY [2023] NZHC 712 [3 April 2023]
Introduction
[1] On 8 February 2022, Judge Neave declined to make an order for the disposal of animals owned by Rebecca Murray in circumstances where the Royal New Zealand Society for the Prevention of Cruelty to Animals (RNZSPCA) had decided not to bring proceedings under the Animal Welfare Act 1999 (the AWA).1 The RNZSPCA appeals this decision. The purpose of this appeal is largely to clarify whether or not the RNZSPCA is able to apply for disposal orders in cases where it has decided not to prosecute the animals’ owner.
[2] Ms Murray was served with a notice of appeal on 23 March 2022 but has taken no active steps in this proceeding. Mr Fletcher was appointed by this Court as counsel to assist as contradictor.
Background
[3] In May 2021, it came to the attention of an animal welfare inspector that Ms Murray was allegedly providing insufficient food for her grazing animals.
[4] A series of inspections and communications with Ms Murray and her son eventually led to an animal welfare inspector taking the animals into their possession, pursuant to s 127(5) of the AWA. On 22 June, the animal welfare inspector took possession of 27 grazing animals.
[5] On 29 June, Ms Murray told the inspector she wanted the animals back and did not want to surrender ownership of them.
[6] The RNZSPCA had serious concerns that if the animals were returned to Ms Murray they would suffer further, and Ms Murray would continue to be in breach of the AWA.
[7] The RNZSPCA then applied to the District Court for orders under s 163(1) of the Search and Surveillance Act 2012 (SSA), which relates to the disposal of seized property.
1 Royal New Zealand Society for the Prevention of Cruelty to Animals v Murray [2022] NZDC 1843.
[8] At the time the application was made, the animals were in the RNZSPCA’s custody at great expense in terms of the veterinary and husbandry bill. Ms Murray made no contribution towards the costs of caring for the animals. Of some moment, the RNZSPCA had decided not to prosecute Ms Murray.
[9] Ms Murray took no steps in response to the s 163 application. At a formal proof hearing on 4 November 2021, Judge Neave indicated he was not satisfied of the statutory authority to make the orders sought. The Judge considered granting a disposal order would be an effective expropriation of private property absent a clear statutory authority to do so. The application was adjourned, and further argument heard on 18 November 2021.
District Court decision
[10] The Judge traversed the statutory regime, first setting out ss 9, 10, 11, 127, 136 and 136A of the AWA and then ss 151 and 163 of the Search and Surveillance Act 2012 (SSA).
[11] The Judge found that under s 136 of the AWA, disposal of seized animals is to be dealt with in accordance with the general principles applying to items seized pursuant to the SSA. The Judge considered it was not possible to import a special subset relating to animal welfare matters into the general provisions of the SSA.
[12] The Judge considered s 136A of the AWA, which sets out the procedure for disposal of animals prior to the commencement or determination of proceedings for an offence involving the animals, supported this conclusion. The Judge found that the legislature would have specified how to dispose of animals after a decision not to prosecute had been made if it intended that to differ from the s 136 AWA disposal regime and the relevant provisions of the SSA.
[13] The Judge noted s 163 of the SSA imports considerations in respect of s 151 of the SSA, which provides that once a decision is made not to bring the proceedings for an offence in respect of which the thing was seized, the property must be immediately released to the owner or a person entitled to possession.
[14] The Judge concluded that once a decision is made that proceedings are not to be brought, those previously entitled to hold the animals cease to have any authority to retain the items seized. Any other conclusion would override private property rights, which have already been significantly infringed by the acts of search and seizure.
[15] Section 151 of the SSA is subject to ss 153 and 163 of the SSA. The Judge held s 153 does not apply as that only relates to cases where a decision has yet to be made as to whether or not proceedings are brought.
[16] The Judge found s 163 of the SSA did not apply once the decision not to prosecute had been made. The Judge observed that the grounds in s 163(1) essentially relate to circumstances where something will be a deteriorating asset if maintained by those who seized it or the cost of maintaining it is becoming burdensome. It was found that as the obligation was to return the animal once a decision had been made not to prosecute, the “deterioration” ground would not apply. He emphasised this decision was being made in the context of general provisions relating to search and seizure, and not just animal welfare issues. The Judge reasoned that if the legislature had intended animal welfare issues to be separate to the normal rules on search and surveillance in these circumstances, it would have made that plain as it did with s 136A of the AWA.
[17] The Judge noted the general rule that courts are reluctant to adopt a construction that takes away existing property rights, at least no more than the Act and its proper purpose require.
[18] Given this reasoning, the Judge considered the words of the statute make it clear that once the decision not to prosecute has been made, an obligation to return the property arises.
[19] The Judge held the interest of the animals had to be considered but was not convinced this was a relevant consideration in terms of s 163 of the SSA. However, he considered there were alternative means of accommodating the interests of the animals. Namely, the AWA provides for enforcement orders to ensure steps are taken to provide for an appropriate level of care for the animals. At the Judge’s suggestion, the RNZSPCA applied under that provision, and a temporary enforcement order was
made. This enforcement order was to the effect that Ms Murray have zero animals at her property.
[20]The Judge declined to make a disposal order.
Principles on appeal
[21] Section 124 of the District Court Act 2016 provides a general right of appeal from a decision of the District Court. As such, this Court may reach its own conclusions on the merits of the appeal and can substitute its own decision for that of the District Court.2
Submissions
Appellant’s submissions
[22] Mr Carter, on behalf of the RNZSPCA, submits the Judge erred in finding that the AWA did not confer on the RNZSPCA a right to dispose of the animals after it decides not to prosecute, and submits that a necessary “modification” to the statutory regime allowing this would accord with the purpose of the legislation.
[23] Mr Carter emphasised the context in which the RNZSPCA operates, namely that it is a non-profit charitable organisation that takes responsibility for prosecuting offences committed under the AWA. However, Mr Carter highlighted that non- compliance with the AWA can often be resolved without prosecution. The financial burden of caring for the animals while the RNZSPCA communicates with the owner to try and ensure their compliance with AWA (which is sometimes not possible to achieve) is often significant and unable to be recouped.
[24] Mr Carter submits the decision under appeal puts the RNZSPCA in a situation where it cannot act as a model litigant. He says the RNZSPCA will either have to delay a non-prosecution decision inappropriately or use alternative mechanisms which are not fit for purpose.
2 District Court Act 2016, s 128.
[25] Beyond this issue of practicality, Mr Carter submits the Judge made two errors of law.
[26] First, Mr Carter submits the Judge erred by finding there was no lawful authority to retain the seized items. He submits the RNZSPCA had a lawful basis to continue holding the animals under s 127(5) and (6) of the AWA as there were legitimate concerns raised about the animals’ welfare.
[27] Second, Mr Carter submits the Judge’s analysis regarding the interaction between ss 136 and 136A was incorrect. In particular, the conclusion that if the legislature had intended that the SSA was meant to treat animal welfare issues differently then it would have made that as plain as it did in s 136A. Mr Carter submits the existence of a different process in s 136A for disposal, which only applies when prosecution is commenced or contemplated, supports the submission that disposal under s 136 must logically contemplate disposal in circumstances where prosecution is not contemplated or commenced. If this were not the case, s 136A is essentially redundant.
[28] Mr Carter highlighted that s 136 of the AWA incorporates sub-pt 6 of the SSA with “necessary modification”. In circumstances where the RNZSPCA has a legal obligation, or power, to retain custody of the animals under s 127 of AWA (due to the animals’ welfare being at risk), Mr Carter submits it “logically follows” that a “necessary modification” of the SSA would be to allow disposal under s 163, even if one of the pre-conditions for return under s 151 of the SSA is met. He submits the SSA is silent in respect of situations where there is an alternative basis on which an authority continues to lawfully have custody of the item seized. Under s 127(5) and
(6) of the AWA he submits the RNZSPCA continues to lawfully hold the animals, irrespective of s 151 of the SSA.
[29] Mr Carter acknowledges the tension between the legislation. He submits the question in issue is whether “necessary modification” could extend so far as to essentially allow the Court to ignore the application of s 151 of the SSA in circumstances where the animal continues to be held lawfully. Mr Carter submits this approach would give effect to the purpose of the AWA (to ensure that owners of
animals and persons in charge of animals attend properly to the welfare of those animals) and would prevent an unreasonable burden being placed on the RNZSPCA.
[30] Mr Carter explained the RNZSPCA regularly seizes animals under s 127(5) of the AWA, not as evidence of an offence, but in order to mitigate their suffering. When the issue of disposing of these animals using the SSA arises, this raises an inherent tension as the SSA is designed to deal with inanimate evidence, not sentient beings being held for reasons separate from prosecuting an offence. For the RNZSPCA to release animals into situations adverse to their welfare (pursuant to s 151 of the SSA) directly conflicts with s 127 of the AWA, which guards against animals being in such circumstances.
[31] Mr Carter submits the Court can utilise s 151(4) to preserve RNZSPCA’s right to apply for a disposal order under s 163.
[32] Mr Carter referred to the decision of Parker v Langley, which was issued after the District Court decision under appeal was released.3 This judgment considered (as obiter) the powers of search, seizure and disposal under the AWA in the context of a challenge to the legality of an enforcement order, which contained de-stocking and substitute clauses, and an application to vary. This Court considered the scope of s 136 is not “easy to discern”.4
[33] The Court, in Parker, found that while there are several reasons to be cautious about a de-stocking requirement in an enforcement order, as a matter of law the Court had the power to make them. Mr Carter submits the RNZSPCA shares the concerns referred to about whether the enforcement order regime is appropriate for de-stocking, especially when it is used to deplete the stock all the way to zero (as has practically occurred) and the NZRSPCA has seized animals at that point.
[34] Additionally, Mr Carter submits that using an enforcement order that effectively operates as a disqualification order is not an appropriate use of that tool. Disqualification orders under s 169 of the AWA can only follow conviction for an
3 Parker v Langley [2021] NZHC 3144.
4 At [67].
offence under the AWA, so where no prosecution is going ahead an order that is, for all intents and purposes, a disqualification order, is not appropriate.
[35] Mr Carter submits the other potential option for the RNZSPCA as an alternative to disposal under s 163 would be using a s 130 notice pursuant to the AWA. However, Mr Carter submits this is also an untenable option as breaching the notice would expose the owner to criminal liability. Therefore, the RNZSPCA would be setting the owner up to fail.
Counsel to assist’s submissions
[36] Mr Fletcher, who was appointed by this Court to act as a contradictor, while sympathetic to the position in which the RNZSPCA finds itself, submits that the proprietary interests of the owner of the animals, coupled with an appropriate Bill of Rights focused interpretation, does not permit the Court to adopt the expansive interpretation proposed by the RNZSPCA. Mr Fletcher submits Parliament has, rightly or wrongly, resolved not to confer on the RNZSPCA the power to dispose of animals when a decision is made not to prosecute the owner of those animals and that the practical issue confronting the RNZSPCA can be adequately managed by reference to other tools including s 130 notices, enforcement orders and compliance notices.
[37] Mr Fletcher emphasised the importance of property, rights, citing New Zealand Council of Licensed Firearms Owners Inc v Minister of Police as a recent case which highlighted the importance of the common law right to property, and the corresponding need for explicit language in statute to exclude this right.5
[38] Mr Fletcher submits that as the RNZSPCA chose not to prosecute Ms Murray, regardless of the reasons behind this decision, it is not appropriate that her property rights are effectively bypassed for convenience to allow for the disposal of her animals.
[39] Mr Fletcher refers to Parker, where this Court addressed the operation of s 163 of the AWA, and said: “the important point is that a separate court application is
5 New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456 at [36].
envisaged to authorise disposal of an item seized.” 6 Mr Fletcher submits this highlights the importance of court oversight for the disposal of seized property, as well as the importance of animal owners having an opportunity to be heard.
[40]Mr Fletcher also noted the conclusion in Parker:7
I do not consider Parliament intended for the statutory provisions relating to seizure and disposal of animals to be avoided simply by MPI electing to follow the enforcement route.
[41] Mr Fletcher noted that s 127 of the AWA gives enforcement agencies relatively broad powers to inspect animals without a warrant. However, he submits a search warrant is needed if evidence is to be gathered. If a warrant is obtained pursuant to s 131 of the AWA, s 133(2) gives the inspector broader powers than under s 127, allowing them to take “any steps…necessary or desirable to prevent or mitigate the suffering of the animal”, including destruction.
[42] Mr Fletcher submits there is no tension between the AWA and the SSA due to the alternative pathways available to RNZSPCA that enable them to protect animal welfare.
[43] Short of prosecution, Mr Fletcher submits a s 130 notice would enable a warranted animal welfare officer to specify terms of an animal’s care to its owner and limit the number of animals owned. He submits that nothing is stopping the return of the seized animals with a s 130 notice being served simultaneously.
[44] Mr Fletcher submits neither the s 130 notice nor an enforcement order are problematic. He said the “future-focussed” aspect of these avenues was precisely what they had been designed for and would ameliorate the RNZSPCA’s concerns about the potential future treatment of the animals. Mr Fletcher submits that if either an enforcement order was made or a notice issued, it is speculative whether the animal owner would breach them. He also noted that until prosecution, the animal owner remains innocent of all allegations relating to their mistreatment of animals.
6 Parker v Langley, above n 3, at [65].
7 At [123].
The statutory regime
[45] In Parker, Edwards J helpfully undertook a detailed review of the AWA.8 The Act came into force on 1 January 2000 and, as affirmed in the long title, was passed to reform the law relating to the welfare of animals and the prevention of their ill treatment.
[46] Section 9 provides the purpose of the Act, which is essentially to ensure the owners of animals, and persons in charge of animals, attend properly to the welfare of those animals.
[47] Sections 10 and 11 set out an animal owners’ obligations in relation to the care of animals. The Judge found these sections were clearly engaged by Ms Murray’s neglect. A failure to comply with ss 10 and 11 is a strict liability offence.
[48] Part 7 of the Act relates to administration, the purpose of which is set out in s 120 as follows:
120 Purpose
The purpose of this Part is to—
(a)specify the criteria for an organisation to be declared as an approved organisation; and
(b)provide for the appointment of inspectors and auxiliary officers; and
(c)specify the powers and duties of approved organisations in relation to animals in their custody; and
(d)specify the powers of inspectors and auxiliary officers, including their powers of search and their powers in relation to animals.
[49] Section 127 invests in an animal welfare inspector the power to enter onto land both with and without a warrant and to take possession of animals in specified circumstances. Section 127 relevantly provides:
127Power to inspect land, premises, and places and stationary vehicles, aircraft, and ships
(1)Subject to subsections (3) and (4), an inspector may—
8 Above n 3, at [44]—[84].
(a)in the case of any land, premises, or place, at any reasonable time or times; and
(b)in the case of any vehicle, aircraft, or ship, at any reasonable time or times at which the vehicle, aircraft, or ship is stationary,—
enter, without warrant, that land or those premises or that place or any such vehicle, aircraft, or ship for the purposes of inspecting any animal on or in that land or those premises or that place or in or on any such vehicle, aircraft, or ship.
...
(5)Where an inspector who exercises a power of entry under subsection
(1) has reasonable grounds to believe, in respect of any animal found on or in the land, premises, or place or in or on the vehicle, aircraft, or ship, that—
(a)the animal has been wilfully ill-treated contrary to section 28; or
(aa)the owner of the animal is already disqualified from owning an animal under this Act; or
(b)the physical, health, and behavioural needs of the animal or the need for the animal to receive treatment from a veterinarian make it necessary or desirable to remove the animal from the land, premises, or place or the vehicle, aircraft, or ship; or
(c)the animal is at clear risk of imminent harm,—
the inspector may take and maintain possession of the animal, by force if necessary, and convey the animal to another place.
(6)The inspector may keep the animal at a place chosen by the inspector until—
(a)the animal is, under section 172, forfeited to the Crown or to an approved organisation; or
(b)a District Court Judge orders that the animal be delivered to the owner of the animal or to the person charged with the offence against this Act.
...
[50] When exercising the powers under s 130, an inspector who has reasonable grounds to believe an animal is suffering or is likely to suffer unreasonable or unnecessary pain or distress, may take the steps an inspector considers necessary or
desirable to prevent or mitigate the suffering of the animal.9 The relevant steps may include destroying or arranging for the destruction of the animal.10
[51]Section 136 deals with the disposal of items seized under s 127:
136 Disposal of thing seized
(1)Subject to subsections (2) and (3) and section 136A, subparts 1, 5, 6, 7, 9, and 10 of Part 4 of the Search and Surveillance Act 2012 apply in respect of—
(a)any thing seized by a constable (including any animal seized by a constable under the authority of a search warrant issued under section 131 and any animal of which a constable takes possession under section 137(1)); and
(b)with the necessary modifications, any thing seized by an inspector (including any animal seized by an inspector under the authority of a search warrant issued under section 131 and any animal of which an inspector takes possession under section 127).
(2)Despite anything in subpart 6 of Part 4 of the Search and Surveillance Act 2012, a constable or an inspector who has custody of an animal may place that animal in the care of any other person.
…
(emphasis added)
[52] Pursuant to s 136(1)(b), s 151 of the SSA applies “with the necessary modifications” in respect of any animal of which an inspector takes possession under s 127.
[53]Section 151 of the SSA relevantly provides:
151 Custody of things seized or produced
(1)A seized or produced thing may, if it is required for investigative or evidential purposes, or it is liable to forfeiture to the Crown or any other person (whether by operation of law or by order of a court or otherwise), be held in the custody of the person who exercised the search power or that person’s employer or another person acting on behalf of that person or any other person to whom the thing is transferred in accordance with section 90(2) (except while it is being
9 Animal Welfare Act 1999, s 130(1)(a).
10 Animal Welfare Act, s 130(1A). The power is also available where animals are seized under a search warrant, s 133(4).
used in evidence or is in the custody of any court) until the first of the following occurs:
(a)a decision is made not to bring proceedings for an offence in respect of which the thing was seized or produced;
(b)the thing is forfeited to the Crown or any other person under any enactment (whether by operation of law or by order of a court or otherwise);
(c)the thing is released under section 158 or 159;
(d)if proceedings for an offence have not been commenced before the date that is 6 months after the thing was seized or produced and a request has been made for the return of the thing, that date or the expiration of a later time ordered by a court under section 153;
(e)in any case where proceedings are brought,—
(i)the withdrawal or dismissal of the proceedings; or
(ii)subject to sections 156 and 159, the completion of the proceedings;
(f)the seized or produced thing is disposed of under section 160.
(2)Once the relevant event stated in subsection (1)(a) to (e) occurs, the person in whose custody the property is must immediately release the thing in his or her custody,—
(a) in the case of a subsection (1)(a), (d), or (e) event, to the owner or to a person entitled to possession; or
(b)in the case of any other event, in the manner required by this Act.
...
(4) This section is subject to sections 153 and 163. (emphasis added)
[54] It follows that the sub-parts of the SSA that deal with the procedure in relation to seized items and the rights of owners apply in respect of an animal seized under s 127.
[55] Section 136A relates to the disposal of animals seized or taken into custody prior to commencement or determination of proceedings. It applies to circumstances including those where animals are taken into possession by an inspector under s 127 and either proceedings for an offence involving the animal or animals have been
commenced but not been determined or have not been commenced but are intended to be commenced within a reasonable period. It also applies if the owner of the animal or animals cannot be located.11
[56] If s 136A applies, the District Court may, of its own motion, or on an application by a constable or inspector, make an order in relation to the animal or animals authorising their sale, placement with another person, destruction or other disposal, de-horning or performance of other surgical procedures.12
[57] Pursuant to s 136A(3), the Court must, before making an order under subs (2), give the owner of the animal or animals the opportunity to be heard.
[58] Section 153 of the SSA authorises a person who seizes any thing or to whom any thing is produced, or any enforcement officer to whom the thing is transferred, and who wishes to hold that thing for a period exceeding six months in circumstances where no proceeding has yet been brought, to apply to the Court for an extension of time to hold the thing in the event a request has been made for the return of a thing.
[59] The RNZSPCA’s application was made under s 163 of the SSA, which relevantly provides:
163 Application to District Court to dispose of seized property
(1)Any person who seizes any thing, or to whom any thing is produced, or any other enforcement officer to whom the thing is transferred, may apply to the District Court for an order that the thing be disposed of (by sale or otherwise) in the manner, and at a time, that the court may direct if,—
(a)in the applicant’s opinion,—
(i)the thing concerned is perishable or likely to deteriorate; or
(ii)the cost of holding the thing is unreasonable having regard to its market value; and
(b)the applicant has made reasonable efforts to advise the people described in section 156(2) of the intended application.
11 Animal Welfare Act, s 136A(1).
12 Section 136A(2).
(2)The court may grant the order if it is satisfied that—
(a)the thing is perishable or likely to deteriorate; or
(b)the cost to the applicant or his or her employer, or to any other person to whom the thing might be transferred, of holding it is unreasonable having regard to its market value.
...
Analysis
[60] As Mr Carter has emphasised, the RNZSPCA is faced with unique challenges in terms of its resourcing and the context within which it operates—where cooperation with owners, as opposed to prosecution, may be in the public interest. In 2019, this issue was highlighted by a report that found less than one per cent of complaints (received by either the RNZSPCA or Ministry of Primary Industries) were prosecuted and that “[r]esource constraints prevent more prosecutions occurring”.13
[61] Mr Carter explained that in the modern environment, it is commonplace for the RNZSPCA, acting in its role as an assigned administrator, to engage in alternative processes to resolve what might otherwise have been resolved by way of prosecution. I agree that this approach has highlighted an anomaly in the AWA. On a literal interpretation of the Act, the RNZSPCA, having exercised its powers to uplift animals on welfare grounds, may not have the power to dispose of those animals under s 163 of the SSA if it resolves not to prosecute the animal owner. This issue is the focus of this appeal.
[62] As counsel acknowledged, determining these issues is complicated, first, by the unique qualities that attach to animals in the law and, second, by the statutory regime relating to the powers of disposal.
[63] The position of animals in common law was recently summarised by this Court in the decision of Kondratyeva v Royal New Zealand Society for Prevention of Cruelty to Animals (RSPCA).14 As Mr Fletcher noted, the general position is that domestic
13 Marcelo Rodriguez Ferrere, Mike King and Levi Mros Larsen Animal Welfare in New Zealand – Oversight, Compliance and Enforcement (Uniprint, University of Otago, 2019) at 2.
14 Kondratyeva v Royal New Zealand Society for Prevention of Cruelty to Animals (RNZSPCA)
[2022] NZHC 449 at [51]-[52].
animals are considered to be the property of their owner, however the law often treats them differently than inanimate property in the sense that it aims to ensure the animals are treated properly.15 This desire to ensure animals are properly cared for no doubt led the District Court Judge to note that:16
[50] Clearly one does have to take into account the interests of the animals although I am not entirely convinced it is a relevant consideration in terms of s 163 of the Search and Surveillance Act. However, there are alternative means of accommodating those interests which do not involve and expropriation of property.
[64] I do not consider it is necessary to clarify the extent to which the welfare of the animals is a relevant consideration in terms of s 163, but it is clear that animal welfare may colour the issues to be determined, as will a domestic animal’s current status as property.
[65] Beyond the position of animals in the law, the relevant statutory regime itself is not “easy to follow”17 and, as the process for the disposal of animals bridges both the AWA and the SSA, it raises inherent tensions between the two pieces of legislation.
[66] The broad issues raised in this appeal have previously been discussed by this Court in Summers v Attorney-General.18 In this case, the Ministry of Agriculture and Forestry seized many allegedly malnourished animals from a farm and euthanised some due to their condition. The animal owner was charged with a number of offences under the AWA. The issue before the Court was what happened to the animals in the period before the criminal proceedings were determined. The animal owner sought the return of some of the seized animals, while the Ministry wanted the animals to be sold and the proceeds to be used to pay the Ministry for the significant cost of caring for the animals since seizure.
15 At [53], citing Property Relationships Act 1976, s 2 definition of “family chattels” para (a)(vi); O’Brien v Tuer DC Waitakere FP 090-327-03, 9 September 2003; and Sydney v Sydney [2012] NZFC 2685, (2012) 33 FRNZ 102.
16 Murray, above n 1.
17 Parker v Langley, above n 3, at [56].
18 Summers v Attorney-General HC Whangarei M 53/02, 4 February 2003.
[67] This scenario is one which would now be resolved under s 136A of the AWA, but this section was not in force at the time of the decision.19 Many of the broader issues that are now before the Court were considered in Summers. The statutory regime under which the issue was considered differed somewhat from the current law (with the Summary Proceedings Act 1957 still being in force rather than the SSA), and most of O’Regan J’s view on these issues were obiter in nature. Of note however, when dealing with similarly imprecise statutory language, the Judge suggested it was not appropriate to order the disposal of animals by way of sale in those circumstances. In making that determination, the Judge observed that an interpretation of s 136 of the AWA that would allow for a disposal order to be made involved substantial interference with the property rights of a person who had not been found guilty of any offence. The Judge recognised this would leave the Ministry in a position where it had to effectively hold onto the animals until trial but was somewhat comforted the Ministry could try to recoup costs for care of the animals.
[68] These comments on the broad issues raised by the disposal process are applicable to this appeal. In particular, the importance of property rights and the need for clear wording to exclude these rights. Rights in respect of private property are of a fundamental nature. In interpreting statute, a rights-consistent interpretation will be preferred, and the Court presumes abrogation by Parliament of rights to private property will only be intended where this is the clear legislative intent.20
[69] Section 151, set out above at [53], provides that once the decision not to prosecute is made by the RNZSPCA, the property seized for investigative or evidential purposes must be returned to the person whom it was seized from, and the RNZSPCA loses the ability to apply for a disposal order under s 163 of the AWA. Arguably, once the “no prosecution” decision is made, the RNZSPCA has no legal authority to hold the animals in its custody. I did not hear full argument on the issue of the precise point at which the RNZSPCA must return livestock depending on the approach to prosecution. It is not necessary that I determine that issue to resolve this appeal. In the absence of full argument and accepting the determination of that issue may have
19 Section 136A of the Animal Welfare Act 1999 was inserted on 1 October 2012, by section 196 of the Search and Surveillance Act 2012 (2012 No 24).
20 New Zealand Council of Licensed Firearms Owners Inc v Minister of Police, above n 5, at [36].
serious consequences for the RNZSPCA, I do not consider it appropriate to make any finding on that issue.
[70] Section 151(2) provides that once the “no prosecution” decision is made the animals must be returned to the owner or “a person entitled to possession”. The RNZSPCA is entitled to possession of animals in certain circumstances pursuant to s 127(5) of the AWA—which clearly stipulates that an inspector may take and maintain possession of an animal where they have reasonable grounds to believe there are specified animal welfare issues. Under s 127(6), the inspector may keep the animal at a place chosen by the inspector until the animal is forfeited to the Crown or an approved organisation pursuant to s 172, or a District Court Judge orders that the animal be delivered to the owner of the animal or to the person charged with the offence against this Act.
[71] Although on a plain reading, an inspector may fall under the category of a “person entitled to possession”, it could not have been Parliament’s intention that a person or body who has seized property pursuant to a statutory power, and is then required to release that property, could simply return that property to themselves. I am mindful of s 10(1) of the Legislation Act 2019 which provides that the meaning of legislation must be ascertained from its text and in the light of its purpose and its context. Whilst there is a reasonable argument that, having regard to the purpose of the AWA, the welfare of the animals should assume paramountcy, the importance of property rights and, it being clear that Parliament had turned its mind to the seizure of property, and the related decision to prosecute a person in relation to that property, it is my view that s 151 requires the property to be returned to the animal owner (or someone looking after the animal) at a point after a decision not to prosecute is made.
[72] Section 136 of the AWA incorporates ss 151 and 163 of the SSA with “necessary modification” in respect of any thing seized by an inspector, including an animal seized under s 127. Mr Carter submits that in circumstances where the RNZSPCA has a legal obligation, or power, to retain custody of the animals under s 127 of the AWA (due to the animals’ welfare being at risk), it is a “logical progression” that a “necessary modification” of the SSA would allow for disposal under s 163, even if one of the pre-conditions for return under s 151 of the SSA is met.
[73] Adopting this interpretation would essentially require the Court to read into the legislation a power that is not clearly expressed under the justification of “necessary modification”. Kós P commented in the context of the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 that a “necessary modification” must be one required to make the legislation work.21 I respectfully agree. The scope of any necessary modifications ought not be extensive. For instance, the interpretation section of the Screen Industry Workers Act 2022, s 10, provides that:
(3)Without limiting the ordinary meaning of that term, necessary modifications to a provision include the following:
(a)any reference to an employee must be read as if it were a reference to a screen production worker; and
(b)any reference to an employer must be read as if it were a reference to an engager; and
(c)any reference to any employment agreement must be read as if it were a reference to an individual contract; and
(d)any reference to a union must be read as if it were a reference to a worker organisation; and (e) any reference to a collective agreement must be read as if it were a reference to a collective contract.
[74] The interpretation advanced by the RNZSPCA involves considerable modification of the SSA such that the RNZSPCA’s power to seek disposal orders would be expanded significantly and in a manner that is inconsistent with property rights. Whether such a modification is necessary must be considered in the context of the SSA being introduced, in part, to standardise approaches to search and seizure across a variety of acts and provide a “coherent, consistent, and certain approach in balancing the complementary values of law enforcement and human rights”.22
[75] Viewed holistically, I do not consider the modification proposed by the RNZSPCA is necessary to make the legislation work. The statutory regime is certainly imperfect and leaves the RNZSPCA in a difficult position due to their pragmatic, and I accept appropriate, approach to prosecutions. Nevertheless, expanding the RNZSPCA’s capacity to seek disposal in this manner is not necessary for the
21 W (CA661/2018) v District Court at Wellington [2019] NZCA 45, [2020] 2 NZLR 153 at [16].
22 (4 August 2009) 656 NZPD 5416.
functioning of the AWA. I am reinforced in this conclusion by the importance of the rights such an interpretation would abrogate and the clear statutory language the courts usually consider necessary to achieve that end.
[76] I also note the different standards imposed by s 136A of the AWA and s 163 of the SSA. Section 136A requires that the owner of the animals be given the opportunity to be heard (provided they are known and contactable), and subs (4) provides a long list of mandatory considerations the Court must assess before deciding there are good reasons to order disposal, including the loss to the owner. Section 163 requires a reasonable effort to contact specified persons—beyond that, the Court must merely be satisfied that the thing is perishable/likely to deteriorate, or that the cost of holding the thing is unreasonable with regard to its market value. I consider s 136A imposes a more rigorous standard. It is unlikely Parliament intended it to be easier to dispose of animals where prosecution will not be pursued compared to circumstances where it is still being contemplated or has commenced.
[77] An interpretation that would have fallen closer to being a “necessary modification” than that contended for by counsel would have been to read and modify s 151 of the SSA in light of the AWA. The SSA is primarily concerned with the seizure of inanimate evidence for investigative and/or evidential purposes. Seizure under the AWA, as I understand the RNZSPCA’s circumstances, is more likely to be primarily concerned with the welfare of the seized animals. It may be more akin to a “necessary modification” to read this differing purpose into s 151 and subs (1)(a) such that s 151 would not be applicable. While more palatable in that respect, this argument meets the same difficulty as it relates to abrogating property rights and Parliament’s likely intention as demonstrated by s 136A.
[78] It follows that although I am sympathetic to the position in which this leaves the RNZSPCA, to allow a disposal order to be made would effectively bypass Ms Murray’s property rights in circumstances where Parliament has not expressed with adequate clarity that this is within the contemplation of the statutory regime. In my view, s 163 may not be used to effect disposal of animals by the RNZSPCA in circumstances where the organisation has made the decision not to prosecute, due to the operation of s 151.
Alternatives to a disposal order
[79] Counsel questioned whether an appropriate alternative to disposal under s 163 is available to the RNZSPCA in these circumstances. The alternative pathways raised by counsel were enforcement orders, s 130 notices and compliance notices under s 156A. I agree, as Mr Carter submitted, that these are all future-focused tools so are not entirely fit for the purpose proposed, namely when animals have been seized by the RNZSPCA but a decision has been made not to prosecute the owner.
[80] The s 163 disposal order originally sought by the RNZSPCA must be preceded by reasonable efforts to advise certain people of the intended application.23 As I have observed, s 136A allows for disposal of animals prior to the commencement or determination of proceedings. The owner of the animals must be given the chance to be heard under subs (3)(a) if they are known and able to be contacted. When it is proposed that animals seized either with or without a warrant should be destroyed under ss 130 or 133 of the AWA, an inspector must comply with s 138 which requires that reasonable efforts be made to consult the owner and that the owner may seek a second veterinary opinion. This is the context against which I assess the alternative paths available to the RNZSPCA. Parliament is alive to issues of private property and, in many circumstances, requires the involvement and input of owners.
[81] Judge Neave found that the RNZSPCA was not without alternative remedies and referred to the option of an enforcement order to ensure steps are taken to provide for an appropriate level of care. The Judge did not have the benefit of the careful analysis of the AWA and the availability of enforcement orders of Edwards J in Parker.
[82] Enforcement orders, under s 144, may only be made if the Court is “satisfied that the person in respect of whom the order is sought has been acting in contravention of [the AWA or other relevant codes or conditions]”. As noted in Parker:
[89] There is an overlap between this threshold, at least insofar as contravention of the Act is concerned, and the criminal offences specified in the Act. For example, one of the grounds upon which the temporary enforcement order was sought in this case was that Mr Parker had breached the obligations in s 10 of the Act. A breach of s 10 is also a strict liability
23 Certain people being those in s 156(2) of the Search and Surveillance Act, including, amongst others, the owner or person entitled to possession of the seized property.
offence. Mr Parker could have been prosecuted for such breach, but MPI decided to seek an enforcement order instead. The enforcement regime is accordingly an alternative or additional pathway to criminal prosecution under the Act.
[83] An application for an enforcement order must be served on every person directly affected by the application.24 A temporary enforcement order may issue without notice under s 148, if the Court is satisfied "that the delay that would be caused by proceeding on notice would or might entail a risk of harm to any animal”. At face value the threshold for the issue of a temporary enforcement order might be seen as readily achievable. Given enforcement orders are predicated on breaches of the AWA or other similar standards, I consider Parliament intended temporary enforcement orders would only issue in situations involving urgency. However, given the purposes of the AWA to protect the welfare of animals, and the broad nature of many of the other powers provided to inspectors, it would be inappropriate that this hurdle operated to only allow exceptional or rare cases.
When an enforcement order is made and served, the person served must comply with the order.25 Section 145(2) provides that in the event on non-compliance, any person may, with the consent of the Court, exercise in relation to any animal found on the land or structure any of the powers a person executing a search warrant under s 131 would have had.26
[84] Enforcement orders may be made to enforce compliance with express obligations of animal owners and also to specify the means of doing so provided there is a reasonable nexus between the terms of the enforcement order and the nature and context of the breach of obligations.27
[85] An enforcement order might provide for a relevant body to seize a number of animals in excess of a limit prescribed. This is known as a de-stocking order. The ability to use enforcement orders to require de-stocking sits awkwardly alongside the ability to limit the number of animals a person may own via a disqualification order
24 Animal Welfare Act, s 146.
25 Section 145.
26 Section 145(2)(b).
27 Parker, above n 3, at [96]-[97]; and Boyce v Mouat [2017] NZDC 16299, [2018] DCR 652 at [31].
under s 169. But, this Court has held that Parliament intended for multiple routes to achieve the same end, that enforcement orders may limit the number of animals a person may own,28 and that the power exists to extend this so far as to require de- stocking.29 However, de-stocking engages considerations which a court should weigh carefully before concluding that it should make such an order. These include the cautionary approach courts take to mandatory injunctions,30 the risk of healthy animals simply being killed, private property and commercial interests, and the lack of notice when done via a s 148 temporary order.31
[86] While a destocking order is available to the RNZSPCA, non-compliance with that order is a pre-requisite to the exercise of a remedial power. For a person to fail to comply with such an order, the animals must be in their possession. That, of course, is not the situation in this case. The RNZSPCA had possession of the animals. In that scenario the animals would have to be returned to Ms Murray, an enforcement order served, followed by non-compliance with the order.
[87] I adopt the conclusion of Edwards J in Parker, in respect of the protections afforded by the SSA:32
I do not consider Parliament intended for the statutory provisions relating to seizure and disposal of animals to be avoided simply by MPI electing to follow the enforcement route.
[88] In my view, though available, enforcement orders operate clumsily in the present circumstances and are not a viable long term solution to what is a lacuna in the statutory regime that appears to have emerged as the RNZSPCA’s approach to prosecution has evolved and due to incongruities between the SSA and the AWA. It is understandable that they are being utilised in the interim to achieve a pragmatic solution
[89]Section 130 allows an inspector to issue a notice, as follows:
28 Boyce, above n 27.
29 The Ministry for Primary Industries v Vette [2019] NZDC 19123; and Parker, above n 3, at [105].
30 Attorney-General v Pickering (1998) 16 CRNZ 46 (HC) at 49-50.
31 Parker, above n 3, at [107]-[110].
32 At [123].
130 Power to prevent or mitigate suffering
(1)Where an inspector, either in the course of the exercise of a power of entry under section 127 or at any other time, has reasonable grounds to believe that an animal is suffering or is likely to suffer unreasonable or unnecessary pain or distress, the inspector—
(a)may take all such steps as the inspector considers are necessary or desirable to prevent or mitigate the suffering of the animal (including, if necessary, destroying or arranging for the destruction of the animal); and
(b)may, by notice in writing given by the inspector to the owner or the person in charge of the animal or any person appearing to be in charge of the animal, require the person to whom the notice is given to take all such steps as the inspector considers are necessary or desirable to prevent or mitigate the suffering of the animal (including, if necessary, destroying or arranging for the destruction of the animal).
…
(emphasis added)
[90] I agree this section is not a good fit when the subject animals have been seized by the RNZSPCA. Further, if a person fails to comply with the requirements of a notice issued under s 130(1)(b), they commit an offence and are liable to a substantial fine. The availability of that remedy is not of significant help to the RNZSPCA given their approach of encouraging compliance short of a prosecution and their mission of preventing harm to animals. Placing animals back with an owner who is likely to continue failing those animals, where the relevant recourse is a fine, is an unattractive remedy.
[91] Nevertheless, in circumstances where a decision has been made not to prosecute but there are on-going concerns as to the ability or willingness of the owner to comply with the terms of a s 130 notice, the animals could be returned and a s130 notice issued and compliance then monitored. I acknowledge there are practical considerations that might render this alternative remedy unsuitable.
Observation and recommendation
[92] The position the RNZSPCA is placed in would appear incongruent with the animal welfare principles of the AWA and imposes a significant burden on a charitable organisation performing a valuable public function. Given this, and the confusion as
to the scope and inter-relationship of sections in the legislative regime, I endorse the recommendation made by Edwards J in Parker that the sections in the AWA relating to the powers of search, seizure and disposal receive legislative attention. I intend to refer this judgment to Te Aka Matua o te Ture/the Law Commission for that purpose.33
Results
[93]The appeal is dismissed.
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Eaton J
Solicitors:
Guy Carter, BVA The Practice, Palmerston North Grant Fletcher, Barrister, Christchurch
33 Parker v Langley, above n 3, at [56].
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