Animal Law in New Zealand – Peter Sankoff interviewed.
Interviewer: Claudette Vaughan

Peter Sankoff is a Senior Lecturer at the University of Auckland, Faculty of Law, and has taught animal law, criminal law and evidence since 2001. Peter regularly gives seminars, comments in the media and publishes articles on animal law issues. In 2006, he taught the first permanent undergraduate animal law course ever offered in New Zealand. Later that year, with David Favre of Michigan State, he co-taught the country’s first post-graduate course as well. In addition to his animal law work, Peter is also the author of two books and numerous articles on human rights, criminal procedure and evidence. Due to a generous grant by Voiceless Peter with Steven White has developed a project called “Animal Law in Australasia: A New Dialogue” bringing together for the first time eleven of Australasia’s leading experts and an invited international guest to discuss a number of critical animal law issues, focussing specifically on matters relevant to the region.

Abolitionist: Peter, what is your over-arching view on the subject of animal law, animal rights, how to proceed with animal rights and how do you envision that “animal rights” within New Zealand will play itself out?

Peter Sankoff: I see it playing itself out very, very slowly. I think the animal law movement is moving ahead with impressive momentum but I think we should never underestimate how far we have to go. For every gain we make, we lose several battles along the way and the odds are continuously stacked up against us. In New Zealand for all the positive incremental changes we are managing to make, it has to be realised that this is a country premised on agricultural production and they are not going quietly. They have most of the weapons, most of the resources and any change that we make they are very savvy about what they allow us to get for animals. It is not stupid people who are running animal production in this country. In terms of developing this concept of “animal rights” it’s a long way in coming and I’m not convinced that the major changes are going to start here in New Zealand.

It’s been said that if “animal rights” can be legislated it will happen in a country like New Zealand because there aren’t separate laws governing State by State which is what we have in Australia. ACT wanted to completely ban battery eggs but because the other States didn’t want to, they knew others would bring in battery eggs if the ban went ahead, which of course it didn’t.

From a purely Public Law perspective in terms of where is it easier to legislate that’s correct – it would be easier to legislate in New Zealand. On certain issues it would be very easy to get something done. Basically, it depends on what kind of animal you’re dealing with and the extent to which that animal is a commodity to producers that is traded internationally. Some of these problems are very internationally related so New Zealand legislating is not going to do anything if the rest of the world doesn’t make changes as well. For example; as it stands right now a large percentage of the pork consumed in this country is imported even though we have domestic production as well.

We could make all the laws in the world if we wanted to but if we cannot create any realistic mechanism for legislating import restrictions it won’t make any difference what we do domestically. In contrast, with eggs more aggressive measures are possible. New Zealand as a unilateral parliament could make a rule on eggs because we get all our egg production from New Zealand, eggs are not shipped abroad because the distance to get them here is not worth the economic cost for transporting them. Still, even if all this is possible because of our unicameral Parliament, it’s not as if New Zealand is in any great rush to implement those changes.

With animal law the more one looks at it “the devil really is in the detail”. Is law the right mechanism for “rights”? Will it work? I’m not even convinced it works for human rights. Let me give you an example in an animal rights context. Even if all non-human animals were granted rights tomorrow, what would stop the monolithic food industry from counter-claiming the “rights” position? Another thing is the difference between animal cruelty laws and animal welfare laws – separated because animal cruelty usually isn’t associated with the capitalistic imperative implied with animals as food produce. What are your views?

I go all around the world and my big talk is called “Message and Method” because I’m very interested in the message that the law is delivering with the way it is set up. I agree with you that the law, as it is set up, is in my opinion quite deliberately designed to create the impression that we are treating animals well – that’s all it’s designed to do. It’s not designed to actually treat animals well in most cases. In my experience the law is full of devious mechanisms – exceptions, exemptions, etc. - that make it very, very difficult to actually use the law in a positive way. We have to remember that law will not accomplish much alone. In my opinion the law does not go out and set the trends. I think the law is actually most useful in demonstrating how difficult it is to use law as a tool to make things better for animals. That might sound a little bit strange, but it’s still true.

The law is a reflection of public consensus. The public consensus in New Zealand, for example, is that it’s okay to treat animals badly. They would never go out and say that so blatantly because government and industry have gotten a little bit more sophisticated about how they address this issue, but there’s no question that many of the practices that go on every day are, even if you can find some form of objective measurement, cruel. To deflect criticism of these practices what they do is create a law which allows them to keep doing what they are doing, as they are doing it, but to make it look like there’s a regime in place to make it better for animals. It’s very important, first of all, to understand the limits and to understand what the law is actually designed to do to understand it better.

That’s a big part of the message that I preach, telling people, “By the way, if you think the law is solving this problem, you’re wrong. We need to make concrete changes in our lives in order to solve this problem. It’s that simple.” The law is never going to solve this problem alone. The idea that we can somehow give animals’ rights in light of how our society currently operates is fanciful in my opinion. Why? Because those rights would never be enforceable. They would never be meaningful because you cannot drive a law without some level of public consensus – we know that already. The more a law is contrary to public consensus, the more unlikely it is to survive. Just think of a law like the one that prohibited alcohol in the United States that was contrary to public consensus and the law becomes almost impossible to enforce.

Animals and the Law is the first term in an Undergraduate course set up by yourself and it’s the first one in the Southern Hemisphere which is fantastic. What is your general philosophy towards teaching animal law?

I have a lot of them but my main philosophy is that I feel that a animal law course needs to focus on the critical problem of what I have just discussed, which is the cruelty paradigm. This idea that animal welfare is supposedly a mechanism that is in place to help animals, but in reality it’s a mechanism in place to help humans. I think that is the most important aspect of an animal law course. Not everybody teaches it that way but I really want to focus on the core of the animal problem. No 1 - New Zealand is an agricultural nation and No 2 it’s a nation that paradoxically claims that it’s one of the animal welfare friendly places in the world. I find those claims and the inherent tension between those two claims the most interesting aspect of any course. When I look at all the various laws dealing with animals I really concentrate on agricultural production and I use other examples as just a way of demonstrating the same point. What I really focus on is this idea of how animal welfare is suppose to help animals but it’s unable to accomplish it’s core role. I also look at this message, along the lines I discussed earlier, that I think the law is used primarily as a propaganda tool to suggest to the consumer that everything’s okay. The law says, “You need to go on about your daily business, which is consuming animals, because we are taking care of things through law”. I expose that myth because I don’t think the law is designed to do that.

Why is it that even the most extreme, severe and sadistic cruelty that occurs to an animal and even when evidence is presented to the court through video of the perpetrator in the act, why do the perpetrators still get off lightly time and time again? Why are animal cruelty laws so weak after all this time?

There is a number of reasons why. I have written at length about that. You could start from prosecution. You could start from the way sentencing attitudes go but to me at the core of the problem is the worth of the animal. That’s the problem. Our law – and our society – do not really respect the inherent value of an animal. That is a real problem for judges who have to deal with this problem. Let’s say I take a cow or a sheep from a farm and I beat this animal up. The judge in determining the harm which as been caused immediately thinks well in x amount of time that animal was going to be killed anyway. What is the harm done? Where is the real harm that is such a key part of sentencing? That’s just one factor but because judges are so unable to really understand the value of the animal, (and because the law forbids them from according life any actual value) it’s very hard for them to say that society should condemn the practice. They do so occasionally, usually when the animal is a companion animal that’s a member of someone’s family.

Torturing somebody’s pet dog will result in a harsher sentence because it’s causing harm to the humans – the owners of the animal. That is one of the core problems in animal cruelty laws. There are many, many others. That’s just one of them. There’s also the basic attitude of people who are involved in the system from the prosecution side up to the judicial side which have a real lack of understanding about what the law is really designed to do, they really have no idea and they are not that inclined to understand it. In the great big scheme of things it’s not a major concern to judges dealing with this problem. That’s a real problem. I have suggested in a number of talks that we need to get most animal cruelty out of the criminal justice system. It really doesn’t belong there.

And put it where?

Peter Sankoff: I do believe in the long run, if you believe that animal welfare is the solution and I’m not convinced that it is to begin with, I do believe we are better off by moving towards a regulatory regime rather than using a criminal sanction. That means that at least within the major industries we would regulate the way they work rather than trying to bring criminal charges against them just because ultimately I don’t think that criminal charges are going to be very effective. I think if appropriate resources were devoted to it, regulation would at least make some things better for the animals. I don’t think it’s a solution in the long run but I do think in the short to medium run it’s arguably some sort of solution. Let’s put it this way, on a purely comparative basis it would be better than the criminal sanction. The criminal sanction is virtually useless in these cases.

From a grassroots perspective, the smallest pressure applied to Industry from all activists is seen as a threat to Industy. The food industry people see the whole thing as a threat. Would regulation still manage to convey the message that we are serious and we are not going away anytime soon?

That’s how I started this talk. I don’t think there is an ultimate animal rights solution. I’ve said it before and I’ll say it again, I agree that at the very most basic fundamental level reduction and addressing the increasing demand for animal products is the only thing that’s going to matter. I believe that most animal welfare solutions cannot actually be meaningfully implemented while the demand for animal products continues to grow. They just can’t be. The numbers are just too staggering. Welfare in my opinion is a 19th Century concept that might have made sense at a time when the population was a fraction of what it is today. The problem right now is the ability and the availability of animal products which was really nowhere near that extent when the idea of welfare first came to the fore front. Welfarism was never designed to deal with farm animals anyway. What you are talking about now is just there are too many animals. It’s that simple.

For most animals, take chickens for example, there’s no way the supply can switch to “free range” even if “free range” is better for chickens to begin with but let’s just assume that it is – there’s no possibility in switching to free-range in the numbers required for our current consumption. It just can’t be done. It’s theoretically possible but the cost of the eggs would just sky-rocket because we’d need to be producing so many more of them, and the environmental concerns (increased land use, etc.) would also become significant. Supply and demand would shift inexorably towards welfare mechanisms that aren’t very useful for the animals. That’s the problem – demand is so high it’s really almost impossible to create a welfare friendly market. To me welfarism doesn’t conceptually make sense and it’s especially true when you think of some of these environmental concerns. Welfare requires space, raising fewer animals in a bigger space and some of the environmental consequences that arise from this are undesirable. In some cases, it’s actually environmentally better to keep animals in a smaller space. I think that’s why we’re going to face great problems in trying to do these things without a reduction of demand.

To your original question, I personally think from an effectiveness standpoint we need to go for middle ground in some places. I never advocate it as my ultimate goal because I believe reduction and demand is the only thing that matters and that’s why I suggest, for example, moving away from the criminal sanction. A lot of people like it because I’m saying, “We’re not going to send you to jail” because we don’t anyway, but I say treat them in a more realistic manner that I think has some advantages to it.

You said there are so many people in law that just don’t have a clue about animals because they are just not interested enough. Do you see a day coming where more and more vegan lawyers are coming through and talking about animal law within the law system itself? As grassroots activists having stood on the other side of the law, perhaps because of a rescue or something, if the judge or the magistrate is left-wing, if he’s liberal or if he’s open-minded to what we are doing, we often get a better hearing than if a conservative judge or magistrate is residing, obviously. Also, because so many environmentalists are meat-eaters do you think a political party for animal rights is a good option being another incremental step which has yet to be taken up in the Southern Hemisphere?

I think the animal law movement is one of the most important aspects of changing the problem. I think it’s incredible that when I lose hope, and I often lose hope, to me that brings me back because I’m thrilled to see the growth in Australia and New Zealand within 5-6 years has been unbelievable and I’m pleased to be part of that in the sense that by creating these courses and by stimulating the ideas it continues to push more people to think about this.

My view is very simple. To make this happen we need more soldiers, we need people to understand some of the intricacies of what’s involved that is what has been so exciting in this part of the world, I think, is the development of future soldiers. We do have a long way to go but I do think that’s a very, very positive omen because these people who are doing these courses and are starting to think about these things and join animal rights groups that an incredible recent development even in the US. It’s only in the last 20 years – literally it’s not been very long – but in Australia we’re talking the last 2,3,4 years in this part of the world. We’re still a tiny group but I think that’s going to change. I think we’re getting more and more growth with each passing year. Believe me, there’s still an incredibly long way to go but I think we’re getting some of the message out there. A little part of that is getting legal scholarship. There’s a legal animal law book coming out soon and that will be another very useful important part of the equation.

As for a political party, I don’t think we are ready yet. I’m speaking about New Zealand but I’m guessing Australia is the same, but a political party is possible way, way, way down the road. I don’t see it for the near future because I think the attitudes in New Zealand at the moment are really stacked up against us. We are a fringe group. We have to recognise it. It’s important to recognise it because it reminds us not to get complacent or just to listen to each other talk. In New Zealand I’m really part of a fringe community but the one thing I do know is our fringe community is getting larger. Our dialogue is getting more sophisticated. This is important because I think we are a much better fringe group than what we were. We are coming to the day when we will not necessary be a fringe group, when we will have financial support. It’s heartening to me that some of the animal rights groups in New Zealand are starting to become financially solvent because at the end of the day this is very important. By becoming financially solvent that advocate better for animals and the causes which are really important. The reason they are becoming financially solvent is because more people are believing in them and because people are starting to hear the message people are putting out. To me when I set up a workshop and I have people who are just dying to come and when we have a talk when Steven Wise comes to Auckland he just packs the room, well, I know that wouldn’t have happened 3 or 4 years ago. I think people are starting to listen and that’s an important thing. Again, there’s a long way to go but it’s very important to keep that positive message and thoughts alive.

You are writing with Steven White [of Griffith Law School] an animal law book, the first for the Southern Hemisphere and we will be reviewing it the minute it’s out. Please talk more about this Peter?

We got a grant from Voiceless, the fund for animals which is the Australian organisation that’s been very useful in getting a lot of this stuff off the ground. What we are trying to do is to stimulate the scholarship and get people to understand what these ideas are. The truth is we have to support this book. The publishers have made it very clear to us, they weren’t all lining up to come on board with an animal law project. This is a growing movement but we need this book to be successful in order to pave the way for future types of work.

The idea with this workshop is first of all to bring all the people together who are staring to work on these ideas to exchange thoughts on what some of the solutions might be but, on top of that, is the notion that we are going to come up with a book that will for the first time discuss some of these problems in the Australasian context and that’s a really important thing to do. There are a bunch of books on the market but they all approach it from the American experience and we want to look at animal law from the Australasian perspective. For example; what are some of the solutions in our part of the world.

I want to give you a specific and tell me how would you deal with this according to your views. How do we get dogs off death row?

We are actually working on a project with that and it’ll be starting very soon. Dogs on death row has always driven me crazy. The laws are ridiculous.The reason the law is ridiculous is because simply the law is unfair to animals and unfair even to the owners of the animals. The law is lazy. In New Zealand we are going to try and start a campaign where we’re going to put together a very sophisticated campaign and explain why the law is ridiculous. The reason why it’s never been changed is because no one has ever really presented that argument, it’s very simplistic. People say” It’s just unfair”. We are actually going to analyse every aspect of the legal regime and say why it’s ridiculous and propose alternatives from other jurisdictions that we think are a lot fairer. We’re still in the brainstorming phase of how we are going to go about this. How do we get dogs off death row? Change the law! The law is completely unfair to the dog and the sooner we recognise that, the better. Hopefully we’ll get a lot of dogs that are currently on death row, off death row.