ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS v MURRAY [2023] NZHC 712

ROYAL NEW ZEALAND SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS v MURRAY[2023] NZHC 712 [3 April 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-102[2023] NZHC 712BETWEEN THE ROYAL NEW ZEALAND SOCIETYFOR THE PREVENTION OF CRUELTYTO ANIMALSAppellantAND REBECCA MURRAYRespondentHearing: 26 July 2022Appearances: G J C Carter for AppellantG D Fletcher as Counsel to AssistJudgment: 3 April 2023JUDGMENT OF EATON JThis judgment was delivered by me on 3 April 2023 at 10.30 am pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarDate:Introduction[1] On 8 February 2022, Judge Neave declined to make an order for the disposalof animals owned by Rebecca Murray in circumstances where the Royal New ZealandSociety for the Prevention of Cruelty to Animals (RNZSPCA) had decided not to bringproceedings under the Animal Welfare Act 1999 (the AWA).1 The RNZSPCA appealsthis decision. The purpose of this appeal is largely to clarify whether or not theRNZSPCA is able to apply for disposal orders in cases where it has decided not toprosecute the animals' owner.[2] Ms Murray was served with a notice of appeal on 23 March 2022 but has takenno active steps in this proceeding. Mr Fletcher was appointed by this Court as counselto assist as contradictor.Background[3] In May 2021, it came to the attention of an animal welfare inspector thatMs Murray was allegedly providing insufficient food for her grazing animals.[4] A series of inspections and communications with Ms Murray and her soneventually 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 tookpossession of 27 grazing animals.[5] On 29 June, Ms Murray told the inspector she wanted the animals back and didnot want to surrender ownership of them.[6] The RNZSPCA had serious concerns that if the animals were returned toMs Murray they would suffer further, and Ms Murray would continue to be in breachof the AWA.[7] The RNZSPCA then applied to the District Court for orders under s 163(1) ofthe Search and Surveillance Act 2012 (SSA), which relates to the disposal of seizedproperty.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'scustody at great expense in terms of the veterinary and husbandry bill. Ms Murraymade 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 proofhearing on 4 November 2021, Judge Neave indicated he was not satisfied of thestatutory authority to make the orders sought. The Judge considered granting adisposal order would be an effective expropriation of private property absent a clearstatutory authority to do so. The application was adjourned, and further argumentheard on 18 November 2021.District Court decision[10] The Judge traversed the statutory regime, first setting out ss 9, 10, 11, 127, 136and 136A of the AWA and then ss 151 and 163 of the Search and Surveillance Act2012 (SSA).[11] The Judge found that under s 136 of the AWA, disposal of seized animals is tobe dealt with in accordance with the general principles applying to items seizedpursuant to the SSA. The Judge considered it was not possible to import a specialsubset 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 fordisposal of animals prior to the commencement or determination of proceedings foran offence involving the animals, supported this conclusion. The Judge found that thelegislature would have specified how to dispose of animals after a decision not toprosecute had been made if it intended that to differ from the s 136 AWA disposalregime and the relevant provisions of the SSA.[13] The Judge noted s 163 of the SSA imports considerations in respect of s 151of the SSA, which provides that once a decision is made not to bring the proceedingsfor an offence in respect of which the thing was seized, the property must beimmediately released to the owner or a person entitled to possession.[14] The Judge concluded that once a decision is made that proceedings are not tobe brought, those previously entitled to hold the animals cease to have any authorityto 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 helds 153 does not apply as that only relates to cases where a decision has yet to be madeas to whether or not proceedings are brought.[16] The Judge found s 163 of the SSA did not apply once the decision not toprosecute had been made. The Judge observed that the grounds in s 163(1) essentiallyrelate to circumstances where something will be a deteriorating asset if maintained bythose who seized it or the cost of maintaining it is becoming burdensome. It was foundthat as the obligation was to return the animal once a decision had been made not toprosecute, the "deterioration" ground would not apply. He emphasised this decisionwas being made in the context of general provisions relating to search and seizure, andnot just animal welfare issues. The Judge reasoned that if the legislature had intendedanimal welfare issues to be separate to the normal rules on search and surveillance inthese 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 aconstruction that takes away existing property rights, at least no more than the Act andits proper purpose require.[18] Given this reasoning, the Judge considered the words of the statute make itclear that once the decision not to prosecute has been made, an obligation to return theproperty arises.[19] The Judge held the interest of the animals had to be considered but was notconvinced 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 theanimals. Namely, the AWA provides for enforcement orders to ensure steps are takento 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 wasmade. This enforcement order was to the effect that Ms Murray have zero animals ather 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 appealfrom a decision of the District Court. As such, this Court may reach its ownconclusions on the merits of the appeal and can substitute its own decision for that ofthe District Court.2SubmissionsAppellant's submissions[22] Mr Carter, on behalf of the RNZSPCA, submits the Judge erred in finding thatthe AWA did not confer on the RNZSPCA a right to dispose of the animals after itdecides not to prosecute, and submits that a necessary "modification" to the statutoryregime allowing this would accord with the purpose of the legislation.[23] Mr Carter emphasised the context in which the RNZSPCA operates, namelythat it is a non-profit charitable organisation that takes responsibility for prosecutingoffences committed under the AWA. However, Mr Carter highlighted that non-compliance with the AWA can often be resolved without prosecution. The financialburden of caring for the animals while the RNZSPCA communicates with the ownerto try and ensure their compliance with AWA (which is sometimes not possible toachieve) is often significant and unable to be recouped.[24] Mr Carter submits the decision under appeal puts the RNZSPCA in a situationwhere it cannot act as a model litigant. He says the RNZSPCA will either have to delaya non-prosecution decision inappropriately or use alternative mechanisms which arenot fit for purpose.2 District Court Act 2016, s 128.[25] Beyond this issue of practicality, Mr Carter submits the Judge made two errorsof law.[26] First, Mr Carter submits the Judge erred by finding there was no lawfulauthority to retain the seized items. He submits the RNZSPCA had a lawful basis tocontinue holding the animals under s 127(5) and (6) of the AWA as there werelegitimate concerns raised about the animals' welfare.[27] Second, Mr Carter submits the Judge's analysis regarding the interactionbetween ss 136 and 136A was incorrect. In particular, the conclusion that if thelegislature had intended that the SSA was meant to treat animal welfare issuesdifferently then it would have made that as plain as it did in s 136A. Mr Carter submitsthe existence of a different process in s 136A for disposal, which only applies whenprosecution is commenced or contemplated, supports the submission that disposalunder s 136 must logically contemplate disposal in circumstances where prosecutionis not contemplated or commenced. If this were not the case, s 136A is essentiallyredundant.[28] Mr Carter highlighted that s 136 of the AWA incorporates sub-pt 6 of the SSAwith "necessary modification". In circumstances where the RNZSPCA has a legalobligation, or power, to retain custody of the animals under s 127 of AWA (due to theanimals' 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 ifone of the pre-conditions for return under s 151 of the SSA is met. He submits the SSAis silent in respect of situations where there is an alternative basis on which anauthority 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 thequestion in issue is whether "necessary modification" could extend so far as toessentially allow the Court to ignore the application of s 151 of the SSA incircumstances where the animal continues to be held lawfully. Mr Carter submits thisapproach would give effect to the purpose of the AWA (to ensure that owners ofanimals and persons in charge of animals attend properly to the welfare of thoseanimals) and would prevent an unreasonable burden being placed on the RNZSPCA.[30] Mr Carter explained the RNZSPCA regularly seizes animals under s 127(5) ofthe AWA, not as evidence of an offence, but in order to mitigate their suffering. Whenthe issue of disposing of these animals using the SSA arises, this raises an inherenttension as the SSA is designed to deal with inanimate evidence, not sentient beingsbeing held for reasons separate from prosecuting an offence. For the RNZSPCA torelease 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 suchcircumstances.[31] Mr Carter submits the Court can utilise s 151(4) to preserve RNZSPCA's rightto apply for a disposal order under s 163.[32] Mr Carter referred to the decision of Parker v Langley, which was issued afterthe District Court decision under appeal was released.3 This judgment considered (asobiter) the powers of search, seizure and disposal under the AWA in the context of achallenge to the legality of an enforcement order, which contained de-stocking andsubstitute clauses, and an application to vary. This Court considered the scope of s 136is not "easy to discern".4[33] The Court, in Parker, found that while there are several reasons to be cautiousabout a de-stocking requirement in an enforcement order, as a matter of law the Courthad the power to make them. Mr Carter submits the RNZSPCA shares the concernsreferred 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 practicallyoccurred) and the NZRSPCA has seized animals at that point.[34] Additionally, Mr Carter submits that using an enforcement order thateffectively 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 an3 Parker v Langley [2021] NZHC 3144.4 At [67].offence under the AWA, so where no prosecution is going ahead an order that is, forall intents and purposes, a disqualification order, is not appropriate.[35] Mr Carter submits the other potential option for the RNZSPCA as analternative 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 noticewould expose the owner to criminal liability. Therefore, the RNZSPCA would besetting the owner up to fail.Counsel to assist's submissions[36] Mr Fletcher, who was appointed by this Court to act as a contradictor, whilesympathetic to the position in which the RNZSPCA finds itself, submits that theproprietary interests of the owner of the animals, coupled with an appropriate Bill ofRights focused interpretation, does not permit the Court to adopt the expansiveinterpretation proposed by the RNZSPCA. Mr Fletcher submits Parliament has,rightly or wrongly, resolved not to confer on the RNZSPCA the power to dispose ofanimals when a decision is made not to prosecute the owner of those animals and thatthe practical issue confronting the RNZSPCA can be adequately managed by referenceto other tools including s 130 notices, enforcement orders and compliance notices.[37] Mr Fletcher emphasised the importance of property, rights, citing New ZealandCouncil of Licensed Firearms Owners Inc v Minister of Police as a recent case whichhighlighted the importance of the common law right to property, and the correspondingneed 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 propertyrights are effectively bypassed for convenience to allow for the disposal of heranimals.[39] Mr Fletcher refers to Parker, where this Court addressed the operation of s 163of the AWA, and said: "the important point is that a separate court application is5 New Zealand Council of Licensed Firearms Owners Inc v Minister of Police [2020] NZHC 1456at [36].envisaged to authorise disposal of an item seized." 6 Mr Fletcher submits thishighlights the importance of court oversight for the disposal of seized property, as wellas the importance of animal owners having an opportunity to be heard.[40] Mr Fletcher also noted the conclusion in Parker:7I do not consider Parliament intended for the statutory provisions relating toseizure and disposal of animals to be avoided simply by MPI electing to followthe enforcement route.[41] Mr Fletcher noted that s 127 of the AWA gives enforcement agencies relativelybroad powers to inspect animals without a warrant. However, he submits a searchwarrant is needed if evidence is to be gathered. If a warrant is obtained pursuant to s131 of the AWA, s 133(2) gives the inspector broader powers than under s 127,allowing them to take "any stepsnecessary or desirable to prevent or mitigate thesuffering of the animal", including destruction.[42] Mr Fletcher submits there is no tension between the AWA and the SSA due tothe alternative pathways available to RNZSPCA that enable them to protect animalwelfare.[43] Short of prosecution, Mr Fletcher submits a s 130 notice would enable awarranted animal welfare officer to specify terms of an animal's care to its owner andlimit the number of animals owned. He submits that nothing is stopping the return ofthe seized animals with a s 130 notice being served simultaneously.[44] Mr Fletcher submits neither the s 130 notice nor an enforcement order areproblematic. He said the "future-focussed" aspect of these avenues was precisely whatthey had been designed for and would ameliorate the RNZSPCA's concerns about thepotential future treatment of the animals. Mr Fletcher submits that if either anenforcement order was made or a notice issued, it is speculative whether the animalowner would breach them. He also noted that until prosecution, the animal ownerremains 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 TheAct came into force on 1 January 2000 and, as affirmed in the long title, was passedto reform the law relating to the welfare of animals and the prevention of their illtreatment.[46] Section 9 provides the purpose of the Act, which is essentially to ensure theowners of animals, and persons in charge of animals, attend properly to the welfare ofthose animals.[47] Sections 10 and 11 set out an animal owners' obligations in relation to the careof animals. The Judge found these sections were clearly engaged by Ms Murray'sneglect. 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 s120 as follows:120 PurposeThe purpose of this Part is to—(a) specify the criteria for an organisation to be declared as an approvedorganisation; and(b) provide for the appointment of inspectors and auxiliary officers; and(c) specify the powers and duties of approved organisations in relation toanimals in their custody; and(d) specify the powers of inspectors and auxiliary officers, including theirpowers of search and their powers in relation to animals.[49] Section 127 invests in an animal welfare inspector the power to enter onto landboth with and without a warrant and to take possession of animals in specifiedcircumstances. Section 127 relevantly provides:127 Power to inspect land, premises, and places and stationaryvehicles, 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 reasonabletime or times; and(b) in the case of any vehicle, aircraft, or ship, at any reasonabletime or times at which the vehicle, aircraft, or ship isstationary,—enter, without warrant, that land or those premises or thatplace or any such vehicle, aircraft, or ship for the purposes ofinspecting any animal on or in that land or those premises orthat 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 foundon or in the land, premises, or place or in or on the vehicle, aircraft, orship, that—(a) the animal has been wilfully ill-treated contrary to section 28;or(aa) the owner of the animal is already disqualified from owningan animal under this Act; or(b) the physical, health, and behavioural needs of the animal orthe need for the animal to receive treatment from aveterinarian make it necessary or desirable to remove theanimal 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 inspectoruntil—(a) the animal is, under section 172, forfeited to the Crown or toan approved organisation; or(b) a District Court Judge orders that the animal be delivered tothe owner of the animal or to the person charged with theoffence against this Act....[50] When exercising the powers under s 130, an inspector who has reasonablegrounds to believe an animal is suffering or is likely to suffer unreasonable orunnecessary pain or distress, may take the steps an inspector considers necessary ordesirable to prevent or mitigate the suffering of the animal.9 The relevant steps mayinclude 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 applyin respect of—(a) any thing seized by a constable (including any animal seizedby a constable under the authority of a search warrant issuedunder section 131 and any animal of which a constable takespossession under section 137(1)); and(b) with the necessary modifications, any thing seized by aninspector (including any animal seized by an inspector underthe authority of a search warrant issued under section 131 andany animal of which an inspector takes possession undersection 127).(2) Despite anything in subpart 6 of Part 4 of the Search and SurveillanceAct 2012, a constable or an inspector who has custody of an animalmay 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 necessarymodifications" in respect of any animal of which an inspector takes possession unders 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 orevidential purposes, or it is liable to forfeiture to the Crown or anyother person (whether by operation of law or by order of a court orotherwise), be held in the custody of the person who exercised thesearch power or that person's employer or another person acting onbehalf of that person or any other person to whom the thing istransferred in accordance with section 90(2) (except while it is being9 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 asearch warrant, s 133(4).used in evidence or is in the custody of any court) until the first of thefollowing occurs:(a) a decision is made not to bring proceedings for an offence inrespect of which the thing was seized or produced;(b) the thing is forfeited to the Crown or any other person underany enactment (whether by operation of law or by order of acourt or otherwise);(c) the thing is released under section 158 or 159;(d) if proceedings for an offence have not been commencedbefore the date that is 6 months after the thing was seized orproduced and a request has been made for the return of thething, that date or the expiration of a later time ordered by acourt 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 theproceedings;(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, theperson in whose custody the property is must immediately release thething in his or her custody,—(a) in the case of a subsection (1)(a), (d), or (e) event, to theowner or to a person entitled to possession; or(b) in the case of any other event, in the manner required by thisAct....(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 relationto seized items and the rights of owners apply in respect of an animal seized unders 127.[55] Section 136A relates to the disposal of animals seized or taken into custodyprior to commencement or determination of proceedings. It applies to circumstancesincluding those where animals are taken into possession by an inspector under s 127and either proceedings for an offence involving the animal or animals have beencommenced but not been determined or have not been commenced but are intended tobe commenced within a reasonable period. It also applies if the owner of the animalor animals cannot be located.11[56] If s 136A applies, the District Court may, of its own motion, or on anapplication by a constable or inspector, make an order in relation to the animal oranimals authorising their sale, placement with another person, destruction or otherdisposal, 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 whomany 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 circumstanceswhere no proceeding has yet been brought, to apply to the Court for an extension oftime 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, whichrelevantly 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, mayapply 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 maydirect if,—(a) in the applicant's opinion,—(i) the thing concerned is perishable or likely todeteriorate; or(ii) the cost of holding the thing is unreasonable havingregard to its market value; and(b) the applicant has made reasonable efforts to advise the peopledescribed 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 otherperson to whom the thing might be transferred, of holding itis unreasonable having regard to its market value....Analysis[60] As Mr Carter has emphasised, the RNZSPCA is faced with unique challengesin terms of its resourcing and the context within which it operates—where cooperationwith owners, as opposed to prosecution, may be in the public interest. In 2019, thisissue 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 prosecutedand that "[r]esource constraints prevent more prosecutions occurring".13[61] Mr Carter explained that in the modern environment, it is commonplace for theRNZSPCA, acting in its role as an assigned administrator, to engage in alternativeprocesses 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 literalinterpretation of the Act, the RNZSPCA, having exercised its powers to uplift animalson welfare grounds, may not have the power to dispose of those animals under s 163of the SSA if it resolves not to prosecute the animal owner. This issue is the focus ofthis appeal.[62] As counsel acknowledged, determining these issues is complicated, first, bythe unique qualities that attach to animals in the law and, second, by the statutoryregime relating to the powers of disposal.[63] The position of animals in common law was recently summarised by this Courtin the decision of Kondratyeva v Royal New Zealand Society for Prevention of Crueltyto Animals (RSPCA).14 As Mr Fletcher noted, the general position is that domestic13 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 lawoften treats them differently than inanimate property in the sense that it aims to ensurethe animals are treated properly.15 This desire to ensure animals are properly cared forno doubt led the District Court Judge to note that:16[50] Clearly one does have to take into account the interests of the animalsalthough I am not entirely convinced it is a relevant consideration in terms ofs 163 of the Search and Surveillance Act. However, there are alternative meansof accommodating those interests which do not involve and expropriation ofproperty.[64] I do not consider it is necessary to clarify the extent to which the welfare of theanimals is a relevant consideration in terms of s 163, but it is clear that animal welfaremay colour the issues to be determined, as will a domestic animal's current status asproperty.[65] Beyond the position of animals in the law, the relevant statutory regime itselfis not "easy to follow"17 and, as the process for the disposal of animals bridges boththe 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 thisCourt in Summers v Attorney-General.18 In this case, the Ministry of Agriculture andForestry seized many allegedly malnourished animals from a farm and euthanisedsome due to their condition. The animal owner was charged with a number of offencesunder the AWA. The issue before the Court was what happened to the animals in theperiod before the criminal proceedings were determined. The animal owner sought thereturn of some of the seized animals, while the Ministry wanted the animals to be soldand the proceeds to be used to pay the Ministry for the significant cost of caring forthe 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 broaderissues that are now before the Court were considered in Summers. The statutory regimeunder which the issue was considered differed somewhat from the current law (withthe Summary Proceedings Act 1957 still being in force rather than the SSA), and mostof O'Regan J's view on these issues were obiter in nature. Of note however, whendealing with similarly imprecise statutory language, the Judge suggested it was notappropriate to order the disposal of animals by way of sale in those circumstances. Inmaking that determination, the Judge observed that an interpretation of s 136 of theAWA that would allow for a disposal order to be made involved substantialinterference with the property rights of a person who had not been found guilty of anyoffence. The Judge recognised this would leave the Ministry in a position where it hadto effectively hold onto the animals until trial but was somewhat comforted theMinistry could try to recoup costs for care of the animals.[68] These comments on the broad issues raised by the disposal process areapplicable to this appeal. In particular, the importance of property rights and the needfor clear wording to exclude these rights. Rights in respect of private property are ofa fundamental nature. In interpreting statute, a rights-consistent interpretation will bepreferred, and the Court presumes abrogation by Parliament of rights to privateproperty 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 toprosecute is made by the RNZSPCA, the property seized for investigative or evidentialpurposes must be returned to the person whom it was seized from, and the RNZSPCAloses the ability to apply for a disposal order under s 163 of the AWA. Arguably, oncethe "no prosecution" decision is made, the RNZSPCA has no legal authority to holdthe animals in its custody. I did not hear full argument on the issue of the precise pointat which the RNZSPCA must return livestock depending on the approach toprosecution. It is not necessary that I determine that issue to resolve this appeal. Inthe absence of full argument and accepting the determination of that issue may have19 Section 136A of the Animal Welfare Act 1999 was inserted on 1 October 2012, by section 196 ofthe 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 anyfinding on that issue.[70] Section 151(2) provides that once the "no prosecution" decision is made theanimals must be returned to the owner or "a person entitled to possession". TheRNZSPCA is entitled to possession of animals in certain circumstances pursuant to s127(5) of the AWA—which clearly stipulates that an inspector may take and maintainpossession of an animal where they have reasonable grounds to believe there arespecified animal welfare issues. Under s 127(6), the inspector may keep the animal ata place chosen by the inspector until the animal is forfeited to the Crown or anapproved organisation pursuant to s 172, or a District Court Judge orders that theanimal be delivered to the owner of the animal or to the person charged with theoffence 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 aperson or body who has seized property pursuant to a statutory power, and is thenrequired to release that property, could simply return that property to themselves. I ammindful of s 10(1) of the Legislation Act 2019 which provides that the meaning oflegislation must be ascertained from its text and in the light of its purpose and itscontext. Whilst there is a reasonable argument that, having regard to the purpose ofthe AWA, the welfare of the animals should assume paramountcy, the importance ofproperty rights and, it being clear that Parliament had turned its mind to the seizure ofproperty, and the related decision to prosecute a person in relation to that property, itis my view that s 151 requires the property to be returned to the animal owner (orsomeone 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 ananimal seized under s 127. Mr Carter submits that in circumstances where theRNZSPCA has a legal obligation, or power, to retain custody of the animals under s127 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, evenif 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 thelegislation a power that is not clearly expressed under the justification of "necessarymodification". Kós P commented in the context of the Child Protection (Child SexOffender Government Agency Registration) Act 2016 that a "necessary modification"must be one required to make the legislation work.21 I respectfully agree. The scopeof any necessary modifications ought not be extensive. For instance, the interpretationsection of the Screen Industry Workers Act 2022, s 10, provides that:(3) Without limiting the ordinary meaning of that term, necessarymodifications to a provision include the following:(a) any reference to an employee must be read as if it were areference to a screen production worker; and(b) any reference to an employer must be read as if it were areference to an engager; and(c) any reference to any employment agreement must be read asif it were a reference to an individual contract; and(d) any reference to a union must be read as if it were a referenceto a worker organisation; and (e) any reference to a collectiveagreement must be read as if it were a reference to a collectivecontract.[74] The interpretation advanced by the RNZSPCA involves considerablemodification of the SSA such that the RNZSPCA's power to seek disposal orderswould be expanded significantly and in a manner that is inconsistent with propertyrights. Whether such a modification is necessary must be considered in the context ofthe SSA being introduced, in part, to standardise approaches to search and seizureacross a variety of acts and provide a "coherent, consistent, and certain approach inbalancing the complementary values of law enforcement and human rights".22[75] Viewed holistically, I do not consider the modification proposed by theRNZSPCA is necessary to make the legislation work. The statutory regime is certainlyimperfect and leaves the RNZSPCA in a difficult position due to their pragmatic, andI accept appropriate, approach to prosecutions. Nevertheless, expanding theRNZSPCA's capacity to seek disposal in this manner is not necessary for the21 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 therights such an interpretation would abrogate and the clear statutory language the courtsusually consider necessary to achieve that end.[76] I also note the different standards imposed by s 136A of the AWA and s 163 ofthe SSA. Section 136A requires that the owner of the animals be given the opportunityto be heard (provided they are known and contactable), and subs (4) provides a longlist of mandatory considerations the Court must assess before deciding there are goodreasons to order disposal, including the loss to the owner. Section 163 requires areasonable effort to contact specified persons—beyond that, the Court must merely besatisfied that the thing is perishable/likely to deteriorate, or that the cost of holding thething is unreasonable with regard to its market value. I consider s 136A imposes amore rigorous standard. It is unlikely Parliament intended it to be easier to dispose ofanimals where prosecution will not be pursued compared to circumstances where it isstill being contemplated or has commenced.[77] An interpretation that would have fallen closer to being a "necessarymodification" than that contended for by counsel would have been to read and modifys 151 of the SSA in light of the AWA. The SSA is primarily concerned with the seizureof inanimate evidence for investigative and/or evidential purposes. Seizure under theAWA, as I understand the RNZSPCA's circumstances, is more likely to be primarilyconcerned with the welfare of the seized animals. It may be more akin to a "necessarymodification" to read this differing purpose into s 151 and subs (1)(a) such that s 151would not be applicable. While more palatable in that respect, this argument meetsthe same difficulty as it relates to abrogating property rights and Parliament's likelyintention as demonstrated by s 136A.[78] It follows that although I am sympathetic to the position in which this leavesthe RNZSPCA, to allow a disposal order to be made would effectively bypass MsMurray's property rights in circumstances where Parliament has not expressed withadequate clarity that this is within the contemplation of the statutory regime. In myview, s 163 may not be used to effect disposal of animals by the RNZSPCA incircumstances where the organisation has made the decision not to prosecute, due tothe operation of s 151.Alternatives to a disposal order[79] Counsel questioned whether an appropriate alternative to disposal under s 163is available to the RNZSPCA in these circumstances. The alternative pathways raisedby counsel were enforcement orders, s 130 notices and compliance notices under s156A. I agree, as Mr Carter submitted, that these are all future-focused tools so arenot entirely fit for the purpose proposed, namely when animals have been seized bythe 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 precededby reasonable efforts to advise certain people of the intended application.23 As I haveobserved, s 136A allows for disposal of animals prior to the commencement ordetermination of proceedings. The owner of the animals must be given the chance tobe heard under subs (3)(a) if they are known and able to be contacted. When it isproposed that animals seized either with or without a warrant should be destroyedunder ss 130 or 133 of the AWA, an inspector must comply with s 138 which requiresthat reasonable efforts be made to consult the owner and that the owner may seek asecond veterinary opinion. This is the context against which I assess the alternativepaths 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 remediesand referred to the option of an enforcement order to ensure steps are taken to providefor an appropriate level of care. The Judge did not have the benefit of the carefulanalysis 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 "satisfiedthat the person in respect of whom the order is sought has been acting in contraventionof [the AWA or other relevant codes or conditions]". As noted in Parker:[89] There is an overlap between this threshold, at least insofar ascontravention of the Act is concerned, and the criminal offences specified inthe Act. For example, one of the grounds upon which the temporaryenforcement order was sought in this case was that Mr Parker had breachedthe obligations in s 10 of the Act. A breach of s 10 is also a strict liability23 Certain people being those in s 156(2) of the Search and Surveillance Act, including, amongstothers, the owner or person entitled to possession of the seized property.offence. Mr Parker could have been prosecuted for such breach, but MPIdecided to seek an enforcement order instead. The enforcement regime isaccordingly an alternative or additional pathway to criminal prosecution underthe Act.[83] An application for an enforcement order must be served on every persondirectly affected by the application.24 A temporary enforcement order may issuewithout notice under s 148, if the Court is satisfied "that the delay that would be causedby proceeding on notice would or might entail a risk of harm to any animal". At facevalue the threshold for the issue of a temporary enforcement order might be seen asreadily achievable. Given enforcement orders are predicated on breaches of the AWAor other similar standards, I consider Parliament intended temporary enforcementorders would only issue in situations involving urgency. However, given the purposesof the AWA to protect the welfare of animals, and the broad nature of many of theother powers provided to inspectors, it would be inappropriate that this hurdle operatedto only allow exceptional or rare cases.When an enforcement order is made and served, the person served must comply withthe order.25 Section 145(2) provides that in the event on non-compliance, any personmay, with the consent of the Court, exercise in relation to any animal found on theland or structure any of the powers a person executing a search warrant under s 131would have had.26[84] Enforcement orders may be made to enforce compliance with expressobligations of animal owners and also to specify the means of doing so provided thereis a reasonable nexus between the terms of the enforcement order and the nature andcontext of the breach of obligations.27[85] An enforcement order might provide for a relevant body to seize a number ofanimals in excess of a limit prescribed. This is known as a de-stocking order. Theability to use enforcement orders to require de-stocking sits awkwardly alongside theability to limit the number of animals a person may own via a disqualification order24 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 toachieve the same end, that enforcement orders may limit the number of animals aperson 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 weighcarefully before concluding that it should make such an order. These include thecautionary approach courts take to mandatory injunctions,30 the risk of healthy animalssimply being killed, private property and commercial interests, and the lack of noticewhen done via a s 148 temporary order.31[86] While a destocking order is available to the RNZSPCA, non-compliance withthat order is a pre-requisite to the exercise of a remedial power. For a person to fail tocomply with such an order, the animals must be in their possession. That, of course, isnot the situation in this case. The RNZSPCA had possession of the animals. In thatscenario the animals would have to be returned to Ms Murray, an enforcement orderserved, followed by non-compliance with the order.[87] I adopt the conclusion of Edwards J in Parker, in respect of the protectionsafforded by the SSA:32I do not consider Parliament intended for the statutory provisions relating toseizure and disposal of animals to be avoided simply by MPI electing to followthe enforcement route.[88] In my view, though available, enforcement orders operate clumsily in thepresent circumstances and are not a viable long term solution to what is a lacuna in thestatutory regime that appears to have emerged as the RNZSPCA's approach toprosecution has evolved and due to incongruities between the SSA and the AWA. It isunderstandable that they are being utilised in the interim to achieve a pragmaticsolution[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 ofentry under section 127 or at any other time, has reasonable groundsto believe that an animal is suffering or is likely to suffer unreasonableor unnecessary pain or distress, the inspector—(a) may take all such steps as the inspector considers arenecessary or desirable to prevent or mitigate the suffering ofthe animal (including, if necessary, destroying or arrangingfor the destruction of the animal); and(b) may, by notice in writing given by the inspector to the owneror the person in charge of the animal or any person appearingto be in charge of the animal, require the person to whom thenotice is given to take all such steps as the inspector considersare necessary or desirable to prevent or mitigate the sufferingof the animal (including, if necessary, destroying or arrangingfor the destruction of the animal).(emphasis added)[90] I agree this section is not a good fit when the subject animals have been seizedby the RNZSPCA. Further, if a person fails to comply with the requirements of a noticeissued 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 theirapproach of encouraging compliance short of a prosecution and their mission ofpreventing harm to animals. Placing animals back with an owner who is likely tocontinue failing those animals, where the relevant recourse is a fine, is an unattractiveremedy.[91] Nevertheless, in circumstances where a decision has been made not toprosecute but there are on-going concerns as to the ability or willingness of the ownerto comply with the terms of a s 130 notice, the animals could be returned and a s130notice issued and compliance then monitored. I acknowledge there are practicalconsiderations that might render this alternative remedy unsuitable.Observation and recommendation[92] The position the RNZSPCA is placed in would appear incongruent with theanimal welfare principles of the AWA and imposes a significant burden on a charitableorganisation performing a valuable public function. Given this, and the confusion asto the scope and inter-relationship of sections in the legislative regime, I endorse therecommendation made by Edwards J in Parker that the sections in the AWA relatingto the powers of search, seizure and disposal receive legislative attention. I intend torefer this judgment to Te Aka Matua o te Ture/the Law Commission for thatpurpose.33Results[93] The appeal is dismissed....................................................Eaton JSolicitors:Guy Carter, BVA The Practice, Palmerston NorthGrant Fletcher, Barrister, Christchurch33 Parker v Langley, above n 3, at [56].