Submission Dog Act Review

SUBMISSION TO THE DEPARTMENT OF LOCAL GOVERNMENT AND REGIONAL DEVELOPMENT ON CHANGES TO THE DOG ACT 1976

Saturday, 20 September 2003

PROPOSED AMENDMENTS TO THE DOG ACT 1976

SUBMISSION BY THE WA RANGERS ASSOCIATION

State governments are responsible for passing legislation in respect of the control of dogs. Local government Rangers, of course, administer this legislation.

Because each local government is a separate entity, there is potential to undermine the uniformity of any legislation relating to the control of dogs. Each local government may have its own policies and methods of giving effect to the meaning of the legislative provisions in the Dog Act. This has the potential for undermining the purpose of the Dog Act. The Association considers that it is highly desirable for legislation to bring about greater consistency between the local governments.

A major failing of Dog Act in the past has been the inability of local governments to bring to the courts’ attention earlier offences committed by offenders. For that reason the Association has progressed the development of a central co-ordinated system through which local governments will be able to exchange and share information in respect of dog registration, as well as offences committed by individual owners of dogs. This system, once fully developed, will enable local government to more effectively give meaning to the provisions of the Act. There are no provisions in legislation to enable sharing of information of this nature. Legislation is required to give Local Governments a level of “comfort” in sharing this information across a secure network and to enable print outs to be produced in a court.

At present time, previous offences by offenders outside of the local government district are not known to the local government carrying out a prosecution under the Dog Act. For example, an offender who habitually breaks the law in Cockburn may move to Armadale. If they are subsequently apprehended for an offence in Armadale, they may appear before the courts as a first offender. This significantly undermines the strength of the Dog Act and enables itinerant dog owners to move from one local government district to another without the full effect of law being sheeted home to them by being considered as a subsequent offender. It is for this reason that the Association impresses on the government the need to bring about legislation to enable the sharing of information in respect of offenders and dog registration.

The W.A Rangers Association is pleased to support and endorse many of the proposed amendments to the Dog Act. A number of changes are required, however, to ensure that the proposed amendments are useful. Further, we have concerns regarding a number of the amendments proposed. We raise them in this report.

It should be noted that, over the last 10 years, Rangers have been expected to play a greater role in controlling bushfire, animal, litter and off road vehicle offences than ever before. Of recent, general security services have been added to this list if this function adopted by a councils. This increase in the expectation of Rangers has mostly not been met by any expansion of resources. The proposed amendments to the Dog Act definitely have resource implications that have been overlooked. Put simply this legislation again expands the role of Rangers with the consequent increase in work for Rangers.

Resource implications

There should be no mistake. An increase in the prosecution responsibilities by Rangers will result in a corresponding increase in a need for greater resources to give effect to the amendments to the Act. The amendments place a greater reliance on enforcement as a method to ensure compliance with the provisions of the Act even though there are a number of provisions that deal with the education of dog owners. It is without doubt a concern that the proposed amendments are suggested without consideration for their implications on resources, and the ease with which they can be enforced.

Additional areas requiring amendment.

In addition to the matters requiring amendment the following matters are additional areas in which amendment to the Act is required but what does not appear in the review documents.

The responsibility on the person to provide proof of their name and address at the time of being issued with infringement notice

A greater reliance on infringement notices issued for offences of the Act also means that Rangers have the responsibility to ensure that the person to whom they are issuing an infringement is the person whom they claim to be. It is for this reason that the Association considers it necessary to include a provision in the Act enabling Rangers to demand from a person their full name and address. A person who does not provide their full name and address to a ranger ought to be the subject of a prosecution. The Dog Act could simply be amended to provide that authorised officers are public officers for the purposes of the Criminal Investigation (Identifying People) Act 2002. An authorised officer, being a public officer, ought to be given the powers pursuant to Section 16 of that Act. The provisions of Section 5 of this Act are set out below:

5. Public officers may be authorised to exercise powers

(1) For the purposes of this Act and in particular the definition of "public officer" in section 3, another Act or the regulations made under this Act may —

(a) prescribe an office to which people are appointed under a written law for a public purpose and a function of which is the investigation of offences; and

(b) in respect of that office, specify those of the powers in this Act that a holder of that office may exercise, being powers that this Act provides may be exercised by a public officer.

(2) A public officer may only exercise a power under this Act in relation to an offence if —

(a) the office held by the public officer has been prescribed under subsection (1)(a);

(b) the power is one that has been specified under subsection (1)(b) as one that the officer may exercise; and

In a similar way, the Dog Act ought to provide provisions for Rangers to be able to stop any person suspected of committing an offence under the Dog Act and to demand from them their name and address. Further, where a person does not provide their name and address the authorised person ought to be provided with the power to seize any dog in that person’s possession.

Warrants affected against particular addresses, rather then defected to seize a particular dog

Presently the Act provides the possibility for Rangers to obtain warrants seizing dogs. It is arguable that these warrants are enforceable only at particular addresses contained on the warrant itself. This can be restrictive particularly where a dog owner moves the dog to another property. Any warrant issued ought to provide the Ranger with the power to seize the dog, no matter where it is located.

Strict liability offences

All offences set out in Chapter VI of the Dog Act ought to be expressly listed as strict liability offences. Section 36 of the Criminal Code presupposes that the defence provisions found in Chapter V of the Criminal Code apply to all other legislation. From time to time this causes some confusion for Magistrates as was demonstrated in the case of Lappan v Hughes [2003] WASCA 173 (31 July 2003) [1], and other cases where prosecutions are preferred pursuant to Section 36D of the Dog Act. The onus placed on a dog owner is one that is very high. (City of Canning v Wardle unreported decision Supreme Court of WA, 26 April 1996, BC9601612 per Wallwork J, Pacino v Tilley unreported decision Supreme Court of WA, 16 July 1996, BC9603063 per Heenan J) In the recently decided case of Lappan v Hughes [2003] WASCA 173 (31 July 2003) His Honour Justice Miller held that the only defences available to a person charged under Section 33A are those contained in Section 33B of the Act. Rangers and prosecutors are aware of difficulties that the failure by the Dog Act to stipulate that offences contained within it are strict liability offences has caused in the past. By stipulating that Dog Act offences are strict liability offences it will remove any ambiguity in that regard and reinforce the fact that owners are responsible for their Dogs.

Strict liability offences arise where the statute displaces the requirement to prove mens rea or the subject matter is such that mens rea is not a necessary element of the offence. (Sherras v De Rutzen [1895] 1QB 918 at 921.)

The provisions of the Dog Act relating to the Control of Dogs were strengthened and revamped in 1996 after the Chockolich matter for which Mr Pacino was charged with an offence pursuant to S33D(1) of the Dog Act 1976 (Giovanni Pacino v Geoffrey Phillip Tilley (1996) Unreported BC 9603063 Heenan J).

The keeping of a dog is not unlike the keeping of a Lion, but for the fact that it is possible to own a dog subject to the strict provisions of the Dog Act 1976. (Section 46 of the Dog Act 1976 replacing the law of scienter)

The mind of the Dog is unknown and for that reason the mind of the owner is not relevant, the Dog Act creates statutory exceptions to liability under the Dog Act 1976. The principles of where offences of strict liability can be presumed by the Courts were most clearly annunciated by Lord Searman in Gammon Ltd v A-G of Hong Kong [1985] 1 AC 1 as five principles at P14. (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is truly criminal in character; (3) the presumption applied to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute: (4) the only situation in which the presumption can be displaced is where the statue is concerned with an issue of social concern and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of men rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

The focus of the Dog control provisions of the Dog Act relate to public safety. Offences for breaches of the control provisions of the Dog Act are of a quasi-criminal nature and do not carry with them the stigma for breaches of other more serious criminal provisions.

A simple provision in this regard will also strengthen the prosecution of Dog Act offences. The Association’s Solicitor is prepared to expand on this need should any further information required on this point.

Appeals

The Act ought to set out that an appeal from a decision of a Magistrate acts as a stay of an order for the destruction of a dog from the time that it is served. Further a person who appeals a matter ought to be liable for the costs of holding a dog while a matter is under appeal. At present the general provisions apply in these circumstances, these could be subject to some argument where a Council seeks to recover the costs of keeping a dog for a number of months while a matter is the subject of an appeal.

In the following pages the Association will address the suggested amendments to the Dog Act.

1 DOG NUISANCE – BARKING DOGS

1.1 Redefine nuisance barking so that references to “normally habitual” and …” a disturbing effect on the state of reasonable physical, mental, or social well-being of a person…” are removed.

The nuisance dog provisions in the Dog Act 1976 (“the Act”), at the present time are unenforceable by Rangers. The reasons for this include:

(a) The gathering of evidence from competent reliable witnesses.

(b) To establish the proof that the dog has been a nuisance by barking the Ranger must gather sufficient evidence to convince a court beyond reasonable doubt that the dog has presented itself as a nuisance.

The term “nuisance” used at law predominantly focuses on the interference with a person’s private enjoyment of land or some right over it or in connection with it. Mostly this term is used in respect of environmental offences. It includes any interference with the public or private interest of another. (Halsey v Esso Petroleum [1961] 1 WLR 683). Private and public nuisance must be distinguished from one another. The term “public nuisance” includes an unlawful act the effect of which is likely to endanger life, health, property, morals or comfort of the public (R v Clifford [1980] 1 NSWLR 314). In Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110 it was noted that a public nuisance is a nuisance so widespread and the range so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings to stop it on his or her own. Put simply public nuisances are the responsibility of the community at large. Dogs that bark are hardly a public nuisance; they are quite clearly a private nuisance, unless the effect of the barking is so widespread and the range indiscriminate effecting whole communities. A nuisance by a dog barking is a private nuisance that can be resolved by the two persons in question. The criminal law, in this instance expressed in the provisions of the Dog Act, ought not to provide sanctions for a matter such as a private nuisance by a dog barking. Private nuisance complaints is not something that public legislation ought in the first place to sanction.

Additionally the problem that the term nuisance creates is that there can never be an objective standard by which it can be determined whether a dog is a nuisance or not. A dog letting out an occasional screech may be a nuisance to one person but not to another. Criminal sanctions ought not to be provided for that which cannot be objectively determined.

The difficulty so often with the definition of nuisance is the question of whether it is to be a subjective definition or an objective definition of what constitutes a nuisance. Persons who complain about dogs often feel let down by not being able to take action, even though there are provisions in the Dog Act that enable individuals to prefer actions to cause a person to abate a nuisance. However persons feel that Rangers will be able to solve a problem immediately. This ignores the fact that it is more difficult for a Ranger to prefer a prosecution due to the fact that Rangers need to prove an offence of nuisance on an objective basis beyond reasonable doubt. Rangers are often faced with difficult neighbours who feel aggrieved because they believe that the Local Government does not treat their complaint seriously. Rangers need to be satisfied that the nuisance is in fact a nuisance and that incontrovertible evidence in that regard can be adduced to the highest standard of proof required . This often involves the Ranger needing to conduct a lengthy and detailed investigation to obtain sufficient evidence to convince a court beyond a reasonable doubt that the dog is a nuisance

Put simply, presently Rangers are the first port of call for nuisance dogs for a matter, which in effect are a private nuisance and not a public nuisance. It is for that reason that the Association considers the provisions in respect of nuisance need amendment to remove the responsibility from Rangers. It is far better that the Act contain provisions that enable individuals to refer their matters of complaint to the Local Court for determination by way of seeking redress in much the same way as a restraining order is obtained. This empowers individuals to take action to satisfy a Magistrate, on balance, that a dog is a private nuisance. The Act ought to provide magistrates the power to issue an abatement or restraint order if that Magistrate is satisfied, on the balance of probabilities, that the dog has caused a nuisance by barking. The benefit is that such a provision will empower individuals to take direct action, without need for Rangers involvement in the first instance. Further it will remove Rangers from becoming involved in domestic feuds between neighbours. Additionally, and just as importantly, it provides that a private nuisance complaint not be dealt with as a Criminal Offence with the necessary high burden of proof. Finally a provision could be inserted that enable Rangers to take action on behalf of neighbours should they so wish, but the emphasis should be placed on individuals in the first instance.

If there has been a breach of the abatement or restraint order Rangers would then become involved for a breach of the abatement or restraint order. The proof that there has been such a breach would be far easier than proving that the dog is a nuisance by barking.

The process of ensuring abatement or restraint orders is not foreign to the Magistrate courts. The courts are often required to issue orders restraining parties from certain conduct. It is far easier to enforce the orders of the court then to seek evidence to convict an individual beyond reasonable doubt.

1.2 Delete the reference to injury in the definition of nuisance.

If a new provision is created creating an offence akin to retraining orders this will not be necessary.

1.3 Provide for an authorised person to take action where he/she is satisfied that a dog is being a nuisance.

This proposed amendment would not be necessary with the proposed changes suggested by the Association.

1.4 Clearly provide for authorised persons and local governments to take action on the basis of one or more complaints whether it is for the issuing of an infringement notice; the issuing of an abatement notice; a prosecution; or some other action.

This proposed amendment would not be necessary with the proposed changes suggested by the Association.

1.5 Provide for local governments and authorised persons to be able to issue notices requiring specific action be taken by an owner of a nuisance dog to help remove, or alleviate, the causes of the nuisance behaviour.

It is simply not appropriate for a local government to issue a specific order. Issuing enforceable orders is quite clearly a judicial function and not one which could be considered to be administrative in nature, and nor should it be administrative in nature.

In addition to the aforementioned, Rangers will still need to be satisfied that there are sufficient grounds for an order to be issued. This may well require the Rangers to collect evidence, the difficulties of which are obvious. This proposed amendment simply does not address the question of what is a nuisance and what is not a nuisance, the proposals put forward by the Association will address this problem.

1.6 Provide for a right of objection or appeal where a notice to undertake specific action is issued (other than a notice to cease a barking nuisance alone).

This proposed amendment would not be necessary with the proposed changes suggested by the Rangers Association.

1.7 Provide that a barking nuisance is deemed to occur where it interferes with any person in any premises, or in any public place.

This proposed amendment would not be necessary with the proposed changes suggested by the Rangers Association.

1.8 Provide for arbitration as an alternative to dealing with a nuisance matter through the courts.

At heart this proposal seems to suggest that there ought to be an alternative way to dealing with nuisance complaints other than through the Court of Petty Sessions by way of Criminal sanctions. The Association wholeheartedly agrees with this position and for that reason has put forward an alternative approach whereby individuals will have the opportunity of dealing the nuisance dog, by way of a local Court summons. Arbitration processes that do not have the force and effect of law could only be used in limited cases.

1.9 Provide for kennels situated in appropriate zones to be given latitude from any nuisance barking provisions where all other requirements such as those relating to zoning, planning, environment, health and building are met.

This is a planning matter that ought not to be considered within the provisions of the Dog Act. A person living within a kennels zone could not argue that having regard to the amenity of the area a barking dog creates a nuisance.

1.10 Maintain established kennel zones and establish new kennel zones as necessary to enable people who operate such facilities to do so without fear of receiving nuisance complaints.

Again quite clearly this is a planning matter. A reasonable Magistrate would hardly consider that a dog, which is barking within a kennel zone what creates an offence of nuisance. This proposed amendment is hardly required to strengthen and clarify the provisions of the Act.

2 DOG ATTACKS, DANGEROUS DOGS AND RESTRICTED BREEDS

2.1 Provide for uniform enforcement powers for both dangerous dogs and restricted breeds.

The Rangers Association continues to be opposed to the restricted breed legislation. As has often been stated by The Association, it is the deed and not the breed! Restricted breed legislation is believed to be hopelessly unenforceable. The Association intends to make further submissions to The Government, in this respect, at a later time.

2.2 Enable modified penalties to be applied to minor dog attacks where no physical injury or damage occurs.

In principle, the Rangers Association supports this proposal.. The question that naturally arises from enabling minor dog attacks to be the subject of modified penalties, is the definition of a minor dog attack. The Association considers a minor dog attack to be one where there is no physical contact between the dog and the person. Further, a modified penalty ought to provide a minimum penalty of not less than $1000 for the first offence.

2.3 Require all dogs declared dangerous and all restricted breed dogs to have a microchip implant and be placed on a central computerised register or database which ideally should be accessible Australia wide.

In general, The Association does not support restricted breed legislation. The integration of the restricted breed legislation into the Act, therefore, is not supported. However, The Association does, in principle, support the continuation of dangerous dogs legislation. Where a dog demonstrates that it is dangerous, a declaration ought to be made that is valid throughout the whole state.

2.4 Enable an authorised person to order the owner of a dangerous dog to take that

dog to behaviour modification training.

The Association does not consider making orders to be matters that are an Administrative function such that Rangers ought to have such broad powers that are, in effect, judicial in nature. Orders of this nature ought to be made by a judicial officer when someone appears on a charge for an offence under the Act that is proven. It is already the case that a Magistrate will take into account, in a plea in mitigation, that the owner of a dog has taken that dog to obedience training.

3 DOG REGISTRATIONS AND IDENTIFICATION

3.1 Introduce a system that enables dogs to be registered for a full period of 12 months as a minimum.

The Association supports a sliding scale of fees from the registration of dogs. At the present time, the registration fee is the same for any period in which a dog is registered. The year ought to be broken up into tri-semesters. The fee is dependent on which tri-semester the registration fees are paid within, the first tri-semester a fee of $30 fee applies, in the second tri-semester a $20 fee applies and the third tri-semester a $10 fee applies.

3.2 Provide local governments with the option to offer lifetime registration for a dog.

The Association does not support providing a dog with a lifetime registration. Regular registration in assists local government to maintain an up-to-date database system. Additionally, systems have not been set up to provide for a lifetime registration of a dog, for that reason amendments to the Act of this nature have an impact on the necessary resources and infrastructure for little benefit.

3.3 Fees for lifetime registration should be set at $60 for sterilised dogs and $450 for unsterilised dogs.

Whereas an increase in the registration for dogs may on the surface appear to alleviate somewhat the resource and problem in respect of the additional obligations placed on Rangers for prosecuting under the Dog Act. The reality is that this may also contribute to more persons not registering their dogs, this is a distinct reality in suburbs such as Kwinana. The registration of dogs is highly desirable, as it enables Rangers to track owners of dogs that stray or are involved in a dog attack.

3.4 Enable people to provide alternative contact details in case the owner is not contactable for any reason.

Rangers cannot maintain a meaningful database of alternative contact details for dog owners, owners ought to provide this information to neighbours and make their own arrangements with respect to their dogs. Rangers should not be required to keep alternative contact details for dogs. Owners have a responsibility for their pets, and this duty is non-delegable.

3.5 Require dogs to be registered at six months of age to allow the owner to have the dog sterilised in accordance with veterinary practice, and so claim a discounted registration.

The requirement to register dogs at six months as opposed to three-month presents difficulties. Whereas Rangers can tell the difference between a dog, which is three-month and an adult dog, it is very difficult to determine the difference between a six-month old dog and an adult dog. This will make the prosecution for any unregistered dog difficult, as the Ranger will need to prove that the dog is older then 6 months, this carries with it particular evidentiary burdens that could be off set by an averment in the Act.

3.6 Increase fees for unsterilised dogs to encourage a greater take up of sterilisation for dogs. These should rise from $30 to $60 for one year, and $75 to $150 for three years.

The Association does not wish to comment on this proposal.

3.7 Enable local governments to provide for registration discounts to encourage responsible dog ownership through attending dog training/obedience classes etc.

The Rangers Association does not support this initiative. Persons will not attend a dog obedience course to get a discount of $30, upon their registration. It is simply an expectation of Rangers, that owners will train their animals and comply with the legislation.

3.8 Provide for local governments to waive registration fees where it is believed to be in the best interests of the community.

It occurs to the Association that this proposal is aimed to encourage owners of dogs in remote communities to register those animals. In that regard it is considered that remote communities ought to be encouraged to register their dogs with the relevant community and any such database is to be made available upon demand to authorised persons.

3.9 Provide that on licensing, an owner of a dog who intends to keep a dog on premises that includes a yard, certify that the yard includes a fenced area that is capable of effectively confining the dog.

Although the Association agrees with the requirement to certify that a dog will be adequately contained, the real issue is the basis on which registration of a dog ought to, or can be refused. If an owner does not have the means to contain a dog, or an owner has shown himself or herself to be a person that is not capable of responsibly owning a dog they ought to be excluded from being able to register a dog.

3.10 Require dog owners to inform their local government when they change address or their dog dies, is lost or stolen within a prescribed period to keep registers and databases current.

The Association considers that Rangers ought not to become the local contact for lost dogs. This is a community problem and not one that relates to enforcement of the provisions of the Dog Act.

3.11 Provide for the access databases and registers to be restricted to authorised persons.

Databases need to be extended to include state based databases, including details of records of previous convictions of persons brought before the courts by various local governments. A provision needs to be included in the Act specifically designed to enable the sharing of prosecuting and record details of offenders and their dogs. Although this database would be managed privately the administrator of a database ought to be authorised by the Department of Local Government and Regional Development (DLGRD). The Act could provide that DLGRD licence providers of software that enables data sharing between Local Governments.

4 KEEPING OF DOGS

4.1 Redraft the provisions relating to the maximum number of dogs allowed on any one property so that the current provisions are described in a clearer manner.

This ought not to be included in the provisions of the Act at all, and ought only to be included in the local laws, developed by the relevant Council. The Association considers that the number of dogs kept on a property ought to be at the discretion of the relevant Local Government controlled through Local Laws or Planning Schemes. The number of dogs may vary from local government to local government. For example a local government in a rural community may wish to allow more dogs then a local government in an inner city area.

4.2 Provide for a council to delegate authority to make decisions on applications to keep dogs in excess of the number prescribed in local laws.

The Association agrees with this proposal.

4.3 Provide an appeal or objection process for persons aggrieved by the decision on whether two or more dogs can be kept.

The Association agrees with this proposal.

4.4 Remove the provision, which enables an appeal to the Minister where a person is aggrieved by a decision made in respect to keeping more than two dogs, and replace it with a provision enabling local governments to nominate a body to determine such appeals.

The Association agrees with this proposal.

5 SEIZING AND POWER OF ENTRY

5.1 Enable authorised persons to seize a dog from premises without a warrant where it is reasonably believed that urgent action is required to prevent the dog attacking, harassing or chasing a person or animal.

The Association agrees with this proposal, with one caveat; the word “urgent” ought not be used in the legislative provision, as the focus of a legal argument will be on what is urgent and what is not urgent.

5.2 Provide for a dog to be seized by an authorised person, with a warrant, where it creates a nuisance by barking which is clearly not being attended to and continues for some extended time.

The Association proposes a different regulatory regime in dealing with the nuisance dogs by barking. It may well be that the Act be amended to provide for the seizure of a dog that continues to be in breach of an order by the Court to abate or retrain that dog from creating a nuisance.

5.3 Enable for authorised persons to seize, with a warrant, dogs that are in excess of the prescribed number, where an exemption has been refused and notice to remove a dog or dogs from the property has been ignored.

The Association agrees with this proposal.

5.4 Allow local governments to give owners of unregistered dogs a 14-day warning to register their dogs. If after this period the dog remains unregistered, an infringement may be issued and the animal seized.

The Association agrees with this proposal.

5.5 Provide that where dogs are detained, they be held for a minimum period of seven days in line with the period provided for in the Local Government Act 1995 for other animals.

It is considered that provisions relating to a requirement for retaining dogs beyond the present number of days are simply impractical. Pounds do not have sufficient space, and there is a real potential to cause overcrowding in the pound. Further, the cost of retaining dogs in the pound can become prohibitive. At present most local governments as a matter of policy hold onto dogs beyond the minimum period, by extending the period Local Government will hold the Dog for longer again.

5.6 Provide for authorised persons to seize or rescue abandoned, sick or injured dogs.

The RSPCA has adequate powers and responsibility to seize or rescue abandoned sick or injured dogs. At present time Rangers have the possibility to become registered as special constables and enforce powers provided to the RSPCA. Other legislation, such as the Animal Welfare Act is better suited to provide for the seizure or rescue of abandoned, sick or injured dogs. Special provisions should not be made in respect of the rescue of abandoned sick or injured dogs in exclusion to other animals. The provisions contained in the Animal Welfare Act ought to be relied upon as opposed to placing special provisions within the Dog Act.

6 PENALTIES

6.1 Increase the maximum penalty for failing to register a dog.

Put simply, it is nonsensical to increase the maximum penalty for the failure to register a dog. Persons who fail to register a dog are often those who cannot afford to register dogs. It is the view of the Association, that the increase of the maximum penalty for the failure to register a dog does not serve any useful purpose. It is far better for the Rangers to seize the dog, if it is unregistered and if necessary destroy the dog if the owners fail to register the dog. Increasing maximum penalties will only increase the amount of the modified penalty that usually goes unpaid by persons who receive infringement notices.

6.2 Extend the range of offences to which modified penalties can apply.

This is not considered necessary as, under the relevant notice, modified penalties can be issued for most offences. It should be noted however that Rangers are supportive of the use of modified penalties. Comments are made in this paper that Rangers support the use of modified penalties for minor dog offences.

6.3 Provide for minimum fines for certain offences.

This is supported as a matter of integrity to the system of penalties, which are imposed due to be those issued by way of modified penalty, the courts ought not to be able to impose penalties of less than the modified penalties.

6.4 Provide for a graduated scale of fines and modified penalties to be applied for successive or continuing breaches of the same offence.

It is unlikely that a modified scale of penalties will impact on an individual’s behaviour. This is a matter that ought to be left to the discretion of the Magistrate, with an adequate criminal recording system previous convictions can be proven to the Magistrate who can take these previous convictions into account pursuant to the provisions of the Sentencing Act. Modified penalties ought not be used where a person offends against the same provision twice within a short period.

Where a person is convicted on three or more occasions of a dog attack that person ought to be banned from owning a dog. A person who has been banned from owning a dog, who subsequently is found to be the owner of a dog or to be in the sole control of a dog (that is that he is not the owner but has been left to control a dog) ought to be subjected to prosecution.

6.5 Enable a local court to make an order to seize a dog from an owner who is shown to be a habitual offender and ban such a person from owning a dog.

Although this is supported it should be noted that in the opinion of the Association the relevant court is the Court of Petty Sessions, orders to seize a dog could be made at the time an offender is convicted of a further offence when it can be demonstrated that the person is a habitual offender. A habitual offender ought to be a dog that has continually acted contrary to the community interests. An application for such an order ought to be substantiated at the time that a person is brought before the courts in respect of other substantive offences, for that reason the matter ought to be dealt with by the Court of Petty Sessions at the time of conviction and not the Local Court upon a separate application.

6.6 Provide for alternative penalties such as having to attend a training course (of varying complexity and duration), as an alternative to paying a modified penalty or court awarded fine.

The Association does not support this proposal. In the past, a similar initiative was tried under provisions requiring persons to attend lectures under the Road Traffic Act, which proved to be a failure. Put simply, the proposal does not work.

6.7 Provide for a person to give proof of identity where an authorised person alleges that they have committed an offence.

The Association agrees with this proposal.

6.8 Provide for a modified penalty to be applied where a person has given incorrect information on an application to register a dog (especially in regard to certifying that the means for effectively confining the dog exist on the premises).

The Association agrees with this proposal.

6.9 Introduce a modified penalty for an offence involving the non-compliance with any term or condition set out in an order by council.

The nature of the orders of Council needs to be set out. In so far as orders are consistent with the administration of the Act and not the enforcement of the provisions of the Act the Association supports this proposal. In so far as an order has to do with enforcement of the Act this is a judicial function.

7 GREYHOUNDS

7.1 Exempt greyhounds that have been accredited as Greyhounds as Pets (GAP) from the requirement to wear a muzzle in public places provided there is clear visual identification of the dog through the use of a specifically coloured collar.

As a simple matter of practical enforcement, it is impossible to tell the dog that has been accredited from a dog has not been accredited. The question of accreditation brings with it special problems in respect of liability, particularly if a greyhound that is not required to wear a muzzle does bite a member of the public.

Finally it should be noted that expert opinion in the US is that dangerous dogs cannot be repatriated, experiments have been done on dogs involved in dog fights.

8 GUARD DOGS

8.1 Provide strict conditions for the confinement of guard dogs, whether at work or away from their allocated worksite, similar to those pertaining to dangerous dogs.

It is unclear exactly who is responsible for dogs that are available for hire, the lessee or the owner? The Association supports guard dogs being treated as dangerous dogs. Guard dogs ought to be identified by microchip or tattoo identifying the dog as a guard dog.

9 DINGOES

9.1 Make provisions in the Act for all dingoes and dingo cross breeds to be treated as dogs where they are kept as pets to enable their management and control by local governments.

The question of the registration of dingoes relates directly to the definition of what a “dog” is. The Association considers that dingoes should be subject to registration processes as any other dog.

10 EDUCATION AND TRAINING

10.1 Enable authorised persons and the courts to order mandatory training of dogs declared to be dangerous or menacing, and dogs declared to be a nuisance-barking dog.

The Association does not support the appointment of authorised persons to make orders in respect of mandatory training of dogs. Orders of this nature are a judicial function to be carried out by the courts. It is simply the case that this is the role of the courts and not the role of the executive.

10.2 Enable authorised persons and the courts to order dog owners to undertake approved training and education courses, as and when deemed appropriate.

10.3 Enable any dog owner charged with an offence, including owners of dogs declared to be dangerous or menacing, to either undertake a training course/workshop or pay the penalty incurred.

Conclusion

Just as having a license to drive a car is a privilege and not a right, so too is the ownership of a dog in the community. Dog ownership needs to be treated as a privilege and not a right. Responsible dog ownership carries with it obligations, which if unmet leaves a person subject to prosecution under the Dog Act. Provisions of the Dog Act need to strike a fine balance.