management of dangerous and potentially dangerous dogs in queensland · management of dangerous and...

Management of dangerous and potentially dangerous dogs in Queensland

Civil liability and other issues associated with the regulated dog provisions of the Animal Management (Cats and Dogs) Act 2008

Discussion paper, February 2012

Looking forward and delivering now—integrated planning, strong local government and development for a growing state.

© State of Queensland. Published by the Department of Local Government and Planning, February 2012, 100 George Street, Brisbane Qld 4000.

The Queensland Government supports and encourages the dissemination and exchange of information. However, copyright protects this publication. The State of Queensland has no objection to this material being reproduced, made available online or electronically but only if it is recognised as the owner of the copyright and this material remains unaltered. Copyright enquiries about this publication should be directed to the department’s Legal Services division via email [email protected] or in writing to PO Box 15009, City East, Queensland 4002.

The Queensland Government is committed to providing accessible services to Queenslanders of all cultural and linguistic backgrounds. If you have difficulty understanding this publication and need a translator, please call the Translating and Interpreting Service (TIS National) on 131 450 and ask them to telephone the Queensland Department of Local Government and Planning on 07 3227 8548.

Disclaimer: While every care has been taken in preparing this publication, the State of Queensland accepts no responsibility for decisions or Actions taken as a result of any data, information, statement or advice, expressed or implied, contained within. To the best of our knowledge, the content was correct at the time of publishing.

Any references to legislation are not an interpretation of the law. They are to be used as a guide only. The information in this publication is general and does not take into account individual circumstances or situations. Where appropriate, independent legal advice should be sought.

OLG_0135.001_Pu

Contents General information ........................................................................................1

1. Overview of the regulated dog provisions of the Animal Management (Cats and Dogs) Act 2008 (Chapter 4) ...........................................................2

1.1 Background ..............................................................................................2 1.2 Civil liability for dog attacks ......................................................................3 1.3 The relationship between the AMCDA and local laws..............................3 1.4 General offences ......................................................................................3 1.5 Attack offences.........................................................................................4 1.6 Tracking and monitoring regulated dogs ..................................................5 1.7 Declaration of dogs as regulated dogs.....................................................5 1.8 Reviews and appeals—Queensland Civil Administrative Tribunal...........6 1.9 Enforcement .............................................................................................7 1.10 Powers of entry ........................................................................................7 1.11 Powers of seizure.....................................................................................8 1.12 Destruction powers...................................................................................9

2. Issues...................................................................................................10 General issues.................................................................................................10 2.1 Civil liability.............................................................................................10 2.2 Penalties for attack offences ..................................................................13 2.3 Managing potentially dangerous dogs....................................................14 2.4 Appeal rights and timeframes.................................................................15 2.5 Destruction powers.................................................................................15

Glossary .......................................................................................................17 Responding to issues in this discussion paper................................................19

Contact information.......................................................................................20

Management of dangerous and potentially dangerous dogs in Queensland—discussion paper - iii -

General information General information Various state governments in Australia, including Tasmania, New South Wales, South Australia, Victoria and Western Australia, have enacted laws regulating dangerous and potentially dangerous dogs.

Various state governments in Australia, including Tasmania, New South Wales, South Australia, Victoria and Western Australia, have enacted laws regulating dangerous and potentially dangerous dogs.

In addition to general matters, such as the declaration of dangerous dogs and options for enforcement, these legislative instruments also cover the penalties applicable to irresponsible owners who allow their dogs to attack people or animals.

In addition to general matters, such as the declaration of dangerous dogs and options for enforcement, these legislative instruments also cover the penalties applicable to irresponsible owners who allow their dogs to attack people or animals.

The legislative source for managing dangerous and potentially dangerous dogs in Queensland is the Animal Management (Cats and Dogs) Act 2008 (the AMCDA). The legislative source for managing dangerous and potentially dangerous dogs in Queensland is the Animal Management (Cats and Dogs) Act 2008 (the AMCDA).

Section 60 of the AMCDA defines a ‘regulated dog’ as a: Section 60 of the AMCDA defines a ‘regulated dog’ as a: declared dangerous dog declared dangerous dog declared menacing dog declared menacing dog restricted dog. restricted dog.

The AMCDA aims to: The AMCDA aims to:

protect the community from damage or injury, or risk of damage or injury, from regulated dogs

protect the community from damage or injury, or risk of damage or injury, from regulated dogs

ensure regulated dogs are not a risk to community health and or safety, and are controlled and kept in a way consistent with community expectations and the rights of individuals.

ensure regulated dogs are not a risk to community health and or safety, and are controlled and kept in a way consistent with community expectations and the rights of individuals.

After two years of operation in Queensland, it is timely to review the regulated dog provisions of the AMCDA to ensure the laws are operating effectively. The Department of Local Government and Planning (DLGP) invites responses to issues raised in this discussion paper to assist in preparing recommendations for consideration.

After two years of operation in Queensland, it is timely to review the regulated dog provisions of the AMCDA to ensure the laws are operating effectively. The Department of Local Government and Planning (DLGP) invites responses to issues raised in this discussion paper to assist in preparing recommendations for consideration.

This discussion paper outlines the jurisdiction and intent of the AMCDA, as well as issues in its administration, with the aim of promoting discussion on the effectiveness and future direction of the management of regulated dogs in Queensland.

This discussion paper outlines the jurisdiction and intent of the AMCDA, as well as issues in its administration, with the aim of promoting discussion on the effectiveness and future direction of the management of regulated dogs in Queensland.

Copies of this paper can be downloaded from the Department of Local Government and Planning’s website: www.dlgp.qld.gov.au/catsanddogs. The Animal Management (Cats and Dogs) Act 2008 is available online at the Queensland Legislation website: www.legislation.qld.gov.au.

Copies of this paper can be downloaded from the Department of Local Government and Planning’s website: www.dlgp.qld.gov.au/catsanddogs. The Animal Management (Cats and Dogs) Act 2008 is available online at the Queensland Legislation website: www.legislation.qld.gov.au.

In responding, please consider the following:

what are the issues you feel require attention?

does the identified issue require regulation?

are there non-regulatory options to address the issue?

what are the risks of not addressing the issue?

how will the success of changes to the AMCDA be measured and evaluated?

Management of dangerous and potentially dangerous dogs in Queensland—discussion paper - 1 -

http://www.dlgp.qld.gov.au/catsanddogs



http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/A/AnimalManA08.pdf




1. Overview of the regulated dog provisions of the Animal Management (Cats and Dogs) Act 2008 (Chapter 4)

1. Overview of the regulated dog provisions of the Animal Management (Cats and Dogs) Act 2008 (Chapter 4)

1.1 Background 1.1 Background Between January 1999 and June 2010, the Queensland Injury Surveillance Unit (QISU) recorded 6330 injuries from dog attacks. This number was recorded from injuries that were presented at certain hospital emergency departments. However, QISU estimates that this number only captures a quarter to a fifth of the dog attack injury presentations across the state. Just under 35 per cent of these attacks occur on children under the age of 10. Of the 948 recorded attacks that resulted in the victim receiving facial wounds, 733 were on children. Facial bites can result in the need for cosmetic surgery. During this period, 3151 attacks on adults over 20 years old were recorded, however only 103 of these bites were to the face. Queensland has recently experienced a number of serious and well publicised attacks on children. Additionally Victoria recently experienced a tragedy where a child was killed by a wandering dog.

Between January 1999 and June 2010, the Queensland Injury Surveillance Unit (QISU) recorded 6330 injuries from dog attacks. This number was recorded from injuries that were presented at certain hospital emergency departments. However, QISU estimates that this number only captures a quarter to a fifth of the dog attack injury presentations across the state. Just under 35 per cent of these attacks occur on children under the age of 10. Of the 948 recorded attacks that resulted in the victim receiving facial wounds, 733 were on children. Facial bites can result in the need for cosmetic surgery. During this period, 3151 attacks on adults over 20 years old were recorded, however only 103 of these bites were to the face. Queensland has recently experienced a number of serious and well publicised attacks on children. Additionally Victoria recently experienced a tragedy where a child was killed by a wandering dog.

Previously, dangerous dogs were managed by individual local governments under their local laws. The conditions applicable to a dog declared dangerous by each local law varied considerably.

Previously, dangerous dogs were managed by individual local governments under their local laws. The conditions applicable to a dog declared dangerous by each local law varied considerably.

The regulated dog provisions of the Animal Management (Cats and Dogs) Act 2008 (the AMCDA) were introduced to standardise the management of dangerous and potentially dangerous dogs throughout Queensland.

Inconsistencies in the regime resulted in a lack of reciprocity of dangerous dog declarations. Anecdotal evidence suggests that some owners of dogs declared dangerous under one set of local laws simply relocated to another local government jurisdiction to avoid the responsibilities and obligations of the declaration. This was clearly an unsatisfactory community health and safety outcome.

Inconsistencies in the regime resulted in a lack of reciprocity of dangerous dog declarations. Anecdotal evidence suggests that some owners of dogs declared dangerous under one set of local laws simply relocated to another local government jurisdiction to avoid the responsibilities and obligations of the declaration. This was clearly an unsatisfactory community health and safety outcome.

The purposes of the AMCDA are achieved primarily by: The purposes of the AMCDA are achieved primarily by:

providing for local governments to declare dogs to be dangerous dogs, menacing dogs or restricted dogs

providing for local governments to declare dogs to be dangerous dogs, menacing dogs or restricted dogs

providing for the compulsory desexing of declared dangerous dogs and restricted dogs

providing for the compulsory desexing of declared dangerous dogs and restricted dogs

providing for identification of dogs as regulated dogs providing for identification of dogs as regulated dogs

imposing conditions on keeping, and requirements for the control of, regulated dogs

imposing conditions on keeping, and requirements for the control of, regulated dogs

allowing authorised persons to enter and seize dogs (whether regulated or not) allowing authorised persons to enter and seize dogs (whether regulated or not)

allowing authorised persons to destroy regulated dogs in particular circumstances

allowing authorised persons to destroy regulated dogs in particular circumstances


providing for local governments to administer and be responsible for these functions.

1.2 Civil liability for dog attacks

The AMCDA does not make a dog owner liable for consequences arising from the dog injuring a person or another animal. Any breach of a dog owner’s obligations under the AMCDA does not in itself give rise to a cause of action under statute or common law. Civil liability for harm resulting from a dog attack would be subject to the provisions under the common law and the Civil Liability Act 2003.

Scope does exist however under the Penalties and Sentences Act 1992 for a Court to award compensation to the victim of a crime subsequent to a conviction.

1.3 The relationship between the AMCDA and local laws

Local governments are unable to create local laws on matters covered in the AMCDA on regulated dogs. Local governments can however regulate localised matters such as whether a regulated dog may enter an off leash area or how many regulated dogs may be kept on a particular property. A local law becomes invalid if it is inconsistent with the AMCDA. For example, a local government is unable to impose further enclosure conditions onto a regulated dog declaration.

In managing regulated dogs, local governments must comply with all aspects of the declaration process, entry, seizure and destruction powers and the procedures and rules for appeals to the Queensland Civil Administrative Tribunal or a magistrates court as set out in the AMCDA. These matters cannot be dealt with in a local law.

1.4 General offences The AMCDA prohibits a person from supplying a regulated dog or proposed regulated dog (except for restricted dogs) to another person—unless written notice of the dog’s status is provided to the next owner of the dog. It is also an offence to take possession of a declared dangerous dog or restricted dog for the purpose of allowing it to breed with another dog, or for the owner of a declared dangerous dog or restricted dog to allow the dog to breed1.

A similar maximum penalty applies to the owner of a declared dangerous dog or restricted dog if they do not meet the requirement to ensure it is desexed within a certain period of time. An owner may be temporarily exempt from the requirement if desexing poses a serious threat to the health of the dog2.

The owner or person responsible for a regulated dog must not abandon the dog without a reasonable excuse.

1 Each offence carries a maximum penalty of 150 penalty units (currently $15 000). 2 AMCDA s70(2)


1.5 Attack offences The AMCDA specifies two attack offences. These are outlined as follows:

section 195 makes it illegal to allow or encourage any dog (whether regulated or not) to attack, or act in a way that causes fear to, an animal or person. This offence has very wide application and could be used, for example, to prosecute a third party—i.e. a person who is not the owner or responsible person for a dog—who mischievously encourages a dog to attack a person or animal.

section 194 requires the owner or responsible person to take reasonable steps to ensure the dog does not attack, or act in a way that causes fear to, someone else or another animal.

The penalties applicable under the AMCDA are staggered according to the severity of the attack. The maximum penalty currently available is a $30 000 fine. The Criminal Code Act 1899 (the code) also contains a range of offences that would capture criminal conduct concerning a dog ranging from recklessness to deliberate dangerousness.

Chapter 27 of the code includes express provisions relating to negligent acts and omissions. In particular, the code3 imposes a duty on any person who has charge or control of ‘anything’ of such a nature that, in the absence of care or precaution in its use or management, the life, safety or health of any person may be endangered, to use reasonable care or reasonable precautions to avoid such danger.

The person under the duty is then held to have caused any consequences to the life or health of others by the failure to perform that duty.

Where section 289 is breached, the person is held to have caused any consequences which result to the life or health of any person by reason of that breach of duty. If convicted they would be liable to the maximum penalty for the offence of grievous bodily harm or manslaughter which is 14 years imprisonment and life imprisonment respectively.

However, gaining a conviction where the prosecution is based upon negligence is not without difficulty. The prosecution must prove that the accused was grossly negligent, that is, that he or she showed such disregard for the life and safety of others as to amount to a crime deserving of punishment. If the dog in question does not have an aggressive history or the dog was not a declared dangerous dog, it may be difficult to prove a breach of this duty.

Additionally, the code4 defines ‘assault' and extends it to include a person who applies force of any kind to another person, either directly or indirectly, without the other person's consent. Therefore, if there is a circumstance where a dog owner used the dog as a 'weapon' (that is, encouraged the dog to attack someone) this could constitute an indirect application of force5.

3 The Code s289 4 The Code s245 5 Croft v Blair QCCA, Connolly, Thomas and Ambrose JJ, 15 December 1989, unreported


However, to ensure clarity and to bridge the gap between the high-level criminal negligence offences and the lower tier offences contained in the AMCDA, the government introduced a code amendment into Parliament creating the new offence6 of dangerous management of a dog.

The new offence is a crime carrying a maximum penalty of 10 years imprisonment. The offence will apply to an irresponsible owner (or person responsible for the dog) who inappropriately manages the dog resulting in the dog seriously attacking or killing a person. It is important to note however that the government recognises the legitimate use of guard dogs for personal and property protection and this is reflected in the code amendment.

Local governments will retain responsibility for responding to dog attacks, declaring dogs as regulated dogs and prosecuting persons for the majority of less severe attacks. However should a serious attack or death of a person result, local governments will be required to refer the matter to the Queensland Police Service.

1.6 Tracking and monitoring regulated dogs The AMCDA requires the chief executive of the Department of Local Government and Planning to keep a register of all regulated dogs within Queensland. The AMCDA also imposes an obligation on the chief executive officer of a local government to update the register in a timely fashion. The register contains information on the owner of the dog, information about the dog and details of the actual attack incident.

There are two main reasons for the implementation of the register to:

ensure local governments can track and manage regulated dogs throughout the state

collect accurate data that can be used to inform, for example, public health policy development.

The register is not accessible by the public. It is important to remember that prior to the reforms, a dangerous dog declaration only applied in the local government area that issued the declaration. The AMCDA now clarifies that a declaration applies throughout Queensland regardless of which local government made the declaration and which council area the regulated dog is kept. Regulated dogs or their equivalent from other Australian jurisdictions are automatically taken to be as such and all relevant details must be included on the register.

1.7 Declaration of dogs as regulated dogs The AMCDA allows for the declaration of dogs as regulated dogs by a local government. The process for the declaration of regulated dogs is detailed in the associated legislation.

6 Law Reform Amendment Bill 2011 cl35, new s334A (N.B. this Bill lapsed on 19 February 2012)


A local government may propose to declare a dog to be a regulated dog by issuing a written notice that complies with certain requirements of the AMCDA. The “proposed declaration notice” must advise the owner or person responsible for the dog the reasons why the dog is being declared. The notice should include evidence being relied upon by the local government as to why they have decided to issue the proposed declaration notice7.

Once a proposed declaration notice is in force, the owner or person responsible for the dog must comply with requirements for muzzling and effective control for proposed dangerous or restricted dogs and effective control for proposed menacing dogs8.

The notice must advise the owner, or person responsible for the dog, of their right to make a written representation challenging the proposed declaration within the period stated in the notice. The local government must consider any representation and the evidence it contains. If subsequently satisfied the dog should be declared as a regulated dog, the local government must make a regulated dog declaration and give a notice to the owner or person responsible for the dog9.

Once a dog is declared, the owner must comply with strict keeping and control requirements. For example, a proper enclosure must be built, warning signs must be exhibited, the dog must be microchipped and the dog must be under effective control at all times.

It is an offence to be in breach of any of the declaration conditions. Breaches carry a maximum penalty of 75 penalty units—currently a maximum penalty of $7500 if prosecuted or a $700 on the spot fine. The dog can be seized and the owner also prosecuted for a breach10.

Currently the AMCDA does not provide a specific mechanism for undeclaring a dog.

1.8 Reviews and appeals—Queensland Civil Administrative Tribunal

All decisions under the AMCDA, whether by the department or a local government must, in the first instance, be reviewed internally. If an affected person disagrees with the internal review the person may seek an external review via Queensland Civil Administrative Tribunal (QCAT). QCAT’s jurisdiction includes a merits based review jurisdiction over specified administrative decisions of departments and local governments. The tribunal must hear and decide a review of a reviewable decision via a fresh hearing on the merits with the purpose of producing the correct and preferable decision. QCAT considers issues under the AMCDA such as:

- Permanent Identification (Microchip) Registry Licences

7 AMCDA s90 8 AMCDA s93 9 AMCDA s94 10 AMCDA ss96, 97, 98, 111, 112, 125


- regulated dog declarations - regulated dog declarations

- authorised implanter suspensions. - authorised implanter suspensions.

The establishment of QCAT was a major reform of the government and combined a significant number of tribunals, such as the Anti-Discrimination Tribunal and the Small Claims Tribunal into a single body.

The establishment of QCAT was a major reform of the government and combined a significant number of tribunals, such as the Anti-Discrimination Tribunal and the Small Claims Tribunal into a single body.

Since 1 January 2011, QCAT has received 47 AMCDA applications and finalised 28 of these applications.

QCAT may grant a stay of operation of an original decision, such as a regulated dog declaration to secure the effectiveness of the internal review and a later application to QCAT for external review. If QCAT orders a stay of the declaration QCAT must advise the dog owner that certain mandatory conditions apply until the review process is completed. QCAT may confirm the proposed declaration, substitute another decision or refer the council’s original decision back to the decision-maker with directions the tribunal considers appropriate.

QCAT may grant a stay of operation of an original decision, such as a regulated dog declaration to secure the effectiveness of the internal review and a later application to QCAT for external review. If QCAT orders a stay of the declaration QCAT must advise the dog owner that certain mandatory conditions apply until the review process is completed. QCAT may confirm the proposed declaration, substitute another decision or refer the council’s original decision back to the decision-maker with directions the tribunal considers appropriate. More information on QCAT, costs and how it operates is available at www.qcat.qld.gov.auMore information on QCAT, costs and how it operates is available at www.qcat.qld.gov.au.

1.9 Enforcement Chapter 5, Part 1 establishes a category of local government officers who are authorised persons under the AMCDA.

Section 104 of the AMCDA provides for the appointment of authorised persons. Authorised persons have powers to investigate alleged breaches of the AMCDA. These powers include the power to require the name and address of a person who has committed, or is suspected of committing an offence, powers of entry to private property and powers to seize dogs and other evidence utilised in the commission of an offence and the ability to issue on-the-spot fines from $200 to $700 for various offences.

The AMCDA also clarifies that a police officer may assist an authorised council officer and exercise the same powers as him or her when appropriate.

1.10 Powers of entry In most cases, the permission of the occupier is required before an authorised person may enter land or a structure.

An authorised person, without the occupier’s agreement or a warrant, may however, enter a public place when the place is open to the public; or enter land to ask for the occupier’s agreement to the authorised person entering the land or a building or structure on the land11.

11 AMCDA s111


http://www.qcat.qld.gov.au/



However an authorised person may enter and stay at a place (except a residence) without consent of the occupier if the authorised person suspects any delay in entering the place will result in a risk to community health or safety or the dog being concealed or moved12. Similarly, consent of the owner is not required if an authorised person believes the owner of a regulated dog has committed, or is suspected of committing, an offence against Chapter 4, and the authorised person has issued a compliance notice to desist or remedy the situation. The notice must state that entry will be made at a stated time or at stated intervals to check compliance with the notice.

If an occupier refuses entry to a residence—for example, if the owner is hiding a dog involved in a serious attack—an authorised person may make application to a Magistrate for a warrant. To ensure authorised persons have flexible tools to enhance community safety, the AMCDA allows for, in urgent circumstances, an authorised person to apply to the Magistrate for a warrant via phone, fax, email, radio, videoconferencing or another form of electronic communication. The warrant will specify times and conditions of entry and may authorise the use of necessary and reasonable force for the purpose of entry.

1.11 Powers of seizure The AMCDA provides that if an authorised person has entered a place lawfully, he or she may seize the dog (whether regulated or not) if he or she reasonably believes the dog has attacked or threatened to attack or acted in a way that causes fear to, a person or another animal; or is or may be a risk to community health or safety13.

A receipt must be provided for the seizure of a dog, and the dog must be returned to the owner if the authorised person subsequently forms the view that the dog is not or should not be declared as a regulated dog. The dog may be retained by the council until the investigation is completed and the dog is declared as a regulated dog or the council becomes satisfied that the dog should not be declared14.

A dog owner may claim compensation if he or she incurs loss or expense (such as damage to property) because of the exercise of a power of entry under the AMCDA. A claim cannot be made however for compensation in relation to the seizure or destruction of a regulated dog.

An authorised person may seize a dog in a public place if he or she reasonably believes the dog has attacked, threatened to attack or acted in a way that causes fear to, a person or another animal and it is not under anyone’s effective control.

12 AMCDA ss112, 207 13 AMCDA s125 14 AMCDA ss128,130, 131


1.12 Destruction powers The AMCDA allows for the destruction of a regulated dog. It does not allow local governments to place destruction orders on or summarily destroy an undeclared dog. The rationale behind this is two fold. The first is that the AMCDA recognises that dogs generally behave in a manner in which owners allow them or train them to behave. Apart from making the area safe, the initial regulatory response to an attack focuses on the owner of the dog, for example, costs of compliance with declaration and court prosecution. Secondly in the situation where QCAT or a court overrule a destruction order issued on a dog, the dog will be released back into the community under the strict keeping and control requirements of the AMCDA. This is considered an important public safety initiative.

The circumstances where a regulated dog can be destroyed are as follows.

If the dog appears to have a registered owner, the dog must be returned to the owner within 14 days of seizure, unless:

the owner has surrendered the dog to the relevant local government

a destruction order has been made for the dog

the dog must be retained as evidence for a proceeding or proposed proceeding for an offence involving the dog

the authorised person is reasonably satisfied the owner of, or a responsible person for, the dog, has not complied with the keeping and control conditions for the dog15.

A regulated dog may be immediately destroyed without notice if:

the authorised person reasonably believes the dog is dangerous and he or she can not control it

an owner of the dog has asked the person to destroy it16.

A regulated dog may be immediately destroyed without notice if the authorised person reasonably believes the dog is dangerous and he or she can not control it.

Otherwise, the authorised person may make an order (a destruction order) stating he or she proposes to destroy the dog 14 days after the order is served, accompanied by an information notice about the decision. The dog may be destroyed 14 days after the order is served if no appeal against the order has been made to QCAT. If an appeal is dismissed and the destruction order is still in force, the dog may be destroyed.

15 AMCDA s127 16 AMCDA s127


2. Issues

The core issue in the administration of the AMCDA’s regulated dog provisions is to ensure that the health and safety of the community is enhanced and that where possible irresponsible owners are held responsible for their dog’s actions.

General issues

To date the key regulatory tools to encourage responsible dog ownership have been the declaration of dogs as regulated dogs, destruction of a regulated dog, prosecution for dog attacks and the imposition of fines in certain circumstances. Since the commencement of the regulated dog provisions in 1 July 2009, a number of issues have been identified. Some of the issues are:

civil liability laws governing dog attacks

whether the existing penalties for irresponsible dog owners who allow or do not take reasonable steps to prevent their dog from attacking a person or animal are sufficient

the addition of proactive enforcement techniques to assist local governments in achieving the intent of the AMCDA

the length of time for appeals under the AMCDA’s appeal provisions

whether there is a need for a power that allows a local government to summarily destroy an uncontrollable dog whether it is regulated or not

whether local governments should have the power to issue a destruction order on a dog whether it is regulated or not.

2.1 Civil liability Civil liability is often confused with compensation. A Queensland Court may award compensation to the victim of a dog attack if the defendant is successfully convicted17. However this is different from the situation where the victim of a dog attack seeks to recover damages from the dog’s owner through a civil action, independent of any court prosecution.

In Queensland, the law relating to the liability of an animal keeper is based on common law. Two possible actions are available against an animal keeper in Queensland—either an action based on scienter or negligence.

Scienter

In relation to domestic dogs, scienter actions in tort have a long history18. In a scienter action, a person who knowingly keeps a dangerous animal is required to prevent it doing harm to a person or the property of another and may be liable for 17 Penalties and Sentences Act 1992 s35 18 For further information please see Chapter 15.2 Harold Luntz et al, Torts – Cases and Commentary LexisNexis Butterworths, Australia:6th ed, 2009


damage done or injury inflicted by the animal, even in the absence of intentional negligence. Liability depends on the keeper's knowledge of the vicious or dangerous propensities of the animal.

Animals are divided into two classes for the purposes of determining liability:

harmless by nature (mansuetae naturae) dangerous by nature (ferae naturae).

Classification is by species and it is a question of law to be decided at trial. Domestic dogs fall into the category of harmless by nature (mansuetae naturae)19. To hold the owner liable, evidence regarding the owner’s knowledge of the propensity of the individual animal whose act started the litigation is required. Therefore once knowledge of vicious or aggressive tendencies is known, a person will be strictly liable for any injuries without the need to prove any negligence. The reasonableness, or otherwise, of care taken by the person to prevent the injury is irrelevant.

To successfully prove a claim based on scienter, the injured person must establish that: the animal had previously committed, or attempted, an act showing the particular trait of viciousness now complained of; and the keeper knew of the act or the attempted act. The viciousness previously displayed must be of that particular kind which is complained of in the present case.

The onus is on the injured person to establish some evidence of knowledge on the part of the keeper or responsible person as to the animal's vicious propensity20.

The person who is in control of, or who can be defined as the keeper or responsible person for the animal is held accountable for the tort.

Generally speaking where an action based on scienter is made out, contributory negligence cannot be alleged. This means that the damages payable will not be reduced because of some fault on the part of the victim.

Negligence

In contrast to a claim based on the scienter principle, a negligence claim will carry with it the usual legal principles such as forseeability and it will not be necessary for a plaintiff to establish past vicious behaviour by the animal in order to succeed. Of course, proving such a fact will also assist in proving negligence.

In Queensland, the Civil Liability Act 2003 may also be relevant to a dog bite claim. For example—the defence of ‘obvious risk’ may apply if the person was trying to intervene in a dog fight involving their own dog during which they were attacked by the other dog.

However, there is an important requirement on this defence. If the dog owner failed to properly care for the dog, and the dog attacked in circumstances where a common

19 McQuaker v Goddard [1940] 1 KB 687 20 Worth v Gilling (1866) LR 2 CP 1


law defence called ‘volenti non fit injuria’ might be otherwise available, it may not be possible to raise the ’obvious risk’ defence. A ‘volenti non fit injuria’ defence means that if someone willingly and knowingly places themselves in a position where harm might result, they cannot then sue anyone if they are actually hurt.

law defence called ‘volenti non fit injuria’ might be otherwise available, it may not be possible to raise the ’obvious risk’ defence. A ‘volenti non fit injuria’ defence means that if someone willingly and knowingly places themselves in a position where harm might result, they cannot then sue anyone if they are actually hurt.

Issues raised include difficulties obtaining compensation for loss caused by dog attacks such as veterinary bills, medical bills and damaged clothing. Issues raised include difficulties obtaining compensation for loss caused by dog attacks such as veterinary bills, medical bills and damaged clothing.

Examples of how some other Australian jurisdictions deal with civil liability and dog attacks are included below. Please note the sections are only excerpts from the relevant provisions.

Examples of how some other Australian jurisdictions deal with civil liability and dog attacks are included below. Please note the sections are only excerpts from the relevant provisions.

Name of Act Compensation provisions State

Western Australia Dog Act 1976 It should not be necessary in any proceedings for a party seeking damages in respect of an injury caused by a dog to show a previous mischievous propensity in the dog or the knowledge of that propensity on the part of the owner or a person deemed to be the owner, or that the injury was attributable to neglect on the part of the owner or a person deemed to be the owner of the dog [section 46(3)].

Dog and Cat Management Act 1995

The keeper of a dog is liable in tort for injury, damage or loss caused by the dog.

It is not necessary for the plaintiff to establish negligence or knowledge of the dog’s vicious, dangerous or mischievous propensity [sections 66(1) and 66(2)].

South Australia

New South Wales Companion Animals Act 1998 The owner of a dog is liable in damages in respect of:

- bodily injury to a person caused by the dog wounding or attacking that person; and

- damage to the personal property of a person (including clothing) caused by the dog in the course of attacking that person [section 25].

Have your say

1: Should the law relating to civil liability for dog attacks in Queensland be changed? If yes, would your response differ if the attacking dog has already been declared as a dangerous dog?

2: Is there a civil liability model governing dog attacks you think is preferable?


2.2 Penalties for attack offences A comparison of the penalties for dog attack offences in other Australian jurisdictions is presented below. Queensland is at the upper end regarding financial penalties. The government recently introduced an offence called Dangerous management of a dog into the Queensland Parliament. The new offence criminalises irresponsible dog ownership where a dog causes serious injury or death to a person and carries a maximum penalty of 10 years imprisonment21. Penalties in other jurisdictions include prohibitions on dog ownership in certain circumstances. Penalties may also vary depending on whether the dog is a declared dangerous dog or not.

Currently in Queensland a person may be prohibited from keeping an animal if they are convicted of an animal welfare offence22, however this power does not extend to irresponsible owners who allow their dogs to behave dangerously.

The following table compares penalties for dog attacks throughout Australia.

Name of Act Maximum penalty for an attack State

Western Australia Dog Act 1976 $10 000; 12 months imprisonment or both

Dog and Cat Management Act 1995

$10 000 or two years imprisonment (prohibition on owning a dog may apply in certain circumstances)

South Australia

Tasmania Dog Control Act 2000 50 penalty units ($6 500) and 12 months imprisonment (prohibition on owning a dog for five years if convicted)

Companion Animals Act 1998 500 penalty units ($55 000) or imprisonment for two years or both (prohibited from owning a dog for a maximum period of five years)

New South Wales

Victoria Domestic Animals Act 1994 Current—120 penalty units ($14 334) or six months imprisonment

Recently introduced amendments to its Crimes Act that apply to declared dangerous, menacing and restricted breed dogs only.

Animal Management (Cats and Dogs) Act 2008

300 penalty units ($30 000)

Recently introduced a criminal offence called Dangerous management of a dog with a maximum penalty of 10 years imprisonment.

Queensland

21 Law Reform Amendment Bill 2011 cl35, new s334A (N.B. this Bill lapsed on 19 February 2012) 22 Animal Care and Protection Act 2001 s183


Have your say

3: Do you consider the current penalties sufficiently reflect the culpability of the offence? If no, why?

4: Should a person convicted under the attack offences (section 194 and 195) or the recently introduced criminal code offence be subject to a prohibition on owning a dog? If yes, in what circumstances and how would this be enforced?

2.3 Managing potentially dangerous dogs 2.3 Managing potentially dangerous dogs Research demonstrates that dogs involved in fatalities and serious maulings often have a history of unaddressed menacing or aggressive behaviour. In order to address those menacing tendencies before an escalation to harmful behaviour, the menacing dog classification was introduced.

Research demonstrates that dogs involved in fatalities and serious maulings often have a history of unaddressed menacing or aggressive behaviour. In order to address those menacing tendencies before an escalation to harmful behaviour, the menacing dog classification was introduced.

The keeping and control conditions of the menacing dog declaration—while similar to the dangerous dog conditions—have a significant difference in how the dog can be socialised and interact in society. There are however considerable costs imposed on the owner of a menacing dog to comply with the strict keeping and control conditions.

The keeping and control conditions of the menacing dog declaration—while similar to the dangerous dog conditions—have a significant difference in how the dog can be socialised and interact in society. There are however considerable costs imposed on the owner of a menacing dog to comply with the strict keeping and control conditions.

As the AMCDA’s attack offences relate to attacks both on people and animals and are also subjective in nature they are not deemed as suitable to be specified as infringement notice offences.

As the AMCDA’s attack offences relate to attacks both on people and animals and are also subjective in nature they are not deemed as suitable to be specified as infringement notice offences.

However, a dog owner may allow his or her dog to behave aggressively in a public place creating a nuisance to other persons utilising the public area. This type of behaviour would be considered a minor offence that would not warrant the dog being declared as a menacing dog nor the owner being prosecuted under the attack offences. In this situation local governments have suggested they should have the ability to issue a small ‘on-the-spot’ fine or a compliance notice.

However, a dog owner may allow his or her dog to behave aggressively in a public place creating a nuisance to other persons utilising the public area. This type of behaviour would be considered a minor offence that would not warrant the dog being declared as a menacing dog nor the owner being prosecuted under the attack offences. In this situation local governments have suggested they should have the ability to issue a small ‘on-the-spot’ fine or a compliance notice.

As fines can be a useful method of imposing an immediate punitive and deterrent effect, it may be appropriate to grant local governments this extra tool to discourage irresponsible dog ownership.

As fines can be a useful method of imposing an immediate punitive and deterrent effect, it may be appropriate to grant local governments this extra tool to discourage irresponsible dog ownership.

Have your say

5: Should local governments have other enforcement tools available to them to manage potentially dangerous dogs? If so, what enforcement tools would you recommend?

6: Should a person who owns a regulated dog be able to apply to their local government to have the dog ‘undeclared’? If yes, in what circumstances?


2.4 Appeal rights and timeframes The AMCDA requires a person affected by a local government decision to appeal the original decision internally. In practice, the people who generally avail themselves of this right are those whose dog is subject to the proposed declaration process. If the dog owner is not satisfied with the internal decision, an external review can be obtained, as provided for under the QCAT Act.

The intent behind this process is to ensure a high level of accountability from an authorised officer for his or her decisions to the relevant, local government in the first instance. Since the introduction of QCAT, more opportunities to seek a review of decisions are available for dog owners. Some claims are being made that the duration of the review periods can be excessive and/or that the welfare of the dog, which may be retained in council custody for a relatively long period of time while the review is occurring, may be compromised. Long periods of review may also impose a resource impost on local governments.

As previously outlined when a dog attack occurs, in addition to QCAT dealing with declaration appeals, local governments may prosecute the attack offences in the Magistrates Court. Also a victim seeking compensation for the same dog attack may be required to launch proceedings in, QCAT or the Magistrates, District or Supreme Courts depending on whether an agreement had been reached between the dog owner and the victim and/or the seriousness of the matter.

Have your say

7: Do the current internal and external review processes need modification? If so, what sort of changes do you suggest?

2.5 Destruction powers

The AMCDA requires that a dog should be first declared “regulated” before issuing a destruction order23. This requirement provides a mechanism that preserves the dog’s life while still maintaining community safety. The keeping requirements for a regulated dog (e.g. escape-proof and child-proof enclosure) are stringent and if properly complied with and enforced, provide appropriate community safeguards against the dog attacking again and causing death or injury.

23 AMCDA s127


Alternatively, if a council decides to immediately seek a destruction order after the declaration process is completed, the council can impound the dog for the entire duration of the declaration and destruction order processes. Impoundment acts to protect the public while the dog’s future is being assessed while still balancing the natural justice rights of the dog’s owner by ensuring that due process is followed. However, these two separate processes can take a number of months to complete due to the minimum timeframes and notice periods under the AMCDA, particularly if the owner exercises all of his/her rights of appeal.

Alternatively, if a council decides to immediately seek a destruction order after the declaration process is completed, the council can impound the dog for the entire duration of the declaration and destruction order processes. Impoundment acts to protect the public while the dog’s future is being assessed while still balancing the natural justice rights of the dog’s owner by ensuring that due process is followed. However, these two separate processes can take a number of months to complete due to the minimum timeframes and notice periods under the AMCDA, particularly if the owner exercises all of his/her rights of appeal.

The destruction powers under the AMCDA are considered to balance the rights of the community to be protected from dangerous and potentially dangerous dogs and the rights of dog owners, particularly those owners who have ensured their dogs are well kept and trained and have a history of otherwise responsible dog ownership. However a motion raised by a council at the 2011 Local Government Association of Queensland’s Annual Conference indicated its inability to destroy undeclared dogs is, in its view, a potential community health and safety issue.

The destruction powers under the AMCDA are considered to balance the rights of the community to be protected from dangerous and potentially dangerous dogs and the rights of dog owners, particularly those owners who have ensured their dogs are well kept and trained and have a history of otherwise responsible dog ownership. However a motion raised by a council at the 2011 Local Government Association of Queensland’s Annual Conference indicated its inability to destroy undeclared dogs is, in its view, a potential community health and safety issue.

Have your say 8: Should local governments have a broad power to summarily destroy any uncontrollable dog whether it is regulated or not?

9: Should local governments have the power to issue destruction orders on undeclared dogs? If yes, in what circumstances.


Glossary

Authorised person A person who holds appointment as an authorised person under the Animal Management (Cats and Dogs) Act 2008 Chapter 5, Part 1.

Declared dangerous dog A dog that has seriously attacked, or acted in a way that caused fear to, a person or another animal; or (b) may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal. Seriously attack means to attack in a way causing bodily harm, grievous bodily harm or death.

Declared menacing dog A dog that has attacked, or acted in a way that caused fear to, a person or another animal; or may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, attack, or act in a way that causes fear to, the person or animal. Key difference is that the attack is not serious.

Regulated dog A declared dangerous dog, a declared menacing dog and a restricted dog.

Restricted dog A dog of a breed prohibited from importation into Australia under the Customs Act 1901 (Cwth).


Summary list of questions 1: Should the law relating to civil liability for dog attacks in Queensland be changed? If yes, would your response differ if the attacking dog has already been declared dangerous?

2: Is there a civil liability model governing dog attacks you think is preferable?

3: Do you consider the current penalties sufficiently reflect the culpability of the offence? If no, why?

4: Should a person convicted under the attack offences (section 194 and 195) or the recently introduced criminal code offence be subject to a prohibition on owning a dog? If yes, in what circumstances?

5: Should local governments have other enforcement tools available to them to manage potentially dangerous dogs? If so, what enforcement tools would you recommend?

6: Should a person who owns a regulated dog be able to apply to their local government to have the dog ‘undeclared’? If yes, in what circumstances?

7: Do the current internal and external review processes need modification? If so, what sort of changes do you suggest?

8: Should local governments have a broad power to destroy any uncontrollable dog whether it is regulated or not?

9: Should local governments have the power to issue destruction orders on undeclared dogs? If yes, in what circumstances.


Responding to issues in this discussion paper You can respond to issues in this discussion paper via the Get Involved website—www.getinvolved.qld.gov.au—or alternatively in writing by:

post

fax

email

The deadline for submissions is 5 pm 16 April 2012. Submissions will not be accepted after this date.

For written submissions, please number your responses to correspond with the questions (or issues identified).

Submissions will only be accepted if they include your:

name

address

telephone number.

Written submissions should be sent to: Queensland’s regulated dog review Office of Local Government Department of Local Government and Planning PO Box 15009 City East Qld 4002 Australia tel +61 7 3227 8548 fax 1800 467 561 [email protected]

Confidentiality

The Department of Local Government and Planning is seeking community input for the purposes of review of the legislative framework for the management of regulated dogs in Queensland. Your submission will be treated confidentially, but may be anonymously included, in full or part, in departmental publications. All information gathered will be treated in full compliance with the Information Privacy Act 2009.


mailto:[email protected]


Contact information If you would like to be contacted in relation to your response, please provide your name and contact details, including either a postal or email address and your telephone number.

If you are contributing on behalf of an organisation, you will need to provide the name of the organisation and your position.

Name: _________________________________________________________________

Organisation (if applicable): ________________________________________________

Address: _______________________________________________________________

_______________________________________________________________

Postcode: ________________

Telephone: _____________________________________________________________

Mobile: ________________________________________________________________

Email: ___________________________________________________________

Where to from here?

After the closing date, all submissions received will be analysed and assessed. The results will be de identified, published as a summary and made publicly available on the department’s website. Updates on policy development work will be provided via the managing cats and dogs webpage.

management of dangerous and potentially dangerous dogs in queensland · management of dangerous and...

Documents