Goward v Registrar, Domestic Animals Act 2000 (Administrative Review) - [2022] ACAT 75

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GOWARD v REGISTRAR, DOMESTIC ANIMALS ACT 2000 (Administrative Review) [2022] ACAT 75

AT 33/2022

Catchwords: ADMINISTRATIVE REVIEW – decision to sell seized dog – whether registered keeper of seized dog unable to exercise responsible management, care, or control in relation to the dog – previous control order issued – non-compliance with conditions of control order – relevant considerations

Legislation cited: Domestic Animals Act 2000 ss 4B, 53C, 53CA, 67A, 70
Legislation Act 2001 s 146

Subordinate

Legislation cited: Animal Welfare (Welfare of Dogs in the ACT) Code of Practice 2010

Cases cited:Lau v Registrar, Domestic Animals Act 2000 [2018] ACAT 119
Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 93
XY v Registrar, Domestic Animals Act 2000 [2019] ACAT 93

Tribunal:Senior Member K Katavic

Date of Orders:  13 September 2022
Date of Reasons for Decision:      13 September 2022
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 33/2022

BETWEEN:

JEMMA GOWARD
Applicant

AND:

REGISTRAR, DOMESTIC ANIMALS ACT 2000
Respondent

TRIBUNAL:Senior Member K Katavic

DATE:13 September 2022

ORDER

The Tribunal orders that:

The decision under review is set aside and the matter is remitted back to the respondent with a direction to release the dog.

………………………………..
Senior Member K Katavic

REASONS FOR DECISION

Introduction

‘Bear’ is a dog. Since 1 May 2022 he has been living at the facility operated by the respondent having been seized from his home in Giralang in the ACT.[1] He is a desexed, male brindle Wolfhound-cross. His exact age is unknown, but he is a young dog. His registered keeper is the applicant. Bear came to the respondent’s attention after roaming in the street outside the applicant’s home on 30 April 2022. He was not supposed to be. It was not the first time Bear had been out and about. Since 15 July 2021, following several earlier incidents involving Bear, the applicant has been subject to a Control Order in relation to Bear.
[1] The applicant handed Bear in to the respondent in accordance with a seizure notice.
As a consequence of Bear being seized, the respondent decided to sell Bear pursuant to section 67A of the Domestic Animals Act 2000 (the DA Act) (the reviewable decision) on the ground that the applicant is unable to exercise responsible dog management, care, or control over Bear. The Tribunal is reviewing that decision.
The applicant asked the Tribunal to set aside the decision under review and substitute it with:
(a)a decision to issue a Control Order for Bear to the applicant under sections 53C(4)(a), 53CA and 70(4) of the DA Act; or
(b)in the alternative, a decision to remit the matter back to the respondent to be reconsidered with a direction that a control order be reissued for Bear to be returned to the applicant and that the respondent determine the appropriate conditions to reflect current facts and circumstances.

Material before the Tribunal and the hearing

The applicant relied upon written submissions dated 27 July 2022 and the following:
(a)Witness statement of Jemma Goward dated 26 July 2022 including attachments.[2]
(b)Witness statement of Jeffrey Ian McWilliam dated 13 July 2022.[3]
[2] Exhibit A1
[3] Exhibit A2
The respondent relied upon its written submissions dated 22 and 29 July 2022 and the following:
(a)Witness statement of Benjamin McMahon dated 20 July 2022.[4]
(b)Witness statement of Renee Steggall dated 21 July 2022.[5]
(c)Witness statement of Ron Kershaw dated 22 December 2020.[6]
(d)Witness statement of Ron Kershaw dated 22 July 2022.[7]
[4] Exhibit R1
[5] Exhibit R2
[6] Exhibit R3
[7] Exhibit R4
The Tribunal also had before it the Tribunal Documents lodged by the respondent.[8]
[8] Exhibit A
Only Ms Goward gave oral evidence before the Tribunal and was cross-examined by the respondent. The parties agreed to tender the remaining witness statements without calling those witnesses or requiring them for cross-examination.

The legislative framework

Section 67A of the DA Act states:
67A Selling dogs (other than dangerous dogs) if keeper unfit
(1)This section applies if—
(a)a dog is seized under this Act; and
(b)the dog is not a dangerous dog; and
(c)the registrar is reasonably satisfied that—
(i)the dog’s keeper is unable to exercise responsible dog management, care or control in relation to the dog; or
(ii)there would be an unacceptable risk to the safety of the public or other animals if the dog were released to the keeper; and
(d)the registrar is reasonably satisfied that the dog would not be an unacceptable risk to the safety of the public or other animals if the dog were kept by someone who was able to exercise responsible dog management, care or control in relation to the dog.
(2)The registrar may decide to sell the dog.
(3)The registrar may sell the dog if—
(a)the registrar gives the dog’s keeper written notice of the decision to sell the dog; and
(b)the dog’s keeper—
(i)does not, within 7 days after the day the notice is given (the application period), apply to the ACAT under section 120 for review of the decision; or
(ii)applies to the ACAT under section 120 for review of the decision within the application period and the registrar’s decision to sell the dog is confirmed.
NoteThe registrar must give a reviewable decision notice for s (2) to the keeper and must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see s 119 and ACT Civil and Administrative Tribunal Act 2008, s 67A).
The respondent was reasonably satisfied that the applicant was unable to exercise responsible dog management, care, or control in relation to Bear. This was the only area of contention between the parties as all the other requirements of section 67A(1) were met. The respondent did not consider section 67A(1)(c)(ii) applied.
If all the requirements of section 67A(1) are met, the discretion to sell the dog under section 67A(2) is enlivened. The use of the word ‘may’ in section 67A(2) also means ‘may not’.[9]
[9] see Legislation Act 2001 section 146
Section 4B of the DA Act sets out the criteria for considering responsible dog or cat management, care, or control. It states:
4B     Criteria for considering responsible dog or cat management, care or control
For this Act, the registrar in considering whether a person has failed, or is unable, to exercise responsible dog or cat management, care or control—
(a)     must consider—
(i)any conviction or finding of guilt of the person within the last 10 years against a law of a Territory or State for an offence relating to the welfare, keeping or control of an animal; and
(ii)any non-compliance with—
(A)a special licence held by the person; or
(B)a control order issued to the person; and
(b)     may consider any other relevant matter.
Relevantly in this matter, the respondent was obliged to consider any non-compliance with a control order issued to the applicant and any other relevant matter. It was these two considerations which were in issue at the hearing, particularly the extent to which certain matters were relevant and the weight that might be given to any consideration of those matters.

The facts

On 15 September 2020, Bear was thrown from a moving vehicle.[10] The applicant and another person were present. He came to reside with the applicant five days later after the other rescuer gave him to the applicant.[11]
[10] Exhibit A1 at [2]
[11] Exhibit A1 at [2]
On or about 22 October 2020, the applicant registered Bear.[12] He is also microchipped.[13]
[12] Respondent submissions at [4]
[13] Respondent submissions at [4]
The applicant is also the registered keeper of ‘Daisy’, a 12½ year old Blue Heeler and ‘Kira’ a 4-year-old Vizsla/Pit Bull cross. Both Daisy and Kira are desexed and microchipped. Kira is almost completely blind.[14]
[14] Exhibit A1 at [3] and [4]
The applicant lives in a home, in Giralang owned by the Commissioner for Social Housing and has lived there for 12 years (the Premises).[15] She resides there with her partner and three of her four children.
[15] Exhibit A1 at [5]
On 20 December 2020, Bear (and Kira) escaped from the Premises and were involved in an incident with another dog resulting in injuries to the other dog (the first incident). They were seized and impounded by the respondent.[16]
[16] Exhibit A, page 164
On 15 February 2021, the respondent issued a Notice to Comply to the applicant requiring Bear be desexed by 15 March 2021.[17]
[17] Exhibit A, page 163
On 2 June 2021, Bear and Kira escaped from the Premises and were involved in an incident with another dog resulting in injuries to the other dog (the second incident). They were seized and impounded by the respondent.[18]
[18] Exhibit A, pages 46-67
On 24 June 2021, the respondent issued infringement notices to the applicant for Bear in relation to the first incident.[19]
[19] Exhibit A, pages 44-45
On 7 July 2021, the respondent conducted a fence inspection which the applicant failed, requiring further works.
On 15 July 2021, the respondent issued a Control Order to the applicant for Bear with conditions which the applicant signed and acknowledged.[20] The respondent issued the applicant with a Control Order pursuant to section 53C(4) of the DA Act directing her to comply with the following special conditions:[21]
[20] Exhibit A, pages 68-71
[21] Exhibit A, page 69
(a)Bear must reside at the Premises (condition 1).[22]
(b)The property must be maintained so that Bear cannot escape. This control includes the continued maintenance of the perimeter fencing to the yard (condition 2).
(c)All gates and access points to the property (including doors and garage access) must be escape proof. Gates are always to be secured by key locks and padlocks (condition 3).
(d)The fencing at the property where Bear is kept may be inspected by the registrar every six months (condition 4).
(e)The registration and microchip details of Bear must be kept current which includes any change of address which would be subject to a further fence inspection (condition 5).
(f)When in an area accessible to the public, Bear must be on a lead, wearing a muzzle and under effective control of a responsible person over the age of 18 at all times (condition 6).
(g)Bear is to remain on lead and under effective control at any designated off leash areas including dog parks, within the ACT (condition 7).
(h)If Bear is left under the care of anyone other than the applicant, either at the property, or at any other location, the applicant must ensure she makes the carer fully aware of all responsibilities and requirements under these conditions (condition 8).
(i)The applicant must engage a qualified dog trainer to train Bear in basic dog socialisation skills and provide the registrar with written evidence this training has been completed within three months of this order. Evidence must be sent to [email protected] (condition 9).
[22] Stated in the Special Conditions to be the applicant’s residential address
On 15 July 2021, Bear and Kira were returned to the applicant. The respondent conducted a fence inspection which the applicant failed, requiring further works.
On 22 July 2021, the respondent issued infringement notices to the applicant for Bear in relation to the second incident.[23]
[23] Respondent’s submission at [13]
On 6 August 2021, the respondent conducted a further fence inspection confirming no further work was required and the applicant passed.
On 28 September 2021, Bear was desexed.[24] The applicant was granted extensions of time to desex Bear.[25]
[24] Exhibit A1 at [20]
[25] Exhibit A1 at [20]
On 30 April 2022, Bear escaped from the Premises and harassed another dog (the third incident).[26] The respondent issued a seizure notice to the applicant.
[26] Respondent’s submission at [15]
On 1 May 2022, the applicant delivered Bear to the respondent, and he was impounded.[27]
[27] Respondent’s submission at [17]
On 26 May 2022, the respondent decided to sell Bear.[28]
[28] Respondent’s submission at [18]
On 3 June 2022, the respondent issued infringement notices to the applicant for Bear in relation to the third incident.

Non-compliance with the control order

The respondent submits the applicant has failed to comply with the Control Order as follows:
(a)Bear roaming unleashed and unmuzzled (condition 6).
(b)Fence not properly secure (conditions 2, 3 and 4).
(c)Failure to complete training with a qualified trainer (condition 9).
The applicant does not dispute that she has failed to comply with the Control Order. She explained to the Tribunal why. In Oliver v Registrar, Domestic Animals Act 2000 (Oliver) the Appeal Tribunal held:
I accept, that section 67A(c)(i) [sic] is directed to an assessment of a person’s present and future abilities – not a determination about past failure … that a past failure is a factor to “weigh in the balance” when judging a person’s present and future abilities… but …is not the only factor. I agree.[29]
[29] Oliver at [50]
The task is whether the applicant is now unable to exercise responsible dog management, care, or control by reference to the evidence, facts and circumstances that now exist not whether she was unable to do so at some point in the past.[30] In my view this extends to considering the circumstances surrounding any non-compliance (relevantly, with a Control Order) and any explanation for non-compliance. Such circumstances and explanation shed light on a person’s present and future abilities. Whether the incursion is so significant, the circumstances so grave or the explanation implausible are factors relevant to determining whether a person is unable to exercise responsible dog management, care, or control presently and into the future.
Bear roaming and unmuzzled
[30] Oliver at [50] and [112]
The respondent submitted that, on 30 April 2022 and at other times Bear was seen roaming on his own, off lead and unmuzzled. This is true for the third incident. The circumstances of the third incident are detailed below. In relation to other times, the respondent relied upon CCTV footage provided by Mr Ron Kershaw, the applicant’s neighbour. Mr Kershaw also provided a witness statement in these proceedings but did not give oral evidence before the Tribunal and hence was not cross-examined.
The applicant told the Tribunal her relationship with Mr Kershaw is acrimonious with a history of personal protection orders being issued between the two of them. She was concerned Mr Kershaw had cameras trained on her Premises capturing her home without her knowledge or consent. The applicant explained that in relation to one of the instances in which Bear is allegedly roaming unmuzzled she is within her property boundary and not in a public area and can be seen commanding Bear into her car. She told the Tribunal she did not regard this as a contravention of the Control Order as Bear was under effective control and was not in an area accessible to the public but on private property.
There is little weight that can be given to the footage supplied by Mr Kershaw given the relationship with the applicant and his evidence not being tested before the Tribunal. It can be inferred that the purpose of supplying the footage to the respondent was to catch the applicant out. Cameras should not be positioned to capture her Premises. Other than the third incident I cannot conclude the applicant failed to comply with condition 6 of the Control Order at other times.
In relation to the third incident, the applicant explained to the Tribunal that Bear escaped the Premises through a gate that had been left unsecured by plumbers attending the property.
She told the Tribunal that at the time of the third incident she had been unwell with a major toothache and out of action. A plumber had attended the Premises and the dogs had remained inside. She was unclear on the details of precisely when the plumber attended and did not know Bear had been let outside or that the plumber had accessed the Premises through the secured gate. The plumber had not asked for the padlock for the gate and instead moved structures securing the gate to access it differently without releasing the padlock. I understood the applicant to say that the gate could be opened from the inside by removing metal and wood and lifted to avoid having to release the padlock.[31] She said she did not see the plumber after he left or the state in which the gate had been left. Once alerted to this she replaced the wood and metal from inside, but this was subsequent to Bear getting out.
[31] See Exhibit R1, Annexure B, pages 18, 19 and 21
Under cross-examination, the applicant accepted that the third incident occurred, she breached the Control Order, had been fined and Bear was not on a lead and not muzzled. However, the applicant further explained that because she had been sick, her partner was working, looking after the children and did not check the gate and had released Bear outside after the plumber left without realising the gate was unsecured.
I am satisfied that the third incident occurred in the circumstances outlined by the applicant and involved the actions of others. It is important to note that Bear had not previously escaped the Premises via this gate and that it otherwise effectively contained Bear whilst in the yard. The gate became unsecured through human intervention which I am satisfied Bear is not capable of doing. The incident, while a breach of Control Order, does not mean the applicant cannot effectively secure Bear in the future. As I said, the security of the gate had been effective until unknowingly accessed by someone else and left unsecured. The applicant’s diligence regarding the security of the Premises when others are attending is important. However, on this occasion I accept that she had been unwell. Her responsibility to maintain effective care and control extends to ensuring others do so. This included her partner, despite his other obligations.
I am satisfied the third incident constitutes a failure to comply with condition 6 of the Control Order. The circumstances of the third incident are also relevant to the exercise of the discretion.
In determining the applicant’s present and future abilities, I accept that from the time the Control Order was imposed, and Bear returned to the Premise some nine months passed without Bear escaping the yard and being in public contrary to condition 6. This weighs in favour of the applicant’s present and future abilities. On the occasion of the third incident, I accept there were several factors at play which led to Bear being unaccompanied and unmuzzled outside the applicant’s Premises. Apart from the third incident there are no others, since 15 July 2021, where Bear has been in public unaccompanied, off lead, and unmuzzled. The third incident can be explained and while unfortunate, is a factor relevant to determining the applicant’s present and future abilities. I accept the applicant has learnt from the experience and note particularly the erection of a letter on her door advising trades men to ask for a key or herself to grant them access.[32]
[32] Exhibit A1 at [21]
Her present and future abilities in this regard are also tied to the security of the Premises which is discussed below. Adequately securing the Premises is a factor relevant to ensuring Bear is not in public unaccompanied, off lead and unmuzzled. I am satisfied that, apart from whether the Premises are adequately secure, the applicant can exercise responsible dog management, care, or control in so far as Bear being muzzled and, on a lead, when in public areas.
Fence not properly secure

The respondent contends the applicant has failed to keep the Premises adequately secured, including the perimeter fence, contrary to Conditions 2, 3 and 4 of the Control Order. The respondent relies upon a fence inspection conducted by Senior Ranger Benjamin McMahon on 3 July 2022.[33] The fence failed inspection.
[33] Exhibit R1 at [4]
It is uncontested that:
(a)at the time Bear was returned to the applicant on 15 July 2021, the fencing at the property was assessed as inadequate and failed;
(b)on 6 August 2021, the fence passed inspection noting the absence of a self-closing gate; and
(c)the inspection on 3 July 2022 was conducted at the applicant’s request.
Mr McMahon was not called to give evidence before the Tribunal and his evidence was not able to be challenged. There are constraints on the weight that can be given to his evidence.
The applicant told the Tribunal that she has tried to meet the respondent’s requirements for fencing and security however there are limitations because she is a tenant and cannot make permanent changes or alterations to the Premises. She said she has four boundary fences with private neighbours. Two of the fences are already Colorbond and the remaining two are wooden. She has asked Housing ACT to replace the wooden fences but has been advised that it depends on agreement with the neighbours and Housing ACT does not presently consider the front fence has deteriorated enough for it to be replaced with Colorbond.[34]
[34] Transcript of proceedings 2 August 2022, pages 24-25
She correctly submits that the fence previously passed inspection and the respondent has not returned to conduct any further fence inspection since, except at her request on 3 July 2022. She said, in relation to any changes since 6 August 2021, that:
Apart from a mattress being put on top of a trailer that they said they could gain access to, no, and my attempt to make an outdoor cage was obviously a complete failure, so I removed the structures as soon as I received DAS fence report the other day. I also cleaned up the back yard where the mattress was which was their concern, and I removed other things that I didn't think was a concern, but they found it one. However, it was there on 21 August last year. I'm not denying that, but I have tried to stick to the regulations. My two good fences are joined by the private neighbours as well, so without their consent I can't get Colorbond in and I can only put non‑permanent structures up as to make ... (inaudible) ... to keep Bear in.[35]
[35] Transcript of proceedings 2 August 2022, page 20 line 40
She said she was present at the inspection but did not receive an inspection report[36] and was not otherwise aware of Mr McMahon’s findings until served with his witness statement. In particular, she was not told that a pile of disposable materials behind the shed could be used as a leverage point to access the top of the outdoor enclosure or shed and therefore allowing access out of the yard,[37] or the reasons why the condition of the fencing was unsatisfactory.[38] She was told by the rangers conducting the inspection that they were under strict instructions not to discuss the matter with her. She was not given a deadline to do anything further in relation to the fences.
[36] Exhibit R1, Annexure A
[37] Exhibit R1 at [15]
[38] Exhibit R1 at [14]
She told the Tribunal that after she received Mr McMahon’s witness statement and inspection record she removed the outdoor enclosure, started tidying up the back where the disposable materials were, as well as move the mattress because she did not want any jump hazards.[39] She said the enclosure did not have bedding in it because she did not consider there was a need to because Bear was not using it and may not be unless he came home in which case it would be appropriately bedded.[40]
[39] Transcript of proceedings 2 August 2022, page 22-23
[40] Transcript of proceedings 2 August 2022, page 23
The applicant gave further evidence that she had enclosures in the yard and was working on improving their security and size. She said she was never informed of the requirements or conditions of the Animal Welfare (Welfare of Dogs in the ACT) Code of Practice 2010 (the Code). She accepted the outdoor enclosure did not meet the requirements under the Code and acknowledged these enclosures were not required by the respondent as part of the Control Order. The applicant told the Tribunal her efforts to construct enclosures was to demonstrate a willingness to secure Bear and requests for advice from the respondent were rebuffed.
The issue regarding the state of the applicant’s fence is difficult to reconcile, particularly in terms of assessing whether the state of the applicant’s fence on 3 July 2022 constitutes a failure to comply with the Control Order and thus is indicative of a future inability to effectively care, control and manage Bear. Between 6 August 2021 and 3 July 2022, the respondent did not inspect the fence, despite having the ability to do so every six months and the latter was only at the applicant’s request. It is not too difficult to wonder whether the applicant should have stayed silent and whether this would have become a ground relied upon by the respondent at the hearing. It is difficult to understand how “the Applicants [sic] inability to maintain or repair her properties [sic] fencing to keep ‘Bear’ secure on the property” could have been a consideration at the time the respondent made the decision[41] when the only relevant inspection record at that time concluded the fence had previously passed inspection. Different inspectors may have different opinions as to what constitutes an adequate fence.
[41] Exhibit A, page 27 at [91]
In the circumstances I do not consider the applicant has failed to comply with conditions 2, 3 and 4 of the Control Order particularly where the fence passed inspection before the decision to sell Bear was made, no subsequent inspections occurred and the basis for the respondent’s assertion is the inspection conducted at the applicant’s request on 3 July 2022. It does not follow that because of the findings of that inspection the applicant failed to comply with the Control Order or that she is now unable to exercise responsible dog management, care, or control. Her history of meeting the respondent’s expectations regarding the fence suggests she does have the ability to exercise responsible dog management, care, and control.
Condition 2 of the Control Order is expressed to impose ongoing maintenance obligations on the applicant. Condition 3 confers on the respondent the ability to inspect the fencing every six months. There is no doubt that this is a mechanism by which those ongoing maintenance obligations can be supervised, but it cannot and should not be used as a tool for finding different ways to subsequently fail a fence inspection based on the differing opinions or expectations by those conducting the inspections. Some consistency in expectations is called for. The applicant’s fence was considered by the respondent to be satisfactory on 6 August 2021 and despite very little changing during the intervening period she has taken some further steps to appease the respondent since the inspection on 3 July 2022. It is also significant to note that between 15 July 2021 (when Bear returned to the applicant) and 30 April 2022 he did not escape the yard which is a testament to its security. The third incident was not a consequence of any inadequacy in the fence, but the actions of others and an unsecured gate which Bear could not otherwise open.
In relation to the enclosures the applicant purportedly erected inconsistently with the requirements of the Code, I accept that she was not aware of the requirements and agree with the applicant that a lack of awareness does not mean the applicant is unable to exercise responsible dog management, care, or control. It might be indicative of such if after being made aware of the Code and its requirements a dog keeper fails to meet the obligations in the Code. To the extent that this is relevant in this case, in circumstances where the enclosures were not required, I do not regard it supports a conclusion that the applicant is unable to exercise responsible dog management, care or control.
Failure to train Bear
The applicant conceded she has not complied with condition 9 of the Control Order. On 15 July 2022, she enrolled Bear in the RSPCA’s Adult Basic Training Course and prepaid the course fee of $195.[42] She told the Tribunal that she had not complied with the condition within the stipulated three-month period due in part to a COVID-19 lockdown which commenced on 12 August 2021 and advice she received from the RSPCA that muzzle training Bear prior to commencing training was ideal. She successfully muzzled trained Bear but regrettably did not undertake the required training with a qualified trainer. She also told the Tribunal that she had limited financial means and the training was a significant financial commitment. She has now paid for training should Bear be returned to her.
[42] Exhibit A1 at [26] and Annexure G
The respondent submits the applicant’s failure to comply weighs against Bear being returned to her and the non-compliance over an extended period demonstrates the applicant has not been capable of responsible dog management and is not capable of responsible dog management in the future.
The respondent says the COVID-19 lockdown commenced on 12 August 2021 and lifted on 19 October 2021. The respondent submits there was ample time before and after to complete training. In the absence of any corroborating evidence, the respondent rejects the applicant’s evidence that she was advised prior muzzle training was ideal.
The applicant submits that the relevant test in section 67A(1)(c)(i) of the DA Act is not whether the applicant has failed to exercise responsible dog management, care, or control, but whether she is unable to.
I accept the applicant’s unchallenged evidence that she was advised prior muzzle training was ideal. The respondent did not call evidence to refute the correctness of such advice, accepting, as I am prepared to do, the applicant was so advised. I also accept to some extent the 2021 COVID-19 lockdown hampered the applicant’s ability to complete the required training. Neither factor absolves the applicant of the requirement.
However, when the applicant’s past failure to comply with condition 9 is weighed in the balance of determining her present and future ability. It is compelling that she has actually enrolled Bear in training and paid for that training. Had she merely asserted she would, then the Tribunal could not reliably be satisfied of her commitment to comply. The prepayment of training given the applicant’s financial circumstances is significant.

Other relevant matters

The applicant made several other submissions regarding other relevant factors such as public safety and public interest.
In Oliver the Appeal Tribunal said:
It becomes apparent that the claimed “overarching purpose of the DA Act”, being to “secure the safety of the public” or “to ensure public safety”, is drawn from the Tribunal’s remarks in Robertson. Sarlija merely cited Robertson, which was in turn cited in Lau.
With respect, I do not think that Robertson stands for that proposition. The transcript, in my view, makes plain that the only ‘legislation’ that President Crebbin was considering, when describing the “overarching purpose of the legislation”, was Division 2.3 of the DA Act which is headed “Dangerous dogs” and deals with dangerous dogs. President Crebbin stated that the overarching purpose of that legislation (i.e. Division 2.3) is to secure public safety. I agree. President Crebbin was not commenting on the overarching purpose of the DA Act generally, nor do I accept that the overarching purpose of the DA Act is public safety.
In my view there is no overarching purpose: the DA Act addresses many issues relevant to responsible dog ownership. Public safety is one of them, but there are many others. This clarification is relevant in this case because Blackie is not a dangerous dog; section 67A of the DA Act does not apply to dangerous dogs; and Division 2.3 of the DA Act is not under consideration.[43]
[43] Oliver at [31] – [33]
The applicant submitted that public safety was relevant to section 67A(1)(c)(ii) but was not in issue in this case as the respondent did not consider there would be an unacceptable risk to the safety of the public or other animals if Bear were released to the applicant. Public safety otherwise plays a significant but limited role. The applicant further submitted that public safety considerations have encompassed people outside the domestic home in which the dog lives and also includes the dog’s keeper and family,[44] and this extended concept should be equally embraced as part of public interest considerations.
[44] Lau v Registrar, Domestic Animals Act 2000 [2018] ACAT 119 at [70]; XY v Registrar, Domestic Animals Act 2000 [2019] ACAT 93 at [78]
The applicant submitted that her extreme distress if Bear were to be taken away, and the impact to her family were relevant as well as the impact to Kira if she were to lose her sighted guide. I accept the impact would be profound on her family. She submitted there was no evidence before the Tribunal from any neighbours indicating their current feelings or attitudes towards Bear, or the impact on them if Bear were to be returned to the applicant.
The applicant rejected any suggestion of animal welfare issues historically or if Bear were returned to her.
The respondent contended that these considerations were private interests rather than public.
Whether the applicant’s submissions constitute private or public interests, and there is some force to the respondent’s submission in this regard, they are nonetheless factors that may be taken into consideration given the reasonably unfettered nature of section 4B(b) of the DA Act. It is a matter of weight.
The respondent submitted that the applicant had failed to pay infringement notices which had been issued to her in relation to the past incidents and that this was relevant to section 4B of the DA Act. Again, section 4B(b) is reasonably unfettered as to what might be taken into consideration, however, I am satisfied on the evidence before me the applicant is paying these penalties in instalments.

Should Bear be sold or returned to the applicant?

Section 67A when read with section 4B of the DA Act does not mandate a decision to sell a dog even if non-compliance with a Control Order is established. The obligation to consider any other relevant matters and the circumstances giving rise to any non-compliance reinforces that the task is not black and white and that despite any non-compliance there may be cogent reasons against the exercise of the discretion.
Having regard to the evidence, facts, and circumstances available before the Tribunal at the time of hearing, I am satisfied there is sufficient reason to not exercise the discretion in section 67A(2). There is no doubt the applicant lapsed in complying with the Control Order, she cannot do so again. She is on notice that any further indiscretions may not yield the same outcome.
The respondent was not actively policing the Control Order and but for the third incident the failure to train Bear may not have come to light and inspection of the Premises may never have eventuated. To my mind it was opportunistically inspected (and failed) rather than being borne out of some ongoing or lingering concern harboured by the respondent as to the adequacy of the fence. The applicant had not failed to comply with the fence conditions until a different officer conducted an inspection and this was after the decision to sell Bear had been made.
On the other hand, it is unsatisfactory that non-compliance is left unchecked until caught. A keeper might throw caution to the wind and see if they can evade detection until caught and then be prompted to do something about it. Such obstinance would not be favourably regarded. It amounts to ignoring the conditions of the control order, wholly or partly. I do not consider the applicant falls squarely in that category. On her evidence she did not wilfully ignore her responsibilities.

Conclusion

When considered in context, I do not regard the circumstances provide a compelling basis for not returning Bear to his home under the control of the applicant.
I do not regard the respondent’s reliance upon the 3 July 2022 failed fence inspection as a cogent reason for suggesting she is unable to exercise responsible dog management, care, or control. I am satisfied she did so between 15 July 2021 and 30 April 2022.
I am satisfied that the third incident, while avoidable, brings to the forefront of the applicant’s mind the importance of security when the Premises might be accessed by others. Having regard to the circumstances of the third incident, I do not consider it warrants Bear being sold. Despite the history of events, this was the only one after the Control Order was issued.
I am satisfied as to the applicant’s financial commitment to train Bear is indicative of her future ability to exercise responsible dog management, care, and control.
While the other factors advanced by the parties are arguably relevant, the above findings sufficiently favour a finding against the exercise of the discretion in section 67A of the Act.

Orders

If the decision is therefore one to not sell Bear, what happens next? The decision to sell Bear should be set aside. Section 62(2) of the DA Act deals with releasing a seized dog and states:
62 Releasing dogs seized under general seizure power
(1)This section applies to a dog seized under section 56 (Seizure of dogs—general) unless the dog is declared to be a dangerous dog after it was seized.
NoteSection 65 deals with the release of a dog declared to be dangerous after it is seized.
(2)The registrar must release the dog to a person claiming its release if, but only if, the registrar is satisfied—
(a)the person claiming its release is the dog’s keeper; and
(b)the dog is registered; and
(c)the premises where the dog will be kept are secure enough to prevent the dog escaping; and
(d)if the dog was seized under section 56 (1) (a), (b), (c) or (d) because of an offence against this Act—subsection (3) applies to the offence; and
(e)the dog’s keeper has not relinquished ownership under section 69; and
(f)any fee payable under section 144 for the release of the dog has been paid; and
(g)the keeper is able to exercise responsible dog management, care and control in relation to the dog; and
(h)there is not an unacceptable risk to the safety of the public and other animals from the dog being released.
(3)This subsection applies to an offence if—
(a)the holding period has ended and—
(i)a prosecution has not been started for the offence; and
(ii)an infringement notice has not been served for the offence; or
(b)an infringement notice has been served for the offence and the infringement notice penalty has been paid or the notice withdrawn; or
(c)a prosecution for the offence was started before the end of the holding period and—
(i)the prosecution has been discontinued; or
(ii)the keeper has been convicted or found guilty of the offence but is not disqualified by an order under section 138A from keeping the dog.
(4)In this section:
holding period, in relation to a seized dog, means—
(a)28 days after the day the dog was seized (the original period); or
(b)if the registrar gives written notice to the dog’s keeper before the end of the original period—the original period plus an additional stated period.
Having regard to my reasons above and the evidence, the requirements of section 62(2)(a), (b), (c), (e), (g) and (h) are met. The respondent suggested in submissions that section 62(2)(c), (g) and (h) were relevant in this matter.[45] I infer that to mean that the balance of section 62(2) is satisfied. The matter should therefore be remitted back to the respondent with a direction to release Bear to the applicant.
[45] Respondent’s submissions dated 22 July 2022 at [61]

The decision under review is set aside and the matter is remitted back to the respondent with a direction to release Bear in accordance with these reasons.

………………………………..

Senior Member K Katavic

Date of hearing:	2 August 2022
Solicitor for the Applicant:	T Ward, Animal Defenders Office
Solicitor for the Respondent:	N Sambasivam, ACT Government Solicitor