Keegan v North Burnett Regional Council
[2025] QCAT 285
•24 July 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Keegan v North Burnett Regional Council [2025] QCAT 285
PARTIES: MICHAEL VINCENT KEEGAN
(APPLICANT)
v
NORTH BURNETT REGIONAL COUNCIL (RESPONDENT)
APPLICATION NO/S:
GAR564-23
MATTER TYPE:
General administrative review matters
DELIVERED ON:
24 July 2025
HEARING DATE:
23 April 2025
HEARD AT:
Brisbane
DECISION OF:
Member Lumb
ORDERS:
1. The decision of the Respondent made on 24 July 2023 to uphold its decision to issue a destruction order against the Applicant’s dog, ‘Jack’, is set aside.
2. The Tribunal substitutes its own decision that:
(a) a destruction order is not made against Jack; and
(b) Jack is to be returned to the Applicant pursuant to s 131 of the Animal Management (Cats and Dogs) Act 2008 (Qld).
CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – review of decision of respondent uphold a decision to issue destruction order against the applicant’s dog – destruction order issued pursuant to s 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) – where applicant’s dog previously declared to be a regulated (dangerous) dog after attacking two dogs – where applicant’s dog found wandering on its own without a muzzle and impounded – in impounding the dog the respondent’s compliance officer described dog as ‘docile’ and presented no handling difficulties – the applicant’s dog seriously attacked the other dog within the meaning of the Act – whether destruction order limits any of the applicant’s rights under the Human Rights Act 2019 (Qld) – whether or not discretion should be exercised to confirm destruction order
Animal Management (Cats and Dogs) Act 2008 (Qld), s 4, s 59, s 89, s 127, s 187, s 188, Schedule 1
Human Rights Act 2019 (Qld), s 9, s 10, s 13, s 24, s 25, s 58, Schedule 1
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 157, s 161Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95
Bradshaw v Moreton Bay Regional Council [2017] QCATA 139
BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266
Cutbush v Scenic Rim Regional Council (No. 2) [2019] QCATA 167
Elze v Brisbane City Council [2025] QCAT 195
Johnston & Ors v Commissioner of the Queensland Police Service [2024] QSC 2Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Lee v Brisbane City Council [2012] QCA 284
Mitchell v Gympie Regional Council [2022] QCATA 40
Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121
Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250Yanner v Eaton (1999) 201 CLR 351
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Mr B. James – James Hilty Lawyers
REASONS FOR DECISION
INTRODUCTION
By an Application to review a decision filed on 21 August 2023 (‘the Review Application’), the Applicant (‘Mr Keegan’) has applied to review an internal decision of the Respondent made on 24 July 2023 (‘the Review Decision’).
By the Review Decision, the Respondent confirmed its decision made on 12 July 2023 (‘the original decision’) to issue a destruction order against Mr Keegan’s dog ‘Jack’[1] (‘the destruction order’), pursuant to s 127 of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the AMA’). Jack had previously been declared to be a regulated (dangerous) dog pursuant to s 89(2) of the AMA.
[1]Jack's breed is Rottweiler.
The destruction order was issued after Jack had been seized and impounded on 11 July 2023 after being found wandering alone near the centre of Gayndah without a collar, a registration tag or a muzzle.
By the Review Application, Mr Keegan seeks to have the Review Decision (and destruction order) set aside.
The statutory basis for reviewing the Review Decision
Section 188 of the AMA provides:
A person who is given, or is entitled to be given, a review notice for a decision under part 1 may apply, as provided under the QCAT Act, for an external review of the decision.
Mr Keegan was entitled to be given a review notice pursuant to s 187 of the AMA.
Mr Keegan was given the Review Decision on 25 July 2023. Subsection 187(3) of the AMA provides:
If the internal review decision or designated review decision is not the decision sought by the applicant, the review notice must include or be accompanied by a notice complying with the QCAT Act, section 157(2) for the decision.
The Review Decision included a section headed ‘Review Rights’. In my view, the Respondent failed to satisfy each of subsections 157(2)(c) and (e) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). However, a failure to comply with s 157 does not affect the validity of the reviewable decision (see s 157(4) of the QCAT Act). In my view, Mr Keegan is entitled to apply for an external review of the Review Decision under s 188 of the AMA.
I consider that the review of the Review Decision is governed by Division 3 of Part 1 of Chapter 2 of the QCAT Act. In exercising its review jurisdiction, the Tribunal:
(a)must decide the review in accordance with the QCAT Act and the AMA (being the enabling Act under which the Review Decision was made);[2]
(b)may perform the functions conferred on the Tribunal by the QCAT Act or the AMA;[3] and
(c)has all the functions of the decision-maker for the reviewable decision being reviewed.[4]
[2]QCAT Act s 19(a).
[3]Ibid s 19(b).
[4]Ibid s 19(c).
The purpose of the review is to produce the correct and preferable decision.[5]
[5]Ibid s 20(1).
The Tribunal must hear and decide a review of the Review Decision by way of a fresh hearing on the merits.[6]
[6]Ibid s 20(2).
In this proceeding, the Tribunal may:[7]
(a)confirm or amend the Review Decision;
(b)set aside the Review Decision and substitute its own decision; or
(c)set aside the Review Decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.
[7]Ibid s 24(1).
The Tribunal’s decision pursuant to each of ss 24(1)(a) and (b) is taken to be a decision of the decision-maker for the reviewable decision except for the Tribunal’s review jurisdiction or an appeal under part 8 of the QCAT Act.[8]
[8]Ibid s 24(2).
The Tribunal is not required to identify an error in either the process or the reasoning that led to the Review Decision being made, and there is no presumption that the Review Decision is correct.[9]
[9]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
Relevant provisions of the AMA
As at the date of the Review Decision, s 89 of the AMA provided, relevantly:
(1) This section applies if the dog is a regulated dog.
(2) The authorised person may, without notice, immediately destroy the dog if—
(a) the person reasonably believes the dog is dangerous and the person can not control it; or
(b) an owner of the dog has asked the person to destroy it.
(3) The person may destroy the dog 3 days after the seizure if—
(a) the dog—
(i) was not seized under section 125(1)(b)(i); and
(ii) has no registered owner, or apparently has no registered owner; and
(iii) is not the subject of a regulated dog declaration by the relevant local government; and
(b)the person or the relevant local government does not know of anyone who owns, or is a responsible person for, the dog.
(4) If subsection (3) does not apply, the person may make an order (a destruction order) stating the person proposes to destroy the dog 14 days after the order is served.
...
(emphasis added)
Section 127 of the AMA was amended, and a new s 127AA was added, in 2024. However, I consider that s 127 as it previously stood applies to this review proceeding by operation of s 238 of the AMA, having regard to the fact that Jack was seized in July 2023, which was before s 127 was amended, and s 127AA added, in 2024. Section 238 provides:
(1) New section 127AA applies only in relation to a dog seized, under section 125 or a warrant, after the commencement.
(2) Former section 127 continues to apply in relation to a dog seized, under section 125 or a warrant, before the commencement as if the amendment Act had not been enacted.
The test to be applied
The destruction order was issued pursuant to s 127(4) of the AMA.
This review proceeding involves the exercise of a discretion by the Tribunal.[10]
[10]Cutbush v Scenic Rim Regional Council (No. 2) [2019] QCATA 167, [20] (‘Cutbush’).
The AMA does not specify any matters that must, or may, be considered in the exercise of the discretion.
The following approach has been adopted by the Appeal Tribunal:[11]
[11]Nguyen v Gold Coast City Council Animal Management [2017] QCATA 121, [31]–[33], approved in Cutbush, [18]–[19] and Mitchell v Gympie Regional Council [2022] QCATA 40, [9].
[31] I would pose the question posited by the Appeal Tribunal in Thomas slightly differently: the essential question is whether the dog can be controlled taking into consideration the threat, or likely threat, to the safety of other animals or to people by attacking them or causing fear, posed by the dog.
[32] Determining whether a dog can be controlled will require a consideration by a decision maker of a range of matters which might include:
a) The relevant history of the behaviour of the dog giving rise to consideration of the making of a destruction order;
b) Any other relevant history of the behaviour of the dog including the circumstances giving rise to the declaration that the dog is a regulated dog;
c) The current behaviour of the dog including whether the behaviour of the dog has been, and/or could be, modified through appropriate training;
d) The arrangements for the dog at its place of residence including the security of any enclosure and whether any interaction by the dog with persons, including household members and other persons entering upon the property, poses a threat of harm to such persons;
e) The risk the dog poses to community health or safety including the risk of harm to people and other animals outside the place of residence of the dog;
f) Compliance by the owner of the dog with any permit conditions imposed as a result of the dog being declared a regulated dog;
g) Whether the owner of the dog demonstrates insight into, and understanding of, the dog’s behaviour and has acted appropriately to mitigate any risk posed by the dog to people or animals;
h) The rights of individuals, including the owner of the dog.
[33] The decision maker must also take into consideration the purposes of the Act generally, the purposes of Chapter 4 specifically, and how the Act states those purposes are to be achieved. As the Appeal Tribunal said in Thomas any decision must be made in the context of the legislative scheme, and specifically Chapter 4 of the AM Act, in which the protection of the community is clearly given a higher priority than individual rights of dog owners.
(citations omitted)
Consideration
I consider that the following matters are relevant to the exercise of the discretion whether a destruction order should be made or given in respect of Jack.
Circumstances giving rise to the declaration that Jack was a regulated dog
Jack was initially seized on 10 December 2021, and a regulated (dangerous) dog declaration was made by the Respondent on 12 January 2022. These circumstances leading to the making of the declaration involved two separate attacks on other dogs by Jack on the same day, being 10 December 2021.
The first attack occurred at approximately 4.15pm when Jack came out from Mr Keegan’s residence and bit a Labrador - Staffordshire bull-terrier cross resulting in a 5cm laceration over the dog’s loins which required suturing (said to be 8 stitches by the dog’s owner), with medication being prescribed.
The second attack, on a cattle dog, seemingly occurred within hours of the first attack.
The evidence of the owner was contained in a signed statement dated 13 January 2021. That evidence in relation to the events of 10 December 2021 included, amongst other matters, the following:
I returned to my previous address of … where I was residing with Michael Keegan. As I returned home from work, I observed Michael’s Rottweiler dog running around the front yard loose. I went around the side of the house to check my dog and check his water, my dog is an entire male Australian Cattle dog. I keep him in a pen to keep the dogs separated from fighting as Michael’s dog does not like other dogs. As I arrived at the pen I noticed his gate was opened and to open this pen you have to undo a chain. The Rottweiler dog ran into the pen straight for my dog and started to attack him … I attempted to break up this fight by throwing a bucket of water on them, the neighbours from Number 9 came running over to assist. he [sic] held the gate close [sic] while I dragged the Rottweiler away and out of the pen … I observed that my dog had a large gash on his rear/back, I went to the Gayndah vet surgery but he wasn’t open …
The dog’s owner also stated that Mr Keegan said to him that he had opened the gate to the dog’s pen because he was sick of the barking. The circumstances of this attack including the asserted statement by Mr Keegan were not put to Mr Keegan in cross- examination at the hearing.
A clinical report of the Gayndah Vet Surgery dated 11 December 2010 contains the following details:
Dog fight wounds occurred Friday, 10 December 2021 in late afternoon, presented with perineal hernia, which was not present before fight per owner. Seen on Sat morning (without appointment) while in clinic doing other emergency work.
Owner not financialProvided antibiotics and kept working on emergencies, dog not examined in detail.
Other relevant history of behaviour
Mr Keegan’s daughter provided an unsigned statement which stated, in part:
My father Michael Keegan and I got Jack 3 years ago, and in those 3 years, Jack has become part of the family. Although we have had other dogs in the past, we have created quite a special bond with Jack, he is the perfect companion dog and very loving. Rottweilers have been stereotyped as “dangerous dogs”, but Jack is the opposite, here is how I would describe a big teddy bear, a big, gentle, caring giant … When dad would take Jack on walks, people would always stop to pet Jack, and now they ask where he is, there has never been a time when Jack would get aggressive with a human. Jack is part of the community. My Dad owns a pet cockatoo, Jack gets along with him and even gets bossed around by it … As well as this, we trust Jack around my sister’s children (ages 4 and 1), he is gentle and knows that around these little girls, he must be calm and cautious, he would never do anything to hurt them …
This evidence suggests that Jack does not exhibit any aggressive behaviour towards people and there is no evidence of such aggressive behaviour (nor was it suggested to Mr Keegan in cross-examination that Jack had any propensity to aggression against people).
Current behaviour of Jack
Neither Mr Keegan nor the Respondent have placed evidence before the Tribunal in relation to the behaviour of Jack since being seized by the Respondent in July 2023. In my view, the Respondent would have been in the better position in this regard given that it has had the day to day custody of Jack continually since that time. As the material stands, the most recent evidence of Jack’s behaviour is that addressed above in relation to the circumstances of 11 July 2023.
Compliance by Mr Keegan with permit conditions
The making of a dangerous dog declaration carries with it a statutory obligation on the part of a ‘relevant person’ for a declared dangerous dog (being the owner of, and any responsible person for, a declared dangerous dog) to ensure that various permit conditions are complied with (and a failure to comply carries with it a maximum penalty of 75 penalty units).[12] The permit conditions[13] include various conditions including a ‘PPID’ (prescribed permanent identification device); ensuring that the relevant dog at all times wears a distinctive collar with an attached identifying tag containing information prescribed under a regulation; ensuring that the dog is muzzled when it is not at the ‘relevant place’ (save where the dog is in an enclosed part of a vehicle and is enclosed or restrained in a way that prevents the dog or any part of the dog from being outside the enclosed part of the vehicle); provision of an enclosure that must be childproof and stop the dog from leaving the enclosure; and that a compliant sign must be placed at or near each entrance to the relevant place notifying the public that a regulated dog is kept at the place.
[12]AMA s 97.
[13]AMA sch 1 ss 2–6, 8.
Correspondence from the Respondent dated 17 January 2022[14] noted that a compliant enclosure was required and that the Respondent would retain possession until this occurred. Given that Jack was subsequently returned, I infer that Mr Keegan provided a compliant enclosure. Mr Keegan also gave evidence that on 11 July 2023 his property was fully fenced.
[14]Bundle of documents, page 17.
When Jack was seized, he had a microchip that was able to be scanned.[15]
[15]Statement of reasons, bundle of documents, p 11.1 [12].
It was undisputed that Jack did not have a distinctive collar with an attached identifying tag. The Respondent’s material had stated that those items had been supplied to Mr Keegan. He disputed that. The Respondent led no evidence that it had in fact supplied a distinctive collar and tag. I accept Mr Keegan’s evidence that no such collar and tag were supplied. Nevertheless, the statutory obligation remained on Mr Keegan and he was in breach of the permit conditions by not supplying those items.
As noted, Jack was found wandering without a muzzle as required by the permit conditions. It was not clear from the evidence whether Mr Keegan owned a muzzle for Jack. It is also unclear whether a compliant sign was provided at Mr Keegan’s property.
The risk posed by Jack to people or animals inside or outside the place of residence
Having regard to the above evidence, there does not appear to be any appreciable risk posed by Jack to persons inside or outside Mr Keegan’s property. There is no evidence of any aggression shown by Jack towards a person, either within or outside Mr Keegan’s property, subsequent to the making of the dangerous dog declaration.
In circumstances where Mr Keegan’s property is fully fenced there does not appear to be any appreciable risk to animals inside Mr Keegan’s property, save in circumstances where another dog might be brought within the property.
I am satisfied that Jack does pose a risk to dogs outside of Mr Keegan’s property, having regard to the incidents that led to the dangerous dog declaration. That risk can be ameliorated by adherence by Mr Keegan to all of the permit conditions.
Mr Keegan’s insight into, and understanding of, Jack’s behaviour
I consider that the evidence at the hearing demonstrated that there was a lack of insight on Mr Keegan’s part in relation to the behaviour of Jack in relation to other dogs.
On 26 July 2023, Mr Keegan sent an email to the Respondent (copied into others). The email stated, relevantly:
…
Council previously declared Jack is dangerous because he was attacked by another dog. And he defended himself and put a few cuts on the attacking dog/
Humans do what they do. Dogs do what they do in a different way.
We don’t control the doggy world, and the police have told that.
Dogs by the genetics and treatment are programmed to look after their owner. That’s why we have dogs as companions.
Council, you have been wrong in this issue from day one.
I unassisted, defended against you guys when you declared Jack a dangerous dog and where you took me to court because my dog went on to the street and bit another dog. So what [sic] is the doggy world and that’s what dogs do.
…
In cross-examination, the above content of the email was put to Mr Keegan and he maintained that his statements were correct. In relation to the behaviour of dogs, I interpret Mr Keegan’s statements as asserting that it is usual behaviour of dogs to attack each other. I consider that this reflects a lack of insight on the part of Mr Keegan that it is a responsibility of a dog owner to take precautions to prevent the owner’s dog from attacking other dogs.
Mr Keegan’s rights
In considering Mr Keegan’s rights, I consider that it is necessary to have regard to any human rights of Mr Keegan under the Human Rights Act 2019 (Qld) (‘the HRA’).
I considered the application of the HRA in the context of a regulated (dangerous) declaration in Elze v Brisbane City Council.[16] For convenience, I will repeat a number of the observations I made in that decision.
[16][2025] QCAT 195, [47]–[74].
Subsection 58(1) of the HRA provides:
It is unlawful for a public entity—
(a) to act or make a decision in a way that is not compatible with human rights; or
(b) in making a decision, to fail to give proper consideration to a human right relevant to the decision.
The consequence of a contravention of s 58(1) is subject to the operation of s 58(6).
For subsection 58(1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
(a)identifying the human rights that may be affected by the decision; and
(b)considering whether the decision would be compatible with human rights.[17]
[17]HRA s 58(5).
However, s 58(1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.[18]
[18]Ibid s 58(2).
Subsection s 58(1)(a)
With respect to s 58(1)(a) of the HRA, Freeburn J said the following in Austin BMI Pty Ltd v Deputy Premier (‘Austin BMI’):[19]
[305] The expression “compatible with human rights” is defined in s 8 of the Human Rights Act. It means either that the decision does not limit human rights or, to the extent that it does, those limits on human rights are nonetheless justified according to the test of proportionality set out in s 13 of the Human Rights Act.
[306] The Attorney-General submits, and it is accepted, that compatibility with human rights should be considered in three stages: engagement, limitation, and justification:
(a)Engagement: A measure will ‘engage’ a human right, if the right is ‘relevant’ or ‘apparently limit[ed]’. ‘The relevance may be that the right is interfered with (i.e. a negative effect) or promoted’. A human right can only be limited if it is engaged, but it is possible that a human right may be engaged but not limited (for example, property might be deprived so that the right in s 24(2) is ‘engaged’, but the deprivation may not arbitrary, so that the right is not in fact ‘limited’).
(b)Limitation: A measure will ‘limit’ a human right for the purposes of s 8 of the Human Rights Act, if it ‘places limitations or restrictions on, or interferes with, the human rights of a person’. That necessarily involves considering whether the impact comes within the scope of the right. When determining scope, ‘rights should be construed in the broadest possible way’, by reference to the right’s ‘purpose and … underlying values’. Because ‘[t]he protection of human rights crosses borders’, the scope of human rights may also be informed by international jurisprudence, including the jurisprudence of the Human Rights Committee (the treaty-monitoring body for the International Covenant on Civil and Political Rights (ICCPR)). Any recourse to international authority must take into account the particular legal and constitutional context in which those cases were decided.
(c)Justification: A limit will be ‘justified’ if it satisfies the proportionality test in s 13 of the Human Rights Act. It is at this stage that the overall protection of the right is narrowed to ‘mitigat[e] any damage to society that may arise from upholding an individual’s right.’ It is important that this be done at the third stage using the transparent reasoning process set out in s 13.
(citations omitted)
[19][2023] QSC 95, [305]–[306].
Subsection 58(1)(a) imposes a substantive obligation upon a public entity decision maker.[20]
[20]BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266, [235] (‘BZN’).
Subsection 58(1)(b)
Subsection 58(1)(b) of the HRA imposes a procedural obligation upon a public entity decision maker.[21]
[21]BZN, [235].
The tasks in subsections 58(5)(a) and (b) of the HRA are to be approached in a ‘commonsense and practical manner’ and public entities ‘are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge’.[22]
[22]BZN, [240], citing Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250, [133], [137] and Austin BMI, [355].
Is the Tribunal acting as a ‘public entity’?
The threshold question is whether, for the purpose of making a decision in respect of the Review Application, the Tribunal is acting as a ‘public entity’.[23] In my view, the Tribunal is so acting, for the following reasons:
(a)a ‘public entity’ under the HRA includes, by virtue of s 9(1)(f) of the HRA, an entity established under an Act when the entity is performing functions of a public nature;[24]
(b)the Tribunal is an entity established under an Act, namely the QCAT Act;[25]
(c)having regard to s 188 of the AMA and that the Tribunal is, in part, publicly funded through government appropriation, the Tribunal is performing functions of a public nature when undertaking its review jurisdiction in relation to a decision under s 89 of the AMA;[26]
(d)in acting in its review jurisdiction, the Tribunal is acting in an administrative capacity and, consequently, is not excluded from the definition of ‘public entity’.[27]
[23]That phrase is defined in sch 1 by reference to s 9 of the HRA.
[24]HRA s 9(1)(f).
[25]QCAT Act s 161.
[26]See, in particular, ss 10(1)(a) and (d) of the HRA, noting s 10(2) of the HRA.
[27]HRA s 9(4)(b).
For completeness, I am not satisfied that the Tribunal is a public entity pursuant to s 9(1)(h) of the HRA because it is not performing the functions ‘for’ the State or a public entity (relevantly, the Respondent), notwithstanding that in exercising its review jurisdiction, the Tribunal has all the functions ‘of’ the decision-maker for the reviewable decision being reviewed.[28]
[28]QCAT Act s 19(c).
The next issue that arises is whether the decision confirming the Respondent’s decision to issue a destruction order against ‘Jack’ both engages and limits one or more of Mr Keegan’s human rights set out in the HRA and, if so, whether such a limit is justified.
In my view, of the human rights set out in the HRA, the only rights arguably both engaged and limited by the decision are those set out in s 24 (‘Property rights’) and s 25 (‘Privacy and reputation’).
Section 24
Section 24 of the HRA provides:
(1) All persons have the right to own property alone or in association with others.
(2) A person must not be arbitrarily deprived of the person’s property.
In considering whether either of those rights of Mr Keegan is both engaged and limited, I have had regard to the following matters.
I consider that a domestic animal (such as a dog) lawfully in the possession of a person constitutes ‘property’ at common law[29] and, adopting a liberal and beneficial interpretation of the HRA and having regard to the expansive definition of ‘property’ in the Acts Interpretation Act 1954 (Qld), also constitutes ‘property’ within the meaning of the HRA.
[29]Cf Yanner v Eaton (1999) 201 CLR 351, [17]–[26].
I consider that, in the present case, the rights in s 24(1) is engaged to the extent that the right is ‘relevant’ or ‘apparently limited’.
Given that the making of a destruction order would necessarily deprive Mr Keegan of Jack, I consider that the right in s 24(1) would be engaged and that right would be limited. The right in s 24(2) would also be engaged and the question of whether it would be limited turns on the question of whether the deprivation would be arbitrary.
In BZN, Crowley J said:[30]
… The notion of arbitrary interference extends to those interferences which may be lawful, but are unreasonable, unnecessary and disproportionate. Arbitrariness is concerned with capriciousness, unpredictability, injustice and unreasonableness – in the sense of not being proportionate to the legitimate aim sought.
(citations omitted)
[30]At [230]. See also Johnston & Ors v Commissioner of the Queensland Police Service [2024] QSC 2, [367] (‘Johnston’).
Given the ultimate conclusion I have reached below, I consider it unnecessary to address the question of whether the limitation of Mr Keegan’s rights under s 24 would be justified (having regard to s 13 of the HRA) in the event that a destruction order against Jack were to be made.
Conclusion
I consider that s 127 of the AMA has been, to the extent possible consistently with the purpose of that provision, interpreted in a way that is compatible with human rights, in particular, Mr Keegan’s rights under s 24 of the HRA.
As to the exercise of the Tribunal’s discretion in this case, I consider that there are competing considerations which are finely balanced.
Factors tending to support the making of a destruction order are:
(a)that the circumstances leading to the making of the regulated (dangerous) dog declaration involved Jack attacking and injuring two dogs in separate incidents on the same day;
(b)Mr Keegan’s failure to comply with the permit conditions of ensuring that Jack was at all times wearing a distinctive collar with an attached identifying tag containing the prescribed information and failing to ensure that Jack was muzzled when outside of Mr Keegan’s property on 11 July 2023;
(c)Mr Keegan’s failure to provide any explanation as to how Jack came to have escaped the enclosure at Mr Keegan’s property on 11 July 2023;
(d)Mr Keegan’s lack of insight in relation to the importance of strict compliance with the permit conditions and Mr Keegan’s ambivalent attitude to dogs attacking other dogs.
Factors weighing against the making of the destruction order are:
(a)that there is no evidence of any aggression shown by Jack towards a person, either within or outside Mr Keegan’s property;
(b)the evidence of Ms Keegan as to Jack’s general demeanour, including towards Ms Keegan’s young nieces;
(c)that Mr Keegan provided a fully fenced enclosure which, I infer, satisfied the Respondent’s requirements;
(d)that there is no evidence suggesting that Jack had escaped the enclosure between the return of Jack to Mr Keegan in 2022 and 11 July 2023;
(e)that Jack was micro-chipped;
(f)that there is no evidence that Jack attacked any animal subsequent to the making of the regulated dog declaration;
(g)that, on 11 July 2023, Jack had travelled approximately 1 to 1½ km from Mr Keegan’s property without apparent incident;
(h)the Council officer who impounded Jack on 11 July 2023 described Jack as ‘docile’ and that Jack presented no handling difficulties;
(i)that it is a ‘serious matter’ to order the destruction of a family pet[31] (and acknowledging Mr Keegan’s rights under s 24(1) of the HRA).
[31]Bradshaw v Moreton Bay Regional Council [2017] QCATA 139, [39].
I have taken into account the purposes of the AMA in general[32] and the purposes of Chapter 4 (dealing with regulated dogs) in particular.[33] Nevertheless, having regard to the matters addressed above, I am not satisfied that the extent of the risk posed by Jack to other dogs justifies the destruction of Jack. Although Mr Keegan’s attitude to compliance with the permit conditions has been unsatisfactory and the lack of insight demonstrated by his comments on the behaviour of dogs, I consider that the lack of any adverse behaviour on the part of Jack subsequent to the regulated dog declaration being made, coupled with the description of Jack’s behaviour when seized in July 2023 (and the absence of any evidence from the Respondent in relation to Jack’s subsequent behaviour), persuades me that a destruction order is not justified and a destruction order should not be made.
[32]See esp. AMA ss 4(g), 4(m).
[33]See esp. AMA s 59.
To avoid any possible doubt, I note that Mr Keegan remains obliged to comply with all of the permit conditions imposed as a result of Jack being a regulated (dangerous) dog.
Order
For the above reasons, it is the decision of the Tribunal that:
1.The decision of the Respondent made on 24 July 2023 to uphold its decision to issue a destruction order against the Applicant’s dog, ‘Jack’, is set aside.
2.The Tribunal substitutes its own decision that:
(a) a destruction order is not made against Jack; and
(b) Jack is to be returned to the Applicant pursuant to s 131 of the Animal Management (Cats and Dogs) Act 2008 (Qld).
0
12
3