Lau v Registrar, Domestic Animals Act 2000
[2018] ACAT 119
•26 November 2018
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LAU v REGISTRAR, DOMESTIC ANIMALS ACT 2000 (Administrative Review) [2018] ACAT 119
AT 64/2018 & 65/2018
Catchwords: ADMINISTRATIVE REVIEW – review of decisions to destroy dog and to sell dog – powers available to Tribunal on review – responsible dog management – public safety – expert opinion
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Administrative Appeals Tribunal Act 1975 s 43
Animal Welfare Act 1992 ss 6B, 9
Domestic Animals Act 2000 ss 4B, 53C, 56, 59, 62, 64, 65, 65A, 66, 67A, 68, 68A, 70
Subordinate
Legislation cited: Animal Welfare (Breeding Standard) Determination 2015 (No 1)Cases cited:Australian Securities and Investments Commission v Donald [2003] FCAFC 318
Commonwealth Bank Officers Superannuation Corporation Pty Ltd v Commissioner of Taxation [2005] FCAFC 244
Isaacs v Commissioner of Taxation [2006] FCAFC 105
Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442
Paul v Registrar, Domestic Animals Act 2000 [2018] ACAT 105
Sarlija v Registrar, Domestic Animals Services [2012] ACAT 57
Tribunal: Presidential Member MT Daniel
Date of Orders: 26 November 2018
Date of Reasons for Decision: 26 November 2018
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 64/2018
BETWEEN:
ZENAIDA LAU
Applicant
AND:
REGISTRAR,
DOMESTIC ANIMALS ACT 2000
Respondent
TRIBUNAL:Presidential Member MT Daniel
DATE:26 November 2018
ORDER
The Tribunal orders that:
1.The decision to destroy ‘Shakira’ is confirmed.
………………………………..
Presidential Member MT Daniel
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 65/2018
BETWEEN:
ZENAIDA LAU
Applicant
AND:
REGISTRAR,
DOMESTIC ANIMALS ACT 2000
Respondent
TRIBUNAL:Presidential Member MT Daniel
DATE:26 November 2018
ORDER
The Tribunal orders that:
1.The decision to sell ‘Boost’ is set aside and substituted with a decision to destroy ‘Boost’.
………………………………..
Presidential Member MT Daniel
REASONS FOR DECISION
1.At about 5:30pm on Wednesday 31 January 2018 ‘Pugley’, a six year old male pug cross was walking on lead with his owner, Ms Fiona Parr, on a public footpath in Charnwood. At that time, two bull arab cross dogs, ‘Boost’ and ‘Shakira’ were heading down the path. They had escaped from their home in Traill Place about an hour earlier and were, presumably, returning home. Boost and Shakira saw Pugley, and slowed their pace but continued to walk directly towards him. Their posture stiffened and the hair on their backs stood up. Pugley had been walking at the length of his lead and wagging his tail, but he stopped walking and looked up at Ms Parr when Boost and Shakira came close. Boost then attacked him. Boost bit down on Pugley’s back, and continued to bite and shake Pugley. Pugley lay on his stomach yelping while Boost tried to get a good hold. Shakira participated in the attack by rushing in and biting Pugley whenever Boost let go.
2.Ms Parr screamed for help and kicked and punched Boost and Shakira, to no avail.
3.Mr Richard Jones, a neighbour, was enjoying a quiet smoke on his front verandah in Tom Place. He heard the screams and ran to help. He jumped on top of Boost and tried to pull him away. He got his arms around Boost’s neck, and got down on one knee and tried to pull Boost away and kick out at Shakira. A second neighbour also came out, and tried to hit the dogs with a stick. These efforts were all ineffective.
4.Boost and Shakira’s owner, Ms Zenaida Lau, and her son Mr Henry Lau were next to arrive on the scene. They had just returned to Traill Place from looking for the dogs and heard Ms Parr’s screams. Upon arrival, Ms Lau called to the dogs “no, get off” and “no, stop” but this had no effect. She then got a large stick and either hit or tried to push Shakira away with it. This was effective in detaching Shakira sufficiently to allow Ms Lau to shepherd Shakira back into her yard. At the same time Mr Lau was able to prise Boost’s jaws open and extract Pugley, and then remove Boost to the backyard.
5.Overall, Pugley was bitten around four or five times by Boost, and was vigorously shaken two or three separate times. Pugley was bitten at least twice by Shakira.
6.In the melee, Mr Jones received a wound to his head, which bled quite a bit. His head was also covered in dog slobber. Fortunately, no other bystander was harmed and Mr Lau did not suffer any injury from his intervention.
7.Ms Parr took Pugley to the closest vet, Brudine Vet, where he was given pain relief, treated and stitched up by Dr Butler. He was observed to have multiple puncture wounds, torn skin, and deep bruising. From the photographs tendered in evidence, he appeared to have over 20 puncture wounds and six areas of torn skin requiring stitching on his back alone. Further puncture wounds, tearing and bruising occurred on his rump. Dr Butler[1] observed that due to his conformation the wounds were mainly skin deep, although the underlying bruising was extensive. Pugley has since made a good recovery.
[1] Further report dated 22 October 2018
8.Inspectors from Domestic Animal Services (DAS) attended Ms Lau’s residence later that night, and seized Boost and Shakira under the Domestic Animals Act 2000 (the DA Act) on the basis that they had been involved in an attack on an animal, and had been in a public place without a carer.[2] The inspectors also seized from the premises Shakira’s five puppies (Boost, despite being Shakira’s littermate, is the father). Ms Lau did not have a breeder’s licence or multiple dog licence.
[2] Later, Ms Lau would be issued with three infringement notices – one for an unregistered dog, one for a dog attacking another dog, and one for a dog not being desexed
9.On 2 July 2018, the Registrar decided that neither Boost nor Shakira should be returned to Ms Lau. The Registrar decided that Shakira should be destroyed under section 53C of the DA Act and Boost should be sold under section 67A of the DA Act.
10.Both of those decisions are reviewable by the Tribunal, and Ms Lau lodged applications for review which were, for efficiency, heard together.
11.In her application for review Ms Lau sought that both Boost and Shakira be returned to her. In her view the attack was uncharacteristic and unlikely to happen again. She said that she was an appropriate person to look after the dogs. She said that the attack stemmed from insecure fencing which she had required her lessor to fix, and submitted that she would be happy to comply with the terms of any control order in relation to work to be done on the premises prior to the dogs’ return.
12.The Registrar’s position, initially, was that the decisions in relation to each dog should be confirmed. At the conclusion of the hearing, however, the Registrar submitted that on the basis of the evidence provided in the hearing, both Shakira and Boost should be destroyed under section 53C of the DA Act.
The evidence and other facts found
13.As a starting point, the Tribunal had before it the Tribunal documents filed by the respondent as directed. The Tribunal also attended the property in Traill Place at the commencement of the hearing and viewed the fence, dog cages and landscaping in progress.
14.Ms Lau, Mr Lau, Ms Stephanie Valenzuela (Ms Lau’s daughter) and Mr Bob Foster (a friend) gave evidence in the applicant’s case. The applicant also called evidence from Ms Alicia Robb, a dog behaviour expert.
15.Ms Parr, Mr Jones, and Ms Michelle Corlett gave evidence in the respondent’s case. Dr Butler of Brudine Vet provided a report outlining Pugley’s injuries, and provided further information by telephone during the hearing.[3] The respondent relied upon a report by Ms Beverley Margosis, an animal behaviour support officer with DAS, and two reports of Mr Sean Ehlers, a level 2 obedience instructor and qualified dog training behaviourist.
[3] Relayed by her assistant as Dr Butler was in surgery
16.From the evidence, I am satisfied that the attack on Pugley occurred as set out at [1] – [5] above. I cannot be satisfied whether Mr Jones was injured by being hit with a stick, or a dog bite or scratch from a dog nail in the midst of the attack, but I am satisfied he suffered an injury to his head.
17.I am also satisfied of the following facts:
(a)The attack on Pugley was unprovoked and sustained.
(b)The injury to Pugley was ‘serious’ – this was conceded by the applicant.
(c)The physiology of the pug (and dogs of similar breeds) lends to them being misunderstood by other dogs[4].
[4] The experts said that the pug’s curly tail deprives a pug of the ability to display a low straight softly wagging tail which indicates friendliness
(d)Shakira and Boost were littermates.
(e)Ms Lau obtained Shakira and Boost when they were around 10 weeks old, in around January 2017.
(f)At the time of the attack Boost and Shakira were not desexed or registered.
(g)At the time of the attack Shakira had a litter of five week old puppies. Boost was the father.
(h)Ms Lau has carpal tunnel syndrome and has reduced strength in her arms.
(i)Boost has now been desexed.
(j)Both dogs are now registered to Ms Lau.
(k)The fence was in a bad state of repair when Ms Lau obtained Boost and Shakira and Ms Lau had difficulty in getting her lessor to repair it.
(l)In around September 2017 Ms Lau installed two large cages for Boost and Shakira to be kept in.
(m)Boost and Shakira had a history of escaping the yard. They escaped around once weekly until the cages arrived, and thereafter about once per month.
(n)After escaping Boost and Shakira often went to the local school.
(o)Prior to this attack there were no prior reports of Boost or Shakira attacking an animal, and no reports to DAS about their roaming the neighbourhood or attending the school.
(p)The fence was to be repaired by the lessor in January 2018.
(q)On 31 January 2018 the fencing contractor told Ms Lau that the fence was complete, and she released Boost and Shakira into the backyard.
(r)It transpired that the fence was not complete – one panel remained to be replaced – and it was through this panel that Boost and Shakira escaped.
(s)At the time of the hearing the fencing work was complete. The perimeter fence is half Colorbond, with the rest wooden paling fence. Both the front and rear gates are paling, and are provisioned to allow a padlock to be fitted, and could permit the installation of spring loading.
(t)When inspecting the property in late August 2018, Ms Robb was concerned by large quantities of sheet metal and other debris and items which posed a risk to dogs. This material has now been cleared from the backyard.
(u)The dog cages do not have weatherproof roofing, which Ms Robb noted, however there is now facility for the dogs to sleep in the garage should there be rain.
(v)There was evidence at one or two points of the Colorbond fence, and around the dog cages, of holes being dug which might allow escape. At the fenceline, heavy pine sleepers are now in place to reduce the ability for dogs to burrow out. Around the cage edges, bricks have been placed to discourage digging.
(w)Ms Lau has from time to time had various dogs at her premises since the fence was completed in February 2018, consisting of three of the puppies, and two adult dogs belonging to her daughter (Ms Valenzuela) and there has been no report of dogs escaping her premises since February 2018.
(x)Of the five puppies, one (Bobby) was returned by DAS to Ms Lau in March 2018, the others were rehomed. However, when the fence was inspected in April 2018 Ms Lau had three of the puppies in her care, and at the time of the hearing, Ms Lau had both ‘Bobby’ and ‘Bella’ in her care; this is said to be temporary.
(y)Ms Lau has applied to join the Belconnen Dog Club and plans to commence obedience classes in January 2019 with the two dogs Bobby and Bella, or potentially Boost or Shakira if they are returned to her and it is considered appropriate.
(z)Ms Lau has stated her willingness to comply with the conditions of any control order.
(aa)When impounded Boost weighed over 29 kilograms, and Shakira weighed over 26 kilograms.
(bb)Ms Lau has previously owned or had in her care dogs which have been the subject of complaint to DAS – in 2002, 2004 and 2006 complaints were made about small fluffy dogs escaping the yard, and attacking people.[5]
[5] Ms Lau denied that she owned the small fluffy dogs the subject of the earlier complaints, however I am satisfied from the business records in evidence that she owned the two dogs referred to in one complaint, and the other complaints probably related to these dogs, or other dogs in her care
18.Evidence was given about the temperament and behaviour of Shakira and Boost by Ms Lau, Mr Lau, Ms Valenzuela and Mr Foster. They uniformly stated that the dogs were friendly with people and other dogs and the attack was out of character for them. Some suggested that the dogs might have been provoked, but there was no evidence of provocation and I accept Ms Parr’s eyewitness account.
19.Expert evidence on the dogs’ temperaments and risk of future attacks was given by Ms Robb, Ms Margosis and Mr Ehlers, the three experts in dog behaviour.
20.All of the experts agreed that Shakira is the dominant dog to Boost and has issues of redirected aggression towards him. She demonstrates no real obedience training, inadequate social skills, and Ms Lau was observed to have little to no control of her behaviour. Shakira displays no aggression towards people, but attempts to dominate until corrected.
21.Shakira was first observed by Ms Margosis who reported in April 2018 that she is a very active dog, strong on lead and hard to control. Often in a high state of stimulation, she has been observed to redirect aggression at Boost when frustrated. In August 2018 Ms Robb attended DAS with her working dog ‘Poppy’ and observed Shakira both alone and with Ms Lau. Ms Robb concluded that Shakira is a “hyper-aroused, anxious, overly confident dog with a high prey drive” that “would need a lot of work to turn around and would not be a suitable ‘backyard pet’” with her behaviour possibly deteriorating due to the current environment. In August and September 2018 Shakira was observed by Mr Ehlers to appear to initiate some play with another dog, however his observations of Shakira were otherwise consistent with Ms Margosis and Ms Robb.
22.The experts agreed that Boost, while submissive to Shakira, is nonetheless a dominant and confident dog. He too demonstrates no obedience training, and Ms Lau has little control of his behaviour. He appears more socialised than Shakira. He demonstrates no aggression towards people, but like Shakira attempts to dominate until corrected firmly.
23.Ms Margosis reported in April 2018 that Boost was ‘laid back’, had good dog-to-dog manners and settled well and was easier to manage than Shakira. Ms Robb in August 2018 thought he would be suitable to rehome, noting that he seemed interested in play and was not aggressive to Poppy. Mr Ehlers observed Boost to be aggressive towards a submissive cattle dog when in the company of Shakira, but not as aggressive when assessed individually.
24.The experts agreed Boost and Shakira should not be kept together. Quite apart from the observable behaviour of the dogs when together, they recounted the known risk factors for increased aggression and risk to public safety caused by such littermates being kept together.
25.Both Ms Margosis and Ms Robb were of the view that Shakira should be euthanised. Mr Ehlers gave evidence that he – and many dog behaviourists – would be reluctant to see any dog euthanised, except in extreme cases where a dog had attacked a person, or could not be near other dogs without exhibiting extreme aggression.
26.Mr Ehlers having seen Ms Lau with the dogs did not consider Ms Lau would be able to manage either of the dogs. Mr Ehlers suggested that both Boost and Shakira could be (separately) managed by a firm owner with obedience training, initially at home alone before possibly progressing to outside and group activities. He said the dog would need to be muzzled when outside and have two leads – one on the collar and one on a halter. At home, there would need to be a secure fence and possibly a two gate system to prevent accidental escape. The dog should not go to a dog park or be off leash, except individually by prior arrangement where they had the park entirely to themselves and where a sign was put up to say ‘aggressive dog exercising’ on the park gate.[6]
[6] These arrangements are broadly consistent with Dr Dunbar’s recommendation for a dog bite level 4, and the views of Ms Robb and Ms Margosis
27.None of the experts was asked to consider whether keeping Boost or Shakira in this way would meet the dogs’ physical and mental needs. It seemed to be accepted that caging and physical restraint when out of the cage is an appropriate way to keep a dog on a long term basis: if this is so it must be on the assumption that the dog’s need for exercise, mental stimulation and the opportunity to engage in normal dog behaviour is met by some other arrangements.[7]
[7] See section 6B and section 9 of the Animal Welfare Act 1992
28.All of the experts were asked to consider the proposal that the dogs be returned to Ms Lau to be kept in the current cages.
29.Ms Margosis and Ms Robb agreed that Boost could be managed safely under the conditions described by Mr Ehlers. Ms Margosis was of the view that Ms Lau would be unable to manage Boost as required, while Ms Robb held concerns and suggested that if Boost was returned to Ms Lau, there should be inspections to ensure her property remained suitable for dogs.
30.The experts were asked to estimate the likelihood of Boost or Shakira being involved in another attack, however they could not give certain predictions and were only able to point to factors that increased or decreased the risk.
31.The experts agreed that the fact of a dog being involved in an attack on another dog or animal is a risk factor for a future attack to occur. They explained that the ‘dominant/submissive’ analysis of dog attacks cannot be relied upon to predict future attacks, as dog position in the hierarchy is dynamic and can change with differing situations. They noted that dominance is not to be confused with aggression, a submissive dog may attack in certain circumstances, or a dominant dog choose not to attack. Dogs may also react differently to submissive, neutral or dominant dogs. There are many variables in the mix such as the dog’s own perception of its territory or threats. For example, in this case, Shakira’s new litter may have made her more aggressive towards perceived threats, and Boost and Shakira’s history of roaming would have contributed to them considering that the public realm was their territory.
32.The experts were conscious of the limitations of the assessments that they had conducted. Shakira and Boost were not observed interacting freely with a range of dogs of different temperaments or physiques, either together or separately. They were not observed in their usual environment, they were not observed being exposed to other animals they may encounter if returned to their keeper. The experts were briefed with the full circumstances of the attack on Pugley only during their oral evidence.
33.In evidence before me was Dr Ian Dunbar’s dog bite scale. The experts acknowledged this document as a respected and credible assessment tool for biting problems in dogs. The tool is based on the wound pathology experienced by the victim of the attack and commences at level 1 but for the current matter relevant extracts are:
Level 3: One to four punctures from a single bite with no puncture deeper than half the length of the dog’s canine teeth. Maybe lacerations in a single direction, caused by victim pulling hand away, owner pulling dog away, or gravity (little dog jumps, bites and drops to floor).
Level 4: One to four punctures from a single bite with at least one puncture deeper than half the length of the dogs canine teeth. May also have deep bruising around the wound (dog held on for N seconds and bore down) or lacerations in both directions (dog held on and shook its head from side to side).
Level 5: Multiple bite incident with at least two Level 4 bites or multiple attack incident with at least one level 4 bite in each.
Level 6: Victim dead.
34.By reference to Dr Dunbar’s dog bite scale the multiple biting by Boost would be classified as level 5. The biting by Shakira would be level 3 or 4.
35.Dr Dunbar’s bite scale continues:
The above list concerns unpleasant behaviour and so, to add perspective:
…
Level 4: the dog has insufficient bite inhibition and is very dangerous. Prognosis is poor because of the difficulty and danger of trying to teach bite inhibition to an adult hard-biting dog and because absolute owner compliance is rare. … 1. The dog is a level 4 biter and is likely to cause an equivalent amount of damage WHEN it bites again (which it most probably will) and should therefore be confined to the home and only allowed contact with adult owners. …
Level 5 and 6: the dog is extremely dangerous and mutilates. The dog is simply not safe around people. I recommend euthanasia because the quality of life is so poor for dogs that have to live out their lives in solitary confinement.
36.The objectivity and certainty expressed in Dr Dunbar’s dog bite scale is at first glance attractive, however it is equally important to have regard to the opinions of experts who have seen the dogs and assessed their behaviour – even if those conclusions are expressed with less certainty.
37.Considering the circumstances of the attack, the expert opinions and the other expert information, I am satisfied that Shakira and Boost are both likely to attack another animal or dog again if circumstances allow. While Shakira may seem by temperament more likely to attack, on Dr Dunbar’s scale Boost is more likely to attack in a way that will kill. Shakira also poses a risk of biting a person through redirected aggression.
The Domestic Animals Act 2000 and the Tribunal’s jurisdiction
38.It is accepted that the overarching purpose of the Domestic Animals Act, insofar as it relates to dogs, is to ensure public safety[8]. Part 2 of the DA Act provides for general matters of registration, licensing and control of dogs. Division 2.6 specifically deals with attacking, harassing and menacing dogs by providing a number of offences, and prescribing consequences where a dog has attacked a person or animal. Section 53C of the DA Act, under which the decision was made to destroy Shakira, is contained in Division 2.6.
[8] Sarlija v Registrar, Domestic Animals Services [2012] ACAT 57
39.Division 2.7 of the DA Act provides for the seizure of dogs by the Registrar or persons authorised by the Registrar, and for the Registrar’s subsequent dealing with seized dogs. The seizure powers include section 56 – a general seizure power which was relied upon to seize Boost and Shakira for being in a public place without a carer, and section 59 – which provides the power to seize a dog involved in an attack on a person or animal, and was also relied upon to seize Boost and Shakira.
40.Division 2.7 contains provisions which prescribe circumstances in which seized dogs must be returned to their keeper, or may be sold or destroyed.
41.Relevantly for the circumstances of this case, section 62 provides that a dog seized under section 56 must be released to its keeper where certain conditions are met. Section 64 specifies that a dog seized under section 59 that has not been declared dangerous since its seizure must be released to its keeper where certain conditions are met.
42.In addition to these provisions mandating return of a dog to its keeper, section 70 of the DA Act[9] provides the Registrar with a discretionary power to return a seized dog to its keeper where this would be in the public interest.
[9] Contained in Division 2.8
43.In relation to decisions to sell or destroy, sections 66 and 68 respectively give the Registrar a discretionary power to sell or destroy dogs or dangerous dogs seized under section 59 where the owner cannot be identified, or the owner does not wish to keep the dog. Relevantly, in the circumstances of this case, section 67A provides the discretionary power to sell a dog which is not a dangerous dog, where the keeper is unfit.
44.Section 68A of the DA Act also provides the Registrar with a general discretionary power to destroy a dog on the grounds of public safety. This power is not limited in its application to dogs which have been seized.
45.The myriad of provisions potentially applicable to Boost and Shakira in the circumstances of this case raises the question of the scope of the Tribunal’s powers and functions when conducting the review. For example, when reviewing a decision under section 53C, is the Tribunal confined to the terms of section 53C[10] or is it open to the Tribunal to substitute for the decision under section 53C a decision under a completely different section of the DA Act[11]?
[10] To confirm the decision, vary it to issue a control order, or substitute it with a decision not to make a decision under section 53C
[11] For example, a decision to return the dog to its keeper under section 64
46.Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides:
68 Review of decisions
(1) This section applies if the tribunal reviews a decision by an entity.
(2) The tribunal may exercise any function given by an Act to the entity for making the decision.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(3) The tribunal must, by order—
(a) confirm the decision; or
(b) vary the decision; or
(c) set aside the decision and—
(i)make a substitute decision; or
(ii)remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
47.Mr Sassella submitted for the applicant that the Tribunal’s powers under section 68 of the ACAT Act are limited to the specific decision under review. He suggested that section 68 is narrower on its face than the equivalent provision in the Commonwealth Administrative Appeals Tribunal Act 1975 (AAT Act) (section 43). Mr Sassella submitted that there are no binding authorities specifically addressing this issue under section 68, however he pointed out that the issue had been touched upon by the Tribunal in Paul v Registrar, Domestic Animals Act 2000 [2018] ACAT 105. While this was not determinative, at [37] – [41] of that decision the Tribunal noted that the applicant sought that the Tribunal make a dangerous dog declaration and then issue a dangerous dog licence to the applicant, and the Tribunal queried whether it could review a decision that did not exist, or make a decision to grant a licence for which no application had previously been made.
48.The practical difficulty with the applicant’s proposed interpretation of section 68 of the ACAT Act is that a confined review of the decision in relation to Shakira under section 53C of the DA Act would not permit the Tribunal to expressly order that Shakira be returned to her keeper. Mr Sassella submitted that the requirement to return the dog would be implied as a consequence of the decision to impose a control order. Similarly in relation to Boost, a review of the decision under section 67A on the limited approach would not permit the Tribunal to order that Boost should be returned to his keeper – again, Mr Sassella said that by substituting the section 67A decision with a decision not to sell Boost, it was implied that Boost must be returned to his owner and no control order or dangerous dog order could be made.
49.Mr Oram on behalf of the respondent drew the Tribunal’s attention to the wording of section 68 of the ACAT Act in distinction to that used in the federal legislation, and submitted that if there were a difference in scope it is the AAT Act which has the narrower scope. Mr Oram referred to ASIC v Donald[12], in which the Court adopted views expressed in Fletcher,[13] finding that in conducting merits review the Tribunal was not limited to the original decision but could exercise powers of the decision-maker whether contained in the same Act or elsewhere[14], and whether or not those powers are themselves reviewable.[15]
[12] Australian Securities and Investments Commission v Donald [2003] FCAFC 318
[13] Fletcher v Federal Commissioner of Taxation (1988) 19 FCR 442
[14] ASIC v Donald at [29] and [30]
[15] ASIC v Donald at [32]
50.Mr Oram submitted that the question of scope depends upon proper construction of the Act, and a consideration of the facts or matters by reason of which the reviewable decision became available to the decision-maker. He also referred the Tribunal to authorities noting the limitations upon the exercise of powers, functions or discretions by the Tribunal – the Tribunal could not exercise a power given to the decision-maker for an unrelated purpose[16], where a mandatory condition precedent had not occurred, or where the power sought to be exercised would have broader ramifications than for the decision under review.[17]
[16] At [33]
[17] Isaacs v Commissioner of Taxation [2006] FCAFC 105
51.The principles stated by the authorities in relation to this question arising under the AAT Act are equally applicable to the Tribunal under section 68 of the ACAT Act, and I adopt the respondent’s submissions as a correct statement of the scope of this Tribunal’s powers and functions when conducting administrative review.
52.This means that for the purpose of reviewing the decisions in relation to Shakira and Boost, the Tribunal must consider whether the correct or preferable decision requires the exercise of any other power available to the Registrar on the facts or matters that gave rise to the reviewable decision; that is, the circumstances of the attack on Pugley and subsequent seizure of Boost and Shakira.
53.It is sensible to approach the various powers available to the Tribunal by first considering those that mandate a certain decision or action, and then, if those provisions are not required to be exercised, considering whether or not to exercise any of the discretionary powers.
Mandatory release of the dogs to Ms Lau
54.Sections 62 and 64 of the DA Act require the Registrar to return a seized dog to its keeper if certain conditions are met.[18] Section 62 applies where the dog was seized under section 56, and section 64 applies where the dog was seized under section 59. In this case, the dogs were seized under both provisions. The conditions set out under section 64 are very slightly different to those applying under section 62, because section 64 contemplates a control order being made, however in this case the same result is obtained under both sections.
[18] I note in this respect that neither Boost nor Shakira have been declared to be dangerous dogs – if such a declaration had been made, the appropriate provision for release to the keeper would be section 65
55.Because the serious fact of a dog attack is established, I consider it is appropriate to first consider whether Shakira and Boost must be returned to their keeper under the section 64:
64 Releasing dogs seized under attacking and harassing power
(1) This section applies to a dog seized under section 59 (Seizure—attacking, harassing or menacing dogs) unless the dog is declared to be a dangerous dog after it was seized.
Note Section 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 court has not ordered the dog be destroyed under—
(i)section 50 (5) (Dog attacks person or animal causing serious injury); or
(ii)section 50A (4) (Dangerous dog attacks or harasses person or animal); and
(d)if the dog was seized under section 59 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 or other animals from the dog being released and kept in accordance with the conditions of any control order.
(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—see section 62 (4).
56.It was agreed that paragraphs (a) to (f) of section 64(2) are met. For paragraphs (g) and (h) it was submitted for Ms Lau that the Tribunal could be satisfied that:
(a)Ms Lau is now able to exercise responsible dog management, care and control in relation to each of the dogs; and
(b)There is not an unacceptable risk to the safety of the public or other animals from each dog being released to Ms Lau and kept in accordance with the conditions of any control order.
Responsible dog management, care and control
57.The first question for the Tribunal under section 64 is what is ‘responsible dog management, care and control’? Section 4B of the DA Act does not define the concept but states that in considering this issue the Tribunal must take into account previous convictions or failures to comply with a control order or special licence, and may consider any other relevant matter.
58.It seems to me that ‘responsible dog management, care and control’ at least requires that dogs be kept in accordance with legal requirements[19], cared for in a way that meets their physical and mental needs to a minimum acceptable standard[20], and controlled so that they do not pose a risk to public safety or other animals.
[19] For example, meeting requirements under the Domestic Animals Act 2000 and Animal Welfare Act 1992
[20] This is expressly required by the offence provision of section 6B of the Animal Welfare Act 1992
59.Mr Sassella submitted that Ms Lau is now able to exercise responsible dog management, care and control. He pointed to Ms Lau having paid the fines for the infringement notices, having ensured that the fence was now secure and yard cleared, and currently undertaking extensive landscaping to meet the requirements identified by Ms Robb as necessary for the dogs’ welfare. Ms Lau has applied to join a dog club and enrol in obedience training and, it was submitted is keen to try to work with Boost and Shakira as recommended by the experts. She visited them frequently at DAS. She has arranged for Bella to be desexed and Bobby is scheduled to be desexed next week. An area for the dogs to be under cover when there is rain is now available. It was submitted that she had learnt a lot about responsible dog management from this matter.
60.The respondent submitted that the Tribunal could not be satisfied that Ms Lau is able to exercise responsible dog management, care and control in relation to either dog. The Registrar pointed to the history of the matter, culminating in the attack on 31 January 2018. The Registrar also pointed to what had occurred since that date, and submitted that Ms Lau had not demonstrated any insight or understanding of what responsible dog management or care entails.
61.I consider that the history of Boost and Shakira demonstrates a lack of responsible dog management, care and control. They were obtained at around ten weeks of age, were not registered, they were littermates, were not desexed and were allowed to breed.[21] Ms Lau did not have a breeders licence. She was reportedly surprised to find that Shakira was pregnant.
[21] Shakira had her first litter at an age earlier than the 18 months permitted under the Animal Welfare (Breeding Standard) Determination 2015 (No 1)
62.Despite the fence being in poor condition, Ms Lau obtained the two dogs. When the fence proved incapable of keeping them in (they were escaping about once a week), Ms Lau tried to get her lessor to fix the fence, but this was a protracted process. In the meantime Ms Lau tried tying the dogs up but they broke free[22]. Even after installing cages, the dogs continued to escape around once a month. Ms Lau knew that she was failing to stop the dogs escaping her premises and they were roaming the neighbourhood – including attending the local school which is itself prohibited. At this point, responsible dog management or control would involve making other arrangements for the care of the dogs, at another location, until the backyard could be made secure. No other arrangements were made.
[22] Ms Lau’s oral evidence
63.On 31 January 2018, even though the fencing contractor advised that the fence was complete, a responsible dog owner with these dogs’ history of escape would inspect the fence before letting the dogs out. Ms Lau however did not inspect the fence, let the dogs out of the house and only discovered their escape later.
64.There is no evidence that Ms Lau undertook any significant or formal obedience training with Boost or Shakira, the consequences of that lack of training are evident and noted by the experts. While Shakira and Boost may have been walked by Mr Lau or his cousin, this was certainly not daily. Ms Lau did not walk the dogs to any real extent, but preferred to take them to a dog park if she was to exercise them. I am satisfied that excursions to the dog park did not happen with any great frequency.
65.Ms Lau has had the care of the puppy Bobby since March 2018. She has not taken any steps to undertake formal training with him until the night before this hearing commenced, when she enrolled in a dog club. He is now 10 months old, and Ms Lau proposes to start obedience classes with him when he is one year old in January 2019. Contrary to the submission put on behalf of the applicant I do not consider this to be evidence of responsible dog management, the delay in taking these steps demonstrates that Ms Lau has not learnt from the circumstances of this case.
66.The respondent also pointed to the business records of DAS which showed complaints made about small dogs at Ms Lau’s residence in 2002, 2004 and 2006 and Ms Lau as the registered owner of two dogs. Ms Lau gave evidence that her daughter had one small dog ‘Sandi’ but denied ownership of any other dogs in that period. Mr Oram submitted the Tribunal should prefer the accuracy of the business records in this respect, and I do so. I did not find Ms Lau to be reliable in her memory about what dogs she had owned in the past. This may have been because, as was later explained, she is a dog lover and has had a lot of dogs at her premises over the years, often looking after dogs for other people.
67.By reference to these facts I am unable to be satisfied that Ms Lau, despite the current fence, landscaping and other arrangements, and plans to do obedience classes and her best intentions, will exercise responsible dog management, care and control in the future in relation to either Shakira or Boost.[23]
Unacceptable risk to the safety of the public or other animals if dog released and kept in accordance with a control order
[23] As discussed below, I am also not satisfied that Ms Lau would be able to comply with a control order, if made, which is a relevant a necessary part of responsible dog management, care and control
68.I turn next to the question of risk to the safety of the public or other animals if either dog were to be released to Ms Lau and kept in accordance with the conditions of a control order.
69.On a strictly literal reading of section 64(2)(h), there will never be any risk if a seized dog is released and kept in accordance with the conditions of a control order – this is because the risk is assessed on the assumption the dog is ‘kept in accordance with the conditions’ of the control order. This interpretation would give section 64(2)(h) little work to do: it would prevent return of a dog to its keeper only where it is not possible to craft a control order which addresses risk to the safety of the public or other animals. It seems to me that, even in the most extreme case of a dog which is uncontrollably aggressive to humans, a control order could be devised which would keep the public (including the dog’s keeper) and other animals safe from harm.
70.In my view the better interpretation of this provision is that the Registrar (and hence the Tribunal on review) must first identify the risk the dog poses to the public (noting that this includes the keeper of the dog) and other animals, and then consider the kind of control order that would mitigate the risk to a level that is no longer unacceptable. This second step necessarily includes a consideration of whether the proposed control order would meet the dog’s welfare needs to a minimum standard such that such a control order could be made.[24] If such a potential order is identified, the requirements of paragraph (h) are met.
[24] As suggested at paragraph 27 the Registrar would not make a control order which requires a dog to be kept in a way that constitutes an offence under the Animal Welfare Act 1992
71.However, this is not the end of consideration of the proposed control order for the purposes of section 64. Compliance with an applicable control order must be included in the concept of responsible dog management, care and control. Consequently, the Registrar (and Tribunal upon review) must be satisfied that the keeper will reliably comply with conditions of the proposed control order if the dog were to be released to them. In this, the onerous nature of any conditions and length of time over which they will apply must be considered.
72.In this case, a control order could be crafted for either Boost or Shakira, or both, to require they be kept and managed as described at paragraph 26.[25] Both dogs could be expected to live another 10 years or so, and there is no suggestion that the conditions of the control order would be relaxed over time.[26]
[25] Each party tendered a draft control order – exhibits A5 and R15
[26]There was no expert evidence of a time frame over which Boost or Shakira would be ‘rehabilitated’ or considered to no longer pose a risk to public safety or the safety of other animals
73.In relation to Boost, a control order with such conditions might not be below the minimum standard of care required. However the evidence outlined below leads me to have concerns about the welfare of Shakira if she were to be kept in such conditions, and I would be reluctant to make a control order in relation to her without further evidence as to her welfare needs.
74.In the end, it is not necessary for me to decide whether or not such a control order should be made for either dog, as I am satisfied that even if a control order were made, Ms Lau would not be capable of complying with it over the longer term. I doubt Ms Lau, even with the best of intentions, would be able to ensure that such confinement was appropriately managed so as to meet the needs of one, let alone both, dogs. I note in this regard:
(a)the visible evidence of dogs previously digging out of the cages and history of escapes;
(b)the lack of frequent exercising of Boost and Shakira;
(c)the evidence that Ms Lau is not physically able to restrain the dogs and preferred to take them to a dog park (this would be generally unavailable under a control order);
(d)Ms Lau’s evidence that Shakira repeatedly found ways out of the cages; and
(e)the observations of Ms Margosis that Shakira was visibly distressed when put in the ‘jump cage’, and was hyper aroused in her dog run.
75.In summary, I have first considered whether Boost or Shakira must be returned to Ms Lau under the specific power provided by section 64 of the DA Act. I am not satisfied that Ms Lau meets the requirements of section 64(2)(g), whether or not a control order is made, and accordingly return of either of the dogs to her is not required by section 64. Because section 62(2)(g) is phrased in almost identical terms, release of the dogs to Ms Lau under section 62 is also not required.
76.I will turn then to consider which of the many discretionary powers available to the Registrar under the DA Act should be exercised as the correct or preferable decision in this case.
Discretionary decisions to release (section 70), sell (section 67A) or destroy (sections 53C and 68A)
77.The DA Act provides the Registrar with a suite of powers which are potentially available in relation to Boost and Shakira in the circumstances of this case. These are the general power to release (section 70), the power to sell where owner unfit (section 67A), and the powers to destroy the dogs (section 53C and section 68A).[27]
[27] I have not considered those powers that are available where a dog has been declared dangerous, being section 65 and section 68. Even if such a declaration were made, these provisions would not be available because of my finding that Ms Lau is not able to exercise responsible dog management, care and control (see section 65(2)(c)) and because Ms Lau does not have a dangerous dog licence, and would be unlikely to be granted one given the circumstances of this case (section 68(3)(b) and section 25(2)(b))
78.Section 70 of the DA Act provides a general discretion to the Registrar to return a seized dog to its keeper if satisfied it is in the public interest to return the dog. Mr Sassella submitted that in relation to Boost, if he were not required to be returned under section 64, the correct or preferable decision would be to set aside the decision to sell him and instead decide under section 70 to return him to Ms Lau.
79.Section 70 provides:
70 Returning seized dog to its keeper
(1) The registrar may return a dog seized under this part to its keeper or carer under this section if satisfied that it would be in the public interest to return the dog.
(2) In making a decision under subsection (1), the registrar must consider—
(a)the safety of the public; and
(b)the cost of keeping the dog impounded; and
(c)whether financial or other hardship would be caused to the keeper or carer if the dog were to remain impounded.
(3) Subsection (2) does not limit the matters the registrar may consider.
(4) The registrar may return the dog to its keeper or carer and—
(a)may issue a control order for the dog to the keeper or carer; and
(b)if the registrar issues a control order to a carer of the dog—must give a copy of the order to the dog’s keeper.
(5) If the registrar returns the dog to its keeper or carer under this part, the registrar may waive all or part of any fee payable by the dog’s keeper or carer under this part if satisfied that not to waive the fee would cause the keeper financial hardship.
80.Section 70 requires the Registrar to consider the safety of the public in exercising the discretion. The Registrar should also consider any other relevant factor. I note Boost’s involvement in the attack, and consider that he poses an indirect risk to safety of the public if he were to be involved in a future attack on an animal. I also consider that due to his role in the attack Boost poses a greater risk to other animals. I have already concluded that his keeper Ms Lau will not be able to exercise responsible dog management, care or control of him in the future. For these reasons, I decline to return Boost to Ms Lau under section 70.
81.Although it was not suggested by either party, I have for completeness considered whether Shakira should be returned to Ms Lau under section 70. I consider that Shakira poses a heightened risk to the safety of the public due to her potential for redirected aggression, and a greater risk to other animals as a consequence of her involvement in the attack, redirected aggression and temperament. As noted, Ms Lau will not be able to exercise responsible dog management, care or control of Shakira in the future. For these reasons, I decline to return Shakira to Ms Lau under section 70.
82.Neither party suggested, in the end, that either Boost or Shakira should be sold under section 67A. Nonetheless I have considered whether this would be the correct or preferable decision – not least because it was the original decision in relation to Boost. Section 67A provides:
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.
Note The 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).
83.I am not satisfied that the requirements of section 67A(1)(d) are established, such that it would be open to the Tribunal to decide to sell either Boost or Shakira. Unlike other provisions of the DA Act earlier discussed[28], paragraph (d) does not contemplate or assume the dog is kept in accordance with a control order. Paragraph (d) is to be interpreted as contemplating the dog being kept in the ordinary way – that is, not subject to a control order or the conditions of a dangerous dog licence. The experts in this matter were unanimous as to the need for each dog to be kept in a specified manner, whether by control order or by dangerous dog declaration and licence, in order to reduce the risk to safety of the public and other animals to an acceptable level. I accept those views. I am satisfied that if either Shakira or Boost were to be kept by a responsible owner, but not subject to a control order or dangerous dog licence, they each would pose an unacceptable risk to the safety of the public or other animals.
[28] For example, sections 64(2)(h), 65(2)(d), 65A(3)(b)
84.I do not think it is open to me to exercise the power provided by section 67A.[29] This leaves the Tribunal to consider the provisions of section 53C, or section 68A.[30]
[29] Section 67A may also be unavailable because the dogs should be declared dangerous
[30] I have not, in the end, considered the more general power provided by section 68A, because of the view I have reached under section 53C
85.Section 53C of the DA Act provides:
53C Dealing with attacking, harassing or menacing dogs generally
(1) This section applies if the registrar is reasonably satisfied, because of a complaint or otherwise, that a dog—
(a)attacked a person or an animal and the attack caused—
(i)an injury (other than a serious injury) to the person; or
(ii)serious injury to the animal; or
(b)harassed a person or an animal; or
(c)is aggressive or menacing.
(2) The registrar may decide to destroy the dog.
(3) In making a decision under subsection (2), the registrar—
(a)must consider—
(i) the safety of the public and other animals; and
(ii) if the dog attacked a person or animal—the circumstances of the attack including whether—
(A)the person or animal provoked the dog; or
(B)the person or animal was attacked because the dog came to the aid of a person or animal the dog could be expected to protect; or
(C)if the attack was on premises occupied by the keeper of the dog—the person or animal was on the premises without lawful excuse; and
(b)may consider any other relevant matter.
(4) If the registrar decides not to destroy the dog, the registrar—
(a)may issue a control order for the dog to the dog’s keeper or carer; and
(b)if the registrar issues a control order to a carer of the dog—must give a copy of the order to the dog’s keeper.
Note 1 The registrar may declare a dog to be a dangerous dog if the dog attacked a person or animal—see s 22 (2).
Note 2 The registrar must give a reviewable decision notice for s (2) and s (4) to the keeper or carer 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).
86.Both parties agreed section 53C is available, because section 53C(1) is made out. The question for the Tribunal was whether the discretionary power to destroy either dog should be exercised, or not. Mr Sassella submitted that the correct or preferable decision in relation to Shakira was that she be returned to Ms Lau under a control order. This is the outcome contemplated by section 53C(4). In this respect, section 53C(4) works hand in glove with section 64 when a dog has been seized after an attack. As discussed above, I do not consider it is appropriate for either of the dogs to be released to Ms Lau under section 64, even if a control order were in place. Consequently, I do not consider the correct or preferable decision would be to make a decision under section 53C(4) in relation to Shakira or Boost.
87.I turn then to whether a decision should be made under section 53C to destroy either Boost or Shakira. As required by the DA Act I have considered the circumstances of the attack. Both dogs were involved in it, it was unprovoked (section 53C(3)(a)(ii)) and occurred without verbal warning (i.e. growling). Boost was the instigator, but Shakira was an enthusiastic participant. The attack involved a high level of aggression, it was sustained, and took the combined efforts of five adults to bring it to an end.
88.Boost and Shakira were not coming to the aid of a person or animal nor did the attack occur on the premises occupied by their keeper (section 53C(3)(a)(ii)).
89.In relation to Boost, his behaviour during the attack in biting down hard on Pugley and shaking him multiple times indicates an attack that was beyond mere warning. It was the most serious sort of biting that can be done, and could easily have killed Pugley. Yet observations of Boost’s temperament suggest he is a laid back dog, friendly towards people, if untrained, and both confident and dominant. He has demonstrated some pro-social behaviour when observed by experts, but has not been assessed freely interacting with the range of dog types and personalities, other animals or under other variables which he can be expected to encounter in the future.
90.In relation to Shakira, her involvement in the attack might be interpreted as more consistent with that of warning, by darting in and biting, rather than a serious attempt to kill Pugley. But expert opinions of Shakira indicate she is a dominant dog with a high prey drive, prone to exhibit redirected aggression and escalate very quickly. She is friendly but dominant towards people, and untrained. The assessments of Shakira have the same limitations as those of Boost.
91.Section 53C(3)(a)(i) expressly requires that I consider the safety of the public and other animals. I am satisfied on the evidence that both Boost and Shakira each individually pose a risk to public safety and to the safety of other animals. This was acknowledged by all of the experts: hence, the recommendation as to how they should be kept, and the fact that the assessments did not allow free interaction with other dogs.
92.Both Ms Margosis and Ms Robb were of the opinion that Shakira should be euthanised. Mr Ehlers did not share that view. None of the experts thought that Boost should be destroyed.
93.Mr Ehlers noted that most dog behaviourists are reluctant to conclude that a dog should be destroyed. He said they may believe that there is no such thing as a ‘bad’ dog, and that with the right owner, and training, and if kept in a certain manner, most dogs can be rehabilitated or at least kept safely. These views may be correct, however the Tribunal must weigh up the likelihood of these general principles holding true with these particular dogs, and with regard to all of the factors which cannot be controlled once they return to the community. It is not surprising that none of the experts could predict whether or not Shakira or Boost would attack again, there are too many unknown, and uncontrollable, variables.
94.In making a decision under section 53C or 68A of the DA Act the Tribunal is not bound to adopt an expert opinion. To do so would be to substitute an expert’s view for the exercise of discretion under the statute required of the Tribunal.
95.Section 53C(3)(b) permits the Registrar to consider ‘any other relevant matter’ in deciding whether to destroy the dogs. I have considered that the dogs belong to Ms Lau, she is greatly attached to them, and will probably be devastated by a decision to destroy them.
96.I have considered Boost and Shakira’s young ages, and the probably lengthy period over which they would have to be managed so as to avoid any chance of a further attack. The conditions on which they would need to be kept are onerous, and over such an extended period there is a greater risk of accidental non-compliance. These are dogs that are likely to attack again, in a serious manner. It should not be forgotten that it took the combined efforts of five adults to stop their previous attack.
97.Overall, I consider that the preferable decision is that both Shakira and Boost be destroyed under section 53C, and I will therefore confirm the Registrar’s decision in relation to Shakira; and substitute for the decision to sell Boost, a decision that he, too, is to be destroyed.
………………………………..
Presidential Member MT Daniel
HEARING DETAILS
FILE NUMBER:
AT 64& 65/2018
PARTIES, APPLICANT:
Zenaida Lau
PARTIES, RESPONDENT:
Registrar, Domestic Animal Services Act 2000
COUNSEL APPEARING, APPLICANT
Michael Sassella
COUNSEL APPEARING, RESPONDENT
Mr Oram
SOLICITORS FOR APPLICANT
Legal Aid ACT
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
Presidential Member MT Daniel
DATES OF HEARING:
13, 14, 15 November 2018
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