Reid v Registrar, Domestic Animals Act 2000 (Administrative Review)
[2023] ACAT 14
•07 March 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
REID v REGISTRAR, DOMESTIC ANIMALS ACT 2000 (Administrative Review) [2023] ACAT 14
AT 68, AT 69/2022
Catchwords: ADMINISTRATIVE REVIEW – Domestic Animals Act2000 – review of decisions to destroy two dogs after attack causing death to another animal – sections 22, 24 and 53B of the DA Act considered – one decision is to be confirmed – another decision is to be replaced by a dangerous dog declaration
List of Legislation: ACT Civil and Administrative Tribunal Act 2008 ss 9, 68
Domestic Animals Act2000 ss 22, 24, 53B, 61,120
List of subordinate
Legislation:Domestic Animals Regulation 2001, schedule 1
List of Cases: Bates v Registrar, Domestic Animals Act 2000 [2020] ACAT 97
Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 93
Tribunal:Senior Member Prof T Foley
Date of Orders: 07 March 2023
Date of Reasons for Decision: 07 March 2023
AUSTRALIAN CAPITAL TERRITORY ) AT 68/2022
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 69/2022
BETWEEN:
REBECCA REID
Applicant
AND:
REGISTRAR, DOMESTIC ANIMALS ACT 2000
Respondent
TRIBUNAL:Senior Member Prof T Foley
DATE:07 March 2023
ORDER
AT 68/2022
The Tribunal confirms the decision under review with respect to the dog Lucifer.
AT 69/2022
The Tribunal sets aside the decision under review with respect to the dog Dotti and makes the following substitute decision:
(a)A declaration pursuant to section 22 of the Domestic Animals Act2000 that Dotti is a dangerous dog.
Should the applicant or another person apply for a dangerous dog licence pursuant to section 24 of the Domestic Animals Act2000 with respect to Dotti, the Tribunal recommends the respondent impose the following conditions, amongst other things, on the issue of a licence:
(a)the applicant must arrange for Dotti to complete effective behaviour modification re-training designed to desensitise her to unfamiliar dogs with a view to reducing her level of arousal when encountering them;
(b)the applicant must be with the dog at all times when it is in a public place;
(c)the applicant must ensure the dog wears a muzzle and is restrained by double leads when in a public place;
(d)the applicant must ensure the security of the premises where the dog is kept including providing adequate and secure fencing;
(e)the applicant must ensure a warning sign is displayed on all gates and doors at the premises where the dog is kept warning people entering the premises that a dangerous dog is kept on the premises.
………………………………..
Senior Member Prof T Foley
REASONS FOR DECISION
Rebecca Reid (the applicant) has sought review of two decisions of the Registrar, Domestic Animals Act 2000 (the respondent or Registrar) of 30 August 2022 to destroy her dogs, Lucifer and Dotti, pursuant to section 53B of the Domestic Animals Act2000 (the DA Act).
Jurisdiction to review the respondent’s decisions is conferred on the Tribunal by section 120 of the DA Act which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). Schedule 1 Item 17 of the Domestic Animals Regulation 2001 (the DA Regulation) provides that a decision to destroy a dog under section 53B(2) is a reviewable decision. The review is an application for review by the ACT Civil and Administrative Tribunal pursuant to section 68 of the ACAT Act.
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the member who heard the application.
The Hearing
The matter was heard on 24 and 25 January 2023. The Tribunal had before it the documents provide by the respondent on which its decision was based (the T Documents) and the submissions of the parties. The applicant was self‑represented. The respondent was represented by Ms Sarah Baker-Goldsmith of counsel.
The applicant gave evidence and called both lay and expert evidence. The applicant made submissions and responded to questions of the Tribunal. The respondent called lay and expert evidence, and its counsel made submissions and responded to questions of the Tribunal.
At the conclusion of the hearing, the Tribunal reserved its decision and indicated it would provide written reasons. These are those reasons.
Background
On 26 May 2022, Lucifer and Dotti attacked a dog named Rebel by jumping the fence of the adjourning property. Rebel was killed in the attack. The incident was captured on CCTV which shows a prolonged attack of some 20 minutes. The footage of the attack caused great distress to Rebel’s owners who reported the incident to the respondent.
Domestic Animal Services (DAS) rangers identified and issued seizure notices for the dogs under section 61 of the DA Act. The dogs were impounded at the DAS facility where they remain.
Following investigation, the respondent issued a Notice of Decision to Destroy with respect of each dog on 30 August 2022.
On 2 September 2022, the applicant made an application to the ACAT for review of the respondent’s decision.
Lucifer is a sexually entire male American Pit Bull breed, and Dotti is a desexed female American Bull Terrier breed. Both dogs were aged approximately two years old at the time of the incident.
The relevant law
Section 53B “Attacking, harassing and menacing dogs” of the DA Act relevantly provides:
53B Dealing with attacking dogs—death or serious injury to person or death of animal
(1) This section applies if the registrar is reasonably satisfied, because of a complaint or otherwise, that—
(a)a dog attacked a person or an animal; and
(b)the attack caused—
(i)the death of the person; or
(ii)serious injury to the person; or
(iii)the death of the animal.
(2) The registrar must destroy the dog.
(3) However, subsection (2) does not apply if, and only if, the registrar is reasonably satisfied the dog is not likely to be a danger to the public or another animal.
(4) For subsection (3), the registrar may consider—
(a)the circumstances of the attack including whether—
(i)the person or animal provoked the dog; or
(ii)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
(iii)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)whether reasonable steps can be taken to reduce the risk of the dog endangering the public and other animals; and
(c)any other relevant matter.
(5) The registrar may destroy the dog if—
(a)the registrar gives the dog’s keeper written notice of the decision to destroy 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 destroy the dog is confirmed.
(6) 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).
Also relevant are sections 22 “Declarations—dangerous dogs” and 24 “Dangerous dog licences – applications” which provide for alternative orders the Tribunal may make:
22 Declarations—dangerous dogs
(1)The registrar must declare a dog to be a dangerous dog if—
(a)the dog has been trained as a guard dog, or is kept as a guard dog for guarding premises; or
(b)the dog has attacked and caused the death of or serious injury to a person; or
(c)a decision has been made under a law of a State in relation to the dog, the effect of which is comparable to a declaration under this section.
(2) The registrar may declare a dog to be a dangerous dog if—
(a)the dog has attacked or harassed a person or animal; or
(b)the registrar reasonably believes the dog—
(i)is aggressive or menacing; and
(ii)without being kept in accordance with a dangerous dog licence, would be an unacceptable risk to the safety of the public or other animals.
(3) In making a decision under subsection (2), the registrar must consider the circumstances surrounding the attack or harassment.
(4) Subsection (3) does not limit the matters the registrar may consider.
(5) If the registrar makes a declaration under this section, the registrar must give written notice to a keeper of the dog.
(6) The notice must—
(a)contain a statement to the effect that the registrar has declared the dog to be a dangerous dog; and
(b)describe the obligations of a keeper of a dangerous dog under this Act; and
(c)if the declaration is made while the dog is impounded—contain a statement to the effect that the dog may be sold or destroyed after 7 days beginning on the day after the keeper is given the notice unless, within that 7 days, an application is made for a dangerous dog licence.
24 Dangerous dog licences—applications
(1) An adult may apply to the registrar for a licence to keep a dangerous dog.
(2) An application must state—
(a)the registration number of the dog; and
(b)the premises where the applicant intends to keep the dog.
(3) The registrar may waive any application fee for a licence to keep a dangerous dog if reasonably satisfied—
(a)the dog was declared to be a dangerous dog only for the reason mentioned in section 22 (1) (a); and
(b)if the dog is kept in accordance with a dangerous dog licence, it will not be an unacceptable risk to the safety of the public and other animals.
(4) A fee determined under section 144 for an application for a licence to keep a dangerous dog declared under section 22 (1) (b) or (c) or section 22 (2) must be at least 10 times the application fee (if any) for registration of a dog under section 6.
The matter at issue
The issue for determination is whether it should confirm the respondent’s decision to destroy the two dogs not being reasonably satisfied that either Lucifer or Dotti are likely to pose a danger to the public or another animal.
Expert evidence
The Tribunal was greatly assisted by expert evidence from three witnesses, one called by the applicant and two by the respondent. Each had carried a temperament assessment of the dogs, viewed the CCTV footage of the attack, provided a written report, and gave oral evidence.
Andrew Clark was called on behalf of the applicant. Mr Clark operates the business Total Dog Specialist Canine Services and is a specialist dog trainer and consultant. He carried out an assessment of both dogs on 9 November 2022 at the DAS facility where they have been housed since the incident. He prepared separate reports for each dog. As to Lucifer, his conclusion was that the dog is highly aroused by unknown dogs. He identified as problematic that Lucifer was susceptible to “instinctual drift”, that is reversion to instinctual behaviour that overrides the dog’s domestication or training when highly aroused. He counselled caution in the future management of Lucifer to reduce the dog’s arousal levels as regards other unknown dogs. He said Lucifer did not pose a threat to humans. As to Dotti, after viewing the CCTV footage, he identified Dotti’s part in the attack as much the lesser of the two. He said Dotti’s initial interaction was curiosity and, in his view, would not have initiated an attack in the circumstances on her own. His conclusion was that caution also needs to be exercised in the future management of Dotti, but he was of the view the dog could be managed in the community if certain recommendations were followed.
Peter Hockings was called on behalf of the respondent. The approach he adopted for the temperament assessment where he attempted to provoke the animals into an aggressive response was strongly criticised by the applicant and by a number of her witnesses. Mr Clark in particular found the procedures followed to be problematic, and his view was that nothing useful as to temperament response could be drawn from the assessment or Mr Hockings’ report. Nonetheless, Mr Hockings observed in his assessment on 15 August 2022 at the DAS facility that both Dotti and Lucifer displayed an elevated level of reactivity to other dogs. They were not dangerous to humans but were to other animals especially when together. They then would fall into a “prey-based mindset”, which in his view pit bull breeds had a genetic predisposition for. His assertion of genetic predisposition was rejected by both the other experts. His conclusion was that if the dogs were not to be destroyed, he would make recommendation for their future management similar to those suggested by the third expert.
Sean Ehlers was called on behalf of the respondent. Mr Ehlers operates a business Naughty Dog Trainers and is its head instructor. He carried out an assessment of both dogs on 14 July 2022 at the DAS facility. He prepared a joint report for both dogs. He assessed the dogs as having no issues of concern with respect to humans. His view was that Dotti had less involvement in the attack and on viewing the CCTV footage did not appear to join in until Rebel was deceased. It was his written opinion which he confirmed in oral evidence, that if certain recommendations are followed the dogs do not need to be destroyed. He recommended that they both be declared as dangerous dogs. In that case, he recommended the dogs be rehomed separately; be muzzled in public; be secured in a yard that is dog proof and be subject to behaviour modification training, in particular desensitising them to unfamiliar dogs.
At the end of their oral evidence, each of the expert witnesses were asked by the Tribunal to respond to three questions:
(a)Can you be satisfied that the dogs are not likely to be a danger to another animal in the future?
(b)Why do you think the dogs attacked and killed Rebel?
(c)Does having attacked and killed once increase the dogs’ propensity for further attacks?
The three witnesses said they could only be satisfied that further danger to another animal could be alleviated if effective re-training and adequate restraints were put in place. Only Mr Clark was prepared to give a definitive answer as to the cause of the attack. He put it down to their hyper arousal levels when encountering other dogs. This was particular the case with Lucifer who seemed to instigate the attack on Rebel. He said the level of hyper arousal could be reduced with retraining involving “lots of structure control”, but Lucifer would need “a lot of this”. All three experts were of the view that the dogs’ propensity for future attacks had increased.
The applicant’s lay evidence
The applicant called five lay witnesses who were relatives or friends and who were familiar with the dogs and her management of them. However, none of the witnesses had seen either dog in the absence of the applicant so their evidence as to the dogs’ behaviour in these circumstances was of limited value.
The applicant gave evidence that she obtained Lucifer when he was about 12 weeks old and Dotti from 14 weeks. Both dogs were reared together initially, and then Dotti went elsewhere following her relationship breakup. She later reacquired Dotti but saw that a lot of her training had been lost. I accept her evidence that she has taken the training of the dogs seriously and has been committed to it. I also accept that she has been diagnosed with mental health issues, and the dogs have provided her with emotional support.
As with other of her witnesses, she expressed grave concern about the temperament assessment conducted by Mr Hockings and said seeing the video of it upset her. She was not present at the assessment.
Since the incident, she has moved from her parents’ home where the dogs escaped from the backyard and killed Rebel next door. She now resides in rented granny flat type of accommodation on her landlord’s property in a different suburb. She has a separate enclosed yard with a surrounding Colorbond fencing currently at shoulder height. She said she has agreement with her landlord to raise the height of the fencing and to secure the entry gate if required. In cross examination, she gave evidence and provided a sketch plan of her current rented accommodation. I am satisfied that the premises she described has a separate yard which could be made secure and is large enough to house a large animal. In the main, I found the applicant an honest, forthright, and thoughtful witness.
The respondent’s lay evidence
The respondent called the owner of Rebel who at the time of the incident lived with her parents and family at the Hughes address with the family dog, Rebel.
The owner of Rebel gave evidence that she and her family had owned Rebel since 2015. She had seen Lucifer and Dotti enter their yard by jumping the fence on several occasions in the past. She was present later in the evening of the incident when the applicant and her mother attended the Rebel’s owners’ home. She gave evidence that, by then, her father had viewed the CCTV footage and had understandably found it quite confronting. She said she heard her father comment to the applicant that DAS may need to put down the dogs in view of what had happened. She said she clearly remembers the applicant replying, “But this is only their first offence”. She said the comment added to her family’s distress.
The Tribunal’s consideration and conclusions on the matter at issue
Section 53B provides a tight legislative constraint on what the Registrar, and in its place the tribunal, can do.
Section 53B(1) provides, relevantly, that if the Registrar is reasonably satisfied that the dogs attacked an animal and that attack caused its death, then the dog must be destroyed. All of those elements are made out here. There were some submissions from the applicant[1] and some evidence from Mr Ehlers that Dotti does not appear to join in until Rebel has died, but on a close review of the CCTV footage, I do not accept that.
[1]Applicant’s submissions dated 15 December 2022 at [32]
As the Tribunal said in Bates v Registrar, Domestic Animals Act 2000 [2020] ACAT 97,[2] section 53B sets a mandatory imposition on the decision maker that the dogs must be destroyed. This brings into play section 53B(3) which provides a narrow exception to destruction (couched in very restrictive terms namely, “if, and only if”) where Tribunal is reasonably satisfied that the dogs are not likely to be a danger to the public or another animal. This consideration must be made with respect to each dog separately.
[2] [2020] ACAT 97 at [40]
There were submissions by the applicant that it is not correct to assert that “the overarching purpose of the DA Act” is public safety. This is consistent with what the Appeal Tribunal said in Oliver v Registrar, Domestic Animals Act 2000 [2021] ACAT 93,[3] namely that securing public safety may be the overriding purpose of Division 2.3 Dangerous dogs of the DA Act, but section 53B does not sit in that Division but in Division 2.6. Nonetheless, the respondent is correct in contending that the safety of the public and other animals is clearly a core consideration in relation to attacking, harassing, and menacing dogs.[4]
[3] [2021] ACAT 93 at [32], [33]
[4] Respondent’s submissions dated 9 January 2023 at [24]
Section 53B(4) set out a list of matters to consider in reaching a view under section 53B(3). Section 53B(4)(c) details circumstances that made the attack unique or unusual – provocation by the subject of the attack; the dogs coming to the aid of the applicant or another; or the attack being on the applicant’s family premises. None of those circumstances apply.
This leaves two further exceptions, that provided by section 53B(4)(d) as to whether “reasonable steps can be taken to reduce the risk of the dog endangering the public and other animals” and the broader exception provided by section 53B(4)(e) namely “any other relevant matter”.
Clearly, the mental health concerns the applicant raises in her submissions[5] fit into the section 53B(4)(e) consideration. I do not make light of these but in no way do I find that they can outweigh the serious public safety concerns such as to constitute an exception to the destruction order.
[5] Applicant’s submissions dated 15 December 2022 at [46], together with the applicant’s own evidence and that of her lay witnesses.
The section 53B(4)(d) considerations do warrant close examination for each dog separately to see if it offers an exception to destruction.
Lucifer
The most persuasive expert evidence about Lucifer’s temperament response and the risk it poses to the public and other animals came from Mr Clark. I accept his view that Lucifer’s temperament is problematic, and the dog is susceptible to what he described as “instinctual drift” – that is to say reversion to instinctual behaviour that overrides its domestication or training when highly aroused.
In Mr Clark’s view, Lucifer displayed hyper arousal levels when encountering other dogs and this provoked the attack on Rebel. He said the danger to another animal remains and could only be alleviated if effective re-training and adequate restrains were put in place. Hyper arousal levels may be reduced in dogs using structure control retraining designed to override their instinctive responses. However, in the case of Lucifer in Mr Clark’s view, the dog would need “a lot of this”. He counselled extreme caution in the future management of Lucifer as regards other unknown dogs.
Therefore, given the amount of retraining which would be required and a lack of certainty that it would be effective, I am not satisfied that reasonable steps can be taken to reduce the risk of Lucifer endangering other animals in the future. In reaching this view, I have had regard to the opinion of all three experts that the dog’s propensity for future attacks has increased as a consequence of the attack on Rebel.
Dotti
I accept the evidence of Mr Clark and Mr Ehlers that Dotti’s part in the attack was much the lesser of the two dogs, that she did not initiate the attack and joined in only later in the attack, but her hyper arousal levels are also problematic particularly following the attack on Rebel and the increased propensity to attack again. However, I accept Mr Clark’s view that the dog could be managed in the community if certain recommendations were followed.
The view I have reached as regards Lucifer is that the exception provided by section 53B(4)(d), namely that there are reasonable steps that can be taken to reduce the risk of the dog endangering other animals is not satisfied. The view I have reached as regards Dotti is the opposite. I consider there are reasonable measures that can be taken to satisfactorily reduce the risk.
I have decided in the case of Dotti that such measures are best managed and put into effect by a declaration that Dotti is a dangerous dog pursuant to section 22 of the DA Act. An alternative order to a destruction decision in this form is contemplated by section 53B(6). It is then open to the applicant to make an application for a dangerous dog licence under section 24. Both the dangerous dog declaration and any refusal to grant a licence to keep a dangerous dog, or to impose conditions seen as unreasonable are reviewable decisions as per Schedule 1 of the DA Regulation.
In conclusion, I note the applicant denied she made the comment attributed to her by the owner of Rebel on the evening of the incident, namely that she said, “But this is only their first offence”. Nonetheless, I accept that it was made and that it added greatly to the family’s distress. With respect, it would be useful for her to reflect on this in the light of her own considerable distress when she viewed the footage of Mr Hockings’ temperament assessment of her dogs. The owner of Rebel also reports her father as explaining to the applicant that the dogs’ actions were not the applicant’s fault. This is true and she should take solace in this.
Decision
AT 68 of 2022
The Tribunal confirms the decision under review with respect to the dog Lucifer.
AT 69 of 2022
The Tribunal sets aside the decision under review with respect to the dog Dotti and makes the following substitute decision:
(a)A declaration pursuant to section 22 of the Domestic Animals Act2000 that Dotti is a dangerous dog.
Should the applicant or another person apply for a dangerous dog licence pursuant to section 24 of the Domestic Animals Act2000 with respect to Dotti, the Tribunal recommends the respondent impose the following conditions, amongst other things, on the issue of a licence:
(a)the applicant must arrange for Dotti to complete effective behaviour modification re-training designed to desensitise her to unfamiliar dogs with a view to reducing her level of arousal when encountering them;
(b)the applicant must be with the dog at all times when it is in a public place;
(c)the applicant must ensure the dog wears a muzzle and is restrained by double leads when in a public place;
(d)the applicant must ensure the security of the premises where the dog is kept including providing adequate and secure fencing;
(e)the applicant must ensure a warning sign is displayed on all gates and doors at the premises where the dog is kept warning people entering the premises that a dangerous dog is kept on the premises.
………………………………..
Senior Member Prof T Foley
| Date(s) of hearing: | 24 and 25 January 2023 |
| Applicant: | In person |
| Counsel for respondent | Ms Sarah Baker-Goldsmith |
| Solicitor for Respondent: | Ms S Ng, ACT Government Solicitor |
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