Research Brief
New reports, bills and updates of latest research
Parliamentary Library Research Service
Department of Parliamentary Services
ISSN 1836-7828 (Print) 1836-8050 (Online)
Number 6 May 2010
Domestic Animals Amendment (Dangerous Dogs) Bill 2010
This Research Brief includes the following sections:
Introduction...... 1
1. Second Reading Speech...... 2
2. Background...... 2
3. The Act ...... 5
4. The Bill...... 7
5. Views of Stakeholders ...... 11
6. Other Jurisdictions...... 14
References ...... 19
NB: Readers should note that this Research Brief was current at the time of its preparation prior to the conclusion of debate on the Bill by the Victorian Parliament. For further information please visit the Victorian Legislation and Parliamentary Documents website @ http://www.legislation.vic.gov.au.
Introduction
On 4 May 2010 the Victorian Government introduced the Domestic Animals Amendment (Dangerous Dogs) Bill 2010 (‘the Bill’). The Bill amends the Domestic Animals Act 1994 (‘the Act’). The main purpose of the Bill is to make further provision for the registration of restricted breed dogs and to amend the definition of a restricted breed dog, to provide that the Victorian Civil and Administrative Tribunal (VCAT) may review declarations of restricted breed dogs and to abolish review panels, and to increase penalties for certain offences. The Bill also further enables the making of declarations of dangerous dogs and menacing dogs and provides further destruction powers for dogs to be destroyed by authorised Council officers.
The proposed legislation was signalled in the 2010 Annual Statement of Government Intentions and responds to public concern around recent dog attacks in Victoria. Parliamentary Library Research Service
1. Second Reading Speech
The Minister for Agriculture, the Hon. Joe Helper gave the second reading speech for the Bill on 6 May 2010.1 Mr Helper stated that the Bill addressed community needs and expectations over serious dog attacks and responsible dog ownership and education. He also stated that the Bill did this by strengthening council powers to control and destroy dogs that are a danger to the community, by increasing penalties for irresponsible owners whose conduct has allowed dogs to attack, by increasing resources for educating dog owners and by reforming the existing restricted breed regime.
The Minister said that ‘It is a central tenet of dog management legislation that a dog is confined, registered and identifiable to its owner’, yet he noted that an estimated 40 per cent of dog owners fail to register their animals. He also noted that effective regulation, including compliance, animal management services and public education programs depended on registration.
The Minister noted that in 2003 the Victorian Government introduced restricted breed dog legislation. The Minister stated:
As at January 2010 there were 335 restricted breed dogs in Victoria. However, microchip identification registry declarations by owners suggest that there are several times that number of this type of dog in the community that are registered as another almost identical breed or as a crossbreed of another breed. This means that these dogs are not being kept in accordance with the strict controls that apply to restricted breed dogs that may be kept under the Act.2
He went on to say that in order to better regulate restricted breed dogs, ‘in place of the current prohibition’, the Bill provides a two year amnesty period that will allow owners to register restricted breed dogs and thereby bring them under the existing strict controls. The Bill also provides a standard to be prescribed to assist with the identification of a dog as one of the restricted breed dogs, including dogs that are a crossbreed.
2. Background
Legislative Background In 1991 Australia banned the importation of the following dogs: American Pit Bulls, Pit Bull Terriers, Fila Brasileiros, Dogo Argentinas and Japanese Tosas. This was not the first time Australia has restricted certain breeds of dogs from entering Australia as from 1928-1972 the importation of German Shepherds was banned, following concern that they would breed with dingos and attack sheep. Other states also placed bans on German Shepherds (then more commonly known as Alsatians), such as South Australia with the Alsatian Dog Act 1934. South Australia did not repeal its legislation prohibiting Alsatians until 1983 with the Alsatian Dog Repeal Act 1983.
Legislation in Victoria pertaining to the management of dogs is contained in the Domestic Animals Act 1994 (‘the Act’) and the Prevention of Cruelty to Animals Act 1986. The Domestic Animals Regulations 2005 further provides for the management of
1 Victoria, Legislative Assembly (2010) Debates, 6 May, pp. 1722-1723. 2 ibid.
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dogs and sets out requirements for dangerous dogs and restricted breed dogs such as requirements for dog enclosures and warning signs that must be displayed.
The purpose of the Domestic Animals Act is to ‘promote animal welfare, the responsible ownership of dogs and cats and the protection of the environment…’. Among other things, the Act provides for a registration and identification scheme for dogs and cats and sets out the powers and duties of Councils with respect to the control of dogs and cats. The Act allows Councils to declare that a dog is a dangerous dog, a menacing dog or a restricted breed dog. The Act also gives Councils the power to seize and dispose of dogs or cats under certain circumstances. Owners of dogs and cats have explicit responsibilities according to the Act, such as to not abandon that animal (10 penalty units) and to not allow that animal to ‘be a nuisance’ (1 penalty unit).
In 2001 the Animals Legislation (Responsible Ownership) Act declared particular breeds of dogs to be restricted in line with Commonwealth legislation. It also increased the penalty for liability for a dog attack so that if a dangerous dog attacks or bites any person or animal the owner will be liable for a fine of 120 penalty units or six months in jail, and increased the fine from $500 to $1000 for a dog that is not a declared dangerous dog that attacks someone. In 2003 the Victorian Government introduced restricted breed dog legislation to stop the breeding of dangerous and restricted breed dogs. In 2005 the Primary Industries Acts (Further Amendment) Act 2005 made several changes to legislation regarding restricted breed dogs, including: . doubling penalty units for failing to declare a restricted breed dog or for giving false information about restricted breed dogs; . requiring the compulsory desexing of dangerous or restricted breed dogs; . requiring dangerous, menacing or restricted breed dogs to be microchipped; . prohibiting Councils from registering restricted breed dogs, but allowing Councils to renew registrations for restricted breed dogs; and . allowing authorised officers of the Council to seize and destroy unregistered restricted breed dogs.3
Dog Attacks in the Community It has been reported that Australia has the highest incidence of pet ownership per household in the world with more than two thirds of households owning pets.4 It is estimated that Australia has a canine population of about 4 million.
In the media it has also been reported that almost six people are attacked by dogs every day in Victoria with more than 2,000 people treated at a hospital for dog bites in 2008, with the lengths of stays ranging from two days to more than a month.5 In 2009 almost one dog attack a week was reported to the Greater Geelong City Council, yet the number of registered dangerous dogs had dropped by almost half.6
Examples of recent dog attacks that have received media coverage include the attack by a Pit Bull-Staffordshire cross terrier in March 2010 of a 67-year-old woman. The
3 See B. Lesman (2005) Primary Industries Acts (Further Amendment) Bill 2005, D-Brief No. 6, September, Parliamentary Library Research Service, Parliament of Victoria. 4 DOGS Victoria (2010) ‘Caring for Dogs’, viewed 21 May 2010,
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woman’s arm was partially severed by the dog which was the ‘family pet’.7 In October 2009, an American Pit Bull Terrier attacked a man in Melbourne and killed his two dogs.8 In February 2008 an 11-year-old Melbourne girl was hospitalised after being bitten by the family dog, which was believed to be a Labrador.9 In late 2007 a nine- week-old baby girl was reportedly dragged from her cot and killed by a pet Rottweiler.10
Research by Monash University’s Victorian Injury Surveillance Unit (VISU) found that in 2005-2007 there were three deaths and more than 6,330 people treated for dog bite injuries in Victorian hospitals (1,445 hospital admissions and 4,885 emergency department presentations).11 VISU’s research found that two-year-olds were at the highest risk of dog bite injury. Emergency department data indicated that the majority of these attacks occurred at the injured person’s own home or another person’s home (57 per cent) with 11 per cent occurring on the road or street. Over this three year period there were 36 recorded traumatic finger amputations. The family pet was involved in the majority of emergency department cases for child dog bite injuries.12
Breed-specific Legislation Breed-specific legislation refers to legislation that applies to a specific breed or breeds of animal, such as the legislation currently enforced in the Commonwealth prohibiting the importation into Australia of certain breeds of dogs.
In discussing dog bite risk factors, VISU note that breed is ‘a controversial issue’ since this is predicated on having reliable identification of a dog breed by owners registering dogs and of the biting dogs by persons reporting bites. VISU state that, ‘There is some evidence that biting dogs are less likely to be registered than non-biting dogs. Further, disproportionate media attention given to bites by specific breeds may also skew both breed identification and the reporting of bites to authorities’.13
This is also complicated by the fact that it is estimated that nearly half the dogs in Australia are crossbreeds.14 This has meant that many dogs that are crossbreeds of restricted dogs may not be declared as such and hence may not be registered accordingly.
There has been a lot of criticism for breed-specific legislation (see Stakeholder section below), particularly as the American Pit Bull Terrier is the product of interbreeding between terriers and a breed of bulldogs. Most commonly, the term Pit Bull refers not to a pure breed but to different breeds, usually the American Pit Bull Terrier and the American Staffordshire Terrier.
Several court cases internationally have challenged the legitimacy of breed specific legislation, such as Cochrane v. Ontario (Attorney General), 2008 ONCA 718 in
7 R. Grace (2010) ‘Woman’s arm severed in dog attack’, The Age, 23 March. 8 A. Magee (2009) ‘Pit bull attacks man, kills pet dogs in Melbourne’, Herald Sun, 19 October. 9 ABC News (2008) ‘Melbourne girl in hospital after dog attack’, ABC News, 17 February. 10 Sunday Herald Sun (2008) ‘When man’s best friend becomes the enemy’, Sunday Herald Sun, 20 January. 11 E. Cassell & K. Ashby (2009) ‘Unintentional dog bite injury in Victoria: 2005-07’, Hazard 69, Monash University, Victorian Injury Surveillance Unit, pp. 1-24. 12 ibid., p. 9. 13 ibid., p. 17. 14 ibid. See also Australian Companion Animal Council Inc., ‘Dogs in Society Position Paper: Dog bite incidence and dog bite prevention’, viewed 20 May 2010,
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relation to Pit Bulls, where the appellant argued that the law was unconstitutionally broad and that the law failed to provide an ‘intelligible definition of pit bulls’.15 Another similar case was Vanater v. Village of South Point, 717 F. Supp. 1236 (D. Ohio 1989).
In American Dog Owners Ass'n, Inc. v. Dade County, Fla., 728 F.Supp. 1533 (S.D.Fla.,1989) associations of dog owners sued Dade County, Florida contending that the ordinance that regulated ‘Pit Bull’ dogs was unconsitutionally vague as there was no such breed as a Pit Bull but rather three breeds that had been lumped together by the ordinance. The Court granted judgement in favor of Dade County, the defendants. Court findings, such as in these instances, have generally held that the definition of Pit Bull terriers is not vague and that there is a need to protect the public from certain types of dogs.
Nonetheless, Queensland’s policy of euthanising unregistered or wrongly registered Pit Bulls has recently been challenged in court after the owners of a dog assessed by council officers to meet the criteria for an American Pit Bull Terrier crossbreed questioned the decision. This decision has been reported as opening up potential litigation by the owners of around 5,000 dogs that may have been wrongly identified as Pit Bulls.16
3. The Act
This section will look at the existing provisions in the Act regarding the management of dogs, in particular dangerous and restricted breed dogs, in order to provide background and context to the legislation around dog ownership and responsibiity. Following this, a discussion of the main provisions in the Bill will examine what the proposed changes to the legislation are regarding dangerous dogs.
Dangerous Dogs Section 34 states that a Council may declare a dog to be a dangerous dog: . If the dog has caused the death of or serious injury to a person or animal by biting or attacking that person or animal; or . If the dog is a menacing dog and its owner has received at least 2 infringement notices in respect of an offence of failing to restrain that dog (in a manner specified in the notice declaring the dog to be a menacing dog, such as by muzzle or under the effective control of some person by means or a chain, cord or leash, see s. 34(b) and s. 41E); or . If the dog has been declared a dangerous dog under a law of another State or a Territory of the Commonwealth that corresponds with this Division; or . For any other reason prescribed.
A dog is also a dangerous dog if the dog is kept as a guard dog for the purpose of guarding non-residential premises (s. 34A(a)) or if the dog has been trained to attack or bite any person or any thing when attached to or worn by a person (s. 34A(b)).
15 Cochrane v. Ontario (Attorney General), 2008 ONCA 718, p. 2. 16 R. Guilliatt (2009) ‘The pit bull is the usual suspect’, The Australian, 27 November. See also The Daily Telegraph (2010) ‘Aussie couple spend $500k to save dog’, The Daily Telegraph, 7 April.
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The Act defines whether or not a dog is dangerous on the basis of its deed, which, according to the Department of Primary Industries recognises that ‘not all members of a breed of dogs behave in exactly the same way’.17
Dogs declared to be dangerous, menacing or of a restricted breed must be implanted with a prescribed permanent identification device (microchip) (s. 19(2); 5 penalty units). Councils must record all dogs declared Dangerous, Menacing and Restricted Breed Dogs as well as the location where the dog is kept in a Victorian Declared Dog Registry.
Owners of dangerous dogs must display signs warning people that a dangerous dog is kept on the premises (s. 39).18 The owner of a dangerous dog must notify the Council within 24 hours if the registered dog is missing or if there are changes to the owner’s address, the place where the dog is kept or changes to the ownership of the dog (s. 37(2); 10 penalty units). Dangerous dogs must wear a collar at all times (s. 40 of the Act; the requirements of which are specified in r. 10 of the Regulations).
Restricted Breed Dogs A ‘restricted breed dog’ is defined as a breed whose importation into Australia is prohibited under the Commonwealth Customs (Prohibited Imports) Regulations 1956. The following dogs are restricted breed dogs: Pit Bull Terrier Breeds (including the American Pit Bull Terrier); Dogo Argentino (Argentinian fighting dog); Fila Brasileiro (Brazilian fighting dog); Japanese Tosa; Perro de Presa Canario.
Of these, the Pit Bull Terrier and the Perro de Presa Canario are the only breeds currently known to exist in Australia.19 Importantly, a restricted breed dog can include any dog of a mixed breed that visibly contains any of the above prohibited breeds.
The Act states that a person must not keep a restricted breed dog unless the person acquired the dog before the commencement of section 15 of the Primary Industries Act (Further Amendment) Act 2005. The penalty for an offence is 10 penalty units. This prevents people acquiring restricted breed dogs. This legislation also gave Councils the power to seize and destroy restricted breed dogs if they have not been previously registered, declared and living in Victoria prior to 2 November 2005.
It is a requirement that restricted breed dogs be desexed and have microchip identification (s. 17(1A); s. 19(2)). A Council cannot register a restricted breed dog unless the dog is desexed (subject to the exception under section 10B(1)(e)). A person must also not own more than 2 restricted breed dogs unless that person has a permit from the Council (s. 41J; 5 penalty units). The owner of a restricted breed dog must also not sell, give or otherwise transfer ownership of the dog to another person who is less than 17 years of age (s. 41K; 5 penalty units).
17 Department of Primary Industries (2009) ‘Things you should know about dangerous dogs’, 23 July, viewed 17 May 2010,
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The Act specifies that warning signs must be displayed warning people that a restricted breed dog is kept on the premises (s. 41H).20 The owner of a restricted breed dog must notify the Council within 24 hours if the registered dog is missing or if there are changes to the owner’s address, the place where the dog is kept or changes to the ownership of the dog (s. 41F; 10 penalty units).
The Regulations also address requirements for housing both restricted breed dogs and dangerous dogs on premises (r. 6).
Powers of Councils Section 42 of the Act also allows Councils to make ‘local laws’ with respect to regulating the number of dogs or cats which may be kept on premises situated in the Council, require owners to remove and dispose of faeces deposited by their dogs in public places and prohibit or regulate the keeping of dogs and cats in Council areas where threatened native fauna are at risk of attack.
Offences and Liability Relating to Dog Attacks Section 29 of the Act sets out the offences and liability relating to dog attacks and states in section 29(1) that ‘if a dangerous dog, that is not a guard dog guarding non- residential premises, attacks or bites any person or animal, the person in apparent control of the dog at the time of the attack or biting, whether or not the owner of the dog, is guilty of an offence and liable to a term of imprisonment not exceeding 6 months or to a fine not exceeding 120 penalty units’. If that dog is not a (declared) dangerous dog the person in apparent control of the dog at the time of the attack or biting is guilty of an offence and liable to a penalty not exceeding 20 penalty units (s. 29(3)). The penalty is 10 penalty units if that dog is not a dangerous dog and if the injury caused is not of a serious nature (s. 29(5)). It is also an offence for a dog to rush at or chase any person.
If a person is found guilty of the aforementioned offences, a court may order that person to pay compensation for any damage caused by the conduct of the dog (s. 29(11)) and that the dog be destroyed (s. 29(12)). However, section 29(9) of the Act states that it is a defence to an offence under this section if the incident occurred because the dog was being teased, abused or assaulted or a person was trespassing on the premises on which the dog was kept or another animal was on the premises on which the dog was kept or a person known to the dog was being attacked in front of the dog.
4. The Bill
The main purposes of the Bill are to amend the Domestic Animals Act 1994: . To make further provision for the registration of restricted breed dogs and to amend the definition of a restricted breed dog; and . To provide that the Victorian Civil and Administrative Tribunal may review declarations of restricted breed dogs and to abolish review panels; and . To increase penalties for certain offences; and . To further enable the making of declarations of dangerous dogs and menacing dogs; and . To provide further destructive powers for dogs to be destroyed.
20 Regulation 9 sets out the requirements for the warning sign.
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Definition of a Restricted Breed Dog As stated above, the current definition of a restricted breed dog in the Act refers to Schedule 1 of the Commonwealth Customs (Prohibited Imports) Regulation 1956 stating that the importation of dogs of the following breeds is ‘prohibited absolutely’: dogo Argentino; fila Brasileiro, Japanese tosa, American Pit Bull Terrier or Pit Bull Terrier and Perro de Presa Canario or Presa Canario. Clause 3(4) of the Bill substitutes the definition that refers to the Commonwealth legislation with a definition that explicitly states the breeds that are prohibited, without reference to the Commonwealth provision.
A new section 3(3) is inserted into the Act to specify that in this Act ‘a dog that falls within a standard prescribed by the regulations for a breed of dog specified in a paragraph of the definition of restricted breed dog is taken to be a dog of that breed’.
Other definitions that are inserted or amended include the definition of domestic animal business, desexing and scan.21
Increased Penalties Several changes are made in the Bill to penalties prescribed in the Act. The requirement in section 10(1) of the Act for the owner of a dog or cat to register that animal with the Council if the animal is over three months old is increased from 10 penalty units to 20 penalty units in clause 6. At current penalty unit rates, this is an increase from $1,168.20 to $2,336.40.22
Clause 6 of the Bill also doubles the penalty units (from 10 to 20 penalty units) for an owner failing to register for renewal of registration for that dog or cat in section 10(2) of the Act.
Clause 8(1) of the Bill also doubles the penalty (from 1 penalty unit to 2 penalty units) for dogs and cats that are found outside the owner’s premises without the identification required by section 19 of the Act (and that are required to be registered with the local council). A new exemption category is inserted stating that an exemption is to apply to a dog that is in a designated off-leash area, whose owner is a member of an applicable association, whose owner has, in the previous 12 months exhibited the dog for show purposes at a fixture conducted by an applicable association and where the person in apparent control of the dog has with him or her the council identification marker.
The penalty for the offence of a dog found at large during the day time is doubled from 3 penalty units to 6 penalty units in Clause 9. The penalty for the offence of a dog found at large during the night time is also doubled from 5 penalty units to 10 penalty units.
21 A definition of ‘scan’ is also inserted into the Act and means ‘to pass a reader over the skin of an animal of a prescribed class of animal or a permanent identification device at a distance or no greater than 50 millimetres and at a sweep speed of no greater than 50 centimetres per second’. This definition is already contained in regulation 5 of the Domestic Animals Regulations 2005. The Bill inserts the definition ‘desexing’ into the Act which is defined as, in relation to a dog or cat, ‘a surgical procedure to remove all or part of the reproductive organs of the dog or cat to prevent it breeding and to prevent or eliminate secondary sexual behaviours’. 22 Section 5(3) of the Monetary Units Act 2004 allows penalty units to be set by the Treasurer based on the financial year. 1 penalty unit, from 1 July 2010 – 30 June 2011, will be $119.45 (till 30 June 2010 it is $116.82). A list of current penalty units can be found at the website of the Office of the Chief Parliamentary Counsel at
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In relation to dog attacks, the penalty units are doubled (from 20 penalty units to 40 penalty units) in Clause 10 of the Bill for a dog that attacks or bites any person or animal and causes death or a serious injury to a person or animal if that dog is not a declared dangerous dog. The person in apparent control of the dog at the time of the attack or biting, whether or not that person is the owner of the dog, is guilty of an offence (see s. 29(3) of the Act). The following section (s. 29(4) of the Act) states that the owner, if not liable in s. 29(3) is guilty of an offence and liable to a penalty of 40 penalty units (doubled from 20 penalty units).
Councils Clause 11 inserts a new section in section 34(1) which will allow a Council to declare a dog to be dangerous where the dog has been the subject of a second or subsequent offence under section 29(5) to (8) (whereby a dog that is not a dangerous dog causes non-serious injury to any person or animal or rushes at or chases any person).
Clause 12 inserts a new paragraph into section 41A(1) regarding a Councils’ ability to declare that a dog is a menacing dog. In the Act, a Council may declare a dog to be a menacing dog if the dog has rushed at or chased a person (s. 41A(1)(a)) or if the dog has been declared a menacing dog under a law of another State or a Territory of the Commonwealth (s. 41A(1)(b)). The Bill inserts a new section 41A(1)(ab) to allow a Council to also declare as menacing a dog that causes a non-serious bite injury to a person or other animal.
Registration of Dangerous and Restricted Breed Dogs The Bill provides a two year amnesty period. Section 17 of the Act provides for Councils to register dangerous and restricted breed dogs. The Bill provides an amnesty period of two years to give owners the opportunity to register restricted breed dogs under new criteria. During this two year amnesty period, the Council may register a dog that was previously registered as a dog of another breed, providing that the dog was in Victoria before the commencement of this clause.
Prohibition on Keeping a Restricted Breed Dog Clause 13 of the Bill inserts a new section, 41EA. The new section substitutes the existing prohibition against the keeping of a restricted breed dog, which stated that a restricted breed dog is prohibited unless the dog was acquired before the commencement of section 15 of the Primary Industries Act (Further Amendment) Act 2005. The new provision will allow the keeping of a restricted breed dog for a two year period from the commencement of clause 7, after which time it will only be permitted if the dog was registered during the two year amnesty period as either a restricted breed dog or another breed of dog. As the Explanatory Memorandum states, ‘the provision will not allow the keeping of a restricted breed dog that was not in Victoria before the commencement of the 2 year “amnesty” period’.
Clause 29 provides that the Governor in Council may make regulations for or with respect to prescribing a standard for restricted breed dogs.
Destruction of Dog that is a Danger to the Public Section 23(4) of the Prevention of Cruelty to Animals Act 1986 (POCTA) provides for an inspector to destroy any animal if the animal ‘is behaving in such a manner and there are such circumstances that it is likely that the animal will cause death or serious injury to any person or another animal’. For the purposes of the POCTA Act, the following persons are general inspectors:
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(a) any member of the police force; and (b) any person who is— (i) an inspector of livestock appointed under the Livestock Disease Control Act 1994; or (ii) a full-time or part-time officer of the Royal Society for the Prevention of Cruelty to Animals— and who is approved as a general inspector by the Minister in writing; and (c) Any person who is an authorised officer under section 72 of the Domestic Animals Act 1994 and who is approved as a general inspector by the Minister in writing, but only in respect of an alleged offence committed or a circumstance occurring in the municipal district for which that person is an authorised officer.
Clause 23 inserts new sections into the Act that allow for Councils to destroy a dog that is not registered and the owner is not identifiable, that is at large and that is reasonably believed to have caused or is likely to cause an offence under section 29 (attacking or biting a person or animal, or rushing at or chasing any person). If all of these preconditions are met, Councils may destroy the dog no sooner than 48 hours after a record is made by an authorised officer.
The Explanatory Memorandum states that this ‘power is discretionary rather than mandatory and a decision to destroy or not destroy the dog must be made before the end of the period of 48 hours after the record is made and the decision must be recorded’.
Proposed section 84TB allows Councils to immediately destroy a dog if the authorised officer ‘reasonably believes that the dog is behaving in a manner or in circumstances that will result in imminent serious injury or death to a person or other animal’. This applies whether or not the owner is identifiable.
Proposed section 84TC empowers Councils to destroy a seized dog on the basis that it is at large or in a place not permitted by Council order and where the dog is a declared dangerous dog. The dog may be destroyed no earlier than 24 hours after a record is made confirming the preconditions to destruction, including that the dog is a declared dangerous dog. However, if there is information that leads to a ‘reasonable belief’ by the authorised officer that the dog was at large because of an act or omission by a person other than the owner the Council may not destroy the dog.
Clause 15 requires Councils to provide details of dogs destroyed in the above circumstances and include information such as the time and date of destruction of the dog and certain information relating to the dog and its owner. The Council must also provide information relating to the reasons for the dog being destroyed such as the basis upon which an authorised officer formed the reasonable belief that was likely to commit an offence under section 29 (in the case of new section 84TA).
Power of Courts Section 84X of the Act relates to the power of Courts to order payment of costs and the disposal of destroyed dogs and cats. If an owner of a dog is found guilty of an offence, the Magistrates’ Court may order that the dog be sold or destroyed and that the owner pay the amount fixed by the Council for the responsible costs and expenses incurred by the Council during any period, until the outcome of the proceeding, that the Council has had custody of the animal. A new section is added by Clause 25 of the Bill to allow Courts to require the owner to attend a training course relating to responsible dog ownership and/or that the owner and dog attend obedience training.
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Review Clause 26 provides for the owner of a dog declared to be a restricted breed dog to apply for this decision to be reviewed by the Victorian Civil and Administrative Tribunal (VCAT) within 28 days.
Clause 27 of the Bill provides that offences related to the requirements for implanting identification devices, warning signs and confining a restricted breed dog do not apply until 60 days after the notice of declaration has been served if an application to review the decision has not been made. If an application to VCAT is made, the requirements will apply 30 days after the decision is affirmed.
In the Bill, VCAT replaces the review panel referred to in the Act and provides that this panel is to be abolished and for its members to go out of office when the Domestic Animals Amendment (Dangerous Dogs) Act 2010 comes into operation (Clause 30). If the review panel has already begun to hear a review, they may continue to hear the review and make a determination of the matter.
Payments to the Treasurer Section 69 of the Act provides that each Council must pay an amount to the Treasurer in respect of each registration fee collected annually for the registration of dogs and cats. Currently, Councils must pay $1.00 in respect of each cat registered, which the Bill proposes to increase to $2.00 in Clause 17 of the Bill. Councils must pay the Treasurer $2.50 for each dog registered, which is to be increased to $3.50.
The Minister states that this levy funds initiatives that encourage community responsible pet ownership education programs and information, council officer training, government advisory support services for Councils and animal management research. The Minister states that these rates have remained unchanged since 2001 and that the increased revenue will facilitate the expansion of the above mentioned programs.
Clause 16 of the Bill also clarifies that only veterinary practitioners can implant horses with permanent identification devices.
5. Views of Stakeholders
Lost Dogs’ Home Chief Executive Graeme Smith said the proposed legislation would offer little public protection, stating, ‘The number of declared dangerous dogs known to and registered by authorities is the tip of the iceberg compared to the number of dogs with the potential to turn killer’.23 Dr Smith noted that there are about 10,000 dangerous Pit Bull Terrier types in Victoria, however only 277 are registered as a restricted breed.
The RSPCA’s Victorian president, Dr Hugh Wirth has called for Pit Bulls to be exterminated, saying in the media that Pit Bulls are a menace and not suitable as pets.24 Dr Wirth also said that Pit Bulls ‘are time bombs waiting for the right circumstances… [the breed] is lethal because it was a breed that was developed purely
23 K. Ryan & A. Gardiner (2009) ‘Brumby gives councils a licence to kill’, Herald Sun, 20 October, p. 5. See also Lost Dogs Home (2009) ‘Call to declare all “pit bull types” dangerous’, media release, 20 October. 24 A. Magee (2009) ‘Pit bull attacks man, kills pet dogs in Melbourne’, Herald Sun, 19 October.
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for dog fighting, in other words, killing the opposition’.25 Mr Wirth says dog attacks continue to occur because of a mismatch between choice of dog and owner lifestyle, noting that genetically many dogs are still programmed for hunting and working.26
While the RSPCA of Australia recognise that there is a strong genetic component in a dog’s propensity for aggression, they note that dogs of any breed or size have the potential to be dangerous and therefore argue against declaring dogs dangerous on the basis of breed, rather than behaviour, except in the case of the American Pit Bull Terrier, which Mr Wirth notes is ‘deliberately created for fighting’.27
Many Councils have welcomed the legislation, however some are concerned that Councils will be relatively powerless to prevent people from owning dangerous dog breeds.28 Leigh Harrison from Brimbank Council said there had been 111 reported dog attacks in Brimbank and there were 50 restricted-breed dogs and 49 registered dangerous dogs of non-restricted breeds.29 Brimbank Council had collected 1,251 stray dogs in the past year.30 However, Dr Peter Higgins, from the Australian National Kennel Council (ANKC), has expressed concern that the proposed legislation will ‘do little’ since rangers are overworked and there are not enough rangers to protect the community against dangerous dogs.31
The ANKC state that they support legislation which seeks to ‘establish objective and clear criteria for determining whether a dog, irrespective of its breed, is dangerous’ but ‘will not support legislation which determines the “dangerousness” of a dog on the basis of breed alone’.32
Peter Frost, the President of DOGS Victoria, which is the state member body of the ANKC, said that the new laws did not provide a threat to any dog owners who responsibly care for their dogs. Mr Frost also stated that DOGS Victoria was in the process of launching a responsible dog training program that would help councils to educate residents on local dog laws and basic training techniques.33
The Australian Companion Animal Council Inc (ACAC) does not support legislation that restricts or bans certain dogs based solely on the basis of the breed, viewing such legislation as ‘ineffective, difficult to enforce and discriminatory’ because ‘a dog’s breed
25 Herald Sun (2009) ‘RSPCA Victoria president Dr Hugh Wirth blogs on the pit bull problem in Victoria’, Herald Sun, 19 October. 26 Sunday Herald Sun (2008) ‘When man’s best friend becomes the enemy’, Sunday Herald Sun, 20 January. 27 RSPCA (2008) ‘Policy: A07 Dog Management’, 1 August. See also RSPCA (2008) ‘Position Paper A1: Control of Dangerous Dogs’, 1 August. Sunday Herald Sun (2008) ‘When man’s best friend becomes the enemy’, Sunday Herald Sun, 20 January. 28 ABC (2010) ‘Shire backs dangerous dog laws, 10 May, ABC Western Victoria. ABC (2010) ‘Tougher laws ‘not going to fix’ dangerous dog woes’, ABC Western Victoria, 25 March. 29 A. Awadalla (2010) ‘Tough new dog laws to hit Brimbank’, Brimbank Leader, 4 February. 30 ibid. 31 ABC (2010) ‘Tougher laws’, op. cit. 32 Australian National Kennel Council (2010) ‘Policy Statements: Dangerous Dog Control Legislation’, viewed 18 May 2010, < http://www.ankc.org.au/About-ANKC/DANGEROUS-DOGS-CONTROL- LEGISLATION.aspx>. 33 DOGS Victoria (2010) ‘Re: New Dangerous Dog Laws’, media release, Victorian Canine Association Inc, 7 May.
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is not a reliable indicator of its potential to exhibit aggressive behaviour’.34 ACAC state that all dogs have the potential to display aggression, regardless of breed, however few dogs will behave aggressively towards humans. ACAC state that ‘legislation for the control of dangerous dogs should focus on the identification and control of individual dogs that have been shown to behave aggressively’.35 They further warn that bans on breeds, while difficult to enforce, may also lead to the formation of an underground network of breeders and owners of unregistered dogs. Moreover, ACAC argue that breed-specific legislation ‘may also lead to a misconception that other breeds are not dangerous, so that dog owners may not appreciate the potential risks posed by their dogs, and fail to manage them responsibly’.
Many of the stakeholders mentioned above, such as the RSPCA, ACAC and DOGS Victoria, believe that community education about responsible dog ownership and education about choosing appropriate breeds is the most effective way to reduce dog attacks. Allie Jalbert, Manager of Animal Shelters for RSPCA Victoria, stated, ‘the best chance of reducing dog attacks is a combination of education, obedience training, responsible ownership and bringing the right dog into your home’.36
Child protection groups, such as Kidsafe Victoria, have stated that they want Victorian Councils to publish monthly tallies of dog attacks in their area.37 NSW and Queensland has recently required councils to report dog attacks to state authorities. Kidsafe have also stated that they back the new dangerous dog legislation. In particular, Kidsafe support the increase in council officers’ power to seize and destroy unregistered dogs and the doubling of penalties. Dr Stokes, President of Kidsafe Victoria, has also called for compulsory obedience and social training for all dogs to be undertaken as part of dog licence requirements.38
Several programs have been developed with child protection groups, local government authorities, health professionals and hospitals aimed at providing information on choosing an appropriate dog, socialising the dog and educating children in behaving safely around dogs, such as the Royal Children’s Hospital’s Safety Centre ‘Dogs ‘n’ Kids’ program.39
The American Pit Bull Terrier Club of Australia Inc. have expressed concerns over the proposed legislation and have objected to not being included in the consultation process. They believe that the deed should be punished rather than the breed.40
34 Australian Companion Animal Council Inc., ‘Dogs in Society Position Paper: Legislation to Prevent Dog Attacks’, viewed 20 May 2010,
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6. Other Jurisdictions
The importation of dogs to Australia must comply with the Customs (Prohibited Imports) Regulations 1956 which explicitly prohibits the aforementioned breeds from entering Australia. In addition to this, several states have incorporated this prohibition into their legislation, including New South Wales, Queensland and South Australia. The Northern Territory, the Australian Capital Territory and Tasmania do not have specific legislation.
New South Wales In 2005, NSW introduced breed specific legislation into section 55 of the Companion Animals Act 1988 which states:
(1) The following dogs are restricted dogs for the purposes of this Act: (a) American pit bull terrier or pit bull terrier, (b) Japanese tosa, (c) dogo Argentino, (d) fila Brasileiro, (d1) any other dog of a breed, kind or description whose importation into Australia is prohibited by or under the Customs Act 1901 of the Commonwealth, (e) any dog declared by an authorised officer of a council under Division 6 of this Part to be a restricted dog, (f) any other dog of a breed, kind or description prescribed by the regulations for the purposes of this section.
As noted in a fact sheet prepared by the NSW Government, this means that, with regards to Regulation 55(e) this applies to ‘any dog where the council is of the opinion that a dog is of a breed or kind of dog on the restricted dog list or a cross-breed of any such breed or kind of dog’.41 The Minister stated in his second reading speech, ‘When a council proposes to declare a dog a restricted dog, the owner will be able to seek the opinion of an approved breed assessor to confirm the breed of the dog. If it is not confirmed to be another breed of dog, the council will make the declaration. If the dog is confirmed as a crossbreed restricted dog, the owner will then have to seek a temperament test by an approved temperament assessor. If the dog is assessed as not being a likely danger to the public, the dog will not be declared a restricted dog’.42
Selling a restricted dog (s. 57A), accepting ownership of a restricted dog (s. 57B) or breeding a restricted dog (s. 57C) is an offence, punishable by 150 penalty units ($16,500). Any dogs that are declared restricted dogs following the transition period referred to in the NSW Act ‘may be seized and destroyed’ (s. 57D). Owners of dangerous dogs that attack face fines of up to $55,000 or two years in prison or both (s. 16(1A)).43 However this section does not apply to a police dog or a corrective services dog (s. 16(3)) and also does not apply if the incident occurred:
(a) as a result of the dog being teased, mistreated, attacked or otherwise provoked, or
41 NSW Department of Local Government (2006) ‘Restricted and Dangerous Breed Dogs in NSW’, August, Department of Local Government. 42 NSW Legislative Assembly (2005) Debates, 15 November. 43 See also Southern Courier (2010) ‘Rise in dog attacks prompts renewed safety warning’, Southern Courier, 27 April.
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(b) as a result of the person or animal trespassing on the property on which the dog was being kept, or (c) as a result of the dog acting in reasonable defence of a person or property, or (d) in the course of lawful hunting, or (e) in the course of the working of stock by the dog or the training of the dog in the working of stock.
More than 1,000 dog attacks have been reported to local councils in the past three months, an increase of 40 per cent, according to the New South Wales Government.44 Recently, NSW began publishing online reports on dog attacks every three months. Clause 33A of the Companions Animal Regulation 2008 requires all councils to report dog attacks in their area to the Division of Local Government within 72 hours of receiving the information.45
In 1996 the Department of Local Government established a database to record council reports of dog attacks. Council reports of dog attacks in NSW from July 2004-June 2005 showed that the most reported dogs on the dog attack register were Labrador, Maltese, Staffordshire Bull Terrier, Jack Russell Terrier, Border Collie, Australian Cattle Dog and German Shepherd.46
Northern Territory Section 75A of the Summary Offences Act addresses dangerous dogs and states that the owner of a dog that attacks a person or animal or menaces a person or animal is guilty of an offence and a penalty of $5,000. There are several defences to a prosecution against a dog attack, such as if the owner of the dog proves that the person had, without the owner’s permission, enticed the dog to attack. Section 75A(4) also states ‘A person shall not entice or induce a dog to act in a manner that would render the owner of the dog liable to prosecution for an offence’, punishable by a penalty of $5,000.
Queensland The Animal Management (Cats and Dogs) Act 2008 requires that a person have a permit to own a restricted dog (S. 71; 75 penalty units). A person must not allow a restricted dog to breed (s. 69; 150 penalty units). Both a declared dangerous dog and a restricted dog must be desexed (s. 70; 150 penalty units).
Section 66 of the QLD Act states a prohibition on the supply of a restricted dog, noting:
(1) A person must not supply a restricted dog or proposed restricted dog to someone else unless— (a) the supply is made under a distribution in the estate of a deceased person; or (b) the person has a reasonable excuse. Maximum penalty—150 penalty units.
44 ABC News (2010) ‘Dog owners told to keep pets under control’, ABC News, 25 April. 45 See reports at NSW Government Division of Local Government (2010) ‘Dog Attack Reporting’, viewed 20 May 2010,
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A restricted dog is defined as a dog of the breed prohibited from importation into Australia under the Commonwealth’s Customs Act 1901. Section 63 also notes that a dog is also a restricted dog ‘if it is the subject of a restricted dog declaration’.47
Queensland requires councils to report dog attacks to state authorities.
South Australia The Dog and Cat Management Act 1995 requires that dogs that are given a Control (Dangerous Dog) Order are required to be desexed, microchipped, wear a collar and be kept in an enclosure that is designed to prevent the dog escaping (s. 50(3)). The dog must also be muzzled and be under effective control at all times when in public.
There is also legislation that addresses ‘prescribed breeds’ (which include dogo Argentino, fila Brasileiro, Japanese tosa, American Pit Bull Terrier and Perro de Presa Canario). These breeds are not allowed to be sold or given away (s. 45B(4)).
Tasmania The Dog Control Act 2000 provides for making a declaration of a dangerous dog if the dog has caused serious injury to a person or another animal or if there is reasonable cause to believe that the dog is likely to cause serious injury to a person or other animal (s. 29). Dangerous dogs must be muzzled and must be on a lead not exceeding two metres when in public (s. 32(a)). They must also not be under the control of a person under 18 years of age and must be housed in a ‘childproof enclosure’ (s. 32(a), 32(b), 20 penalty units).
The Act specifies in section 41 that:
(1) A person may restrain or destroy a dog if the person – (a) is being attacked by the dog; or (b) sees the dog attacking – (i) another person; or (ii) another animal; or (iii) a guide dog or hearing dog.
Similarly, section 42 states:
(1) An authorised person or a veterinary surgeon may seize or destroy a dog if satisfied that the dog – (a) is behaving in a manner and in such circumstances likely to cause injury to any person or death or serious bodily injury to any animal; or (b) has caused injury to a person or death or serious bodily injury to an animal; or (c) is found distressed or disabled to such an extent that its continued existence is likely to involve continued suffering.
Section 43 states that a person who destroys a dog under this Act ‘must destroy the dog quickly and without causing undue suffering’ (20 penalty units).
There is no specific-breed legislation contained in Tasmania’s legislation.
47 See also a research paper written by the Queensland Parliamentary Library. W. Jarred (2001) Local Government and Other Legislation Amendment Bill (No 2) 2001: The Regulation of Dangerous Domestic Dogs, Queensland Parliamentary Library.
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Australian Capital Territory Section 23 of the Domestic Animals Act 2000 specifies that a licence is required to keep a dangerous dog (50 penalty units apply for contravening this requirement). A dangerous dog licence remains in force for a period not longer than 12 months (s. 31).
No mention is made in the aforementioned Act or in the Domestic Animals Regulations 2001 about restricting certain breeds.
Western Australia Section 33E of the Dog Act 1976 states that a local government may declare a dog to be a dangerous dog if:
(a) the dog has caused injury or damage by an attack on, or chasing, a person, animal or vehicle; (b) the dog has, repeatedly, shown a tendency – (i) to attack, or chase, a person, animal or vehicle even though no injury has been caused by that behaviour; or (ii) to threaten to attack; or (c) the behaviour of the dog meets other criteria prescribed for the purpose of this section.
Section 53 provides for the Governor to make certain regulations with respect to a specific breed of dog or a dog of mixed breeds if on the recommendation and opinion of the Minister that that kind of dog ‘is a potential danger’. These regulations can include a requirement to sterilise any such dog and impose conditions, restrictions or limitations upon the keeping of any such dog. These regulations may also provide that dogs found in contravention of the regulations may be destroyed.
New Zealand Section 30A of the Dog Control Act 1996 prohibits the importation of the following dogs listed in Schedule 4: Brazilian Fila, Dogo Argentino, Japanese Tosa or American Pit Bull Terrier. Importantly, the NZ Act distinguishes between ‘Breed of dog’ in reference to the first three dogs listed and ‘Type of dog’ referring to the American Pit Bull Terrier. Any person who contravenes this provision is liable to a fine not exceeding $3,000. Section 30A(6) specifies that in reference to the above, ‘dog’ includes ‘the embryo, ova, or semen of a dog that belongs wholly or predominately to 1 or more breed or type of dog listed in Schedule 4’.
Norfolk Island In Norfolk Island, Regulation 2 of the Animals (Importation of Certain Dog Breeds) Regulations 2004 prohibits the importation of the breeds prohibited by the Commonwealth, and allows for the importation of certain dog breeds – Rottweiler, German Shepherd (Alsatian), Bull Mastiff/Terrier, Rhodesian Ridgebacks, Doberman, Queensland Cattle Dogs/Australian Cattle Dog/Blue Heeler/Red Heeler or any crossbreed of the aforementioned – if they meet certain requirements. These requirements specify that the dog must be spayed or castrated and must have been owned by and cared for by the applicant since the age of at least 3 months. The dog must also have undergone obedience training and/or temperament testing under the auspice of the RSPCA, the Australian National Kennel Council or similar body.
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United Kingdom In 1991 the United Kingdom introduced the Dangerous Dogs Act 1991 after widely publicised dog attacks. The Act prohibits persons from possessing dogs ‘belonging to types bred for fighting’, such as the Pit Bull Terrier and the Japanese tosa.
In 2009, police seized 1,146 dogs in London, however, while police report that they can complete the paperwork needed to destroy a dog within 72 hours, court cases can take years to conclude with each dog costing the police force up to 9,000 pounds when owners fight to prevent their destruction.48 Supt. Julia Pendry from the London Metropolitan Police status dog unit stated that the police force had to operate within the law and it is a criminal offence to destroy the dogs because they were considered the property belonging to other people.49
The UK Government is currently consulting the public on whether the current dangerous dog legislation adequately protects the public and encourages responsible dog ownership.50
America In America it has been estimated that half of all American children will be bitten by a dog by the time they’re high school seniors with an estimated 4.7 million Americans bitten by dogs annually.51 Furthermore, more than 30,000 reconstructive procedures were performed in 2009 due to dog bites.52
The legislation relating to dangerous dogs and restricted breed dogs varies from state to state and even varies between municipalities within states. Some states have laws prohibiting local municipalities from passing breed specific legislation.53 Many states and districts in America require owners of restricted dogs to have liability coverage ranging from $100,000 to $300,000.
In 2001 in California, the owner of two Presa Canario dogs that attacked and killed a woman was convicted of involuntary manslaughter for which she was sentenced to four years in prison.54 Her husband was also convicted and received a four year prison sentence.
The American Veterinary Medical Association supports dangerous animal legislation provided that legislation does not refer to specific breeds or classes of animals.55
48 BBC (2010) ‘Met urged to destroy dangerous dogs to save money’, BBC, 13 May. 49 ibid. 50 See UK Department for Environment, Food and Rural Affairs (DEFRA) (2010) Public Consultation on Dangerous Dogs, March, London, DEFRA. 51 United Press International (2010) ‘Some 5 million U.S. dog bites preventable’, UPI, 14 May, viewed 20 May 2010,
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References
Legislation and Regulations
Animals (Importation of Certain Dog Breeds) Regulations 2004 (Norfolk Island)
Animal Management (Cats and Dogs) Act 2008 (QLD)
Companion Animals Act 1998 (NSW)
Companions Animal Regulation 2008 (NSW)
Customs Act 1901 (Cth)
Customs (Prohibited Imports) Regulations 1956 (Cth)
Dangerous Dogs Act 1991 (UK)
Dog Act 1976 (WA)
Dog and Cat Management Act 1995 (SA)
Dog Control Act 2000 (Tas)
Dog Control Act 1996 (NZ)
Domestic Animals Act 1994 (Vic)
Domestic Animals Act 2000 (ACT)
Domestic Animals Regulations 2005 (Vic)
Domestic Animals Regulations 2001 (ACT)
Prevention of Cruelty to Animals Act 1986 (Vic)
Primary Industries Act (Further Amendment) Act 2005 (Vic)
Summary Offences Act (NT)
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ABC News (2010) ‘Tougher laws ‘not going to fix’ dangerous dog woes’, ABC News, 25 March.
ABC News (2010) ‘Dog owners told to keep pets under control’, ABC News, 25 April.
ABC News (2008) ‘Melbourne girl in hospital after dog attack’, ABC News, 17 February.
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American Pit Bull Terrier Club of Australia Inc. (2005) ‘American Pit Bull Terrier Club of Australia Web Page’, viewed 24 May 2010,
Australian Companion Animal Council Inc., ‘Dogs in Society Position Paper: Legislation to Prevent Dog Attacks’, viewed 20 May 2010,
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Grace, R. (2010) ‘Woman’s arm severed in dog attack’, The Age, 23 March.
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Guilliatt, R. (2009) ‘The pit bull is the usual suspect’, The Australian, 27 November.
Herald Sun (2009) ‘RSPCA Victoria president Dr Hugh Wirth blogs on the pit bull problem in Victoria’, Herald Sun, 19 October.
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