Section 33A defines the meaning of menacing
33A Meaning of "menacing" and "menacing" breed or kind of dog.
(1) For the purposes of this Act, a dog is
"menacing" if it:
(a) has displayed unreasonable aggression towards a person or animal (other than vermin), or
(b) has, without provocation, attacked a person or animal (other than vermin) but without causing serious injury or death.
(2) The regulations may declare a breed or kind of dog to be a
"menacing breed or kind of dog" .
(3) The Minister is not to recommend the making of a regulation under subsection (2) unless the Minister is satisfied that the breed or kind of dog concerned displays characteristics associated with menacing behaviour. A failure to comply with this subsection does not invalidate the regulation concerned.
Section 34 Allows an Authorised Council Officer to Declare a dog as dangerous or menacing. A Dog can be declared dangerous by an authorised Council Officer own his own initiative or on written complaint from a Police Officer or some other person
Section 35 Requires the Owner to be formally notified of the Authorised ( Local) Council Officer intention to declare the dog as dangerous or menacing and the notice should allow the owner to provide written objection within 7 days of receiving the Notice.
35 Owner to be notified of proposed declaration
(1) An authorised officer of a council must give notice to the owner of a dog of the officer’s intention to declare the dog to be a dangerous dog or a menacing dog.
(2) The notice must set out:
(a) the requirements with which the owner will be required to comply if the declaration is made, and
(b) the owner's right to object to the proposed declaration in writing to the authorised officer within 7 days after the date the notice is given.
Section 36 Sets out the Obligations upon the owner from time of receiving the Notice of Proposed declaration for 28 days or until the Local council authorised officer has made a decision regarding the declaration.(Whichever happens first)
36 Obligations of owner when notified of proposed declaration
(1) If a notice is given under section 35 to the owner of a dog of an authorised officer’s intention to declare the dog to be a dangerous dog or a menacing dog, the owner must:
(a) ensure that at all times when the dog is away from the property where it is ordinarily kept:
(i) it is under the effective control of some competent person by means of an adequate chain, cord or leash that is attached to the dog and is held by (or secured to) the person, and
(ii) it has a muzzle securely fixed on its mouth in such a manner as will prevent it from biting any person or animal, and
(b) register the dog (if it is not already registered), regardless of its age, within 7 days after receiving the notice.
Note : Registration of a dog requires the dog to be microchipped.
Maximum penalty: 50 penalty units.
(2) Subsection (1) (a) only applies in respect of a dog:
(a) for 28 days after the notice is given to the dog’s owner, or
(b) until the authorised officer notifies the owner that the officer has made the proposed declaration or has decided not to make it, whichever happens first.
Section 37 Requires the Council Officer to consider the objections raised by the owner
37 Authorised officer must consider dog owner’s objections
(1) The owner has 7 days after the date the notice is given in which to object to the proposed declaration.
(2) If the owner does not object within that time, the authorised officer can proceed to make the declaration after the 7 days have passed.
(3) If the owner does object within that time, the authorised officer must first consider the objection before proceeding to make the declaration.
(4) A reference in this section to the authorised officer is a reference to any authorised officer of the council and is not limited to the authorised officer who gave the notice.
Section 38 Requires the Council Officer to notify the owner of his decision and its consequences. If the dog is declared to be dangerous the control requirements are set out in section 51( See below)
38 Authorised officer to notify dog owner of decision and consequences
(1) An authorised officer of a council must give notice to the owner of a dog of the following:
(a) a declaration under this Division,
(b) a decision not to make a declaration under this Division.
The notice must be given within 7 days after the declaration or decision is made.
(2) A notice that a dog has been declared a dangerous dog or a menacing dog must set out:
(a) the requirements imposed on the owner by this Part and the date or dates by which the owner must comply with those requirements, and
(b) in the case of a dangerous dog declaration-the owner’s right under section 41 to appeal to the Local Court against the declaration, and
(c) the fact that the dog may, under section 58G, be seized and destroyed if the dog attacks or bites a person or animal without provocation or if the requirements imposed on the owner under section 51 (1) (c), (c1) or (e) are not complied with on 2 separate occasions over any period of 12 months (whether or not each occasion relates to the same requirement).
(3) A declaration has effect from the date specified in the notice or the date on which notice is given, whichever is the later.
Section 39 Council can revoke the declaration after 12 months on application by the owner
39 Council can revoke declaration
(1) The owner of a dog that has been declared a dangerous dog or a menacing dog under this Division can apply to the council of the area in which the dog is ordinarily kept (whether or not it is the council whose authorised officer made the declaration) for the declaration to be revoked.
(1A) An application under subsection (1) cannot be made until after the period of 12 months following the date on which the dog was declared to be a dangerous dog or a menacing dog.
(2) The council to which the application is made may revoke the declaration but only if satisfied that:
(a) it is appropriate to do so, and
(b) if the council determines that it is necessary-the dog has undergone appropriate behavioural training.
(2A) In making a determination under subsection (2) (a) in relation to a menacing dog declaration, the council is to have regard to the nature and extent of any behavioural training that the dog has undergone.
(3) The council must, as soon as practicable, give notice to the owner of the dog that the declaration has been revoked or that the council has refused to revoke the declaration.
Section 41 Allows an appeal against the Dangerous dog declaration to be heard by the Local Court, this includes an appeal against the Council's refusal to revoke a dangerous dog declaration. Note no appeal may be bought against a Declaration that the dog is menacing.
41 Appeal to Local Court regarding dangerous dog declarations
(1) The owner of a dog can appeal to the Local Court:
(a) against the declaration by an authorised officer of a council that the dog is a dangerous dog, or
(b) against a refusal by a council to revoke a declaration that the dog is a dangerous dog.
Note : No appeal lies to the Local Court against a declaration by an authorised officer of a council that a dog is a menacing dog or against a refusal by a council to revoke a declaration that the dog is a menacing dog.
(2) An appeal can only be made within 28 days after the date the owner of the dog:
(a) is given notice by the authorised officer under section 38 that the officer has made the declaration, or
(b) is given notice by the council under section 39 that it has refused to revoke the declaration. (3)The fact that an appeal is pending does not affect the dog's status as a dangerous dog and does not affect the appellant’s obligations under this act as an owner of a dangerous dog.