(Including the Dangerous Dog Law of New South Wales, Penalties for Owners of Dangerous Dogs and Restricted Breed in New South Wales).

RESTRICTED DOGS

The “Scienter Principle” a medieval legal writ is alive and well in New South Wales dog legislation.

The term “scienter” derives from a Latin term in ancient writs in England to mean that the dog’s attack complained of had been done because the owner knowingly or wilfully ignored his animal’s propensity to attack. Under medieval law, the liability of the dog owner for damage caused by the animal depended upon proof either that the animal belonged to a breed or class which was known to be dangerous or that the owner had previous knowledge of that particular animal’s vicious nature or propensity to attack, although it belonged to a breed not generally regarded as dangerous.

The owner of an animal belonging to a breed considered dangerous was liable for any harm done by it without proof of scienter *.If your dog was of a breed known as dangerous you were immediately and strictly liable for the damages caused by your animal. The same principle of strict liability for owners of restricted dogs applies today in New South Wales.

To establish liability in the owner of a “harmless” animal, however, scienter or proof of the owner’s knowledge of the animal’s propensity for being vicious from past experience had to be shown. That is, scienter was proved by showing that, to the owner’s knowledge the animal had behaved in a similar vicious way in the past.

Breeds of dogs known to be dangerous are identified by both Federal and State legislation as restricted breeds because the breed is specifically known to be dangerous .These breeds are listed in section 55 of the Companion Animal Act 1998 NSW(see below).Stringent conditions apply to the owner of any restricted dog ( see below).

In New South Wales today just as in medieval times all other dogs (than restricted dogs) are prima facie “harmless” until declared otherwise. However, Local Council registers of reported dog attacks now serve as scienter or proof of the owner’s previous knowledge of the propensity of the dog to be dangerous to others or other’s property. But is that enough?

I encourage the Local Council to consider making public notice of the location of any dog that has been declared dangerous in the interest of public safety. This would mean that people could make an informed choice of where they can safely walk their dogs in their neighbourhood. Council could also assist this with mounting and monitoring its own Dangerous Dog signs on the declared dog’s property rather than require the owner to do this.

Summary

The Companion Animal Act 1998 NSW has strict control requirements for the owners of restricted and declared dangerous dogs. The Act’s provisions include seizure and destruction of a dog in certain circumstances. Authorised Officers under the act have the power to seize a restricted or declared dangerous dog if the officer is satisfied that any control requirements have not been complied with by the owner. An owner can be issued with a fixed penalty notice of $1320 for failure to comply with any of the following control requirements. A maximum penalty of $55,000 or two years imprisonment or both can be applied if a dangerous or restricted dog attacks or bites another person or if an incident is the result of the owner’s failure to comply with any of the control requirements of sections 51 and 56 of the Act. Dependant on the circumstances these offences may also result in the seizure and destruction of the dog.

CONTROL REQUREMENTS

Owners of restricted and dangerous dogs must notify the Local Council of the area in which the dog is normally kept within 24 hours if;

The dog has attacked or injured a person or animal,

The dog cannot be found,

The dog has died,

The owner’s details have changed,

The dog is being kept at a different address in the area of the Council,

The dog is being kept outside the Council area.

As well the owners of Restricted and Dangerous dogs must comply with the following requirements;

The dog must be desexed if not desexed already, within 28 days of it being declared dangerous

Must be muzzled in a manner that is sufficient to prevent it from biting any animal or person when it is not in its enclosure.

Must at all times wear a distinctive red and yellow striped collar of the prescribed design.

Must be on a leash when outside its enclosure

The owner must obtain a certificate of compliance in respect of the enclosure

The Dog must be kept in a child proof enclosure

The dog cannot be in the sole charge of someone less than 18 years of age

One or more signs “Warning Dangerous Dog” must be displayed on the boundaries of the property

When the dog is away from the property it must be under the effective control of a competent person

The dog cannot be sold to someone less than 18 years of age

‘

Section 55 of the Companion Animal Act 1998 NSW, defines “Restricted Dogs” on a breed specific basis in

s.55 (1)(a) American Pit-bull Terrier,

s.55 (1)(b) Japanese tosa and

s.55 (1)(c) Dogo. Argentino (Argentinian Fighting Dog)

s.55 (1)(d) Fila Brasileiro ( Brazilian Fighting Dog).

These breeds of dogs are known to be dangerous to other persons or animals and have been for a very long time. By naming the breeds as being restricted this identifies a species that are known to be dangerous and no proof of the animal’s dangerous behaviour is required.

In Queensland a Supreme Court case on what is an American Pit Bull Terrier exposed some very common misconceptions about the breed American Staffordshire Terriers (none restricted breed) and American Pit-bull Terriers( a restricted breed).

see, Chivers v Gold Coast City Council [2010] QSC 98 (6 April 2010)

Here the Queensland Supreme Court judge held that the American Staffordshire Terrier is in fact, the same breed as an American Pit-bull Terrier , a breed specific restricted dog that is a recognised breed by Dogs QLD.

Despite a judicial finding of fact in the Queensland Supreme Court, Minister for Local Government, the Honourable Desley Boyle determined otherwise and by a sweep of her legislative wand the American Staffordshire Terrier was no longer the same breed as the American Pit Bull Terrier.

Saturday, July 31, 2010

Confusion over American Staffies no longer: Minister

Local Government Minister Desley Boyle has today announced she will amend the Animal Management (Cats and Dogs) Act 2008 to clarify once and for all that American Staffordshire terriers are not classified as “restricted dogs”.

This follows a Supreme Court case in April, Gold Coast City Council v. Chivers, which ruled the Amstaff involved was the same as a restricted American Pit bull.

Ms Boyle said pit bulls have been prohibited by many Queensland Councils under their local laws, listed as “restricted” under State legislation and banned from importation by the Commonwealth.

There are an estimated 4,000 Amstaffs in Queensland, some 230 on the Gold Coast.

“The amendment will state categorically that for the purposes of the Act, Amstaffs will not be considered the same as the restricted pit bulls,” Ms Boyle said.

“This will give Amstaff owners especially on the Gold Coast certainty about their rights and obligations yet it will give Queenslanders peace of mind that the legislation’s tough penalties remain for irresponsible pet owners whose dogs cause fear or harm,” she said.

“While it was never the State’s intention for the Act to classify Amstaffs as restricted dogs, the recent court case has meant the amendment is now necessary.”

The Honourable Desley Boyle noted at the end of her press release;

“I take this opportunity to thank Dogs Queensland President Barry Vickers in particularly and his team who have worked with departmental officers in sorting out the confusions flowing from the recent court decision and this amendment will put the matter to rest.”

The “Desley Boyle amendment” is below at s63A(2) and s63A (3).

ANIMAL MANAGEMENT (CATS AND DOGS) ACT 2008 - SECT 63A

63A Provisions for deciding what is a breed of dog

(1) Each of the following certificates, for a dog, is evidence the dog is of the breed stated in the certificate—

(a) a pedigree certificate from the Australian National Kennel Council;

(b) a pedigree certificate from a member body of the Australian National Kennel Council;

(c) a pedigree certificate from a national breed council registered with the Australian National Kennel Council;

(d) a certificate signed by a veterinary surgeon stating, or to the effect, that the dog is of a particular breed.

(2) However, if a dog is of the breed American Staffordshire terrier it is not of the breed American pit bull terrier.

(3) Also, the breed American pit bull terrier does not include a dog of the breed American Staffordshire terrier.

To Desley Boyle and Barry Vickers, wherever you are now, what on earth were you thinking? This legislation the maintenance of a restricted breed the American Pit Bull in Queensland streets and homes as a “harmless dog”. This is a breed known to be dangerous, that’s why they are treated as restricted by the Federal Customs Act Reulations. It was a QLD Supreme Court Judge’s determination that the American Pit-bull Terrier and the American Staffordshire terrier are the one and the same thing and hence all American Staffordshire Terriers must be treated prima facie as restricted and are in fact the same breed as the American Pit Bull. There is no confusion whatsoever in His honour’s decision it was achieved after expert evidence. Your misconceived legislative response also allows the maintenance of American Pit Bull cross breeds in Queensland.

Was the former Queensland minister’s amendment legislation constitutionally valid or Ultra Vires? See the Customs (Prohibited Imports) Regulations 1956 (Cwlth), section 3 and schedule 1 (Goods the importation of which is prohibited absolutely.

These are; pit bull terriers or American Pit-bull Terriers. Japanese Tosas, Argentinean Fighting Dogs (dogo Argentino) Brazilian Fighting Dogs (fila Brasileiro) and the Perro de Presa Canario, or Presa. Canario).

This Federal Legislation clearly sets out what breed is not to be bought into Australia. The QLD government’s amendments cannot circumvent the Federal Legislation and remain untested in the judicial system.

If a Council issues a dog owner with a “Notice of Intention to declare a dog to be a Restricted dog” under Division 6,the owner has 28 days in which complete the process where they have elected to have the dog’s breed and temperament assessed.