1995 Dog and Cat Management Bill
The Hon. D.C. WOTTON (Minister for the Environ¬ment and Natural Resources) obtained leave and introduced a Bill for an Act to provide for the management of dogs and cats; to repeal the Dog Control Act 1979; to make a conse¬quential amendment to the Local Government Act 1934; and for other purposes. Read a first time.
The Hon. D.C. WOTTON: I move:
That this Bill be now read a second time.
I seek leave to have the second reading explanation inserted in Hansard without my reading it.
Leave granted.
The purpose of the Dog and Cat Management Bill is to implement the following changes:
A. A transfer of the full administrative responsibility for dog control from State Government to Local Government.
B. Amend existing regulatory provisions and include additional provisions relating to the management of dogs.
C. Include new provisions for the identification, control and regulation of cats.
A. Transfer of Administrative Responsibility
The amendments dealing with this issue are predominantly as contained in the Negotiated Agreement dated February 1994 between State and Local Government. Some additional provisions have, however, been incorporated to more specifically provide for the proper and efficient performance of various administrative functions.
1. The current Dog Control Act 1979 (the "current Act") establishes a Dog Advisory Committee (the "Committee") whose principal function is to advise the Minister and Local Government in relation to administrative and policy issues relating to dog management in the State. This committee does not have body corporate status under the current Act and its powers are fairly limited.A Dog and Cat Management Board (the "Board") will be established as a body corporate under this Bill. The Board will have greater powers than the existing Committee, including the power to perform the following functions:
- Contract and hold property in its own name
- Advise Local Government on a wide range of issues relating to dog and cat management, including the development of dog and cat management programs.
- Distribute funds collected on behalf of the Dog and Cat Management Fund for purposes associated with the administration of dog and cat management.
- Make recommendations on the setting of fees under the legislation.
The Board will submit an annual report to the Minister and to Local Government. This will be tabled in Parliament. The Board may also be required to present a budget and operational plan to the Minister.
The principal function of the Board will be, in essence, to assist and liaise with Local Government in the administration of dog and cat management and to achieve a high standard of quality and consistency in the management of dogs and cats in this State.
2. The Dog Control Statutory Fund has been renamed as the Dog and Cat Management Fund. An additional provision will be included in Regulations to require district councils to pay a percentage of dog registration fees to the Dog and Cat Management Fund. Currently, only metropolitan councils make payments to the Fund and district councils are exempted. However, the expanded function of the Board will result in country councils obtaining new and useful benefits from the Board in the form of advice and general assistance and it is considered appropriate that those councils make payments to the Fund. This was agreed in the Negotiated Agreement and the Board will determine the actual amount of the percentage of fees to be paid by councils.
3. The composition of the Board will be made up of six members of whom:
- five will be nominated by the Local Government Association; and
- one will be nominated by the Minister
It is therefore clear that the Board will have the representation to be able to successfully consider and act upon the requirements of Local Government, which is in keeping with the transfer of responsibility for the management of the new Act to Local Government. All nominations are to be appointed by the Governor.
B. Amend existing regulatory provisions.
A large number of provisions have been amended following a very detailed examination and review of the current Act, incorporating submissions made by the Local Government Association and councils over a number of years.
The amendments include the following:
1. Definition of Effective Control
The definition of effective control is expanded to provide that a dog will be deemed to be under effective control if the dog is:
- effectively held or tethered by a chain, cord or leash not exceeding two metres in length;
- contained in a vehicle or other structure, although untethered dogs will be permitted to be transported and kept in utility vehicles;
- effectively controlled by the command of a person who is in close visible proximity to the dog.
2. Powers and responsibilities of authorised persons
The following variations and additions have been made to the appointment, powers and responsibilities of authorised persons under the new Act:
- Councils arrangements in relation to the appointment of dog management officers must be satisfactory to the Board. It is also intended that the Board will oversee the suitability of appointees.
- The Board may issue guidelines and advise councils about appropriate training for dog management officers.
- Councils or dog management officers may seek assistance from dog management officers from another council area in the enforcement of the provisions.
- An additional power has been included to allow dog management officers to operate in areas outside their council area where it is necessary to investigate matters relating to the administration or enforcement of the Act in their own council area. This amendment simply acknowledges and authorises the practice of dog management officers crossing council boundaries in the administration and enforcement of the Act.
3. Use of pounds by councils
Council arrangements for the detention of dogs under the Act must be satisfactory to the Board. The Board may set standards for the facilities used. It is envisaged that arrangements between councils and pounds may extend to the collection by the pound of expiation fees for dogs wandering at large, and detention and maintenance fees. It is also envisaged that in certain instances the pound may be engaged by the council as a registration agent for the council. This would greatly assist councils in the efficient administration of dog management and provide greater flexibility to councils and pounds in jointly managing dogs in a manner appropriate to the abilities and resources of particular councils.
4. Registration of dogs
- Provision has been made for expiation notices to be repeat¬edly issued at fourteen day intervals if a person fails to register a dog.
- The minimum age of registration has been lowered from six months to three months. It is expected that this will assist in decreasing the number of young, unidentified dogs impound¬ed.
- The owner of a dog registered interstate who brings that dog to South Australia must, on request, produce evidence of registration.
- Breeding or training kennels and businesses using dogs to provide security or other services will not be required to individually register the dogs but will be required to pay the council a 'total' registration fee appropriate to the number of dogs kept or used. This will improve the efficiency and ease with which businesses and councils may implement the registration requirements under the Act.
- Boarding kennels will not be required to register unregistered dogs held for boarding, but will be required to maintain records of dogs kept at the kennel and provide the records to the council.
- Additional requirements have been included to require a dog's owner to give notice to the council in which the dog was registered if any of the following occur;
- the dog is moved to different premises;
- the dog is transferred to another person; or
- the dog dies or is missing for 72 hours.
This notification will greatly assist councils in maintaining records of dogs in their areas and in administering registration requirements.
5. Collars and registration discs
The requirement to have the name and address of the owner of a dog attached to the collar of the dog has been deleted. This will be optional.
The current exemption found in the regulations that dogs need not wear a collar and disc in public if held on a slip chain collar will not be retained.
6. Seizure of dogs
The current provision dealing with the seizure and detention of dogs wandering at large has been expanded and amended as follows:
- Provision has been made for the seizure of dogs by a dog management officer if the dog has attacked any person or animal or is unduly dangerous or if it is necessary to do so to ensure that a destruction order is carried out. The current Act allows a dog to be seized if it is unduly dangerous but does not regulate procedures following seizure.
- There are more stringent requirements for the collection of dogs that have been seized to allow councils or pounds to seek proof of authorisation of a person collecting a dog.
- More detailed procedures have been specified for the detention of dogs and notification to and rights of owners of dogs which have been seized. These procedures are generally consistent with the current Act.
- Provision has been made to allow dog management officers to destroy severely sick or injured dogs in urgent circumstances where a veterinary surgeon or stock inspector is not available. This amendment is necessary in remote areas where it is not possible to follow the usual procedure of obtaining a certificate from a veterinary surgeon or stock inspector authorising the destruction of the dog.
7. Protection from dog attacks
An express power has been included to allow a person to destroy or injure a dog if that is reasonable and necessary for the protection of life or property. The existing provision does not operate this widely, although similar provisions to that proposed are contained in dog legislation in most other States. Currently, a person must notify the police if he or she destroys a dog. The Bill expands this requirement to require that the council in whose area the dog was destroyed and, where possible, the owner of the dog, are notified as well.
The right to destroy any dog found on an enclosed property where livestock are present has been expanded to provide that the reference to livestock includes all farmed animals. This is necessary as the provision in the current Act permits the destruction of a dog found, for example, on a sheep property, but does not permit destruction of a dog found on certain other types of farming properties, such as an emu farm.
Provisions in the current Act dealing with destruction of dogs in National Parks and the baiting of dogs have been maintained.
8. Dogs infested with parasites
The provision in the current Act dealing with the treatment and destruction of dogs infested with parasites has been deleted in the Bill because this is more suitably and comprehensively dealt with under the provisions of the Prevention of Cruelty to Animals Act 1985.
9. Muzzling of greyhounds
Greyhounds are only to be permitted to be unmuzzled whilst training, exercising or racing if they do so with the consent of the owner or occupier of the land.
10. Prescribed breeds
An additional requirement has been included to prohibit persons giving away a dog of a prescribed breed. The current provision only prohibits the advertising and sale of prescribed breeds and is considered to be too limited in its scope.
11. Dangerous dogs or dogs creating a nuisance—council orders
An entire new Division of the Bill empowers councils to issue orders relating to dogs which are dangerous or create a nuisance. An order may be made if the dog has attacked or harassed a person or an owned animal or has created a nuisance through noise. The order may comprise an order for destruction, an order to confine the dog, an order to muzzle the dog in public or an order to take steps to stop the dog barking.
Owners or persons responsible for the control of the dog must be given notice of the impending order and a chance to make submis¬sions on the matter to the council.
The owner or person responsible for the control of the dog has a right of appeal to the Administrative Appeals Court against the issue by a council of an order or a refusal to revoke an order.
To provide councils flexibility to make the orders relevant to the particular circumstances in which the dog is kept, the Bill provides councils the ability to issue directions as to how the order may be complied with. The directions are not mandatory but if a person chooses to comply with the directions no prosecution for contravention of the order may be taken.
The purpose of this new provision is to enable councils to resolve complaints and disputes concerning dog behaviour at a local level without the need to take court action in all instances. It is expected that this system will provide for a less costly and more immediate handling of the majority of complaints. However councils will still have the option to prosecute owners of dogs or issue expiation notices if that is appropriate.
12. Court orders
The circumstances in which court orders may be made has been expanded, as has the range of orders that may be made. An appropriate order may be made in any criminal proceedings under the Bill, in any civil proceedings relating to injury or loss caused by a dog or on direct application by any person.
13. Expiation of offences
The provisions in the current Act dealing with the expiation of offences have been deleted in the Bill because these are adequately dealt with by the Expiation of Offences Act 1987. Expiation is provided for in all appropriate cases.
C. Cat identification and control
1. Purpose
The Bill provides legal status to owned cats which are identified. This is the minimum legislation which is likely to be effective. Without this, no other controls can be put in place. It will also provide protection for Councils who wish to control unidentified cats without threat of civil liability. Legal status and admission of ownership of cats will form an important connection between legislation and any feral cat control mechanisms developed. It is hoped that it will also decrease the overflow from the owned to the feral population. The review of the Dog Control Act has provided the ideal opportunity to link dog and cat legislation.
Some form of biological control is seen to be the most likely feral cat management tool to become available. It has been predicted that a suitable agent will be not be developed for at least ten years. If a biological agent is developed, responsible ownership and possibly vaccination, will be essential for the protection of owned cats. To change community attitudes to this extent is likely to take consider¬able time and be a gradual process. The link between feral cats, pet cats and their management will need to be monitored.
2. Education
The Dog and Cat Management Board will recommend educational and other initiatives to the Minister and the Local Government Association. The emphasis should be on responsible pet ownership.
3. Cat Provisions of the Dog and Cat Management Bill
The proposed Bill outlines cat management. This would require that all owned cats be identified by tag, collar or other means as outlined in the Regulations. It is proposed that the regulations will also recognise an "M" tattooed in the ear to indicate that the cat is microchipped.
Any cat in an area covered by the National Parks and Wildlife Act or the Wilderness Act may be destroyed by a person authorised by those Acts. Cats in designated private sanctuaries can be de-stroyed by the owners of the sanctuaries or their agents. Cats found in a place that is more than 1 kilometre from any place of residence may be destroyed.
Persons authorised under the Veterinary Surgeon's Act, the Animal and Plant Pest Control Act, the Crown Lands Act and the Prevention of Cruelty to Animals Act, will be permitted to trap or destroy unidentified cats in line with their normal functions.
If, in any circumstance, an identified cat is destroyed, the owner must be notified if possible.
In other cases, a person would need to trap a cat and check it for identification. If identified, it is to be released; if not, it must be delivered within 12 hours to a vet, council officer, RSPCA or Animal Welfare League where it may be destroyed, rehoused or released.
Cats can only be removed from any property with the consent of the land-holder. It is an offence under the Bill to hinder a person acting in accordance with the legislation; or to remove the identifica¬tion from a cat.
The Dog and Cat Management Board will receive information from or comprise representatives of State Government, Local Government Association, Australian Veterinary Association, Animal Welfare League, RSPCA, independent experts on pet promotions, a Ministerial representative, persons with expertise in wildlife issues and knowledge of current developments in feral cat control; and the Dog and Cat Breeders Associations.
5. Review
The Board will review the cat legislation on an ongoing basis. If further initiatives are considered necessary, they will be recom-mended to the Minister.
6. By-laws
Councils will retain the ability to pass by-laws to regulate the number of cats on a property or institute other controls deemed necessary in their area.
7. Summary
The only way any plan can be effective is through the support and co-operation of the community. An open consultative approach by all levels of Government is the best way of ensuring future success. It is apparent that no strategy will satisfy all interested parties. However, a moderate approach using minimal regulation and maximising education is more likely to produce long term results. Some interest groups will consider the Strategy "wishy-washy", others will consider it to be "draconian". Identification is a major though relatively inoffensive legislative requirement. This strategy provides a framework for addressing the cat problem which is likely to receive general public acceptance.
I commend the Bill to honourable members.
Explanation of Clauses
PART 1
PRELIMINARY
Clause 1: Short title
Clause 2: Commencement
Clause 3: Interpretation
The following matters follow from definitions contained in this clause rather than other substantive provisions of the Bill:
- As in the current Act, the Outback Areas Community De-velopment Trust is treated as a council and so has responsibilities under the Bill (see the definitions of area and council).
- The regulations may prescribe bodies that are to be treated as councils in respect of a specified area for the purposes of the Bill. This is to allow flexibility to provide for Aboriginal management of dogs and cats on Aboriginal lands if that is considered necessary or appropriate.
- As in the current Act, police officers are dog management officers for the purposes of the Act.
- Cats: Definitions that relate exclusively to Part 7 are: cat, cat management officer, identified cat and unidentified cat. The definition of dispose of is also particularly relevant to Part 7.
Clause 4: Owner of dog
Clause 5: Person responsible for control of dog
The current Act refers throughout to the person responsible for the control of the dog. Section 34 sets out that generally this is the owner of the dog, the occupier of premises at which the dog is kept and any person who has possession or control of the dog.
The Bill makes it clear on its face that both the owner and any other person responsible for the control of the dog have responsi¬bilities to ensure that the dog is properly controlled and does not cause danger or nuisance.
The person in whose name a dog is registered or has last been registered continues to be taken to be the owner of the dog, as does a person in apparent ownership. The occupier of premises where a dog is kept continues to be held responsible for the dog.
The provisions in these clauses reflect the provisions currently contained in s. 34 and s. 46(3), including various evidentiary aids. Clause 6: Dog wandering at large
The current offence related to a dog wandering at large is retained, as is the ability of dog management officers to seize dogs wandering at large. This section defines what is meant by wandering at large and mirrors the provisions currently contained in s. 35 except that a dog placed in the open tray of a utility or like vehicle is not to be considered to be wandering at large.
Clause 7: Effective control of dog
The equivalent provision in the current Act is s. 5(2). The new definition differs in the following respects:
- if control is by means of a leash or command, the person is required to actually exercise effective control (implicit in this is that the person must be capable of exercising control);
- any leash used for control must not exceed 2 metres;
- the dog may be under effective control if it is confined to a cage, vehicle or other structure;
- if a dog is not leashed but is responsive to command, the dog must be able to be seen by the person issuing the commands. The expression is used in relation to—
- dogs wandering at large;
- defining the application of the offence for a dog not wearing a collar;
- defining offences relating to prescribed breeds and grey-hounds;
- defining the terms of orders issued by councils under the Act (such orders are a new concept introduced in the Bill).
Clause 8: Application of Act to dogs owned by Crown
Dogs owned by or on behalf of the State or Commonwealth Crown and used for security, emergency or law enforcement purposes are not required to be registered and cannot be made the subject of a council or court order under the Bill. This provision is necessary as section 20 of the Acts Interpretation Act 1915 now provides that generally the Crown is bound by legislation.
PART 2
DOG AND CAT MANAGEMENT BOARD AND FUND
DIVISION 1—ESTABLISHMENT OF BOARD Clause 9: Establishment of Board
The Dog and Cat Management Board is a body corporate that is an instrumentality of the Crown. The Board takes the place of the Dog Advisory Committee. The body is differently constituted, its functions expanded and it is given control of the Fund associated with the Bill.
Clause 10: Ministerial control
Any directions given by the Minister to the Board must be in writing, must only be given after consultation with the LGA and must be included in the annual report of the Board.
DIVISION 2—MEMBERSHIP OF BOARD AND PROCEDURES
Clause 11: Composition of Board
There are to be 5 LGA nominees and 1 Minister's nominee. The LGA must consult the following bodies when making a nomination for 2 members to represent the interests of the community:
- Animal Welfare League
- RSPCA
- South Australian Canine Assoc Inc
- Australian Veterinary Assoc.
Clause 12: Deputies of members
Deputies may be appointed on the same basis as members. Clause 13: Conditions of membership
The term of appointment is up to 3 years, though members may be reappointed.
The Minister may recommend to the Governor that a member be dismissed at his or her discretion although the Minister must consult the LGA before doing so.
Clause 14: Vacancies or defects in appointment of members Vacancies and defects are not to invalidate acts of the Board. Clause 15: Remuneration
The Governor is to determine remuneration of members. Payment will be from the Fund established under Division 4.
Clause 16: Proceedings
Four members constitute a quorum. The presiding member has a casting vote. In general terms the Board may determine its own procedures.
Clause 17: Disclosure of interest
A member is required to disclose potential conflicts which must be recorded in the minutes, notified to the Minister, and recorded in the annual report. The Minister may (after consulting with the LGA) direct a member to divest himself or herself of an interest or office or to resign from the Board.
Clause 18: Common seal and execution of documents Clause 19: Immunity of members
DIVISION 3—OPERATIONS OF BOARD Clause 20: Functions of Board
The Board has the following functions:
- to plan for, promote, and provide advice about, the effective management of dogs and cats throughout South Australia;
- to oversee the administration and enforcement of the provisions of the Act relating to dogs, including—
- monitoring the administration and enforcement of the Act by councils; and
- issuing guidelines or providing advice to councils about—
- planning for the effective management of dogs;
- training for dog management officers;
- the appropriate level of administration and enforcement in the circumstances prevailing in the area;
- the issuing of orders or related directions under the Act;
- the standard of facilities used for the detention of dogs under the Act;
- the keeping of registers under the Act and the issuing of certificates of registration and registration discs;
- any other matter related to the administration or enforcement of the provisions of the Act relating to dogs; and
- otherwise providing support and assistance to councils;
- to advise the Minister or the LGA, either on its own initiative or at the request of the Minister or the LGA, on the operation of the Act or issues directly relating to dog or cat management in South Australia;
- to undertake or facilitate research relating to dog or cat management;
- to undertake or facilitate educational programs relating to dog or cat management;
- to keep the Act under review and make recommendations to the Minister with respect to the Act and regulations made under the Act;
- to carry out any other function assigned to the Board by the Minister or by or under the Act.
Clause 21: Powers of Board
The powers include the power to establish advisory committees and the power to require councils to provide certain information. Clause 22: Operational plans, budgets and information
The Minister may require the Board to present plans and budgets or other information. The Board is not to expend money outside the budget without the approval of the Minister. The Minister must consult the LGA before approving a budget or expenditure outside the budget.
Clause 23: Annual report
The annual report must be forwarded to the Minister, the LGA and each council. The Minister is required to table the report.
DIVISION 4—DOG AND CAT MANAGEMENT FUND
Clause 24: Dog and Cat Management Fund
The Dog and Cat Management Fund takes over from the Dog Control Statutory Fund. The prescribed percentage of dog registration fees received by councils will be paid into the Fund. (Currently under the regulations only metropolitan councils are required to contribute. It is intended that all councils will contribute under the Bill.) The Fund is to be the responsibility of the Board. The Fund may be used—
- towards the cost of establishing or maintaining facilities used for the detention of dogs under the Act; and
- towards the cost of research or educational programs relating to dog or cat management; and
- for the administrative expenses associated with the operations of the Board; and
- for any other purpose in furtherance of the objects of the Act. The Auditor-General is required to audit the Fund. Currently the money in the Dog Control Statutory Fund is kept at the Treasury and may be paid to the RSPCA, Animal Welfare League or a council or other organisation for maintaining a pound; for the administrative expenses of the Committee or for any other purpose approved by the Minister as being in furtherance of the objects of this Act.
PART 3
ADMINISTRATION OF PROVISIONS RELATING TO DOGS
Clause 25: Council responsibility for management of dogs
This clause sets out the responsibilities of councils in relation to the administration and enforcement of the provisions of the Bill relating to dogs and allows the Board to consider the arrangements made by councils for fulfilling their obligations. It requires payment into the Fund of a prescribed percentage of dog registration fees (as referred to above).
The clause draws together various provisions in the current Act: s. 6 placing responsibility on councils for the management of dogs; s. 7(2) and (3) about the appointment of authorised persons; s. 10 about the appointment of a Registrar; s. 11 about the maintenance of pounds or arrangements for the availability of pounds; s. 12 about accounting matters and payments into the Fund; s. 30 about registers and s. 31 about replacement of lost registration discs. Clause 26: Appointment of dog management officers
Councils are empowered to appoint dog management officers and to impose conditions on appointments.
The current Act refers to authorised persons (see esp. s. 7(1) and (4)). The terminology has been altered in light of the need to distinguish between persons authorised in connection with the provi¬sions of the Bill dealing with dogs and those authorised in connection with the provisions dealing with cats.
The ability to impose conditions on appointment is new and is inserted in view of the significant powers that may be exercised by officers under the Bill and to encourage councils to continue to take a responsible attitude to the appointment and exercise of powers by officers.
As in the current Act, police officers are also dog management officers for the purposes of the Bill.
Clause 27: Identification of dog management officers
Council officers are required to be issued identity cards and to produce the card on request by a person in relation to whom powers may be exercised. This is equivalent to current s. 7(5) and (6). Clause 28: Area limitation on council dog management officers
As in current s. 8 officers are required to work within their own council area.
This clause goes further than s. 8 by—
- allowing officers to work outside the council area for the purposes of investigating an offence within the area;
- allowing officers to work in another council area pursuant to an arrangement between the councils or at the request of a dog management officer of the other council. (This will allow suitable arrangements to be made when, for example, officers are on leave.)
Clause 29: General powers of dog management officers Officers may—
- enter and inspect premises (and break in if necessary) but only with the consent of the owner or occupier, pursuant to a warrant or to seize a dog wandering at large or in urgent circumstances;
- require a person to produce a dog in his or her possession;
- require production of certificates or documents;
- require a suspected offender to state his or her name or produce evidence of identity.
The clause draws together the powers of officers set out currently in s, 37 in relation to powers of entry; s. 38 in relation to requiring a suspected offender to state his or her name; s. 50A in relation to seizing and detaining dangerous dogs; and s. 55(2) in relation to production of dogs and certificates and documents.
The ability of an officer to require a suspected offender to state his or her name is extended to the ability to require the suspected offender to produce evidence of identity.
Clause 30: Offence to hinder, etc., dog management officers
The equivalent current provision is s. 55. The offences are expanded to those generally considered appropriate in current legislation relating to authorised persons.
Clause 31: Offences by dog management officers
This provision reflects that usually now included in legislation relating to authorised persons. It requires officers to behave appro-priately when exercising their functions and powers.
Clause 32: Immunity from personal liability
As in the current s. 9 officers are provided personal immunity for honest acts. The clause places liability in respect of council officers on the council.
PART 4
REGISTRATION OF DOGS
Clause 33: Dogs must be registered
The requirements for registration have been altered from those set out in s. 26 as follows:
- dogs over 3 months, rather than 6 months, must be registered;
- dogs travelling with a person are only excused from regis-tration if they are registered interstate or are usually kept outside Australia (evidence of this must be presented on request to a dog management officer);
- the operator of an approved boarding kennel need not ensure that dogs boarded at the kennel are registered but must keep records of dogs boarded and provide the information to the relevant council as required by the Board (see the last clause in this Part);
- the Guide Dog Association and police officers have been added to the list of persons not required to ensure that a dog in their custody is registered.
Currently the offence of having an unregistered dog is expiable under the regulations. To ensure that expiation works effectively in relation to this continuing offence the clause provides that a further offence occurs for each 14 days that a dog remains unregistered.
Clause 34: Registration procedure for individual dogs
A dog is to be registered in the area in which it is usually kept in the name of a person 18 years or over. The certificate of registration and registration disc must conform with the requirements of the Board. The person in whose name a dog is registered must be altered on application.
Equivalent provisions are currently contained in s. 27 (1), (2)(b) and (3) and s. 32(1). The form of the certificate and disc is currently set out in the regulations.
Clause 35: Registration procedure for businesses involving dogs
This is a new concept introduced to take account of the practical difficulties faced in complying with and in enforcing the registration requirements in relation to kennels housing a considerable number of dogs and in relation to businesses involving dogs that are often moved between areas, such as guard dog businesses.
The clause allows for registration of the business rather than individual registration of the dogs. Dogs kept at the kennel or used in the business will be considered to be registered.
Registration discs will not be issued in respect of the dogs but the dogs will be required to wear collars identifying the business. Clause 36: Duration and renewal of registration
As in the current Act (s. 29) registration is annual and expires if the dog is removed from the area in which it is registered with the intention that it be usually kept in another area. In those circum¬stances the dog is to be re-registered in the new area.
Clause 37: Notifications to ensure accuracy of registers Information is required to be given to the Registrars about any change of ownership of a dog, or of the place at which a dog is usually kept or if a dog dies or goes missing, or in the case of a regis¬tered business, if the business ceases or is transferred or in other circumstances set out in the regulations.
Currently the regulations require notification of a change of the place at which a dog is usually kept. The new clause expands the notification requirements with a view to improving the accuracy of the registers.
Clause 38: Transfer of ownership of dog
The seller is required to give the purchaser the dog's certificate of registration and registration disc. This is a new requirement. Clause 39: Rectification of register
This provision is equivalent to current s. 32(2) and enables a person to apply to the council for rectification of a register.
Clause 40: Collars and registration discs or other identification
Dogs are required to wear collars bearing the registration disc or identification of a registered business.
This provision is similar to current s. 34 except for the following:
- the name and address of the owner of a dog is no longer required to be marked on the collar (in practice, the existing requirement is often ignored; it could also place certain people at risk);
- the regulations may specify further requirements for collars (this provides a desirable level of flexibility);
- adjustments have been made to reflect the new provisions for generic registration of dogs through registration of a business;
- a new exception is included: where the dog is effectively confined to its owner's premises it is not required to wear a collar (this is similar to an exemption currently contained in the regulations and will be particularly helpful in relation to dogs with long hair, where a collar may cause matting);
- the defence has been rationalised: instead of a vet having to issue a 3 month certificate for a dog that is injured and cannot wear a collar, the defence requires proof that the dog was injured or sick such that wearing a collar would have been injurious to its health.
It is intended that the current exemption contained in regulation 15 for a dog with a slip chain collar attached to a leash held by a person will not be retained.
Clause 41: Applications and fees
The Board is to regulate the form of applications. The regula-tions, made on the recommendation of the Board, will specify the registration fee.
Currently the regulations must set out the form of the registration application (s. 27).
Guide dogs continue to be registered without charge. The Registrar's power to require an applicant to provide evidence to enable the appropriate registration fee to be determined is elevated from the regulations to the Bill and expanded to generally encompass evidence supporting the application.
Clause 42: Records to be kept by approved boarding kennels Where the council approves a boarding kennel for the purposes of ensuring that there is no offence if unregistered dogs are boarded at the kennel, the operator of the kennel must keep the records re-quired by the Board and provide copies to the council as required by the Board. This is a new provision.
PART 5
MANAGEMENT OF DOGS DIVISION 1—GENERAL OFFENCES
Clause 43: Duties of owners and others responsible for control of dog
All of the current offences directed at owners or others responsible for control of a dog are drawn together in this provision as follows;
- Dogs wandering at large: s. 35
- Dogs attacking or harassing a person or owned animal: s. 44 and s. 49(2)(a)
- Dogs attacking a person entering premises lawfully: s. 45
- Dog of prescribed breed not muzzled or on a leash: s. 48A (the requirement for the person holding the leash to be 18 or over is deleted as the requirement for effective control now encompasses the actual exercise of control; the leash is required to be no more than 2 metres consistent with the changes to the concept of effective control)
- Dog of prescribed breed not desexed: s. 48A
- Dog in school or pre-school centre: s. 39(b) (child care centres are expressly included and instead of referring to the principal the provision refers to the person in charge of the place)
- Dog in shop: s. 39(a) (the exceptions are expanded to include a grooming parlour)
- Dog rushing at vehicle: s. 41 (the new provision states that the offence does not apply in relation to the dog owner's property)
- Dog in place where food prepared: s. 40
- Greyhound not muzzled: s. 48 (the provision is brought into line with that applying to prescribed breeds, ie, as well as being muzzled a greyhound is required to be on a leash; the exception is rationalised)
- Dog causing nuisance by creating noise: s. 49(2)(b)
- Failure to remove faeces from public place: s. 43.
The defences in the current Act are retained.
The expiation fees set out in the regulations are included and added to where appropriate.
No equivalent to s. 47 relating to dogs infested with parasites is included. This matter is adequately dealt with under health legisla-tion.
Clause 44: Dog attack not to be encouraged
It is an offence for a person to urge a dog to attack or harass a person or owned animal. This offence is equivalent to that contained currently in s. 44(2).
Clause 45: Prescribed breed not to be sold or given away
The current offence (s. 48 A(5)) of selling or advertising for sale a dog of a prescribed breed is retained and expanded to encompass giving the dog away.
Clause 46: Interference with dog in lawful custody
It is an offence to release or interfere with a dog in a pound. This is equivalent to current s. 55(3).
Clause 47: Court's power to make orders in criminal proceed¬ings
A court finding a person guilty of an offence is given a broad power to make appropriate orders in relation to the defendant or, if the defendant still owns or possesses the dog, in relation to the dog. The orders can range from destruction or disposal of the dog, to an order to take specified action to abate nuisance and may include an order for compensation.
Currently compensation may be ordered in relation to a dog attack or harassment (s. 44(5) and 45(2)); action to abate nuisance may be ordered in relation to a dog that has created a nuisance (s. 49(3)); destruction or other more general matters may be ordered in relation to a dog shown to be unduly mischievous or dangerous (s. 50); disposal of a dog or non-acquisition of further dogs may be ordered if a person is convicted of two prescribed offences on sepa-rate occasions within 2 years (s. 59).
DIVISION 2—ACTION TO PROTECT PERSON OR PROPERTY AGAINST DOGS
Clause 48: Power to protect persons or property from dogs
The current Act allows a person who owns or is in charge of an animal to kill a dog that is attacking the animal if there is no other way to protect it (s. 46(1)). It also allows dogs found in an enclosed paddock with certain farmed animals to be destroyed (s. 46(2)). Wardens are entitled to destroy dogs attacking a protected animal in a reserve (s. 46(1 a)).
This clause puts these provisions on a more consistent basis, applies them to attacks on persons or animals, and authorises injury or destruction of a dog whenever that is reasonable and necessary for the protection of life or property (this is the wording used in a defence under the Criminal Law Consolidation Act offence of injuring an animal belonging to another.) The requirement to inform the owner of a dog and the council of the area, as well as the police, is new. The provision for destruction of a dog in an enclosed paddock is expanded to cover all farmed animals.
Clause 49: Laying of poison in baits for dogs
This provision enables a farmer to protect stock by laying poison for dogs in certain circumstances and is equivalent to the current s. 46(4) and (5) except that the prohibition on laying baits within 20 metres of a road is not retained as it does not reflect complementary provisions in the Animal and Plant Control (Agricultural and Other Purposes) Act 1986.
DIVISION 3—DESTRUCTION AND CONTROL ORDERS
This Division introduces a new concept. Councils are empowered to make appropriate orders in relation to dangerous or nuisance dogs and to give directions about how the orders may be complied with. The decision to make an order or to refuse to revoke an order is subject to an appeal.
Clause 50: Classes of orders
A council may make a Destruction Order, a Control (Dangerous Dog) Order, a Control (Nuisance Dog) Order or a Control (Barking Dog) Order.
The effect of the orders is set out in this clause. Clause 51: Grounds on which orders may be made Basically—
• a destruction order may be made in relation to an unduly dangerous dog that has attacked or harassed a person or owned animal;
• a control (dangerous or nuisance) order may be made in relation to a dangerous or nuisance dog that has attacked or harassed a person or owned animal;
• a control (barking dog) order may be made in relation to a dog that has caused a nuisance by creating noise.
Clause 52: Procedure for making and revoking orders
The owner of the dog and other persons responsible for the control of the dog must be given an opportunity to be heard. The Board is to determine the form of orders.
Clause 53: Directions about how to comply with order
The terms of orders are set out in the Bill. However, to enable councils flexibility they are empowered to issue directions as to how orders should be complied with in their areas. This would encompass such things as a requirement to erect a gate or a higher fence to keep a dog confined to particular premises. A person may choose to ignore directions and comply with the order by some other means but if the person does comply with directions then he or she is protected against prosecution for contravention of the order (this is similar to the expiation of offences scheme).
Clause 54: Application of orders and directions
Orders are to continue to apply despite changes in ownership or control of the dog. If the dog is removed to another council area, the order becomes in effect the order of the council of the new area. Consequently the order may be revoked by that council.
Clause 55: Contravention of order
Contravention is an offence and in addition a dog management officer may take action to give effect to the order.
Orders are to apply in relation to a dog and so apply no matter who is the owner or who is responsible for control of the dog. However, it is a defence to contravention of an order to prove that the defendant was unaware of the order.
Clause 56: Notification to council
If an order is in force the council must be kept aware of any attack by the dog or if the dog is missing or dies or if ownership of the dog changes of if the place at which the dog is kept changes. Clause 57: Notification of order to proposed new owner of dog
A prospective purchaser of a dog subject to an order must be informed about the order.
Clause 58: Appeal
An appeal to the Administrative Appeals Division of the District Court (which may be constituted of a Magistrate) is provided against a decision of a council to make an order or to refuse to revoke an order. The appeal must be made within 14 days (or within 14 days of receiving written reasons for the decision requested within 14 days of the decision).
The appeal court may make an order that the council could have made plus any order that a court could have made if the proceedings were criminal proceedings.
Clause 59: Power of court to order destruction or control of dog on application
An application may be made to the Magistrates Court for an order in relation to an unduly dangerous dog. The court may make any order that it could have made in criminal proceedings.
This is similar to current section 50 about unduly mischievous or dangerous dogs, but the orders that can be made are broader in nature, and the reference to mischievous is not continued.
DIVISION 4—SEIZURE AND DETENTION OF DOGS
Clause 60: Power to seize and detain dogs
Dogs may be seized if found wandering at large, if necessary to stop or prevent an attack or harassment, if the dog is unduly dangerous or if necessary to ensure that a destruction order is carried out.
Currently under s. 36 a dog may be seized if it is found wandering at large or under s. 50A if it is unduly mischievous or dangerous.
These powers are drawn together and expanded to provide a more rational basis for seizure.
The provision in the current Act for destruction of a dog found wandering at large if seizure is impracticable because of the dogs savagery, repeated evasion of attempts at seizure or other sufficient cause (s. 36(9)) is expanded to cover seizure on any ground but is limited to reasons of savagery or other sufficient cause. The new provision requires attempts to be made to contact the owner of a dog injured or destroyed in those circumstances.
The clause allows inspectors under the Prevention of Cruelty to Animals Act 1985 to seize a dog found wandering at large. The current provision allows all officers and employees of the RSPCA and Animal and Plant Control officers to seize dogs found wandering at large. (s. 36(11)). The current provision is thought to be too wide and inappropriate.
Clause 61: Procedure following seizure of dog
A dog that has been seized must be taken to a pound if it is not returned to its owner. If it is detained a notice about the detention must be displayed at the council office for 72 hours and given to the owner, if known.
If the reason for seizure is that the dog has attacked or harassed a person or owned animal or is unduly dangerous, the council must proceed to consider making an order in relation to the dog or applying to a court for an order. If steps are not taken within 7 days, the dog must be returned to a person entitled to claim it.
These provisions reflect that currently contained in s. 36 in relation to dogs found wandering at large. The current Act does not contain any set procedures in relation to dogs seized because they are unduly mischievous or dangerous beyond the requirement to apply to a court for an order. This gap is filled by this clause.
In addition this clause gives a person aggrieved by the continued detention of a dog a right to have the matter heard by a Magistrate. Clause 62: Limits on entitlement to return of dog
In order to claim a dog a person must be prepared to produce evidence that he or she is entitled to the dog and to pay outstanding charges in relation to the dog. If the dog is unregistered the person detaining the dog may require it to be registered before its release.
The current Act (s. 36) requires the dog to be registered before release. However, that does not take account of the fact that dogs may be detained and claimed at a time when it is not possible for the person detaining the dog to check whether the dog is in fact registered.
Clause 63: Destruction or disposal of seized dog
This clause sets out the circumstances in which the dog may be destroyed or otherwise disposed of. This is 72 hours after the dog is seized if it was found wandering at large (as in current s. 36) or if the registered owner declines to resume possession, or fails to pay charges due in relation to the dog within 7 days of being requested to do so. The dog may also be destroyed if it is too ill to be main¬tained. The current s. 36(8) requires this to be only on the certificate of a vet or stock inspector. The clause requires that to be the usual case, but if a vet or inspector is not available and the circumstances are urgent the dog may be destroyed in any event. This is to take account of difficulties faced particularly in country areas. The clause also requires attempts to be made to notify the owner if the dog is destroyed for illness.
Clause 64: Recovery of costs of seizure and detention
This clause ensures that costs may be recovered whether or not the dog is returned.
PART 6
CIVIL ACTIONS RELATING TO DOGS
Section 52 of the current Act is not included in the Bill. The clause stated that a person responsible for the control of a dog is liable in damages for any injury or loss resulting from the actions of the dog. The Select Committee of the House of Assembly on Self Defence recommended that the section be amended so that it clearly not apply to a dog being used in self defence. Pat 1A of the Wrongs Act already covers the matter adequately in relation to animals generally and so the matter is appropriately left to those provisions.
Clause 65: Owner and person responsible for control of dogs in civil actions
This clause provides that the definitions under the Bill relating to owners and persons responsible for control of dogs apply in civil actions. This is equivalent to current s. 34.
Clause 66: Defences in civil actions
This clause sets out that in civil actions the general defences of a dog being removed from a person's possession without his or her consent and a dog being used in self defence apply. The first defence is equivalent to current s. 34(5). The second defence is included in light of the select committee report on self defence referred to above.
Clause 67: Court's power to make orders relating to dogs in civil actions
The court is given powers to make orders in civil proceedings that equate to the powers of a court to make orders in criminal proceedings. This is in recognition of current s. 50(2).
PART 7
MANAGEMENT OF CATS
The aim of this Part is to protect persons from civil or criminal liability for the seizure, detention, destruction or disposal of unidentified cats, and of all cats in certain remote or fragile areas, in certain circumstances.
DIVISION 1—CAT MANAGEMENT OFFICERS
Clause 68: Cat management officers appointed by Board or council
This clause empowers the Board or the council to appoint officers whose responsibilities include the seizure, destruction or disposal of unidentified cats in the area in relation to which they are appointed.
DIVISION 2—CATS IN REMOTE OR FRAGILE
AREAS
Clause 69: Reserves and wilderness
Wardens are given power to destroy any cat found in a consti-tuted reserve or wilderness area.
Clause 70: Sanctuaries and other designated areas
Owners of land in a sanctuary declared under the National Parks and Wildlife Act may destroy any cat found in the sanctuary.
Other areas in which all cats may be destroyed by the owner of land in the area may be declared by proclamation made on the recommendation of the Board.
Clause 71: Remote areas
Any person may destroy a cat if it is found in a place that is more than 1 kilometre from any residence.
Clause 72: Notification to owner of identified cat
If an identified cat is dealt with under this Division, reasonable steps must be taken to notify the owner of the cat.
DIVISION 3—UNIDENTIFIED CATS IN OTHER AREAS
Clause 73: Other areas
Unidentified cats may be seized, detained, destroyed or otherwise disposed of in the circumstances listed in this clause.
The following officers may deal with unidentified cats found in an area for which they are responsible:
- council or Board officers;
- crown lands rangers or district council rangers;
- officers under the Animal and Plant Control (Agricultural Protection and Other Purposes) Act 1986.
An inspector under the Prevention of Cruelty to Animals Act 1985 may deal with an unidentified cat in the ordinary course of his or her duties.
Any person may seize an unidentified cat and deliver it within 12 hours to a vet, a council or Board officer or a pound. The clause does not sanction any other action in relation to the cat by the person.
A vet may deal with an unidentified cat in the ordinary course of his or her practice.
The operator of a pound may deal with an unidentified cat delivered to the pound.
DIVISION 4—MISCELLANEOUS Clause 74: Unlawful entry on land
A person must not, in order to seize a cat, enter land without the consent of the owner or occupier.
Clause 75: Offence to hinder
It is an offence to hinder a person acting lawfully under the Part. Clause 76: Offence to interfere with cat identification
It is an offence to remove or interfere with a cat's identification collar, tag or mark without reasonable excuse.
Clause 77: No liability for lawful action against cat
This is the clause that removes criminal and civil liability for actions authorised by the Part.
PART 8
MISCELLANEOUS
Clause 78: Guide dogs
This clause recognises the right of persons to be accompanied by guide dogs in public places and in public passenger vehicles and is equivalent to current s. 54.
Clause 79: False or misleading statements
It is an offence to make a false or misleading statement in an application or in a record kept under the Bill. This provision is similar to current s. 56 although the penalty is updated to current standards.
Clause 80: No liability for lawful action against dog
This clause affords protection to a person who takes action against a dog in accordance with the Bill and is similar in effect to current s. 53.
Clause 81: Continuing offences
A few of the offences against the Act may be continuing, such as failure to have a dog of a prescribed breed desexed or failure to comply with certain orders. This provision is equivalent to current s. 65.
Clause 82: General defences
It is a defence if the act was not committed intentionally and could not have been avoided with the exercise of reasonable care. This is a modern version of current s. 60.
It is also a defence if the dog involved was taken from the person without his or her consent. This is equivalent to current s. 34(5).
Clause 83: Service of notices and documents
This clause provides for the method of service. A similar provision is currently contained in the regulations.
Clause 84: Evidence
This clause provides evidentiary aids and is similar to current s. 61.
Clause 85: Appropriation of penalties
Penalties recovered on complaint of a council are to be paid to the council. This is equivalent to s. 63.
Clause 86: By-laws
This clause provides a general power to councils to make by-laws relating to the management of cats and dogs, and in particular, to make by-laws limiting the number of cats and dogs kept on premises subject to the issue of exemptions for kennels and the like.
The powers for such by-laws are currently found in s. 57, 65A and in the Local Government Act 1934. The power to make by-laws requiring registered dogs to be tattooed in s. 28 is not retained. This power has not been used and is now considered inappropriate.
The current Act expressly provides for licences for kennels where dogs are kept in excess of the limit imposed by by-laws. This is left to an exemption under the Bill. Kennels are in any event subject to planning authorisations under the Development Act 1993. Clause 87: Regulations
A general regulation making power is provided. Regulations may only be made on the recommendation of the Board. This is a significant function for the Board and is given in recognition of the responsibilities for effective dog and cat management held by the Board.
SCHEDULE 1
Repeal and Transitional Provisions
The Dog Control Act is repealed.
Transitional provisions are included about registration, dog management officers, the Fund and current by-laws.
SCHEDULE 2
Amendment of Local Government Act 1934
The by-law making power relating to cats is deleted as the matter is addressed by clause 86.
Mr CLARKE secured the adjournment of the debate.