Management of animals from a regulatory perspective can often pose significant challenges for Councils. This is often because there’s no ‘one size fits all’ approach as each local government area faces their own unique complexities and effective animal management gets put on the back burner whilst, understandably, the running of day-to-day Council business takes over.
However, a considered approach to animal management can often have significant benefits for the community, such as contributing to public health and safety, improvement to the amenity of public areas and nuisance-related complaints, as well as a revenue stream that assists in funding education campaigns and the costly assets and infrastructure required for the collection and holding of animals within Council pounds.
There are primarily two pieces of legislation that Councils can rely on when looking at the regulation of animals, being the:
- Animal Management (Cats and Dogs) Act 2008 (“the AM Act”) which primarily imposes obligations on owners of cats and dogs including microchipping and, in the case of dogs, registration requirements, and powers for the regulation of dogs involved in dog attacks; and
- Council’s Local Law dealing with animal management (which is often Local Law No. 2) (“the LL”) and is usually specific to a local government’s requirements for the keeping of all animals, the control of animals in public places and to prevent them from wandering, seizure and destruction powers and the administration of local government pounds.
Usually, any Council Officer who is involved in the regulation of the AM Act and/or the LL relating to animals is required to be appointed by the CEO under the Local Government Act 2009 as well as the AM Act, as an ‘Authorised Person’. The officer will require an ‘Instrument of Appointment’ that specifies the powers they are given under each piece of legislation, and they will also need an ‘Identity Card’ that identifies them, contains a recent photo, their signature and an expiry date for the card.
The risk of not having the required authorisation is that any enforcement action taken by the officer, including any evidence obtained, will be invalid and unable to be relied on.
A Targeted Approach
The problem can often seem overwhelming, especially in smaller, remote communities where resources are limited, and it is often a single officer tasked with enforcing all of Council’s responsibilities. Therefore, we recommend that Councils consider adopting an animal management strategy that acknowledges its obligations but with a staged approach to the education and enforcement responsibilities that reflect its resourcing capabilities.
Wandering animals can pose significant issues for local governments. Often, a targeted approach to dealing with wandering animals can reduce the instances of attacks on persons or other animals.
Council’s local law provides seizure powers for animals found ‘wandering at large’. Once seized, a ‘Notice of Impounding’ needs to be issued if the owner or responsible person for the animal is known. There is a ‘prescribed period’ for holding the animal, which varies from Council to Council but is often between 3 to 5 days depending on whether the animal is registered or not. If the animal remains unclaimed following the expiry of the prescribed period, Council will then have the power under the LL to sell, dispose of or destroy the animal as it determines appropriate.
Often effectively addressing wandering animals, particularly wandering dogs, can lead to a reduction in the number of dog attacks that occur.
The big issue that often grabs media headlines and has Councils grappling with enforcement responsibilities is dog attacks. This is often because injuries that result from dog attacks can be severe, including death, and it is an emotive issue for all concerned that calls for prompt action in response.
A written procedure document for Officers that sets out the required steps they need to take can have a huge impact on the way Council responds to these issues in a lawful and considered way, as opposed to reacting when emotions are high, which can often lead to enforcement actions being challenged and overturned.
The AM Act provides additional powers of entry to private property (and public places) for Authorised Persons where they reasonably suspect a dog is at the place and any delay in the entry will result in a community health or safety risk, or the dog being concealed or moved to avoid a regulated dog declaration.
Once an entry has occurred in accordance with the AM Act, if the authorised person reasonably suspects the dog is at the place, then they have the power to seize the dog if they reasonably believe the dog has attacked, threatened to attack or acted in a way that causes fear to, a person or another animal, or is, or may be, a risk to community health or safety.
We often recommend that if Council has the required facility to hold the dog, that the seizure powers under section 125 of the AM Act are exercised immediately following the reported dog attack, whilst the investigation is carried out.
Once the investigation has concluded and all evidence has been obtained, such as witness statements and any other supporting evidence such as vet reports, if Council is satisfied it is appropriate, a ‘Proposed Regulated Dog Declaration Notice’ under section 90 of the AM Act may be issued to the owner and provide at least 14 days (allowing for the service timeframe) for written representations to be provided.
Any written representations received during that timeframe will need to be considered, and if satisfied that the ground for making declaration under section 89 still exists (i.e. dangerous, menacing or restricted), Council must make the regulated dog declaration.
Alternatively, prior to making the declaration (but after written representations are received), if Council believes it is appropriate to make a destruction order, it may issue a ‘Concurrent Regulated Dog Declaration and Destruction Order’ under section 127A of the AM Act. This will need to be accompanied by an ‘Information Notice’ that specifies Council’s decision, the reason for it and provides the particulars for internal review of the decision.
If no destruction order is made for the dog, and any challenge to the Regulated Dog Declaration has not been successful, the dog is then a ‘Regulated Dog’ for the purposes of the AM Act and the owner must comply with all of the requirements for keeping a regulated dog as outlined in the AM Act.
An important part of Councils having a targeted approach is to ensure that its authorisations, procedures and template documents are already in place. This then allows Council to develop its broader strategy, usually commencing with an education program for the community and focusing initially on wandering animals to reduce the instances of attacks, which can then be implemented by Council’s Authorised Person in a lawful, considered and consistent manner that builds the trust of the community and fosters responsible pet ownership.
Our team at Preston Law regularly assists local governments with developing their animal management template and procedure documents, providing training for Council Officers, and advising on appropriate strategies that considers the unique animal management challenges presented within their community. If you have any queries or would like to know how we may be able to assist, please contact Marina Dunstan in our office.