Submission on the proposed changes to Dog Laws
Manager,
Animal Management,
Department of Agriculture and Fisheries
Dear Madam/Sir
Submission on the proposed changes to dog laws
Kindly accept this submission in relation to the above Bill.
This submission concerns the proposed changes to the Animal Management (Cats and Dogs) At 2008 (Qld) (‘the Act’). There are a number of propositions and policy suggestions in relation to dog laws (with a focus on dangerous dogs and community safety). The QCCL will comment on several of these propositions, responding to survey questions 5 and 7 in the discussion paper. Question 5 relates to the inclusion of imprisonment as a maximum penalty for more serious dog attacks. Question 7 relates to the proposed limitation of rights to review/appeal destruction order decisions.
I Increased Penalties – Imprisonment
The general position of the QCCL in relation to sentencing and imprisonment is that it should be a last resort and is not desirable. Our position is that there are too many people in jail, resulting in the prison system being overburdened.[1] Additionally, a jail sentence does not effectively rehabilitate the offender and allow them to become productive members of society following the sentence.[2]
However, the QCCL acknowledges that this concern must be balanced with the need for community safety, and to deter breaches of this Act. As noted in the discussion paper, dog bites are a significant issue, with Australia recording approximately 100,000 dog bites annually (with associated costs being roughly $7 million yearly). However, the extent and seriousness of the issue is not well known in the community, with many people being largely unaware of their legal responsibilities as dog owners.[3] Stronger penalties may draw attention to this issue (in combination with the community education and awareness raising campaign also proposed in the discussion paper), and to encourage dog owners to take greater responsibility for controlling their dog to ensure community members are safe.
Additionally, introducing imprisonment as a penalty for serious cases brings Queensland in line with other Australian jurisdictions (NSW, SA, ACT, WA, VIC, TAS) except the NT (which regulates dangerous dogs through local by-laws). It is desirable to maintain consistency across all jurisdictions.
Although dog attacks causing death may have previously been covered by the offence of manslaughter (due to s 289 of the Criminal Code Act 1989 (Qld) – which sets out the duty of persons in charge of dangerous things), juries may have been unwilling to convict due to the perceived lack of culpability of the accused. Additionally, as noted in the discussion paper, liability is based on criminal negligence,[4] which may be difficult to prove. Thus, this may have led to many cases where the perpetrator was not appropriately dealt with. Therefore, creating a new offence for serious cases bridges this gap by ensuring that perpetrators are dealt with by the criminal system. This is comparable to the introduction of the offence of reckless driving causing death (s 328A(4) of the Criminal Code). Since juries are unwilling or hesitant to convict motorists of manslaughter (perhaps due to the perceived lack of culpability), this new offence was introduced with a lower maximum penalty to fix this issue.[5]
Although QCCL supports the introduction of this new offence with a maximum penalty of imprisonment, we emphasise that the maximum sentence should not be excessive and should only be used in the most serious cases. QCCL argues that the purpose of introducing this offence with imprisonment as a penalty is to provide general deterrence and encourage owners to ensure their dogs are well controlled, as well as to raise awareness of the issue, not retribution.
II Destruction Orders - Limitations To External Review
The current system of appeal under the Animal Management (Cats and Dogs) Act 2008 for a destruction order allows for a dog owner to apply for an internal review of the decision within 14 days of the order.[6] If the owner is not satisfied with the outcome of the internal review by a local government agency, they can apply to QCAT for an external review.[7] If the outcome of this external review is still unsatisfactory, the decision can be appealed to the QCAT internal appeal tribunal on a question of law. At this level, if individuals are wishing to appeal based on a question of fact or a mixture of law and fact, they must apply for leave. [8] Appeals on a question of law can arise through a failure to interpret the law using the relevant legal principles.[9] Appeals on a question of fact arise from a point of contention regarding the facts of the case, whether that is because certain facts were overlooked, or certain evidence was given disproportionate consideration. [10]
Question seven of the Strong Dog Laws: Safer Communities discussion paper proposes to change the Animal Management Act by requiring the streamlining of the external review process for a destruction order to only a question of law. The purpose of this limitation is to minimise the delay associated with the judicial process of issuing destruction orders. However, streamlining the appeal processes for destruction orders places a limitation on the administration of justice, as it makes appeal processes more stringent for dog owners seeking a review of a destruction order. In response to this survey question, two aspects will be considered:
A. Destruction Orders
B. Limiting External Review Processes
The QCCL upholds that whilst a streamlined review process to lessen the burden of destruction order cases on the justice system is a reasonable objective, it places a limitation on the ability to appeal destruction orders, which impacts the administration of justice.
A. Destruction Orders
A destruction order for a dangerous dog is a substantial infringement on the rights and liberties of a dog owner. Making such an order extinguishes all rights an owner has over their dog. In addition to this, the relationship between a dog and an owner can be one of great emotional significance. They can provide a source of companionship, support, and comfort that should not be discounted.[11] Academic research suggests that dog ownership also promotes interactions with other dog owners which develops community connections and social networks.[12] The important connection between a dog and their owner renders the destruction order a decision that should be a last resort and made with careful consideration.
Furthermore, a destruction order of a dog brings the notion of animal rights into question due to the impact of such an order on the rights of the dog. Under the Animal Care and Protection Act (2001) (Qld), animals have a right to be protected from unjustifiable, unnecessary, or unreasonable pain. [13] This indicates that animals have a recognised right to be protected from undue pain and suffering under legislation. Although the discussion paper highlights that the destruction of a dog is a decision of last resort that is carefully considered, it still extinguishes the animals right to life. Furthermore, the destruction of animals foregrounds the moral complexities regarding a human’s ability to legally end the life of another living being. Jeremy Bentham articulates these complexities that are associated with the treatment of animals under legislation by highlighting that animals should be afforded the right to protection from suffering.[14] Although the purpose of a destruction order is to protect the community, the dog’s right to life is still extinguished, which has moral complexities associated with it.
It is important to acknowledge the impact of destruction orders on the rights of dogs and dog owners. However, that is not to suggest that the protection of human rights is to be superseded by such rights. Under the Act, a destruction order can be administered if the dog is reasonably believed to be dangerous or there are no other means to control it.[15] Case law has provided guidance in determining whether a dog can be effectively controlled by taking into account the relevant history of the dog’s behaviour, the current behaviour of the dog, the risk the dog poses to the health and safety of the community, as well as a multitude of other relevant factors .[16] The discussion paper also upholds the case law that considers the destruction order a matter of ‘last resort’[17]
Destruction orders infringe upon the rights of the dog and the dog owner. However, the threat the dog poses to the community and the careful consideration that occurs for destruction orders renders such a decision appropriate and necessary to uphold community safety in the relevant circumstances.
B. Limiting External Review Decisions
The proposal in this survey question is to streamline the process of review for a destruction order so that an appeal for an external review can only occur on a question of law, therefore limiting internal appeals that occur in QCAT. The effect of such a proposal is a limitation on an individual’s appeal options when a destruction order is made. The process of appealing allows individuals to dispute a ruling to a higher tribunal[18]. This ensures individuals have recourse in situations that they believe there has been a miscarriage of justice.[19] The process of appeal is of vital importance, as it upholds community confidence in the justice system by holding it accountable in the administration of justice.[20] A proposal to limit the process of review of destruction orders diminishes the recourse of justice, which has the potential to jeopardise public faith in the justice system.
In addition to this, the external review process has resulted in the setting aside of destruction orders, which is indicative of their importance in the case of destruction orders, due to the finality of such a decision. Case law illustrates that the external review appeal processes can result in destruction orders being reconsidered and ultimately set aside after re-evaluation of the facts. In the case of Thomas v Ipswich City Council, after an internal review, external QCAT review and internal QCAT review, the Appeal tribunal overturned the destruction order, as they found that the arrangements in place for the dangerous dog were sufficient to protect the community from damage, injury and risk from the dog.[21] This appeal was argued based on a question of fact and a question of law and it succeeded on the grounds that the dog posed a low risk to the community when the necessary safeguards were in place.
In addition to this, in the case of Gligoric v Gold Coast City Council, the destruction order was rescinded after an external review conducted by QCAT, as it was subsequently found that Ms Gligoric undertook the necessary precautions to comply with the regulations regarding her dangerous dog.[22] These two cases suggest that the ability to appeal to higher courts, on a basis of fact, law, or a mix, is important in the context of destruction orders, as there is a possibility of overruling the original destruction order. This is of particular importance in the context of a destruction order due to the finality of the decision to make such a ruling.
Concluding Statement
Survey question seven has given rise to two separate issues; the impact on owners’ rights associated with the ruling of a destruction order, and the limitations on appeal processes by streamlining the external review process. The streamlining of the review process for destruction orders impacts the rights of the dog owner to appeal a decision based on a question of fact or a mixture of law and fact, which impacts the rights of dog owners. However, such a restriction on rights can be considered reasonable, as they minimise the cost of appeal processes on the community, and the length of the impoundment of the dog.
We trust this is of assistance to you in your deliberations.
[1] Fiona Campbell ‘Overcrowding in Queensland Prisons’ (2012) 7(28) Indigenous Law Bulletin 12.
[2] Jamie Santa Cuz ‘Rethinking prison as a deterrent to future crime’ (13/07/2022) Knowable Magazine.
[3] For example, see George Winter, ‘Few dog owners are aware of all their legal obligations, study finds’ (18/03/2022) The Irish Times.
[4] Andrew Hemming, ‘The Patel Trials: Further Evidence of the Need to Reform the Griffith Codes’ (2014) 38 Criminal law Journal 218, 218-221.
[5] Simon Bronnitt and Bernadette McSherry, Principles of Criminal Law (Lawbook Co, 4th ed, 2017) 562.
[6] Animal Management (Cats and Dogs) Act 2008 (127)(6)
[7] Queensland Civil and Administrative Tribunal, ‘Review of Government Agency Decisions’, Queensland Civil and Administrative Tribunal, (Web Page, 18 August 2023) < https://www.qcat.qld.gov.au/>
[8] Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(b)
[9] Queensland Civil and Administrative Tribunal, ‘Appealing a QCAT Decision’, Queensland Civil and Administrative Tribunal, (Web Page 17 August 2023) < https://www.qcat.qld.gov.au/>
[10] Ibid
[11] Gilgoric v Council of the City of Gold Coast [2020] QCAT 320
[12] Parliament of Victoria, Submission to Legislative Council and Infrastructure Committee on Regulatory Framework Regarding Restricted Dog Breeds, Inquiry into Regulatory and Legislative Framework Relating to Restricted Breed Dogs (18 August 2023) 7.
[13] Animal Care and Protection Act (2001) (Qld) s 3(c)
[14] Jeremy Bentham, An Introduction to the Principles of Morals and Legislation, (England: Printed for W. Pickering [etc.], 1823) 145.
[15] Animal Management (Cats and Dogs) Act 2008 (127)(2)
[16] Nguyen v Gold Coast City Council Management [2017] QCATA 121 [32]
[17] Thomas v Ipswich City Council (2015) QCATA 97 [18]
[18] LexisNexis, Halsbury’s Laws Of Australia (online at 17 August 2023) 325 Practice and Procedure, ‘Nature and Origin of Right of Appeal’.
[19] King, S Michael ‘Therapeutic jurisprudence, leadership and the role of appeal courts’ (2008) 30, Australian Bar Review, 201.
[20] Ibid, 202.
[21] Thomas v Ipswich City Council, [2015] QCATA 97 [49]
[22] Gligoric v Gold Coast City Council [2020] QCAT 320 [28]