A. Introduction

5.1 In this final chapter the Commission sets forth its recommendations and views on all provisions of the Dog Act. By doing so it hopes to provide a point of easy reference for those reading the Report. Detailed discussion of the recommendations appears in other sections of the Report.

B. Definition of Owner, ss4 and 5

5.2 Apart from the amendment to the definition of “Public Place” in s4, (discussed below at 5.3) the Commission makes no recommendations for the amendment of the definitions of owner contained in ss4 and 5 of the Dog Act. The definitions provided are comprehensive and suit the needs of the new scheme the Commission is suggesting in that they tie ownership to registration or occupation of property. Suitable defences are provided in s4(2A) for those occasions on which the definitions allow attribution of ownership to more than one person. The provisions of this subsection properly cast the onus on the defendant to satisfy the court that some other person is the owner of the dog. The approach taken by the Court of Appeal in Porter v Cook¹ to the question when a stray has been reduced to possession is consistent with the policy of the Act and accords with the Commission’s intention.

C. Definition of Private Property

5.3 At present the Act makes a distinction between the liability imposed for acts occurring on private and public land by reference to the owner’s occupation of the property. Owners are exempted from the criminal and civil liability imposed under ss6 and 20 when the harm occurs on property occupied by them. That property includes any land, vehicle or premises occupied by the owner or on which the dog is ordinarily kept [ss6(2), 20(2)]. The Commission believes that this distinction should be based on the access the dog has to the public and not on the occupation of property by the owner. Thus dogs in parts of private premises which the public in fact uses should be regarded as being on public land. Dogs in open vehicles from which they have access to the public should also be regarded as being on public land. The Commission recommends that dogs in places to which the public has access, although in private premises or vehicles, should be subject to the provisions of the Act which require them to be suitably controlled and which expose their owners to full liability for harm occurring in public.

D. Criminal Liability for Attacks

5.4 At present, the Act provides in s6 for an offence of strict criminal liability where a dog causes injury to a person while it is outside its owner’s property. The Commission does not recommend an extension of this strict criminal liability to cover incidents occurring on the owner’s private land. Recommendations are made for amendment to the defences provisions in s6(2)(b) so that the defence of intentional cruelty and provocation is available only where the provocation or cruelty are offered by the victim or someone closely associated with the victim. The Commission also recommends that a new offence be created to counter the problem of serious attacks by dogs. This offence would only apply in circumstances where the owner had been reckless in the control of a savage dog. As the Commission regards this as a serious offence it recommends that the maximum penalty should be equivalent to that imposed under s35 of the Crimes Act for the offence of malicious wounding. This would mean that the offence would be an indictable offence triable summarily with the consent of the accused person and subject to maximum penalties of $2000 fine or 2 years imprisonment under Crimes Act 1900, s476 (2), (6), (7). However, it is further recommended that the defence of self-defence of person or property be made expressly applicable to this offence.

E. Control of Dogs on Public Land, ss7-l0

5.5 Sections 8 and 9 are well designed to give wide powers to councils to regulate the activities of dogs in public places. No changes are recommended, although their application will be extended by the changes to the definition of “public place” proposed in para 5.3. Section 8 establishes the general rule that no dog is permitted in a public place unless restrained on a leash and s9 makes provision for councils to prohibit their entry into sensitive public areas such as children’s playgrounds, schools and swimming and shopping areas. The needs of dog owners are met by s8(4) which allows councils to designate areas where dogs may run freely. The owners ‘ responsibility to ensure that public places are kept clean after use by their dogs, which is imposed by s9B, seems reasonable in view of the inconvenience and hazards to health which dogs present to the community. The Commission did not receive any submissions on ss7 and 9C, which impose special restrictions on greyhounds, and makes no recommendations on these provisions.

F. Seizure, Impounding and Destruction, ssl0 and 11

5.6 A number of councils claimed that the provision requiring an unregistered dog to be kept for seven days before destruction [s11(5)] imposes an unnecessarily heavy financial burden on councils. Some pointed to low collection rates for these dogs and suggested that it would be more reasonable if they were required to retain the dog for only four days. It was also suggested that the retention time for registered dogs and those carrying identification should be reduced from 14 to seven days. Most councils responding to our request for information were more resigned to the costs involved in the control of dogs, and although they supplied figures which showed that the rate of destruction was about 40% of the dogs impounded, they did not call for a shortening of the retention period. In view of these inconclusive results the Commission does not recommend that the periods for which councils are required to retain dogs before destruction should be reduced. The costs to dog owners whose animal may be destroyed by mistake or without notice are too high.

G. Destruction of Dogs ss12, 13, 18 and 19

5.7 The Commission has not been made aware of problems with the operation of these provisions. The provisions would appear to contain a useful consolidation of the common law. The Commission makes no recommendations for change to ss12 and 13. No evidence was presented to the Commission of failure to comply with s18 which regulates the manner in which dogs are to be destroyed. Those councils which commented on their practices indicated that they employed qualified veterinarians to destroy impounded dogs.

H. Registration of Dogs, ss14-17 and 21

5.8 The Commission makes no recommendations in relation to the registration provisions contained in ss14-17 and s21.

I. Guide Dogs, s17A

5.9 The Commission makes no recommendations on s17A.

J. Statutory Civil Liability for Injury, Damage and Death, ss20-20C

5.10 The Commission recommends that s20 of the Dog Act be repealed.² In its place there should be enacted a provision which imposes strict civil liability in respect of all harm caused by a dog while outside its owner’s property. As such causes of action would extend to relatives of the victim under the Compensation to Relatives Act 1897 consequential amendments to s20A would be necessary following the repeal of s20. Section 20B extends the s20 type of limited liability to cover injuries inflicted on animals. As the new s20 will extend to all property damage s20B becomes unnecessary. It should be repealed. Currently, the defence of contributory negligence recommended in Chapter 4 appears in s20C [4.43]. The Commission recommends that this provision be repealed and replaced by the general scheme of contributory negligence provided by the Law Reform Commission (Miscellaneous Provisions) Act 1965.

5.11 In Chapter 4 [4.43-4.44] the recommendation was made that where contributory negligence exists, s10(1) of the Law Reform (Miscellaneous Provisions) Act 1965 should apply. The Dog Act in its present form allows also for the defences of intentional cruelty or provocation [in s20]. These should continue, but the Commission recommends that the defences of intentional cruelty or provocation should be available only if the cruelty or provocation was offered by the victim or someone associated with or acting on behalf of the victim.

K. Civil Liability on the Owner’s Land

5.12 The Commission recommends that the common law of negligence continue to apply to harm caused by dogs on their owner’s land [4.13-4.15]. There seems no reason to offer an exemption from liability to the occupier for injury caused by a dog. The Commission is not persuaded that the right to have a watchdog justifies such an exemption.

L. General Control

5.13 The Commission makes a number of recommendations which it considers will assist in the general control of dogs. The first arises out of the view expressed by many of the councils which wrote to the Commission that the enforcement mechanisms provided by the Act (collection and impounding and fining after court proceedings) were ineffective. They suggested that a system of on-the-spot infringement notices be introduced citing in support success in the use of such notices in anti-litter campaigns. The Commission is attracted to this suggestion for it has the virtue of “user paying”. At present a significant proportion of the funds councils devote to the control of dogs is spent on the enforcement of the provisions of the Act. Councils must employ staff to collect and impound stray dogs and much of their time is wasted on unproductive chases. The costs of operating a pound and of providing for the destruction of dogs by qualified veterinarians are also high. The fees recovered by councils through their registration systems meet less than half of these costs. While most councils accept these costs there seems no reason why those who require the services provided should not make a more significant contribution towards them. Introduction of on-the-spot notices would go some way towards ensuring that those who introduce the problem into the community pay. It would also be a more efficient means of enforcing compliance with the Act because on many occasions it would relieve rangers of the task of catching the dog before it returns to its owner’s land. The ranger could simply follow the dog home and issue the householder with an enforcement notice. Defences already available in ss4 and S of the Act would allow the householder to shift responsibility where wrongly identified as the owner. The Commission recommends that council officers be given power to issue on-the-spot infringement notices for offences under the Dog Act.

5.14 The Commission’s recommendation concerning the general control of dogs provides a remedy where dogs pose a threat to members of the public because they are not kept under proper control [4.19-4.21]. This would arise in situations where a dangerous dog is allowed to roam free on public land or where it is inadequately fenced or contained on private land. The Commission recommends that a provision be inserted in the Dog Act which would allow a magistrate upon complaint that a dog is dangerous and is not kept under proper control, to order the owner of the dog to keep it under control or to order that these dog be destroyed. The problems encountered by statutory officers seeking lawful entry to private land are better dealt with by separate provisions [4.17-4.18]. To this end the Commission recommends that those seeking lawful entry to private land whose previous attempts have been thwarted because of actual or likely savage behaviour by a dog, be able to apply to a magistrate for an order to assist their entry. Such an order would allow restraint of the dog by a council officer if required.

FOOTNOTES

1. [1971] 1 NSWLR 318. The Court interpreted “kept” to require examination of the measure of control exercised over the dog and the failure to chase it away. The act of providing food for the dog, although only scraps from the table, was “a positive act of attaching the dog to the premises

2. The Deputy Chairman of the Commission, Mr Russell Scott, dissented from this recommendation. His reasons appear in Ch 4, note 30.