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ASSIGNMENT QUESTION FOR ADMINISTRATIVE LAW 2017 T2, UNE
Some extracts from the Companion Dogs Act 2001 (NSW) (the Act) follow.
3 Principal Object of Act
The principal object of this Act is to provide for the effective and responsible care and management of companion dogs.
5 Definitions
authorised officer means:
(a) an employee of a local council authorised by the local authority for the purposes of this Act.
33 Meaning of ‘menacing’ and ‘menacing breed or kind of dog’
(1) For the purposes of this Act, a dog is menacing if it:
(a) has displayed unreasonable aggression towards a person or animal (other than vermin), or
(b) has, without provocation, attacked a person or animal (other than vermin) but without causing serious injury or death.
(2) The Governor may declare a breed or kind of dog to be a menacing breed or kind of dog if it displays the characteristics associated with menacing behaviour.
34 Authorised officer may declare a dog to be menacing dog
(1) An authorised officer of a council may declare a dog to be a menacing dog if the authorised officer is satisfied that:
(a) the dog is menacing, or
(b) the dog is of a menacing breed or kind of dog (or a cross-breed of a menacing breed or kind of dog), or
(c) the dog has been declared a menacing dog under a law of another State or a Territory that corresponds with this Act.
(2) A declaration can be made on the authorised officer’s own initiative or on the written application of a police officer or any other person.
(3) A declaration has effect throughout the State.
35 Owner to be notified of proposed declaration
(1) An authorised officer of a council must give notice to the owner of a dog of the officer’s intention to declare the dog to be a dangerous dog or a menacing dog.
(2) The notice must set out:
(a) the requirements with which the owner will be required to comply if the declaration is made, and
(b) the owner’s right to object to the proposed declaration in writing to the authorised officer within 7 days after the date the notice is given.
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37 Authorised officer must consider dog owner’s objections
(1) The owner has 7 days after the date the notice is given in which to object to the proposed declaration.
(2) If the owner does not object within that time, the authorised officer can proceed to make the declaration after the 7 days have passed.
(3) If the owner does object within that time, the authorised officer must first consider the objection before proceeding to make the declaration.
47 Control orders
(1) If a declaration is made under s 34, the authorised officer may make a control order.
(2) A control order is an order that the owner of a dog take such action within the period specified in the order as the officer thinks necessary to prevent, or reduce the likelihood of, the dog attacking or causing injury to persons or animals.
3) The actions that a control order can require the owner of a dog to take include:
(a) the desexing of the dog,
(b) the behavioural or socialisation training of the dog, and
(c) training that is associated with responsible pet ownership.
68 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
In January this year in NSW, a three-year-old child was attacked by a Milton terrier, a popular breed of dog, after yanking its tail. The child suffered severe facial injuries. This attack received considerable media exposure and Thornton, the Minister for Local Government, asked his Department to prepare a draft regulation declaring Milton terriers are a menacing breed of dog.
The Department received submissions on the draft regulation as part of the consultation requirements under the Subordinate Legislation Act 1989 (NSW). The only submissions received were from prominent animal welfare groups, which claimed that Milton terriers were no more aggressive than other dog breeds that had not been declared to be menacing and that many dogs could respond aggressively if their tails were yanked.
Thornton recommended to the Governor the making of a regulation that was identical to the draft regulation. The Governor made the regulation on 14 February, it was appropriately published, it was tabled in both Houses of Parliament on 18 February, and it was not disallowed.
On 1 April, Margaret walked her Milton terrier, Bell, through the streets of Helstone, NSW. On their walk, Margaret stopped to speak to an acquaintance, Bessy, an elderly and frail lady.
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Distracted by their conversation, Margaret dropped Bell’s leash. Bell circled around Bessy several times, wrapping Bessy’s ankles in the leash. Bell then saw a cat and attempted to charge across the road. Bessy’s feet were thereby pulled, and she fell to the ground, breaking her femur, necessitating an operation in hospital. Bessy reported the incident to Helstone Council by telephoning the Council from her hospital bed two weeks later.
Lennox is an authorised officer at Helstone Council, and was asked to investigate the matter. During the course of his investigation, Lennox received a letter about Bell from Margaret’s neighbour. The neighbour stated that he witnessed Bell bite another dog two years ago, but that he did not want his identity revealed because it would affect his neighbourly relations.
Lennox informed Margaret by letter on 5 May that he intended to declare Bell to be a menacing dog. His letter made five points. First, that Bell had been unreasonably aggressive towards a cat and, through this aggression, pulled an elderly person to the ground, leaving her seriously injured. Secondly, Bell had bitten another dog some years earlier, but he was bound by confidentiality not to reveal any further details. Thirdly, Bell belongs to a kind of dog that had been declared by regulation to be menacing.
Fourthly, if the declaration were made, he was minded to make the following control orders: first, that Bell must be desexed and, second, that Bell must be kept on a leash and muzzled whenever outside Margaret’s house, including in Margaret’s enclosed back garden. These conditions would apply for the rest of Bell’s life. Fifthly, Margaret had seven days to make a written objection to the proposed declaration and control orders.
On 6 May, Margaret rang Lennox to complain that seven days was inadequate for her to collect references testifying to Bell’s good fame and character, which she would include with her objections. Lennox told her: ‘Don’t worry, Margaret. I’ll give you until 15 May to submit your objections.’ Relying on Lennox’s word, Margaret did not submit her objections on 12 May. However, on 13 May, Lennox declared Bell to be a menacing dog and made the control orders mentioned in his letter of 5 May.
Answer the following questions:
1. In which court or courts should judicial review be sought? What remedy or remedies would be most appropriate?
2. What arguments should Margaret employ in seeking judicial review of the regulation declaring Milton terriers a menacing breed of dog?
3. What arguments should Margaret employ in seeking judicial review of Lennox’s declaration?
4. What arguments should Margaret employ in seeking judicial review of Lennox’s control orders?
You must confine the legislation and cases referred to in support of each of your arguments or claims to those that are part of the prescribed reading for weeks 1–6 (or mentioned in the accompanying lecture notes). You must heed the information on the assignment provided in the Study Guide, including on
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word length penalties, and relevant information in the Essential Guide. You should also heed any further advice on the assignment that is mentioned in lecture notes.
Marks will be allocated on a per-issue basis, so it is important to exercise judgment in relation to word allocation between the questions. Clearly, the first question is of a procedural nature and can be answered quickly, while the later questions are more substantive.
In relation to esubmission, students must check that they are submitting the correct assignment and not an assignment for a different unit. Submission of the latter will not lead to circumvention of late penalties nor the awarding of a special assessment in the form of another assignment question. Students should also ensure that they ‘submit’ the essay, not merely upload a draft of the essay. Furthermore, students must not submit a scanned copy of their assignment, for image pdfs cannot be analysed by the TurnItIn software. Students unsure of how to properly convert documents to pdf should follow the advice referred to in the Essential Guide to Studying Law.