NSW Councils given broad power to declare dogs ‘menacing’

The Companion Animals Amendment Act 2013 which came into effect on 19th November 2013 introduces several new provisions to regulate dogs that are considered to be aggressive.

‘Menacing Dogs’

The most significant change is the introduction of a new category called ‘menacing dogs’. The new section 33A of the Companion Animals Act 1998 defines a menacing dog as one that:

(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.

The changes are designed to give Councils greater power to regulate dogs that are considered aggressive, but have not engaged in an attack sufficient for them to be declared ‘dangerous’.

Under the new provisions, Council is required to issue a notice of its intention to declare a dog to be a ‘menacing dog’.

That notice can be issued by any Council in NSW, regardless of whether the dog ordinarily resides within that Council area.

The owner then has 7 days to lodge an objection to Council against the proposed ‘menacing dog declaration’.

The Council is required to consider that objection before deciding whether to make the final declaration.

‘Control Requirements’

The new section 51(1A) of the Act imposes the following requirements for ‘menacing dogs’:

Desexing

(a) the dog must be desexed within 28 days, and

Enclosure

(b) the dog must be enclosed in a manner that is sufficient to restrain the dog and prevent a child from having access to the dog whenever the dog is on the property where it is ordinarily kept and not under the effective control of an adult, and

Leash & Muzzle

(c) the dog must be muzzled and under the effective control of some competent person by chain, cord or leash whenever outside the property where it is ordinarily kept.

Other Requirements

Additional requirements are that:

• the dog must not at any time be in the sole charge of a person under 18,
• a ‘Warning Dangerous Dog’ sign must be affixed to the property,
• a ‘yellow and red’ dangerous dog collar must be worn,
• the owner must notify council within 24 hours of any attack, and
• the dog must be registered within 7 days.

The maximum penalty for failing to comply with any of these control requirements is $15,500.

Appeals

It is troubling that dog owners have no right to appeal a ‘menacing dog declaration’ to the Local Court.

This is different to the situation with ‘dangerous dog declarations’ which can be appealed to the Local Court within 28 days of the declaration being made.

The only avenue of appeal for owners of ‘menacing dogs’ is directly to Council at least 12 months after the declaration is made.

This, it is argued, effectively shields Council officers against judicial review of arbitrary, incorrect or improper decisions (to declare dogs as ‘menacing’) and thereby undermines dog owner rights to due process.

It essentially gives all NSW Councils unfettered discretion to declare any dog to be ‘menacing’ regardless of where the dog lives within the state.

Menacing Dog vs Dangerous Dog

The main advantage of a ‘menacing dog declaration’ over a ‘dangerous dog declaration’ is that the control requirements are less stringent.

Owners of ‘dangerous dogs’ are required to adhere to a whole host of control requirements, the most onerous (and inhumane) of which is that the dog must be kept at all times within a dog cage unless it is leashed and muzzled.

This means that a ‘dangerous dog’ cannot even come into the house or go to the vet unless it is leashed and muzzled.

For that reason, owners of dogs that are declared ‘dangerous’ may ask Councils to impose ‘menacing dog declarations’ instead.