The Panel intervened this week to arrange for RSPCA (SA) to offer to take the dogs Charlie and Sharni from the Frankston City Council. The Frankston City Council has resolved that the dogs be put down for killing a cat or cats. RSCPA (SA) made the offer in writing but it was rejected by the Council today. The dogs are due to be put down tomorrow. If accepted, the RSPCA (SA) offer would have obviated any concerns espoused by the Council about community safety.
The Panel first made an offer to re-home the animals when they were first due to be put down on the 12th of March, when it appeared that the dogs owner was not going to take legal steps to halt the dogs being put down. The owner subsequently did so. The Panel has not acted for the owner as she had separate legal representation.
Click here for the article published on the Age tonight.
Below is an extract of the Panel’s urgent letter on 12 March to Frankston City Council .
Further to our recent telephone call, I confirm that the Panel would like to assist the Council in formulating a satisfactory non-lethal solution in respect of the above two dogs and suggest or advise as follows :
- it would appear that the Council’s decision is based in part on a concern about responsible pet ownership, and in part (admittedly based by me upon a hearsay ) on a concern about whether these dogs may on a future occasion possibly attack say a child
- as to the latter, first, I refer to Feakes v Cardinia Shire Council (General) VCAT 1436 (26 August 2010) http://www.austlii.edu.au/au/cases/vic/VCAT/2010/1436.html where VCAT Deputy President Macnamara ( a judicial officer) refused to affirm a Council declaration that a dog was a dangerous dog where the dog had slipped his owner’s collar and attacked and killed a cat, noting (para 11) that “the hostility between dogs and cats is proverbial….[and] that Rex in this case was displaying a characteristic which is typically inherent in all dogs, that is hostility to cats.” The declaration was set aside on condition of undertakings that the dog whilst abroad wear a muzzle , and be leashed and harnessed. It is of course not to the point that this is a VCAT decision whereas any relief to be sought by the owner(s) would lie in the Supreme Court on the basis of suggesting an unreasonable exercise of discretion by the Council under sec84P, Domestic Animals Act 1994. For unless the statute expressly or by implication modifies the power otherwise, it is well settled as a legal principle that Parliament intends an exercise of power to be reasonable: see Li 297 ALR 225;  HCA 18; Singh  FCAFC 1 (4 February 2014) at para 43. And here Feakes case is an expression of judicial opinion relevant to the question of whether the exercise of discretion is reasonable.
- Second, it is thus one thing for a dog or dogs to attack a cat in accordance with their “…a characteristic which is typically inherent in all dogs, that is hostility to cats” [emphasis added].. But it is quite another to suggest that such hostility can be translated to children. I understand Ms Shannon Holt has two children aged 20 months and 4 years of age. There is simply no scientific or other basis for suggesting that a dog which kills a cat will thus likely attack a child. This, with respect, is quite wrong . In fact it seems the dogs’ infractions are entirely consistent: the second incident involved another cat.
- Third, and going to the point of responsible pet ownership, if the Council entertains concerns in this regard , then the Panel would be prepared to assist the Council achieve a non-lethal outcome consistent with addressing the Council’s concerns, namely-
Given time is so short, I have been compelled to be brief . However I would be happy to talk to any officer or Councillor further on the matter.
Graeme McEwen, Chair
Barristers Animal Welfare Panel