_(c) the registrar is reasonably satisfied that - _

(i) the dog's keeper is unable to exercise responsible dog management, care or control in relation to the dog; or

(ii) there would be an unacceptable risk to the safety of the public or other animals if the dog were released to the keeper; and

(d) the registrar is reasonably satisfied that the dog would not be an unacceptable risk to the safety of the public or other animals if the dog were kept by someone who was able to exercise responsible dog management, care or control in relation to the dog.

1. Section 4B of the DA Act sets out the criteria that must be considered when assessing responsible dog management, care or control:

4B Criteria for considering responsible dog or cat management, care or control

_For this Act, the registrar in considering whether a person has failed, or is unable, to exercise responsible dog or cat management, care or control - _

(i) any conviction or finding of guilt of the person within the last 10 years against a law of a Territory or State for an offence relating to the welfare, keeping or control of an animal; and

1. In assessing whether Mr Oliver is able to manage, care for and control Blackie responsibly, the Tribunal had the benefit of the Tribunal documents; comprehensive written submissions from the representative for Mr Oliver and the Registrar filed before the hearing and closing submissions filed after the hearing; two witness statements from Mr Oliver; a statement from each of the two Rangers who seized the dogs on 8 April 2020, Mr David Wright and Ms Skye Campbell and photographs of the yard including fencing and gates where the dogs were kept; a statement and several reports from Mr Bruno Grutzner, the head dog trainer at the Balanced Dog Academy who assessed Blackie and conducted training sessions for Blackie with Mr Oliver; a statement from a neighbour of Mr Oliver in Narrabundah into whose yard the dogs ran on 8 April 2020 prompting the Rangers to attend and seize the dogs; and the evidence provided at the hearing on 29 January 2021 as recorded in the transcript. Mr Grutzner and the neighbour were unable to attend the hearing, however, their evidence has been considered. Mr Oliver, Mr Wright and Ms Campbell gave evidence at the hearing and were cross examined. The Tribunal reserved its decision.
2. Mr Oliver stated that he has had dogs as companions/pets for most of his life and it is clear that he is very fond of his dogs. He stated that he spent most of his time living on a farm at Captain's Flat before moving to Canberra and that the dogs were mostly left to be free on the farm, that they did not need to be desexed or restrained by, for example, being on leads.
3. The Tribunal is satisfied of the following facts in this case relating to criteria under section 4B, in particular responsible dog management and non-compliance with control orders:

(a) Mr Oliver owns Whiskie and has done since she was born, 17 January 2017. He intended to have her desexed at around 18 months old as he thought this was about the right age, however, he was in the midst of moving in May 2018 to his current home in Narrabundah and time got away from him. Whiskie escaped from the yard while on heat, returned the following day and later gave birth to five pups around end September - mid October 2018. Mr Oliver found homes for four pups but kept one pup, Blackie.[2]

(b) On 21 November 2018, DAS received a complaint about illegal breeding at Mr Oliver's property and Blackie was seized as he was not registered or microchipped. He was returned the next day with a 28 day compliance notice issued and on 3 May 2019 Mr Oliver was issued with a compliance notice for illegal breeding.[3]

(c) In his statement and in cross examination Mr Oliver stated that he was not aware of some of the regulations around keeping dogs in Canberra, such as registration, desexing and breeding and that he had some help from DAS and the RSPCA in having both dogs desexed on 17 July 2019. He has also had help from Housing ACT regarding fencing and DAS and Winunga regarding payment for dog training sessions and transport to training sessions.

(d) There are several reports noted in the T documents pages 82-94 from May 2019 until April 2020 about Mr Oliver's dogs wandering the neighbourhood unleashed and sometimes causing people and other dog owners to be very anxious about what the dogs might do, and worried about the safety of the dogs on the roads. Control orders were issued for both dogs in July 2019 with the requirements that both dogs were kept in a secure yard, and when outside the premises were to be restrained on a leash and muzzle and under the effective control of a person over 18 and that both dogs be trained in basic dog socialisation - the training was not undertaken.

(e) On 8 April 2020 the dogs left Mr Oliver's yard and entered his neighbours yard through the fence somehow, picked up one of her chickens and really frightened the neighbour's daughter who was in the yard. DAS was called, the dogs seized and an investigation conducted. At the time the dogs escaped from Mr Oliver's yard they were subject to a control order under section 53C(4) of the DA Act. One of the requirements was that the dogs were kept in a secure yard. The neighbour later applied to Housing for a transfer away from this area in Narrabundah.[4]

(f) Mr Grutzner, an experienced dog trainer assessed Whiskie and Blackie on 7 May 2020 and at the expense of DAS, undertook intensive training sessions with Mr Oliver and the dogs, twice a week for six weeks. Whiskie was found to be a well balanced dog and Blackie aggressive, particularly towards other dogs. The dogs showed progress and listened to Mr Oliver, however, Mr Grutzner stated that Mr Oliver did not like to be told that the dogs had to be on a leash and supervised at all times when out and that Mr Oliver's attitude was an important factor in the dogs being returned to him. Based on his knowledge of Mr Oliver, Mr Grutzner thought that Mr Oliver may not be able to offer the clear direction and commitment to training and management that Blackie needed to become a good dog in the community. Mr Grutzner stated that Blackie needs clear direction from a new owner or the aggression would reappear.[5]

(g) Mr Oliver stated that he was keen to continue the training and had expected it to last longer than six weeks and was disappointed it finished. He felt it had helped both dogs. His commitment to training is evident in that he planned to enrol Whiskie in the RSPCA's Dog Training School.

(h) Whiskie is with Mr Oliver and a control order is in place for her.

1. Under section 4B the following considerations are relevant in determining whether Mr Oliver is able to exercise responsible dog management:

(a) There has been non-compliance with a control order issued in July 2019 - a control order for each dog was in place at the time the dogs escaped the yard on 8 April 2020 and frightened the neighbours.[6]

(b) There were several reports about Mr Oliver's dogs being out in the neighbourhood that needed to be followed up, including another breach of the control order in November 2019 when the dogs ran some distance and nipped the dog 'Autumn".[7] In this case it seems that the dogs did respond to Mr Oliver's call, however, neither dog was muzzled which was in breach of the control order in place. The dogs may not wander in the future but it is a consideration, past behaviour being a fair predictor of future behaviour.

(c) Mr Oliver's level of awareness and knowledge of and commitment to his responsibilities in caring for his dogs in the ACT: he had limited knowledge when he got Whiskie and has learnt a lot since but needs to follow through in being a responsible dog owner. He seems to be doing this with Whiskie by enrolling her in training.

• 9. One of the main purposes of the DA Act as it relates to dogs is to ensure public safety, so that people living in the community can feel safe doing whatever activity they want to do. This includes being able to walk the dog without fear of physical injury to oneself or the dog, not having to worry that dogs out alone may he injured by cars, and feeling safe and not at all anxious or frightened that dogs may enter private yards uninvited.[8]

1. The issue for determination is whether the Registrars decision to sell Blackie is the correct and preferable decision.
2. The Registrar determined that section 67A(1)(c)(i) was met: that Mr Oliver is unable to exercise responsible dog management, care or control in relation to Blackie and that Blackie should be sold.
3. Having regard to the factors in section 4B in determining whether Mr Oliver has failed or is unable, to exercise responsible dog management, care or control, he has:

(b) not been aware or made himself aware of his responsibilities as a dog owner in the ACT: he did not register or desex his dogs at the right time; was not aware that breeding and selling/giving away puppies without a licence was illegal.

1. Mr Oliver has failed or is unable, to exercise responsible management, care or control of Blackie.
2. The Registrar's decision to sell Blackie is confirmed.

Ms K Musgrove & Ms G Belcher, ACT Government Solicitor

[2] Exhibit A1, Witness statement of Mr David Oliver dated 26 November 2020

[4] Witness statement of the neighbour dated 11 December 2020 at [30]-[32]

[5] Witness statement of Mr Bruno Grutzner dated 8 December 2020 at [19]

[8] Lau v Registrar, Domestic Animal Services Act 2000 [2018] ACAT 119