1. During the week of 15 January 2018 the applicant had been absent from his property for work interstate. He left the care of Kogan and Boo to his partner, who told the respondent's investigator that she had checked the dogs' water, fed them and left them untethered in the applicant's backyard when she left for work each day.
2. Sometime on 18 January between 8.30am and 7.00pm, Kogan and Boo jumped over the two-metre high Colorbond fence between the applicant's property and his neighbour's. Once inside the neighbour's property one or both of the dogs attacked a German shepherd named Khan who lived there.
3. Khan's carer arrived at his home on 18 January after work with his two daughters. One of his daughters went outside and advised her father that the two Bull Arab cross dogs were in their backyard. He investigated himself and found Khan deceased lying on his side with Kogan sitting next to him. He also noticed tufts of black hair and blood spread around the concreted areas of the property. He took photographs of the three dogs.
4. The applicant advised the investigator that when he arrived at his property he called out to his dogs and, on looking over the fence between him and his neighbour, saw both dogs next door. He called them and Kogan jumped over the fence without any assistance while Boo needed his help to get back. The applicant also said that he noticed blood on Kogan's nose but did not see any blood on Boo.
5. Khan's carer advised the applicant that Khan had died and that he would report the incident. At approximately 8.15pm two Domestic Animal Services rangers attended and examined Khan. They observed that he was in the early stages of rigor mortis, suggesting that he had been dead for a few hours prior to being found.
6. When the rangers attended the applicant's property he allowed them access to the backyard, where they detailed that the premises' fencing was in a good condition and undamaged. At approximately 10pm Kogan and Boo were seized pursuant to section 61 of the Act.
7. On 22 January 2018, veterinarian Dr Arianne Lowe conducted a necropsy. Dr Lowe found that there was an extensive tear from behind Khan's right ear to his skull which was approximately 15cm x 10cm in size. There were also multiple puncture wounds to his skull. Khan had further suffered a skin tear on the right side of his neck of approximately 9cm x 4cm. Dr Lowe summarised that there was "clear evidence of multiple dog bite puncture wounds... mainly around the head and neck."

1. The application was heard on 2 October 2018. The applicant was self-represented. Dr D Jarvis appeared for the respondent instructed by the ACT Government Solicitor.
2. The applicant tendered five statements from individuals who had known him and both dogs for some time. All described the applicant's affection for his dogs and their observations on the dogs' obedience and good behaviour. The applicant also tendered a report from his psychologist, Ms Vanessa Inglis. Ms Inglis reported that the applicant described his dogs as "key emotional support" through difficult times for him. Ms Inglis opined that "the companionship of [the applicant's] dogs is more essential to his well-being than is generally the case with other 'dog lovers' due to his background of both unusual adversity, and his early attachment to dogs in the absence of reliable human attachment figures."
3. The applicant additionally provided a quotation to fabricate a secure dog run on his property and to angle boundary fences for the purpose of deterring jumping and climbing.
4. The applicant advised the Tribunal that his dogs were used for pig hunting which they regularly did with him. Usually he took them to work with him where they travelled on the back of his vehicle.
5. He said that his partner had not known that the dogs should have been restrained from roaming freely around his backyard and he also speculated that they had not been fed sufficiently which had caused them to search for food. The applicant expressed his remorse for Khan's death and apologised to Khan's carer who was in the Tribunal.
6. The applicant also tendered an assessment from Mr Sean Ehlers from the business 'Naughty Dog Trainers'. Mr Ehlers describes himself as a level 2 obedience instructor and a qualified dog training behaviourist. Mr Ehlers said that he was retained by the DAS investigator to conduct a behavioural assessment on Kogan and Boo. Mr Ehlers advised that his assessment was incomplete due to not seeing the dogs in their own environment or with the applicant. He opined that both dogs displayed dominant body language when they were viewed near a fence which separated them from a German shepherd. Neither exhibited overt aggression nor obedience in other testing undertaken.
7. The applicant asked the Tribunal to make a finding that the dogs be declared dangerous under the Act. He said that he would de-sex both animals and undertake the work to his property in accordance with the tendered metal fabrication quotation. The applicant also offered to work with the respondent in ensuring other dog owners in the ACT are better educated as to requirements under the Act.
8. As an alternative order, the applicant submitted that as there was no evidence that Boo was involved in the fatal attack on Khan she should not be destroyed in that event the Tribunal finds that Kogan should be.

1. The issue for determination by the Tribunal is whether it should confirm the respondent's decisions to destroy the applicant's two dogs not being satisfied that the dogs are unlikely to be a danger to the public or another animal.

1. Division 2 of the Act deals with attacking, harassing and menacing dogs. Section 53B details the action the registrar must take if he or she is satisfied that:

_(a) a dog attacked a person or an animal and the attack caused - _

(i) the death of the person; or

(ii) serious injury to the person; or

(3) However, subsection (2) does not apply if, and only if, the registrar is reasonably satisfied the dog is not likely to be a danger to the public or another animal.

_(4) For subsection (3), the registrar may consider - _

_(a) the circumstances of the attack including whether - _

(ii) the person or animal was attacked because the dog came to the aid of a person or animal the dog could be expected to protect; or

(iii) if the attack was on premises occupied by the keeper of the dog - the person or animal was on the premises without lawful excuse; and

(b) whether reasonable steps can be taken to reduce the risk of the dog endangering the public and other animals; and

(a) the registrar gives the dog's keeper written notice of the decision to destroy the dog; and

(i) does not, within 7 days after the day the notice is given (the application period), apply to the ACAT under section 120 for review of the decision; or

(ii) applies to the ACAT under section 120 for review of the decision within the application period and the registrar's decision to destroy the dog is confirmed.

_(6) If the registrar decides not to destroy the dog, the registrar - _

(a) may issue a control order for the dog to the dog's keeper or carer; and

(b) if the registrar issues a control order to a carer of the dog - must give a copy of the order to the dog's keeper.

Note 1 The registrar may declare a dog to be a dangerous dog if the dog attacked a person or animal - see s 22 (2).

Note 2 The registrar must give a reviewable decision notice for s (2) and s (6) to the keeper or carer and must also take reasonable steps to give a reviewable decision notice to any other person whose interests are affected by the decision (see s 119 and ACT Civil and Administrative Tribunal Act 2008, s 67A).

1. The starting point of section 53B is that the registrar must destroy a dog whose attack of another animal has resulted in that animal's death. Section 53B(3) contains a proviso to this requirement for if the registrar is reasonably satisfied the dog is not likely to be a danger to the public or another animal. In considering the issue of the danger the dog presents, the Act details a number of factors which may be relevant to this consideration including the circumstances of the attack and whether reasonable steps can be taken to reduce the future risk.

1. In this case the applicant's dogs jumped a two metre-high fence and attacked Khan, the German shepherd next door. The attack resulted in this animal's death. The part each dog played in Khan's assault cannot be determined, as no witnesses to the attack have been found. The investigation report detailed that the German shepherd was larger and weighed more than the applicant's dogs. It would seem, due to the blood found on Kogan's nose, that he was definitely involved with the wounds caused to Khan.
2. While the applicant submitted that there is no evidence that Boo attacked Khan, there is also no evidence that she did not. The applicant gave evidence that both Kogan and Boo are hunting dogs used to hunting in a pack. The fact that tufts of black hair and blood were spread around the concrete ground, underneath a camper trailer and on parts of the internal cement driveway, suggests that Khan was pursued in this area before his death.
3. Pursuant to section 53B, the dogs must be destroyed unless the Tribunal is reasonably satisfied that the dogs are not likely to be a danger to the public or another animal. In considering this likelihood of danger, the Act details that the Tribunal may consider the circumstances of the attack, including whether the dogs were provoked or came to the aid of another they were protecting.
4. There is no evidence here that Khan provoked the applicant's dogs. Khan's owner gave evidence to the investigator that he was on anti-inflammatory tablets due to hip issues, which also prevented him from jumping. The sad situation is that he was in his own backyard separated from the applicant's property by a high wall when he was attacked.
5. Based on the ferocity and severity of this attack, the Tribunal is not reasonably satisfied that either dog is unlikely to be a danger to the public or another animal. The respondent submitted that their training as hunting dogs coupled with the killing of Khan, demonstrated a likelihood that this behaviour may be repeated. The Tribunal's attention was also drawn to the fact that Khan was attacked at the site of his head and neck which, if repeated, would be likely to result in serious injury or death to any future victim.
6. In Robertson v Domestic Animal Services (Robertson), General President Crebbin reasoned:

When making a decision about something that is likely to happen in the future, ideally we'd have crystal balls, but we don't. What we need to do is look at what has happened in the past. That criterion requires an examination of the circumstances of the incidents that led to us being here today. Thus ACAT must examine and must take into account the past conduct and behavior of the dogs as a major factor [emphasis added] in predicting the likelihood of harm being caused to any member of the public or an animal.[1]

1. At the hearing, the applicant submitted that the dogs' pig hunting did not result in the pigs being maimed in the same manner as Khan and so this hunting background should not be taken into account by the Tribunal. The Tribunal considers that the combination of being hunting dogs with the attack of Khan leads to them being considered as a future danger to the public or another animal.
2. Section 53B(4)(b) of the Act also provides that the decision maker may consider whether any reasonable steps can be taken to reduce the risk of the dog endangering the public and other animals. The applicant has clearly given thought to this consideration, as seen by the tendering of a quotation to modify his backyard. He also gave assurances of how he would restrain the dogs in the future.
3. In considering this evidence, the Tribunal notes that the applicant told the investigators that he knew his dogs could jump the fences between him and neighbouring properties. Despite this, they were not restrained in his backyard. The investigators found that the applicant had an established dog run with a mesh roof in his backyard but it was not used.
4. In the Victorian case of Bugter v Moorabool Shire Council, the applicant led evidence that she had spent approximately $20,000 improving the gates of her property and pens where her dogs were then kept. She also gave an undertaking to the Tribunal that her dogs would be kept in the secure locked pen or inside her home at all times when they were at the applicant's property and on leash when outside of it.
5. Senior Member Davis noted that "if an undertaking was given and the dogs were sold or move to another council area, there would be no way of enforcing the undertaking. Put a different way if an undertaking is broken it is the respondent who would have to ask the Tribunal to find the Applicant guilty of contempt in breach of the undertaking. There is no other practical way of enforcing the undertaking."[2]
6. In the case of Sarlija v Registrar, Domestic Animal Services, the Tribunal said that "Accepting undertakings would be inappropriate when there is already an Act in place for the regulation and the control of dangerous dogs."[3]
7. The Tribunal adopts the reasoning of both decisions and so finds that there are not reasonable steps which can be taken to reduce the risk of the dogs endangering the public and other animals.

1. The applicant asked the Tribunal to consider making a declaration that the dogs are 'dangerous' within the terms of the Act. Section 22(1) provides: "The registrar must declare a dog to be a dangerous dog if... (b) the dog has attacked and caused the death of or serious injury to a person."
2. Section 24(1) of the Act provides: "An adult may apply to the registrar for a licence to keep a dangerous dog." Section 25 then specifies that the registrar must approve or refuse the issue of a licence.
3. The Tribunal is empowered under section 120 of the Act to review decisions prescribed by regulation. In this case, no decision has been made by the registrar under section 22(1) so there is nothing for ACAT to review.
4. Further, even if the Tribunal was empowered to make decisions under the Act rather than review those detailed in Schedule 1 of the Domestic Animals Regulation 2001, it notes that section 25(2)(b) provides that the registrar may refuse to approve the issue of a licence if he or she reasonably believes -"(i) there would be an unacceptable risk to the safety of the public or other animals if the licence were issued."
5. Given the Tribunal has reasoned that it is not reasonably satisfied that the dogs pose no danger to the public or another animal, it would not find a licence should be issued even if it had the power.
6. The applicant thirdly asked the Tribunal to consider ruling that Boo should not be destroyed, in the event the Tribunal finds that Kogan should be, as there was no evidence that Boo was involved in the fatal attack on Khan. As detailed earlier in this decision, there was also no evidence before the Tribunal that Boo was not involved in this attack.
7. The Tribunal notes Khan's size compared to the applicant's dogs and the evidence of Mr Ehlers that while "Kogan was clearly dominant over Boo, this does not mean he would necessarily initiate aggressive behavior and Boo as the submissive dog would follow his lead. Pack mentality is complicated and a submissive dog can often initiate an attack on another animal of person."
8. The Tribunal does not consider that Boo should be treated any differently to Kogan.
9. The Tribunal notes and regrets the distress this case has caused to the applicant. It also commends the applicant for his submissions and offers to assist the respondent in future education of other dog owners. However, as noted by General President Crebbin in Robertson, "the overarching purpose of the legislation is to secure the safety of the public and that this is the lens through which I must look when considering and evaluating the evidence that the Tribunal has received."
10. It follows that, having regard to the requirements of the Act in this case, the Tribunal affirms the Commissioner's decision.

Registrar, Domestic Animals Act 2000

[2] [2011] VCAT 1833 at [10]

[3] [2012] ACAT 57 at [46]