Victorian Civil and Administrative Tribunal|2012-03-14

The applicant is the owner of a dog named Jaxon, who is registered as an American Staffordshire Terrier.
On 25 July 2011, an Authorised Officer of the respondent gave notice, pursuant to section 98A of the Domestic Animals Act 1994, (the "Act") to the applicant that she had declared the dog to be a Restricted Breed Dog, namely a Pit Bull Terrier or an American Pit Bull Terrier. Section 98A of the Act gives authorised officers the power to make declarations as to the breed of dogs where the officer is of the opinion that a dog is a restricted breed dog.
The implications of the declaration for Jaxon are significant. Under the Act a Restricted Breed Dog, (registered before 30 September 2011 must be desexed, permanently identified with a microchip, muzzled and leashed and under the control of someone aged 17 years or over when outside the premises, housed indoors in such a way that prevents it from injuring visitors to the premises or housed outdoors in a child-proof, escape-proof enclosure.
The owner of a restricted breed dog must also display prescribed warning signs at all entrances to the property, notify the Council within 24 hours if they change address or if the dog attacks or injures a person or animal or if the dog goes missing or if there is a change in ownership. A restricted breed dog owner must be aged 17 or over and not own more than two restricted breed dogs without a council permit. They must also ensure before they sell or give away or transfer the ownership of the dog that the new owner is aged 17 years or over and is notified in writing that the dog is a restricted breed dog.

The Domestic (Feral and Nuisance) Animals Act 1994 (largely) commenced operation on 9 April 1996.[2] The title was amended to the Domestic Animals Act 1994 on 1 September 2009.[3]
In 2001, s. 98A was inserted in the Act to provide for an authorised officer to declare a dog as a restricted breed dog[4] An authorised officer was and is an authorised officer appointed under s. 72 of the Act.
The Act was further relevantly amended by the Domestic Animals Amendment (Dangerous Dogs) Act 2010, which for the most part commenced operation on 1 September 2010.[5] It repealed the panel process previously available to review restricted breed declarations and provided instead for review by the VCAT. It also amended the prohibition on keeping a restricted breed dog at s. 41EA of the Act, allowing for a two year amnesty period within which to register restricted breed dogs.
Between 1 January and 30 September 2011 (so at the time the declaration was made on 25 July 2011), a restricted breed dog was defined in section 3 as:

(3) restricted breed dog means a dog that is any one of the following breeds-

a dog that falls within a standard prescribed by the regulations for a breed of dog specified in a paragraph of the definition of restricted breed dog is taken to be a dog of that breed

No standard was prescribed by the regulations made under the Act. Accordingly local government adopted the practice of reliance on informal guidelines published by the Department of Primary Industries as a reference for identifying restricted breed dogs
The Act was then further amended by the Domestic Animals Amendment (Restricted Breeds) Act 2011 commencing operation on 30 September 2011.[5] From this date onwards a Council was prohibited from registering a restricted breed dog unless the dog was registered within Victoria on or before 29 September 2011.
Significantly the definition of restricted breed dog remained the same, but the legislation now provided for a Gazettal of an approved standard describing a restricted breed dog:

3(3) a dog that falls within an approved standard for a breed of dog specified in a paragraph of the definition of restricted breed dog is taken to be a dog of that breed.

(4) for the purposes of subsection (3) an approved standard is a standard that has been approved by the Minister and published in the Government Gazette.

On the same day, the approved Standard for Restricted Breed Dogs in Victoria came into force published in Special Gazette S283, 1 September 2011.
Part 1 of the Standard relevantly provides:
1. A dog that meets the description of a dog in this Part is an American Pit Bull Terrier; except a dog in respect of which the owner has one of the following certificates stating that the dog is an American Staffordshire Terrier-

(a) a pedigree certificate from the Australian National Kennel Council

(b) a pedigree certificate from a member body of the Australian National Kennel Council

(d) a certificate signed by veterinary practitioner [6]

Further amendments were made, effective from 3 November 2011, increasing the penalties for offences contrary to the Act.[7]
The parties largely agree that ordinarily (subject to the specific statutory context), VCAT applies the law as it stands at the time of the VCAT decision when it exercises its review jurisdiction unless there is an accrued right or privilege to have the application dealt with in accordance with the law as it was at the time the respondent made its decision.

It is a well-established common law principle that a retrospective operation should not be given to a statute so as to impair an existing right or obligation, otherwise than as regards a matter of procedure unless there is a clear intent to do so. The relevant provision of the Interpretation of Legislation Act 1984 which embraces the common law is section 14.
Sections 14(2)(d) and (e) of the Interpretation of Legislation Act 1984 relevantly state:

(d) affect the previous operation of that Act or provision or anything duly done or suffered under that Act or provision;

(e) affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if that Act or provision had not been repealed or amended or had not expired, lapsed or otherwise ceased to have effect.

The Applicant contends that the applicable law that governs the making of a decision by VCAT in this matter is the Act in effect from 1 January to 31 August 2011 spanning 25 July 2011 when the respondent made its decision.
This is because the applicant submits that the declaration made by the respondent affects substantive rights and obligations and there is nothing in the Act to disturb the presumption against legislative retrospectivity [8]
The applicant contends that he had a right operating before 30 September 2011 to own a dog, that could not be proven to be an American Pit Bull Terrier (even if it looked like an American Pit Bull Terrier). With the introduction of the Standard, the applicant contends that because a "dog who meets the description" of a Pit Bull Terrier (unless the owner has one of the listed certificates to the contrary), is subject to the legislative scheme pertaining to restricted breed dogs, the onus of proof has shifted and he has been (more readily) exposed to (potential criminal) liability as the owner of an "appearance-based" restricted breed dog with the attendant ramifications for non-compliance.
The respondent contends that the applicant cannot assert that he has an accrued right to have the matter determined under the law as it stood at the time the declaration was made. The respondent contends that it is not the right that has been affected by the change in the law, but rather the standard that should be applied in determining that right. The legislative changes only gave clarification to the difficult task of assessing whether a particular dog fit the criteria for being a restricted breed dog, not to a substantive right. The accrued right which is the right to have the declaration reviewed, has not been taken away.
In any event the respondent submits that a similarity exists between the informal guidelines and the Standard and that the dog has been assessed by the respondent by reference to both.

The application of accrued rights was considered in the case of Ungar v City of Malvern [1979] VicRp 25; [1979] VR 259 (11 October 1978) which considered an appeal against the Council's refusal to grant a planning permit for use of land owned by the appellant as a car park. By the time the appeal was heard Council's discretion to issue a planning permit had been removed by an amendment to the planning scheme which prohibited the use of the land as a car park. The appeal was dismissed. The appellant appealed the tribunal finding to the Full Court of the Supreme Court of Victoria on the grounds that because he had instituted an appeal at a time when it was permissible to grant the permit he sought, he held an acquired right or privilege which entitled his appeal to be heard in accordance with the law as it existed at the time his appeal was instituted.
The Full Court upheld the decision of the Appeals Tribunal noting that:

"in the present case the institution of the appeal by the appellant gave him no more than a hope or expectation that his appeal would succeed in that he would be granted a permit. But, as the Appeals Tribunal had a discretion as to whether or not it would grant a permit, the question was open and unresolved. No right or privilege had been acquired by the appellant nor had any right or privilege accrued to him. The investigation by the Appeals Tribunal was not in respect of some right of the appellant but was to decide whether some right should or should not be given. Hence, as the appellant had no right or privilege when the law was changed to make it illegal to grant a permit for a commercial vehicle park for 33 Peverill Street, the Appeals Tribunal was bound to refuse to give such a permit to the appellant."

The first step when considering whether the applicant has acquired a right or privilege to have his application dealt with in accordance with the law as it existed at the time of the decision is to identify the "right" which the applicant says was acquired or accrued before the Act was amended.[9] It is a question of fact in each case whether it can be said a right has accrued
The applicant contends that the right in question is the right of ownership. I do not agree with the applicant's contention that the legislative amendments have in any way affected his right to own Jaxon. By virtue of s. 41EA of the Act, prohibitions on keeping restricted breed dogs have now come into effect but they do not affect Jaxon; they affect dogs not registered before 30 September 2011.
I am not satisfied that the legislative amendments have affected any accrued rights of ownership. The amendments set out a standard by which restricted breed dogs can be better and perhaps more fairly and consistently identified. This does not interfere with a "right" - the rights surrounding ownership of restricted breed dogs have not changed retrospectively; nor have the types of dogs covered by the legislation. The means of identifying which dogs fall within the definition of a restricted breed dog have been clarified. The applicant still has a right to have his application for review determined in accordance with the law and that too has not changed.
Although if a dog is a restricted breed dog, a prosecution may ensue following any breaches of the legislative regime for the keeping of restricted breed dogs, there is not an accrued right not to be prosecuted for future violations of the legislative provisions.

The interpretation concerning the standards for restricted breed dogs in Victoria dated 1 September 2011 being the ministerial guidelines relied on by the decision-making authority to declare the dog a restricted breed dog

Having found that the legislative amendments (incorporating the Standard for Restricted Breed Dogs in Victoria) have not affected any accrued rights I am satisfied that the tribunal should at the substantive merits hearing rely upon the Standard for Restricted Breed Dogs in Victoria.
Part 1 of the Standard is confined to American Pit Bull Terriers and contains an overview of the general physical appearance and characteristics of the breed. The purpose of the Standard is to assist in the identification of restricted breed dogs. A dog which meets the description of an American Pit Bull Terrier as contained in the Standard is deemed to be an American Pit Bull Terrier unless the owner is able to produce a certificate stating that the dog is an American Staffordshire Terrier. The production of such a certificate would over-ride the declaration made under section 98A of the Act.
At the commencement of the hearing, the parties were in agreement that I should not deal further with this aspect of the case, considering it premature to do so before the substantive merits hearing.
During the course of the proceeding, the position of the Applicant changed and I was encouraged by the Applicant to make a ruling on this aspect of the case as well. The respondent continued to argue that it would be premature to do so in light of any potential change to the Standard by the time of the hearing. The written submissions of the parties had dealt predominantly with the interpretation to be given to the words "particular breed" in paragraph (d) of item 1 in Part 1 of the Standard. Those words were deleted from the Standard on the Friday preceding the hearing (10 February 2012, together with the words "stating, or to the effect, that the dog is a".
The key question sought to be determined by the parties was whether the exemption provisions in the Standard extend to American Staffordshire cross breeds. This will engage the tribunal on a further fact finding exercise. Nevertheless I agree with the contentions of the respondent that in light of the changes that had occurred to the Standard, this issue should remain open for further informed argument.
The application is listed for a Directions Hearing at 9.30am on Thursday 22 March 2012.

[2] Victoria, Gazette General 20 July 1995, 1824

[3] Animals Legislation Amendment (Animal Care) Act 2007 section 3, Victoria Gazette, Special,No S 298 1 September 2009, 1

[4] Animals Legislation (Responsible Ownership) Act 2001

[5] Victoria Gazette special no S 282, 31 August 2011, 1

[6] The words "stating, or to the effect, that the dog is of particular breed" were deleted on 10 February 2012 Victoria Gazette no. S 32, 10 February 2012

[7] Crimes and Domestic Animals Acts Amendment (Offences and Penalties) Act 2011

[9] Esber v the Commonwealth (1991) 174 CLR 430 [1992] HCA 20

Persson v Knox CC (General) [2012] VCAT 273 (14 March 2012)

Persson v Knox CC

At a glance

Court

Decision date

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Judgment (32 paragraphs)

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Cases Cited (3)

Persson v Knox CC (General) [2012] VCAT 273 (14 March 2012)