Hypothetical facts

The Commonwealth Parliament have recently passed the Domestic Animal Control Act 2023 (Cth) (the 'DACA') and the legislation commenced on the 1^st of May 2023. The long title of the DACA provided that it was:

An Act to set out the duties and responsibilities of domestic animal owners when taking their animals into public places.

The Minister of Social Services and Wellbeing, Anne King, in her second reading speech said:

The Commonwealth Government has now decided to introduce legislation in relation to domestic animals, particularly dogs, brought into Australia's public places. This legislation will clearly state the responsibilities of domestic animals' owners and will include provisions on their responsibilities to secure their animals while in a public place; prohibiting inappropriate or threatening behaviour by such animals towards persons or other animals; allowing for the seizure of the offending animals by authorised officers; and creating offences for the failure to remove animal waste from a public place.

This Act will ensure a safe and clean environment for all persons who visit or work in public places. This is particularly important in airports, defence force bases, State and Commonwealth Preserve Areas such as national parks and State and Commonwealth sites such as Parliament House, Courts ...

Later in her speech, the Minister also stated:

You will note that section 9 and 15 provide that animals such as a dog must not rush at, attack, bite, harass or chase any person or animal (other than a vermin). The Oxford and Macquarie dictionaries define vermin as animals of a noxious, troublesome, undesirable or objectionable kind. It is not the intention of this Act to protect such feral animals ...

DACA was passed with only minor amendments by both Houses of Parliament. The following is an extract of the main provisions of DACA:

Domestic Animal Control Act 2023 (Cth)

An Act to set out the duties and responsibilities of domestic animal owners when taking their animals into public places.

1. This Act may be cited as the Domestic Animal Control Act 2023.
2. This Act commences on a day to be fixed by Proclamation.
3. The operation of this Act in the referring States is based on:
   1. the legislative powers that the Commonwealth Parliament has under section51 of the Constitution (other than paragraph51(xxxvii)); and
   2. the legislative powers that the Commonwealth Parliament has in respect of matters to which this Act relates because those matters are referred to it by the Parliaments of the referring States under paragraph51(xxxvii) of the Constitution.Note: The State referrals fully supplement the Commonwealth Parliament's other powers by referring the matters to the Commonwealth Parliament to the extent to which they are not otherwise included in the legislative powers of the Commonwealth Parliament.
4. It is declared that the protection of native birds and animals is an objective of the Commonwealth.
5. For the purposes of this Act:

Authorised officer means a person who has been given responsibility for implementing this Act within a public place.

1. An animal that is in a Commonwealth public place must be under control by means of a chain, leash or other suitable device. If this section is contravened, the owner of the animal is guilty of an offence.

Penalty: $1,000

1. If an animal rushes at, attacks, bite, harasses or chases any person or animal (other than a vermin), whether or not injury is caused to the person or animal, the owner of the animal is guilty of an offence.

Penalty: $2,000

1. If an animal defecates in a public place, the owner of the animal must immediately remove the faeces and properly dispose of them in a rubbish bin.

Penalty: $500

1. (1) An animal is considered to be a nuisance in a public place if it:

• 1. is habitually at large;
  2. makes a noise, by barking or otherwise, that significantly interferes with the peace, comfort or work life of any person; or
  3. repeatedly runs after or chases any person or animal (other than a vermin).

(2) An authorised officer who sees an animal that is a nuisance in a public place may seize that animal.

1. An authorised officer is empowered to charge any person who has committed an offence under this Act.

This law has been extended to the State of Victoria whose Parliament has referred the matter to the Commonwealth Parliament.

On the 26^th of August, Jamal, the Forest and Wildlife Officer in the Kinglake National Park, just outside Melbourne, charged the following two people with offences under DACA.

On that morning in the national park, Ellie took her best friend's dog, Max, for a walk. Since it was very early and the park seemed deserted, Ellie decided to let Max off the leash. Max, however, disappeared into the bushes and was later found chasing two large water rats near the edge of a creek. Despite Ellie's attempts to intervene, Jamal, who had heard the commotion while inspecting a nearby campsite, arrived and promptly seized Max. Now, Jamal is accusing Ellie of violating sections 6 and 9 of DACA. He expressed particular concern because the water rats Max was chasing are an endangered species, citing his legal duty under section 15 of DACA to seize Max. Although Ellie is remorseful for the incident, she argues that she is not accountable for Max's behaviour as he is not her own dog.

Later that day, Tammy was strolling in the national park with her dog Luna. Upon reaching the park, she realized she had forgotten Luna's leash at home. Thinking on her feet, Tammy decided to use her daughter's skipping rope, conveniently left in the car, as an improvised leash. While navigating the park, Jamal observed Tammy burying Luna's droppings with a small spade. He expressed dissatisfaction not only with Luna being leashed with the makeshift skipping rope, which had been loosely fashioned into a head collar, but also with the waste burial. Consequently, Jamal has charged Tammy with violating sections 6 and 12 of DACA.

Both Ellie and Tammy are seeking legal advise from Haller & Associates as to whether they are in breach of DACA (Domestic Animal Control Act 2023 (Cth)).