CRIMES AND DOMESTIC ANIMALS ACTS AMENDMENT (OFFENCES AND PENALTIES) BILL 2011 – Thursday, 13 Oct 2011

Posted on 28. Nov, 2011 in Speeches

Mr LIM (Clayton) — I rise to speak in the debate on the Crimes and Domestic Animals Acts Amendment (Offences and Penalties) Bill 2011. Pets, companion animals, domestic animals, whichever term one prefers, are a source of joy and companionship for so many people. Indeed the therapeutic benefit of pets is now understood, with some nursing homes having visiting pet programs. However, pet ownership, as many members have mentioned, must be considered first and foremost a responsibility rather than a right. I say this for two important reasons. Firstly, there are the animal welfare responsibilities. Secondly, there are the nuisance issues, which at the extreme can become dangerousness and include attacks on people, as we have seen. Responsible pet ownership is very much a commitment for the life of the animal rather than a purchase of a consumable item to be discarded when it has lost its appeal.
This bill, which deals with dangerousness issues, introduces several new offences under the Crimes Act 1958. Clause 3 in part 2 of the bill inserts new section 319B into the Crimes Act 1958, which I will come back to later in my contribution, to create an indictable offence relating to a failure to control a dangerous, menacing or restricted breed dog that kills a person. The clause also inserts new section 319C into the Crimes Act 1958 to create the indictable offence relating to recklessness as to whether controlling a dangerous, menacing or restricted breed dog may place another person in danger of death.
We all hope that the very creation of these offences will be sufficient to force owners of dangerous dogs and restricted breed dogs to act responsibly and that eventually there will be no restricted breed dogs in Victoria. Ultimately we hope this will be sufficient to ensure that the tragedy which occurred just a few weeks ago of Ayen Chol, a 4 year old girl, being mauled to death by a pit bull is never repeated. However, if there is another case and a subsequent criminal prosecution, then it needs to be understood that such a prosecution will be strongly defended, because it is now a serious matter rather than a summary offence. A conviction under section 319B can lead to a prison term of up to 10 years and a conviction under section 319C to a prison term of up to 5 years.
I can see several definitional matters in the bill that defence lawyers might seek to test, and some members in earlier contributions have queried this aspect. The first is the definition of what is a restricted breed, the second is what constitutes recklessness and the third is what a reasonable person might have anticipated. As the minister said in his second reading speech, this bill follows the Domestic Animals Amendment (Restricted Breeds) Bill 2011, which was passed by the Parliament in August. That bill dealt with the problem of how to correctly identify restricted breeds, including DNA issues, by providing for the gazetting of an ‘approved standard’ in defining a restricted breed. In relation to an ‘approved standard’ section 3(3) of the Domestic Animals Act 1994 reads:
(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.
Section 3(4) reads:
(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.
It is critical that the minister gets his wording of an ‘approved standard’ correct. It would be horrific if the grief of a victim and their family were compounded by a prosecution failing because this provision fell over. I hope the minister will give the house some assurance on this in his concluding remarks.
Likewise we can expect defence lawyers to test the inclusion of the reasonable person test in clause 319B of the bill before house. To achieve a successful prosecution under this clause there are several elements that must be made out, including that ‘a reasonable person would have realised that that failure’ — that is, the failure to control the dog — ‘would expose the victim or any other person to an appreciable risk of death’. I would like to hear further explanation from the minister as to why this provision exists and an assurance that it will stand up in court. We can also expect lawyers to test what constitutes recklessness, so there is much riding on whether the government got its definitions correct.
A further matter I wish to raise is in relation to the tragedy of Ayen Chol. Like many I am appalled that the owner may only face prosecution for a summary offence and a fine for an offence such as a dog being found at large. If it has not already done so, I would urge Victoria Police to obtain advice from the Director of Public Prosecutions and for the DPP to consider, given all we know about pit bulls, whether the conduct of the owner was so negligent as to open up liability to more serious charges.
I wish to conclude where I started — on pets being a source of joy and companionship. That is certainly the history of the dog as it evolved from the wolf into the pet dog we value today. It is generally accepted that humans and dogs found sufficient common benefits in support and companionship for dogs to become domesticated. The opposition does not oppose the bill; its members of course support the bill. I hope for the speedy passage of the bill.

 

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