Legislation

Environment Protection and Biodiversity Conservation Act, 1999

 

SUMMARY

Part 3:

Division 1 - A person must not take an action that has, will, or is likely to have a significant impact on the world heritage values of a declared World Heritage property.

Subdivision 3 - A person must not take an action that has, will, or is likely to have a significant impact on a listed threatened species included in the endangered category.

196  Killing or injuring member of listed threatened species or community

(1)  A person is guilty of an offence if:

(a)  the person takes an action; and

(b)  the action results in the death or injury of a member of a species or a member of an ecological community; and

(c)  the member is a member of a listed threatened species (except a conservation dependent species) or of a listed threatened ecological community; and

(d)  the member is in or on a Commonwealth area.

SHORTCOMINGS

Division 1: The southern cassowary is an outstanding universal value of this World Heritage Area as disperses the seed of hundreds of plant species and plays an integral ecological role in maintaining ecosystem health of World Heritage Wet Tropical rainforests. A majority of the Daintree coast is declared World Heritage property yet the 8460ha of ‘undeclared’ freehold property, between the Daintree River and Cape Tribulation also maintains natural and cultural world heritage values. Neither wildlife nor unrestrained dogs restrict their movements to within World Heritage boundaries. 

Subdivision 3:The on-going and unaccounted threat of death by dog attack of the endangered cassowary is deemed a ‘significant impact’.

The action in question is of persons allowing or releasing an identified threat (dog) to wander at large or hunt in critical cassowary habitat. This is also a case of neglect where a person fails to restrain their pet or hunting dogs from roaming on their property (which may contain critical endangered species habitat) and onto adjoining declared World Heritage Areas, in which they may kill protected and threatened wildlife.

196 The killing or injuring of an endangered species applies to a person taking an action to do so rather than preventing the killing or injuring. Only National Park and Nature Reserves in the Daintree are a commonwealth area, therefore it is not the Act does not protect an endangered species from being killed or injured on private land.

 

Animal Management (Cats and Dogs) Act, 2008

 

SUMMARY

Any domestic dog over 12 weeks old must be micro-chipped and registered within 14 days of commencing ownership. Local Government should make renewal period < 3 years provide an incentive for de-sexing dogs and cats through a registration fee reduction.  De-sexed animals must have tattooed marking.

‘Regulated dogs’ are those declared by local government as dangerous, menacing or restricted breed dogs.   They must be under effective control at all times and may require specific permitting, compulsory de-sexing, imposed keeping and control conditions and may be destroyed under particular circumstances.  The owner of a regulated dog must not abandon it for an unreasonable period or allow it to breed with another dog.

A dangerous dog declaration may be made for a dog if it has seriously attacked or acted in a way that caused fear to a person or another animal

A menacing dog declaration may be made for a dog if it has attacked or acted in a way that caused fear to a person or another animal except the attack was not serious.

Restricted breed dogs are breeds that are prohibited from being imported into Australia (Customs Act 1901).

Investigation, monitoring and enforcement of this Act should be undertaken by an ‘authorized person’. A local government may by resolution approve a program (an approved inspection program) under which an authorized person may enter a place to monitor compliance with this Act or an aspect of this Act. The authorized person can seize the dog if they believe it has attacked, threatened or acted in a way that causes fear to, a person or another animal or may be of risk to community health and safety.

Chapter 9 Part 1

194 The person responsible for the dog must ensure dog does not attack or cause fear to someone else or another animal (animal does not include vermin)

195 Prohibition on allowing or encouraging dog to attack or cause fear to someone else or another animal

196 Defences for offence against s 194 or 195

(1) It is a defence to a prosecution for an offence against section 194 or 195 for the defendant to prove—an attack on an animal, the dog was engaged in hunting the animal on private property when the offence happened.

SHORTCOMINGS

The provision for protecting animals from dog attack or fear of attack is designed for domestic animals within watch of a person who could then file a complaint for investigation. This is not designed to protect wild animals, such as the cassowary, that are likely out-of-sight of a person when attacked or in fear of attack from a free-roaming domestic dog.

Any dog attacking, chasing or causing fear to wildlife (in addition to people) should also, under the Act, be declared a ‘regulated-dangerous or menacing dog’.

Cross-breeds of restricted breed dogs are not subject to ‘restricted breed dog’ controls yet restricted breeds are often crossed to produce huge hunting dogs seen readily in northern Australia. Enforcing the Act’s existing breeder registration laws and outlawing backyard breeders would help to address this problem.

The authorized person does not have powers to inspect private property without consent of the occupier, warrant or an approved inspection program. This could inhibit a Douglas Shire Council compliance officer from successfully investigating a complaint.

196 – The defense provided in the Act for hunting on 'private property' may potentially be used as a defense to an attack on protected wildlife as many parts of the Daintree coast are arguably ‘private property'

 

Nature Conservation Act, 1992

 

SUMMARY 

The object of this Act is the conservation of nature. This is to be achieved by identifying critical habitats essential for the conservation of a viable population of protected wildlife or community of native wildlife and by encouraging the conservation of nature by the education and cooperative involvement of the community, particularly landholders.

The Nature Conservation Act 1992 states that protection of native wildlife and its habitat will be achieved by dedicating protected areas and managing wildlife in accordance with management and conservation plans for the wildlife. The Act identifies threatening process as any process that is capable of threatening the survival of, protected wildlife, community of native wildlife or native wildlife habitat. The Act identifies critical habitat as habitat that is essential for the conservation of a viable population of protected wildlife or community of native wildlife, whether or not special management considerations and protection are required

1. It is an offence under the Nature Conservation Act 1992 Act to ‘take, use, keep or interfere’ with a natural resource in a ‘protected area’. A person, other than an authorized person, must not interfere with wildlife.

2. The Act imposes obligations for the management of endangered wildlife that includes a ‘management principle’ to ‘identify, and reduce or remove, the effects of threatening processes’ relating to wildlife.  

3. An interim conservation order can be issued if the Minister is of the opinion that threatened wildlife or a critical habitat area is subject to a threatening process that is likely to have significant detrimental effect on the wildlife and/or habitat. An interim conservation order may provide for the prohibition or control of a specified threatening process. An order may be made in relation to land even though the land is not within an area of major interest or protected area.

SHORTCOMINGS

1. It is an offence under the Nature Conservation Act 1992 Act to ‘take, use, keep or interfere’ with a natural resource in a ‘protected area’ however it does not appear to provide a specific offence for killing/ injuring of endangered wildlife. The penalty for the above offence is a maximum of 3000 penalty units [$353 400] or 2 years imprisonment, with an additional penalty of not more than $26 798 provided if the offence involves ‘protected wildlife’ (ie. a Cassowary). This penalty should also apply for the killing/ injuring of protected wildlife. 

2. The definition of a ‘management principle’ to ‘identify, and reduce or remove, the effects of threatening processes’ relating to wildlife was not provided by the Queensland Department of Environment and Heritage.

3. Interim conservation orders; under the NCA, fail to protect cassowaries from the threatening processes of attack by wild or domestic dogs. These orders are designed to target an event at a site (ie clearing for development) rather than an ongoing activity with cumulative impacts such as pig hunting with dogs in cassowary habitat. Wild dogs, which are a Class 2 pest dealt with under the Land Protection Act, 2002. Pig hunting and dogs are the responsibility of the Department of Agriculture and Fisheries and Department of National parks, sport and racing.

 

Nature Conservation Regulation, 2006

 

SUMMARY

The Nature Conservation (Wildlife) Regulation 2006 provides that the cassowary in the Daintree Coast area is ‘endangered’ wildlife.   It is ranked as a ‘critical priority’ under the Queensland Government Department of Environment and Heritage Protection prioritization framework.  

Nature Conservation (protected areas management) Regulation 2006 provides that a person, other than an authorised person, in a protected area must not disturb an animal if it is dangerous, venomous or capable of injuring a person. Disturb means to approach, harass, harm, lure, pursue, tease or touch the animal and to attempt to disturb the animal.

A person must not bring a dog into, or keep a dog in, a protected area unless the dog is under control. Under control, for a dog, means a person who is physically able to control the dog is holding the dog by a leash that is appropriate to restrain the dog; or the dog is securely tethered to an object that the dog can not move and is under the supervision of a person who is physically able to control the dog; or the dog is being transported in an enclosed vehicle, carry cage or other suitable closed container or the dog is being transported on the tray of a vehicle and is securely tethered so as to be confined to the tray.

SHORTCOMINGS

It is an offence to disturb an animal in a protected area. This regulation does not provide that it is an offence to kill or injure an animal in a protected area.

The provision that allows a person to bring a dog into a protected area so long as it is under control gives leeway for the dog to get out of the owner’s control by the very fact it is permitted there and can get or be let loose. 

 

Animal Care and Protection Act, 2001

 

SUMMARY

The relevant objectives of this Act are

1: Promote the responsible care and use of animals including protected and wild animals.

3: Protect all animals from unjustifiable, unnecessary or unreasonable pain

Section 37 States; it is un-lawful to allow the first animal (ie dog) to injure or kill a second animal (ie cassowary). It is however only unlawful if the person (owner) is in immediate supervision of the first animal, aware of the second animal’s presence or ought to have suspected the second animal was immediately vulnerable to being killed or injured by the first animal and did not take reasonable steps to prevent the injury or killing.

This Act provides an ‘offence exemption’ for killing of feral or pest animals if the killing is done in a ‘way that causes the animal as little pain as is reasonable’. Feral pigs, feral dogs and dingoes are classified as ‘Pests’ under the Land Protection (Pest and Stock Route Management) Act 2002.  

SHORTCOMINGS

The Act fails to provide protection for protected or wild animals killed or injured by un-restrained domestic dogs or pig hunting dogs running out of the immediate sight of the owner. In the context of a rainforest environment, thick vegetation can impair the owner’s ability to monitor the dog’s behaviour. An unrestrained dog and its actions are unlikely to be seen unless it is on a path or road in the immediate sight of the owner. In short, the very act of the dog being unrestrained and out of site of the owner exempts the owner from being at fault in the case of an attack. 

 

Local Douglas Shire Council (DSC) Laws 1 

 

SUMMARY

NOTE –The DSC Local Law specifically provides that aggressive behaviour by dogs is not regulated under the Local Law but rather by the State Animal Management Act.2

1.  The DSC can prohibit the keeping of animals and/ or require that approval be sought for the keeping of animals in prescribed circumstances.  These prescribed circumstances include: species; breed; sex; age; number.  The current prohibitions in the DSC Local Laws include –

  • ‘More than one (1) dog on any allotment located in a Conservation Planning area3
  • ‘More than two (2) dogs on any allotment above 450 m24

Contravention of a prohibition has a maximum penalty of 50 penalty units [$5890].5

2. The DSC can specify public places where animals, or animals of a particular species or breed, are prohibited.6  The current public place prohibition in the DSC Local Laws (relevant to the DCCC) is – Blue Hole Reserve, Flametree Road, Diwan (Dogs and other animals including Cats and Horses prohibited)

3. The DSC can designate an area within a public place as an area where a dog is not required to be on a leash.7  There are no such designated ‘off leash’ areas in the Daintree Coastal Area (or Mossman) under the DSC Local Laws.  Port Douglas has a designated ‘off leash’ area at the ‘foreshore area of the southern end of Four Mile Beach’.8

4. The owner or responsible person for an animal must ensure that the animal is not in a public place unless the animal is under the effective control9 of someone.  Contravention of this carries a maximum penalty of 20 penalty units [$2356]. 

5. If a dog defecates in a public place the person who has control of the dog must immediately remove and dispose of the faeces in a sanitary way.  Contravention of this carries a maximum penalty of 20 penalty units [$2356].

6. A person who keeps an animal must maintain a proper enclosure to prevent the animal from wandering or escaping from the person’s land, with the DSC local law also providing that ‘the owner of the animal must ensure that it is not wandering at large’.10  Failure to restrain an animal carries a maximum penalty of 20 penalty units [$2356]. 

The DSC is permitted to prescribe the requirements for a proper enclosure for an animal or   species or breed of animal.  Under the DSC Local Laws, this includes that –

  • ‘The keeper of an animal must maintain at all times a proper enclosure to keep the animal on the subject land and prevent the animal from wandering or escaping from the land’; and
  • ‘In the opinion of an authorised person, a fence of a suitable height and construction method and materials to prevent an animal from escaping over, through or under the fence’.11

7.  The DSC has authority under various provisions in the Local Laws to, amongst other things, seize a dog found wandering at large.12

8. Possible legal mechanisms to specifically address the use of dogs in pig hunting in the Daintree Coast include –

  • DSC Local Law No 3 (Community and Environmental Management) 2011 may provide a basis for DSC to declare an animal to be a ‘local pest’.  Such a declaration can be applied to a specified part of the local government’s area and can be applied ‘generally or only in specified circumstances’. 
  • DSC Local Law No 4 (Local Government Controlled Areas, Facilities and Roads) 2011 may provide a basis for DSC to declare an activity to be ‘prohibited in a local government controlled area or road’.

NOTE – The DSC Pest Management Strategy 2013 – 2017 provides that ‘Council does not condone, practice or contract any form of dog based hunting, but recognises that it is a very common practice in agricultural and rural residential areas in the region.’ See page 34 http://douglas.qld.gov.au/download/animal_management/Pest_Management_Plan_2013-2017.pdf

References 
[1] Note that DSC provided a link to access the DSC Local Laws that went to a page titled ‘Cairns Regional Council’.  DSC advised on 07/09/15 that these are the applicable laws for DSC ie. DSC in effect simply adopted the CRC laws without change. 
[2] See DSC Local Law No 2 (Animal Management) 2011 Division 3. 
[3] DSC Subordinate Local Law No 2 (Animal Management) 2011 Schedule 2: Prohibition on keeping animals.  See for map of current map of defined Conservation Planning Area: http://douglas.qld.gov.au/?wpfb_dl=2276
[4] DSC Subordinate Local Law No 2 (Animal Management) 2011 Schedule 2: Requirement for approval to keep animal. 
[5] DSC Local Law No 2 (Animal Management) 2011 ss. 5, 6, 7
[6] DSC Local Law No 2 (Animal Management ) 2011 s. 10
[7] DSC Local Law No 2 (Animal Management ) 2011 s. 11
[8] DSC Subordinate Local Law No 2 (Animal Management) 2011 s. 48
[9] Section 12 (3) provides: An animal is under effective control of someone only if – (a)  person who is physically able to control the animal – (i) is holding it by an appropriate leash, halter or rein; or (ii) has appropriately tethered it to an object fixed to a place from which the object cannot be moved by the animal and is continuously supervising the animal; or (iii) has corralled it in a temporary enclosure adequate to contain the animal and is continuously supervising the animal; or (b) the animal is tethered in or on a vehicle...(c) the animal is a dog in a dog off-leash area....
[10] ‘Wandering at large’ is defined to mean (a) the animal is not under the effective control of someone; and (b) the animal is in either – (i) a public place; or (ii) a private place without the consent of the occupier. 
[11] See DSC Subordinate Local Law No 2 (Animal Management) Schedule 4 and Schedule 8. 
[12] DSC Local Law No 2 (Animal Management) 2011 Part 4.  

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