The Control of Dogs Act 1996 is meant to exist for the care and control of dogs, however the current state of the law only provides for the control of dogs and does not take into account animal welfare concerns. If a dog bites a person or animal, there is a presumption of destruction of the dog, unless exceptional circumstances can be discovered. Aggravating factors, the dog's offending history and the severity of the bite should all be important considerations.
Four objects are identified as mechanisms to address the purpose of the Dog Control Act. To make this argument, I will first examine the origins of the Dog Control Act and subsequent amendments to demonstrate the disregard of animal welfare in favor of dog control. I will identify several criticisms of the current law, followed by the evaluation of alternative options for dog control legislation.
At the second reading of the Dog Control Bill, former Local Government Minister Hon. The Dog Control Amendment Act 2003 came about as a result of the well-publicised serious dog attack on seven-year-old Carolina Anderson. While dogs are subject to the destruction order, the most important way to avoid this consequence is to refer the dog's owner.
CRITIQUES OF THE CURRENT DOG CONTROL LAW
Sir. Adams appealed the decision from the district court's order of destruction.77F78 He did not dispute that Rastus attacked. The High Court judge recognized that in the case of the Dog Control Act 'attack' is interpreted broadly;78F79. Sir. Adams argued that the injuries sustained by both victims were minimal, that Rastus was not a dangerous dog by nature, that the attacks both occurred either on or very close to Mr. Adams' property and he acted in a defensive manner.79F80 Adams emphasized the great emotional cost of putting Rastus down as his companion.
The huge emotional cost to dog owners who lose their dog is not clearly addressed by the Dog Control Act. Mr Adams was an elderly man who lived alone and relied on Rastus for companionship in a rural area of New Zealand. Mr Adams was charged under the Act for being the owner of a dog that attacked a person, who had a fine to pay Mr Adams.
A human owns a dog and can use the animal as he sees fit within the bounds of the law. The Animal Welfare Act is there to promote animal welfare, while the Dog Control Act places a strong emphasis on dog control.88 However, this raises the normative question. Appelbaum et al. “The Impact of Pets on Daily Life for the Elderly in the COVID-19 Pandemic” (2021) 9 Public Health Front.
But removing animals from the legal category of "property" and giving them rights simply means giving them the kind of protection implied in the context of a right of access to legal action, review before a court, and the possibility of compensatory relief. . Implicit in the granting of rights may signal a departure from the strict liability approach to dog attacks. This approach may take into account a dog's attack history, any extenuating circumstances that may have caused the dog to attack, any preventative steps the owner had taken to prevent an attack, and the severity of the attack and injuries sustained.
Current dog destruction orders continue to treat dogs as property, which is inconsistent with the general understanding of the role of dogs in New Zealand. The criteria for exceptional circumstances do not take into account material factors, such as whether the dog has already attacked, and the severity of the attack.
ALTERNATIVE APPROACHES
First, dog owners must demonstrate the ability to control their dog.103F104 Second, the owner must demonstrate an understanding of the dog's behavior and their legal responsibility for the dog.104F105 Third, dog control officers would search the property where the dog and its owner reside.105F106 Fourth, the dog must take a temperament test.106F107. These proposals were supposed to be adopted by amending the Dog Control Act.107F108 However, no such amendment took place. Second, the mechanism of taking a dog away from its owner recognizes that the dog can have rights independent of the owner's activities.
A measure that could be taken after an attack could be the permanent confiscation of the dog from the owner. Sending a dog to an approved animal welfare organization such as the New Zealand SPCA provides opportunities to give the dog to an owner or fosterer who has experience with dogs that have bitten or attacked in the past. However, the success of this strategy depends on the new owner's ability to reduce the dog's tendency to misbehave.
First, it would serve to decouple an owner's criminal responsibility, for having a dog to be out of control, from the fate of the dog. If a dog can be rehomed through a program, if there has been effective training and suitable owners, the dog can live a fulfilled life instead of facing death by a destruction order. This is dependent on there being sufficient resources for the organization keeping the dog, and the adopter to effectively retrain the dog to reduce risk.
Therefore, if it were to be included in the Control of Dogs Act, a similar approach to the New South Wales Companion Animals Act should be taken.137F138 This approach allows a destruction order to be made only if it can be satisfied that an order control or a restraining order will fail to protect the public from the threat.138F139 The advantage of this approach is that a restraining order is available to a judge, but only in circumstances where it would be effective in protecting public safety. The classification of dangerous dogs was brought about by the Dog Control Amendment Act, which followed the Carolina Anderson attack. Along with the muzzle and leash requirement, even if someone was on the dog owner's property, a dog would have much less ability to attack another person.
The requirement to be on a leash with a muzzle, even when it is on the owner's fully fenced property, is a significant interference with the dog's freedom and the owner's use of the dog. Under section 32(1)(a), the dog must not be at large in public "or in any private manner" unless confined. Due to the severity of how the dog is restrained during this process, this consequence may be appropriate for dogs that have caused a more serious injury, but in the minds of the judges, destruction is not justified.
Further, the owner of a dangerous dog would be charged 150% of any dog control fee than if the dog were not classified as dangerous.150F151 This approach is consistent with the suggestion of Isac J in Adams v Taranaki District Council of the South to promote a higher level of owner responsibility rather than the dog only suffering the consequences of an attack.151F152 This likely reflects the greater cost that dangerous dogs carry to society.
A PATH FORWARD
The dangerous dog provisions provide a more thorough and proportionate response to the threat to public safety posed by dogs. One possible solution could be a discretion granted to a judge to order that a dog be classified as a dangerous dog, rather than immediately getting a destruction warrant. First, the language of the Dog Control Act should change from recognizing dogs only as property to living beings as well.
This approach is consistent with the Animal Welfare Act 1999 and in line with common practice in New Zealand.155 Accordingly, destruction orders should be changed to euthanasia orders for dogs. This change recognizes the emotional connection that dogs have in their owners' lives and reflects the brevity of the command. An order for destruction should only be issued if no other safe and viable options are available to the court.
This should be a discretionary act and based on a balance between public safety and animal welfare interests. Alternative options available to the judge should include seizing the dog from the owner, classifying the dog as dangerous, behavioral training and desexing the dog. Many dogs would be saved from death if this approach were taken and it will better represent the proposed purpose of the Dog Control Act which is.
Furthermore, in determining whether to make a destruction order, factors of the dog's behavior must be relevant considerations. This should include the severity of the bite, the dog's history of attacking or biting and any provocations to the dog. This would change the current approach, where exceptional circumstances to avoid a destruction only appear to cover behavior on behalf of the dog owner, not the dog.
Attacks by dogs have many facets and having discretion is much more appropriate than a presumptive approach as a judge can determine the severity of the risk a dog poses. Third, the current responsible dog license should be extended to all dog owners, which they must complete within the first year of owning a dog.
CONCLUSION
David Tong and Vernon Tava "Moral Panics and Flawed Laws: Dog Control in New Zealand". Miriam MacGregor Redwood A Dog's Life: Working Dogs in New Zealand (AH & AW Reed, Wellington, 1980). Aleksandra Kleszcz et al "Review of selected aggression causes and the role of neurocognitive science in the diagnosis of animals (Basel) 1.
Jonathan Mair, Natasha Duncan-Sutherland and Zachary Moaveni “The incidence and risk factors of dog bites requiring hospitalization in New Zealand” 132 NZMJ 8. Katina D'Onise, Susan Hazel and Charles Caraguel “Mandatory desxing of dogs: a step in the right direction to reduce the risk of a dog bite. Animal Medicines Australia “Pets in Australia: A National Survey of People and Pets” (22 October 2019) Animal Medicines Australia.
Chris Carter “Dog Control Bill Passes With Overwhelming Support” (November 14, 2003) Bijenkorf