The Moorabbin Magistrates’ Court (sitting online through WebEx) has interpreted the requirement in section 27(1) of the Domestic Animals Act 1994 (Vic) (Act) for a greyhound to be kept on a chain, cord or leash in circumstances where a greyhound is off leash in a designated leash free area. The Magistrates’ Court found a man who was in charge of a greyhound in a designated off leash park guilty of eight breaches of section 27(1) of the Act for not having his greyhound under effective control by means of a chain, cord or leash when at the off leash park.
Between July 2019 and September 2019 on eight different occasions a man was observed to be in charge of a greyhound which was off leash at Princes Park in Caulfield South.
A Council officer advised the man on more than one occasion that his greyhound must be on leash at all times and the man stated to the officer that the law was stupid.
Infringement notices were issued to the man, which were not paid. The infringement notices were subsequently withdrawn by Glen Eira City Council and the matter proceeded to the Magistrates’ Court with the charges being contested.
Princes Park is a designated leash free area pursuant to a Glen Eira City Council Order made under section 26(2) of the Act by resolution on 2 July 2019 (as Gazetted on 11 July 2019).
Section 26(2) of the Act provides as follows:
(2) A Council may by resolution make an order under this section which may do all or any of the following -
- prohibit the presence of dogs and cats in any public place of the municipal district of the Council;
- impose all or any of the following conditions on the presence of dogs or cats in any public place of the municipal district of the Council -
- conditions as to the means of restraint of dogs or cats;
- conditions as to the times at which the presence of dogs or cats is or is not permitted;
- any other conditions that are specified in the order.
This section permits Council to make a resolution to permit off leash areas for dogs including certain permitted off leash times and any other conditions specified. This section applies to dogs as a whole and not a specific breed.
Greyhound Specific Legislation
Section 27(1)(b) of the Act is arguably an absolute liability offence which provides that where a greyhound is outside the premises of its owner it must be under the effective control of some person by means of a chain, cord or leash. That is the defence of honest and reasonable mistake of fact would not apply. Whether the offence is a strict or absolute liability offence was not determined by the Magistrates’ Court.
Section 27 provides as follows:
27 Restraint of greyhounds
- If a greyhound is outside the premises of its owner and is not -
- muzzled in a manner which is sufficient to prevent it causing injury by biting; and
- under the effective control of some person by means of a chain, cord or leash - the owner of that greyhound and any person for the time being in charge of the greyhound are each guilty of an offence and liable to a penalty of not more than 3 penalty units for a first offence and 5 penalty units for a second or subsequent offence.
- For the purposes of subsection (1)(b) control by one person of more than 4 greyhounds at the one time is not "effective control".
- Subsection (1) does not apply to -
- a greyhound which is being raced, coursed, exercised or trained upon land which the owner is authorised or entitled to use for that purpose; or
- a greyhound while it is being exhibited for show purposes at a fixture conducted under the rules and regulations of the Victorian Canine Association or any successor in law of that association or an organisation approved by the Council of the municipal district in which the fixture is being conducted; or
- a greyhound while it is participating in obedience trials or classes and is under the effective control of a responsible person.
The man’s defence relied on section 27(3)(a) of the Act in that this section purported to permit greyhounds to be off-leash for the purpose of exercise.
Counsel briefed by Russell Kennedy Lawyers argued that the purpose of section 27 and the Act as a whole, cannot be that any local park (that allows dogs to be off-leash) can be used to satisfy section 27(3)(a). To do so would make section 27(1) redundant and undermine the purpose and effect of section 27.
It was also put to the Court that the section 26(2) Order made on 2 July 2019 can negate the offence under section 27(1)(b) of the Act in that greyhounds are allowed to be off-leash in a designated park / reserve within the boundaries of Glen Eira City Council.
His Honour Magistrate Smith heard evidence from two council witnesses and two defence witnesses as the identity of the greyhound was in issue.
Ultimately His Honour found the eight charges proven.
Mr Smith formally ruled that the section 26(2) Order did apply to greyhounds however given section 27 of the Act specifically dealt with greyhounds, the general provision in section 26 could not detract from the specific provision in section 27. That is a general legislative provision cannot detract from a specific legislative provision.
His Honour also noted that sections 26 and 27 were in different Divisions of the same Part of the Act and it was a matter of simple statutory construction that the specific provision in section 27(1) could not yield to the more general provision in section 26.
The man was without conviction placed on an adjourned undertaking to be of good behaviour for a period of 12 months and Council was awarded its legal costs on an indemnity basis.