Supreme Court stays execution of dog Kerser

 

Monash Council has described the State Government’s restricted breed dog laws as unworkable and a “lawyers’ picnic” following another successful challenge in Victoria’s highest court today.  The Supreme Court today found the Victorian Civil and Administrative Tribunal (VCAT) had erred in law in its decision to uphold Council’s declaration of a dog named Kerser as being of a restricted breed (Monash ats Applebee Judgment).

The Court has referred the matter back to VCAT for a new hearing into whether Council’s declaration of the dog should stand.

This case has already cost the Monash community $80,000 in legal fees and we are now right back to where we started with another ‘first instance’ hearing at VCAT.

The Kerser decision comes on top of another similar case involving a dog named Rapta which cost Monash ratepayers more than $100,000.

Monash Council takes no pleasure in prosecuting these matters but we are required under the state government’s laws to seize and destroy restricted breed dogs.

Ratepayers are being severely penalised for enforcing the government’s sloppy and unworkable dog laws.  After several years Agriculture Minister Peter Walsh has not been able to fix this mess. It’s now time for the Premier to intervene.

Monash Council is all for protecting the safety of the community but lawyers are the only winners under the current laws.  No one can have confidence in these laws.

It is time for the State Government and its Department of Environment and Primary Industries to get serious about protecting the Victorian community from dangerous dogs and enact laws which can actually achieve that.

In our view, if the State Government wants its poorly drafted dog laws defended, it should do it themselves in future.  The residents of Monash and other councils should not have to keep paying for their lazy and half-baked law making.

In the meantime, Kerser continues to be impounded, as he has been for over 12 months now, at a significant daily cost.

There are currently some amendments to the Domestic Animals Act before Parliament, however these changes only makes a minor improvement to the situation facing councils and the amendments do not respond to the crux of the issue.

The same situation will remain after the amendments – namely the clumsily written and imprecise ‘Standard’ imposed by the Act for councils to follow in assessing whether a dog is an American Pit Bull Terrier.  This is the same Standard which Monash Council has applied in assessing Kerser.

Today, Supreme Court Justice Croucher highlighted these concerns (at para 67 of his judgment):

 ‘…the drafting of passages of the type under consideration might be reconsidered by the legislature in order that the Standard might be made easier to understand and apply’.

This is judicial-nicety for the government has done an appalling job of formulating a Standard which the community relies upon to safeguard its safety.

The following are what we would like the government to consider as a matter of priority:

 

1. indemnifying Monash and other councils for the costs of having to apply and then defend these laws while the courts continue to try to decipher the government’s muddled law making;
2. the Department funding and providing proper dog breed experts to make future declarations of dangerous breed dogs (rather than relying on lay-Council officers who are not experts in dog breed identification);
3. improving the Standard so that it is not ambiguous and rife with legal uncertainty; and
4. examine more rigorous forms of determining dog breeds such as through DNA testing and other new technologies.

The government owes a duty of care to councils and dog owners alike to fix this mess.  But above all, and far more importantly, the Victorian public has a right to be protected from genuinely dangerous dogs.  The government needs to act and act now.

 

Read The Age’s article on the Supreme Court’s Kerser decision here.