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Environmental Defenders Office (Tas.) Inc. 131 Macquarie Street tel: (03) 6223 2770 Hobart TAS 7000 fax: (03) 6223 2074 email: edotas@edo.org.au 30 September 2004 Investigation of complaints under Dog Control Act 2000 You have asked for advice regarding the investigation of complaints under the Dog Control Act 2000 (the Act). In brief, councils have discretion to investigate any complaints regarding nuisance under the Act. However, they are only directed to investigate when a formal complaint has been made under section 47. Following an investigation, council have discretion whether to take any further action. Mandatory and discretionary powers The Acts Interpretation Act 1931 relates to the interpretation of powers conferred by legislation. Section 10A provides: "Must" is to be construed as being mandatory. "Is to" is directory (that is, it sets out how power should be exercised, but does not require strict compliance). "May" is discretionary or enabling (that is, it gives council a power, but council has discretion whether to use that power). Formal Complaints Section 47 of the Act provides that a person may make a complaint in respect of a dog that is a nuisance, in the prescribed form and accompanied by a fee (a formal complaint). Pursuant to s.48 of the Act, the general manager is to investigate a formal complaint and, if he is satisfied that a nuisance is being caused may institute proceedings for an offence. Therefore, the Act directs the council to investigate all formal complaints, but does not strictly require an investigation. Even if an investigation is carried out, council have full discretion in deciding whether to take any further action. Infringement notices Section 64 provides that an infringement notice may be served where a person has committed a prescribed offence against the Act. As we previously advised, infringement notices can be issued in respect of offences against s.46. There is nothing to prevent any person from making an informal complaint to his council regarding noise caused by barking dogs. Such a complaint can be made in writing, over the telephone or in person. However, nothing in the Act requires the council to investigate informal complaints. Abatement notices Pursuant to section 200 of the Local Government Act 1993, a council must serve an abatement notice if Council is satisfied that a nuisance is being caused (this would include barking dogs). However, there is nothing to specifically require a council to investigate complaints to establish whether a nuisance is being caused. Dog Management Policy In accordance with section 7 of the Act, a council is to develop and implement a policy relating to dog management. Please note that this is not a mandatory requirement of the Act. Getting Council to investigate a complaint Without mandatory provisions, little can be done to compel a council to investigate complaints and enforce the Dog Control Act. Common law actions to order authorities to perform their statutory duties are not appropriate where there is no "duty", merely discretion whether to act or not to act. However, councils should be reminded of the following provisions: 1. Councils must use "best endeavours to prevent or control" pollution, including noise nuisance (s.20A, Environmental Management and Pollution Control Act 1994); 2. The functions of a council include providing for the welfare of the community, promoting the interests of the community and providing for the "peace, order and good government of the municipal area" (s.20, Local Government Act 1993). If a person wishes to make a complaint about the way in which a council responds to complaints regarding barking dogs, we recommend contact with the Ombudsman. The Ombudsman investigates systemic complaints against councils and aims to improve the standard of public administration. Kind regards, ENVIRONMENTAL DEFENDERS OFFICE (TAS) INC |
