Introduction
The COVID-19 pandemic has changed what we used to consider a “normal” working environment as working from home is now the new status quo. Fortunately, this has allowed many of us to bond with our pets but what happens when our beloved pets get themselves into trouble? And the next question that follows, to what extent can local council officers enter our property to seize our pets?
Powers to entry property under the CAA Ct
In New South Wales, the Companion Animals Act 1998 (NSW) confers large powers upon local councils to regulate the effective and responsible care and management of our little furry companions.
One of the key provisions in the CAA Act is section 69A Powers of authorised officers to enter property, which allows an authorised officer to:
- enter any property to seize or secure any companion animal, or
- determine whether there has been compliance with, or contravention of the Companion Act or the Companion Regulations.
In effect, section 69A is a significant provision as it touches upon an inherent common law right, that is, an occupier’s right to exclude others from land or premises. Hence, powers of entry have always been treated with caution and the Courts stance towards this is best illustrated by the High Court in Coco v R (1994) 179 CLR 427:
“Every unauthorized entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right… [S]tatutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language.”
It makes sense that a safeguard to the power in section 69A is provided in subsection (3), which states that:
the powers of entry conferred by this section are not exercisable in relation to any part of premises used only for residential purposes except—
- with the permission of the occupier of the premises, or
- under the authority conferred by a search warrant under section 69D.
But are the words “premises used only for residential purposes” unmistakably unambiguous as it reads? In Bauskis v Waihouse & Ors [2020] NSWCA 17, the Court took the opportunity to examine the proper construction of s 69A of the Companion Animals Act. The case involved a dog owner who sued Fairfield City Council, two Council officers and the State of NSW for the seizure of a red cattle dog named “Duke”.
Facts of the case
On 24 November 2017, Fairfield City Council received reports that a dog meeting Duke’s description had bitten people. In response to these reports, an Animal Control Officer employed by Council (Council Officer) attended the applicant’s property to seize Duke. The Applicant refused him entry on his property and stated that he did not recognize the Council as a legal entity. The Applicant then contacted the police who arrived to the scene.
Two Council Officers explained to the Applicant the parts of the CAA Act that they were empowered under and that they would be entering the property and then entered the property to seize Duke.
The Council Officer drew the Police’s attention to sections 16(1), 18(1), 18(3) and 69A of the Companion Animals Act 1998 (NSW) and applicant’s response was “[t]he Companion Animals Act is not the law and it does not apply to me”. All of the authority officers entered the property and seized Duke from the premises.
The Court distinguished that there were two concepts at large within s 69A of the Act: first, the ability to enter the property, and second, the entry into the part of premises used only for residential purposes.
The Court stated that the entry into the part of premises used only for residential purposes is an obvious subset arguably a more limited subset of “property”.
Having regard to the statutory history and relevant extrinsic materials, the Court expressed the view that the “clearly preferable construction” of the term “premises used only for residential purposes” is is limited to a building or structure in which people (rather than animals) live and does not include the curtilage of the premises which in this case comprised the side passage and backyard.
Conclusion
The right to enter property has always been a matter treaded carefully by the courts, and in Bauskis v Waihouse & Ors, the Court clarified the limits to enter property under section 69A. Although the decision has yet to be considered in any higher courts as of 2021, it is nonetheless a useful authority that clarifies the boundaries that applies to local authority when entering premises to seize an animal. In a time where companion animals are recognised as a positive influence to people’s sense of wellbeing, it will be interesting to see how the Companion Animals Act 1998 (NSW) will be applied in future judicial proceedings.
