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Elze v Brisbane City Council[2025] QCAT 195

Elze v Brisbane City Council[2025] QCAT 195

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Elze v Brisbane City Council [2025] QCAT 195

PARTIES:

janet elze

(applicant) 

v

Brisbane City Council

(respondent)

APPLICATION NO/S:

GAR367-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 May 2025

HEARING DATE:

30 January 2025

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

The decision of the Respondent made on 20 March 2023 confirming the decision to declare the Applicant’s dog named ‘Evie’ to be a declared dangerous dog is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – review of decision of respondent confirming decision declaring the applicant’s dog to be a regulated (dangerous) dog pursuant to s 89 of the Animal Management (Cats and Dogs) Act 2008 (Qld) – where physical interaction between applicant’s dog and another dog at a dog park left the other dog with two wounds requiring operative treatment – whether the applicant’s dog seriously attacked the other dog within the meaning of the Act – whether the applicant’s dog bit the other dog or the wounds resulted from an inadvertent collision between the two dogs – whether Tribunal’s decision to confirm the review decision limits any of the applicant’s rights under the Human Rights Act 2019 (Qld) – whether any limitation reasonable and justifiable

Human Rights Act 2019 (Qld), s 9, s 10, s 13, s 24, s 58, Schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 157, s 161

Animal Management (Cats and Dogs) Act 2008 (Qld), s 3, s 4, s 59, s 89, s 93, s 97, s 187, s 188, Schedule 2

Austin BMI Pty Ltd v Deputy Premier [2023] QSC 95

BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266

Johnston & Ors v Commissioner of the Queensland Police Service [2024] QSC 2 

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Lee v Brisbane City Council [2012] QCA 284

Yanner v Eaton (1999) 201 CLR 351

APPEARANCES & REPRESENTATION:

Applicant:

T. Christie of CNG Lawyers 

Respondent:

M. Spencer of City Legal - Brisbane City Council

REASONS FOR DECISION

Introduction

  1. [1]
    By an Application to review a decision filed on 1 June 2023 (‘the Review Application’), the Applicant (‘Ms Elze’) has applied to review an internal decision of the Respondent made on 20 March 2023 (‘the Review Decision’).
  2. [2]
    By the Review Decision, the Respondent confirmed a decision of the Respondent made on 6 February 2023 (‘the original decision’) declaring that Ms Elze’s dog, ‘Evie’, was a regulated (dangerous) dog pursuant to s 89(2) of the Animal Management (Cats and Dogs) Act 2008 (Qld) (‘the AMA’).
  3. [3]
    The declaration was made as a result of an incident that occurred at an off-leash dog park on 1 August 2022. There is no dispute that there was a physical interaction between Evie and another dog, a female Greyhound named ‘Betty’, at the park. The interaction left Betty with two large gaping lacerations high up on her right chest wall and extensive bruising and tissue trauma. The lacerations required emergency debridement and surgical closure under general anaesthesia.
  4. [4]
    There is no dispute that, at the time of the interaction, Betty was running through the park (described in evidence as doing ‘zoomies’) when Evie ran towards Betty and the interaction occurred. The critical factual dispute between the parties is whether Betty’s injuries were sustained by Evie biting her or were sustained by the impact of Evie’s teeth during an inadvertent collision between the dogs at speed.
  5. [5]
    By the Review Application, Ms Elze seeks to have the Review Decision set aside.

The statutory basis for reviewing the Decision

  1. [6]
    Section 188 of the AMA provides:

A person who is given, or is entitled to be given, a review notice for a decision under part 1 may apply, as provided under the QCAT Act, for an external review of the decision.

  1. [7]
    Ms Elze was entitled to be given a review notice pursuant to s 187 of the AMA.
  2. [8]
    Ms Elze was given a Notice of Internal Review Decision (‘the Notice of Decision’) said to be pursuant to s 187 of the AMA. Subsection 187 of the AMA provides:

If the internal review decision or designated review decision is not the decision sought by the applicant, the review notice must include or be accompanied by a notice complying with the QCAT Act, section 157(2) for the decision.

  1. [9]
    The Notice of Decision included a section headed ‘RIGHT TO REVIEW’. In my view, the matters stated in that section satisfied each of subsections 157(2)(a) to (d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), but did not comply with s 157(2)(e) which provides that the notice must state any right the person has to have the operation of the decision stayed under section 22 of the QCAT Act. No such reference was contained in the Notice of Decision. However, a failure to comply with s 157 does not affect the validity of the reviewable decision (see s 157(4)). In my view, Ms Elze is entitled to apply for an external review of the Review Decision under s 188 of the AMA. 
  2. [10]
    I consider that the review of the Review Decision is governed by Division 3 of Part 1 of Chapter 2 of the QCAT Act.
  3. [11]
    In exercising its review jurisdiction, the Tribunal:
    1. must decide the review in accordance with the QCAT Act and the AMA (being the enabling Act under which the reviewable decision was made);[1]
    2. may perform the functions conferred on the Tribunal by the QCAT Act or the AMA;[2] and
    3. has all the functions of the decision-maker for the reviewable decision being reviewed.[3]
  4. [12]
    The purpose of the review is to produce the correct and preferable decision.[4]
  5. [13]
    The Tribunal must hear and decide a review of the Decision by way of a fresh hearing on the merits.[5]
  6. [14]
    In this proceeding, the Tribunal may:[6]
    1. confirm or amend the Decision;
    2. set aside the Decision and substitute its own decision; or
    3. set aside the Decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.
  7. [15]
    The Tribunal’s decision pursuant to each of ss 24(1)(a) and (b) is taken to be a decision of the decision-maker for the reviewable decision except for the Tribunal’s review jurisdiction or an appeal under part 8 of the QCAT Act.[7]
  8. [16]
    The Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made, and there is no presumption that the decision is correct.[8]

Relevant provisions of the AMA

  1. [17]
    Section 89 of the AMA is in the following terms (as it was at the date of the hearing):
  1. Any local government may, by complying with the requirements of this part—
  1. declare a particular dog to be a declared dangerous dog (a dangerous dog declaration); or
  1. declare a particular dog to be a declared menacing dog (a menacing dog declaration).
  1. A dangerous dog declaration may be made for a dog only if the dog—
  1. has seriously attacked, or acted in a way that caused fear to, a person or another animal; or
  1. may, in the opinion of an authorised person having regard to the way the dog has behaved towards a person or another animal, seriously attack, or act in a way that causes fear to, the person or animal.
  1. A menacing dog declaration may be made for a dog only if a ground mentioned in subsection (2) exists for the dog, except that the attack was not serious.
  1. The declaration may be made even if the dog is not in the local government’s area.
  1. A declaration under this section is a regulated dog declaration.
  1. In this section—

animal has the meaning given by section 191.

seriously attack means—

  1. in relation to a person - attack the person in a way that causes the death of, or grievous bodily harm or bodily harm to, the person; or
  1. in relation to an animal - attack the animal in a way that causes the death of the animal, or maims or wounds the animal.
  1. [18]
    The above terms of s 89 reflect amendments made in 2024.
  2. [19]
    The position of parties is that s 89 as enacted at the date of the hearing is the applicable provision. I am satisfied that this is the position, having regard to, first, that the review involves a fresh hearing on the merits and, second, that there is no indication in the AMA (by way of a transitional provision or otherwise) that s 89 as enacted at some earlier time (for example, at the date of the original decision or the Review Decision) should be applied. For completeness, I note that, prior to the amendment of s 89, ‘seriously attack’ was defined to mean ‘to attack in a way causing bodily harm, grievous bodily harm or death’. In my view, the reference to causing ‘bodily harm’ in the previous iteration of s 89 imposed a lower bar than the test applicable under the current definition now contained in s 89(6) of the AMA. That is, if the present definition of ‘seriously attack’ is satisfied, the previous definition (if applicable) would also be satisfied.

The parties’ material

Ms Elze

  1. [20]
    Ms Elze’s material comprised:
    1. the Review Application (including attachment) (Exhibit 1);
    2. an affidavit of Stephen Elze (Exhibit 2);
    3. an affidavit of Ms Elze (Exhibit 3).

Respondent

  1. [21]
    The Respondent’s material comprised:
    1. the Respondent’s material filed pursuant to s 21 of the QCAT Act (Exhibit 4);
    2. an affidavit of Dr Cindy Neville (the veterinary surgeon who treated Betty) (Exhibit 5);
    3. an affidavit of Michelle Hogan (the owner of Betty) (Exhibit 6).
    4. an affidavit of Tania Moore (Exhibit 7).[9]
    5. an affidavit of Wendy O'Mullane (Exhibit 8).

Consideration

The circumstances of the interaction between the two dogs

  1. [22]
    There is some variance in the version of events given by the witnesses at the dog park. However, I consider that there is no material discrepancy between the respective versions of events until the point of, or immediately prior to, the contact occurring between the dogs.
  2. [23]
    The essence of the evidence of Mr Elze was that there was a collision between the dogs but that Evie did not bite Betty. Mr Elze’s affidavit evidence included, relevantly, the following:[10]
  1. [5]
    Evie is working dog breed and because of this, she is very active whilst in the dog park and she will often create games of rounding up other dogs and chasing other dogs. Often other dogs will also play these games with her. She will chase other dogs and yelp out at them as if she was rounding them up.
  2. [6]
    On the day of this alleged attack, Evie was again under my supervision. She was sitting under the table and saw a dog which it appeared she wanted to chase after. Evie took off at high speed.
  3. [7]
    I witnessed the incident between Betty and Evie. My view was un-obstructed.
  4. [8]
    At the time of the incident the owner of this other dog was sitting at a table where the owners regularly congregate and chat. Because of where they were, I do not accept that this owner had a visual on this interaction.
  5. [9]
    The witness, Wendy O'Mullane (“Wendy”), confirmed with Council that at that time, Betty the alleged attacked dog (“Betty”) was running around and doing zoomies.
  6. [10]
    I accept that there was a collision between the two dogs that were both running at high speed. Evie’s head collided with the stomach or shoulder area of the other dog Betty. This was as a result of Betty doing zoomies and Evie rounding up.
  7. [11]
    The injuries sustained by Betty were as a result of said collision at high speed and not an attack. I do not accept that there was an attack, I do not accept that Evie bit Betty. The injury was incidental to the collision.
  1. [24]
    In cross-examination, Mr Elze said that the left side of the Evie’s face made contact with Betty. Mr Elze also said that he did not see Evie’s teeth make contact with Betty and that the incident happened ‘very fast’. Despite this, Mr Elze denied that Betty’s injuries were caused by a bite from Evie. In light of Mr Elze’s evidence in cross-examination, I am not satisfied that Mr Elze’s evidence positively establishes that Betty’s wounds were inadvertently sustained as a result of a collision between the two dogs nor does it negative a conclusion that Evie bit Betty.
  2. [25]
    Ms Elze was not present at the dog park at the time of the incident. Ms Elze states in her affidavit that Evie was 5½ years old at the time of the incident and Evie was ‘true to her breed’; she is a sturdy, hard muscled agile cattle dog, and when she attends a dog park, she will interact with other dogs by chasing after them and playing ‘round up games’.
  3. [26]
    Ms Hogan’s evidence in her affidavit was that Evie was under the table ‘we’ were sitting at, and ‘raced out’ and ‘attacked’ Betty as she ran past. Ms Hogan then stated: ‘Betty was bitten on her right side of her body’.[11] I consider this sentence to be somewhat ambiguous. Ms Hogan does not say that she saw Evie bite Betty, although that is one possible interpretation. The other interpretation is that Ms Hogan was expressing a conclusion based on seeing Evie lunge at Betty and straight afterwards seeing two puncture wounds and blood dripping from Betty.
  4. [27]
    Ms Hogan’s oral evidence was that she saw that Evie ‘lunged’ at Betty but ‘didn’t really take much notice’; and that Betty ‘went back at’ Evie (which Ms Hogan said was unusual for Betty). In cross-examination, Ms Hogan said that the interaction was over in seconds, that Betty ‘retaliated’ but not physically (which I took to mean that Betty reacted vocally at Evie). Ms Hogan saw blood dripping off Betty immediately after the incident. I found Ms Hogan’s evidence to be clear and direct. I accept Ms Hogan’s evidence. However, it was not clarified, in either examination in chief or cross-examination, whether Ms Hogan did or did not see Evie bite Betty. I accept Ms Hogan’s evidence that Evie ran at and lunged at Betty as Betty was running past, but I am not satisfied that Ms Hogan witnessed Evie physically biting Betty. However, on the basis of Ms Hogan’s evidence, I am satisfied that, in lunging at Betty, Evie had the opportunity to bite Betty.
  5. [28]
    Ms O'Mullane stated in her affidavit:[12]
  1. I was sitting next to Michelle at the table in the off leash area of the park.
  1. Michelle Hogan’s Greyhound dog Betty was doing ‘zoomies’ in the grounds. I didn’t see where Evie a red cattle dog came from.
  1. I saw Evie go after and lunge at Betty and nipped the side of Betty’s body.
  1. Betty was moving, the teeth of Evie dragged and made holes on the side of Betty’s body.
  1. [29]
    During cross-examination, Ms O'Mullane said that Evie had previously interacted with Ms O'Mullane’s dog ‘Gertie’ by growling and running at her; ‘being a cattle dog’; and chasing and ‘nipping’ Gertie (but did not injure Gertie). Ms O'Mullane said that at the time of the incident Evie chased after Betty and the incident occurred about 8 feet (2 to 3 metres away) from where Ms O'Mullane was sitting. However, Ms O'Mullane accepted that it could have been 5 to 10 metres away. With respect to paragraphs 7 and 8 of her affidavit, Ms O'Mullane said that while she can recall Evie going after Betty and seeing the incident occurring, she can’t actually recall seeing Evie doing it (which I understood to be referring to Evie nipping the side of Betty’s body and the teeth of Evie dragging and making holes on the side of Betty’s body). Ms O'Mullane said in cross-examination that it happened in ‘a quick second’ and ‘very quickly’. On the whole of Ms O Mullane’s evidence, I am not satisfied that Ms O'Mullane saw Evie physically bite Betty.
  2. [30]
    After the incident, Ms Hogan took Betty to Dr Cindy Neville, a veterinary surgeon. Dr Neville affirmed and declared an affidavit in this proceeding on 13 December 2023. Dr Neville stated:
    1. Betty presented with two large gaping lacerations high up on her right chest wall both requiring emergency debridement and surgical closure under general anaesthesia;[13]
    2. there was extensive bruising and tissue trauma;[14]
    3. Betty was treated with antibiotics and pain relief;[15]
    4. Betty’s wounds were consistent with an aggressive dog bite from a medium to large breed dog.[16]
  3. [31]
    Dr Neville provided three colour photographs, two showing the wounds prior to stitching, and one showing the sutured wounds after surgery. The photographs taken prior to stitching show the two large gaping lacerations described by Dr Neville. It is plain from the photographs that each of the wounds has broken the skin.
  4. [32]
    Dr Neville was cross-examined at some length. Dr Neville:
    1. said that she had been a vet for 37 years;
    2. described Betty’s skin as being ripped and torn and that it was a penetrating injury;
    3. that (Evie’s) mouth had to have been open and the teeth pushed into Betty’s skin;
    4. that the separate lacerations were caused by either the top and bottom canines or by two ‘grabs’;
    5. that the skin of greyhounds was not prone to tearing;
    6. that it was ‘highly unlikely’ that the lacerations were caused by a collision, and in Dr Neville’s opinion they were not caused by a collision between the two dogs;
    7. that there was too much tearing to be consistent with a collision.
  5. [33]
    I accept Dr Neville’s evidence. Dr Neville presented as an impressive witness. Dr Neville has extensive experience as a veterinary surgeon. No competing expert evidence was led by Ms Elze.
  6. [34]
    Having regard to the totality of the evidence, I am satisfied that, on the balance of probabilities, on 1 August 2022:
    1. Ms Elze’s dog, Evie, was sitting or lying near where Mr Elze was seated (in the near vicinity to Ms Hogan and Ms O'Mullane) in an off-leash dog park;
    2. Ms Hogan’s dog Betty was running quickly (described as doing ‘zoomies’) around the dog park;
    3. Evie took off from her position, running in the direction of Betty;
    4. Evie was ‘yapping’ and lunged at Betty making contact with Betty, at a point approximately 5 to 10 metres from where the respective witnesses were seated;
    5. the contact between the dogs involved Evie biting Betty at least once but no more than twice;
    6. Betty sustained two tearing type lacerations high up on her right chest wall as a result of being bitten by Evie.
  7. [35]
    The question that arises is whether Evie did ‘seriously attack’ Betty at the dog park.[17] The answer to this question turns on whether Evie attacked Betty in a way that wounded Betty.
  8. [36]
    Dealing first with whether Betty was wounded, Ms Elze does not contend that Betty was not wounded. The AMA (as amended) does not contain a definition of ‘wounds’ or ‘wound’. The word ‘wound’ is defined, in the Macquarie Dictionary, to mean, relevantly, ‘an injury to an organism, usually one involving division of tissue or rupture of the integument or mucous membrane, due to external violence or some mechanical agency rather than disease.’
  9. [37]
    Under the Criminal Code Act 1899 (Qld), the offence of ‘wounding’ involves the ‘breaking or penetration of the true skin’ (see e.g. R v Da Costa [2005] QCA 385, [3]). Whilst some animals do not have skin, and without deciding the precise scope of the meaning of ‘wound’ in s 89, in the case of a dog, I am satisfied that where the dog suffers an injury which involves the breaking or penetration of the dog’s skin, this establishes a wounding for the purposes of s 89 of the AMA.
  10. [38]
    Having regard to Dr Neville’s evidence, I am satisfied, on the balance of probabilities, that Betty suffered two penetrating wounds to her skin which broke or penetrated the skin. In addition to Dr Neville’s written and oral evidence, the photographs provided by Dr Neville plainly demonstrate this to be the case. Betty was wounded as result of Evie’s physical interaction with her.
  11. [39]
    The remaining issue is whether Betty suffered the wounds as a result of an ‘attack’ by Evie.
  12. [40]
    The word ‘attack’ is not defined in the AMA.
  13. [41]
    In Lee v Brisbane City Council (‘Lee’), Holmes JA (as her Honour then was) said:[18]

[10]  The applicant contended error in the construction of the word “attack”, which is not defined in the Animal Management (Cats and Dogs) Act. She relied on a decision of the New South Wales Supreme Court, Lake Macquarie City Council v Morris, which concerned a prosecution under s 16 of the Companion Animals Act 1998 (NSW), the offence being that the defendant owned two dogs which attacked another animal. As in the Queensland legislation, the word “attack” was not defined. Johnson J noted dictionary definitions and the meaning attributed to the word in other statutory contexts. It was clear, however, he said, from the section creating the offence that it was not necessary to establish an “attack” that physical contact had occurred between the dog and the animal said to have been attacked; it would be sufficient if the dog’s actions involved an act of hostility or aggression of a kind discussed in other cases.

[11]  That case is not really helpful. It may be accepted that the behaviour of the spaniel in running and barking could, as the appeal tribunal said, be characterised as an attack. But at issue was whether the German Shepherd had seriously attacked the spaniel, as that expression is defined in s 89(7). It will be a question of fact whether what a dog does amounts to an attack for the purposes of the section, and in deciding that question, hostile behaviour by the animal which is the victim may be relevant. There may be a factual issue, for example, as to whether one dog biting another is attacking or simply defending itself (although where there has been no physical contact preceding the bite, defence is a less likely conclusion). But as a matter of law, there is nothing in s 89 which precludes a finding of attack where the behaviour of the dog in question is a response to aggression from its victim. To put it another way, it is not a pre-requisite to a finding of serious attack by one dog on another that there be a finding that the second dog has itself done nothing which could be described as an attack.

[12]  There is no reason to doubt the correctness of the appeal tribunal’s approach in regarding the proposition that the spaniel might first have attacked as not precluding a finding of serious attack by the German Shepherd. There was evidence to support a finding that the German Shepherd had committed an attack of that kind.

(citations omitted)

  1. [42]
    Her Honour’s reasoning does not deal, in terms, with the meaning of the term ‘attack’ in the AMA. What is established by Lee is that:
  1. it is a question of fact whether what a dog does amounts to an attack for the purposes of s 89;
  1. as to this question, relevant factors include:
  1. whether the victim animal engaged in hostile behaviour;
  1. whether one dog biting another was done in self-defence;
  1. it is not a pre-requisite to a finding of serious attack by one dog on another that there be a finding that the second dog has itself done nothing which could be described as an attack.
  1. [43]
    In the Macquarie Dictionary, ‘attack’ is defined to mean, relevantly, ‘to set upon with force or weapons; begin hostilities against: attack the enemy.’
  2. [44]
    In the present case, I find that Betty sustained her wounds doing nothing more than running around within the dog park; there was nothing remotely ‘hostile’ in her behaviour.
  3. [45]
    I find that, on the balance of probabilities, Evie did ‘attack’ Betty; Evie ran at, lunged at, and bit Betty, without provocation. I reject the contention that Betty’s wounds were simply the result of an inadvertent collision between the two dogs. I further find that that the attack caused the wounds suffered by Betty.
  4. [46]
    In summary, I find that s 89(2)(a) is satisfied because Evie ‘seriously attacked’[19] Betty (an ‘animal’) on 1 August 2022.

Human Rights Act 2019

  1. [47]
    Neither party contended that the Human Rights Act 2019 (Qld) (‘the HRA’) was a relevant consideration for the Tribunal in making its decision on the Review Application. Nevertheless, for the following reasons, I am of the view that the HRA should be considered.
  2. [48]
    Subsection 58(1) of the HRA provides:

It is unlawful for a public entity—

  1. to act or make a decision in a way that is not compatible with human rights; or
  1. in making a decision, to fail to give proper consideration to a human right relevant to the decision.
  1. [49]
    The consequence of a contravention of s 58(1) is subject to the operation of s 58(6).
  2. [50]
    For subsection 58(1)(b), giving proper consideration to a human right in making a decision includes, but is not limited to—
    1. identifying the human rights that may be affected by the decision; and
    2. considering whether the decision would be compatible with human rights.[20]
  3. [51]
    However, s 58(1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of a statutory provision, a law of the Commonwealth or another State or otherwise under law.[21]

Subsection s 58(1)(a)

  1. [52]
    With respect to s 58(1)(a) of the HRA, Freeburn J said the following in Austin BMI Pty Ltd v Deputy Premier (‘Austin BMI’):[22]

[305] The expression “compatible with human rights” is defined in s 8 of the Human Rights Act. It means either that the decision does not limit human rights or, to the extent that it does, those limits on human rights are nonetheless justified according to the test of proportionality set out in s 13 of the Human Rights Act.

[306] The Attorney-General submits, and it is accepted, that compatibility with human rights should be considered in three stages: engagement, limitation, and justification:

  1. Engagement: A measure will ‘engage’ a human right, if the right is ‘relevant’ or ‘apparently limit[ed]’. ‘The relevance may be that the right is interfered with (i.e. a negative effect) or promoted’. A human right can only be limited if it is engaged, but it is possible that a human right may be engaged but not limited (for example, property might be deprived so that the right in s 24(2) is ‘engaged’, but the deprivation may not arbitrary, so that the right is not in fact ‘limited’).
  1. Limitation: A measure will ‘limit’ a human right for the purposes of s 8 of the Human Rights Act, if it ‘places limitations or restrictions on, or interferes with, the human rights of a person’. That necessarily involves considering whether the impact comes within the scope of the right. When determining scope, ‘rights should be construed in the broadest possible way’, by reference to the right’s ‘purpose and … underlying values’. Because ‘[t]he protection of human rights crosses borders’, the scope of human rights may also be informed by international jurisprudence, including the jurisprudence of the Human Rights Committee (the treaty-monitoring body for the International Covenant on Civil and Political Rights (ICCPR)). Any recourse to international authority must take into account the particular legal and constitutional context in which those cases were decided.
  1. Justification: A limit will be ‘justified’ if it satisfies the proportionality test in s 13 of the Human Rights Act. It is at this stage that the overall protection of the right is narrowed to ‘mitigat[e] any damage to society that may arise from upholding an individual’s right.’ It is important that this be done at the third stage using the transparent reasoning process set out in s 13.

(citations omitted)

  1. [53]
    Subsection 58(1)(a) imposes a substantive obligation upon a public entity decision maker.[23]

Subsection 58(1)(b)

  1. [54]
    Subsection 58(1)(b) of the HRA imposes a procedural obligation upon a public entity decision maker.[24]
  2. [55]
    The tasks in subsections 58(5)(a) and (b) of the HRA are to be approached in a ‘commonsense and practical manner’ and public entities ‘are not expected to achieve the level of consideration that might be hoped for in a decision given by a judge’.[25]

Is the Tribunal acting as a ‘public entity’?

  1. [56]
    The threshold question is whether, for the purpose of making a decision in respect of the Review Application, the Tribunal is acting as a ‘public entity’[26]. In my view, the Tribunal is so acting, for the following reasons:
    1. a ‘public entity’ under the HRA includes, by virtue of  s 9(1)(f) of the HRA, an entity established under an Act when the entity is performing functions of a public nature;[27]
    2. the Tribunal is an entity established under an Act, namely the QCAT Act;[28]
    3. having regard to s 188 of the AMA and the matters addressed at paragraphs [11] to [15] above, and that the Tribunal is, in part, publicly funded through government appropriation, the Tribunal is performing functions of a public nature when undertaking its review jurisdiction in relation to a decision under s 89 of the AMA;[29]
    4. in acting in its review jurisdiction, the Tribunal is acting in an administrative capacity and, consequently, is not excluded from the definition of ‘public entity’.[30]
  2. [57]
    For completeness, I am not satisfied that the Tribunal is a public entity pursuant to  s 9(1)(h) of the HRA because it is not performing the functions ‘for’ the State or a public entity (relevantly, the Respondent), notwithstanding that in exercising its review jurisdiction, the Tribunal has all the functions ‘of’ the decision-maker for the reviewable decision being reviewed.[31]
  3. [58]
    The next issue that arises is whether the decision confirming the Respondent’s decision to declare the Applicant’s dog named ‘Evie’ to be a declared dangerous dog both engages and limits one or more of Ms Elze’s human rights set out in the HRA and, if so, whether such a limit is justified.
  4. [59]
    In my view, of the human rights set out in the HRA, the only rights arguably both engaged and limited by the decision are those set out in s 24 (‘Property rights’) and s 25 (‘Privacy and reputation’).

Section 24

  1. [60]
    Section 24 of the HRA provides:
  1. All persons have the right to own property alone or in association with others.
  1. A person must not be arbitrarily deprived of the person’s property.
  1. [61]
    In considering whether either of those rights of Ms Elze is both engaged and limited, I have had regard to the following matters.
  2. [62]
    First, I consider that a domestic animal (such as a dog) lawfully in the possession of a person constitutes ‘property’ at common law[32] and, adopting a liberal and beneficial interpretation of the HRA and have regard to the expansive definition of ‘property’ in the Acts Interpretation Act 1954 (Qld), also constitutes ‘property’ within the meaning of the HRA.
  3. [63]
    Second, the making of a dangerous dog declaration carries with it a statutory obligation on the part of a ‘relevant person’ for a declared dangerous dog (being the owner of, and any responsible person for, a declared dangerous dog) to ensure that various permit conditions are complied with (and a failure to comply carries with it a maximum penalty of 75 penalty units).[33] The permit conditions[34] include various conditions that would require the incurring of cost in order to comply, for example, implanting a ‘PPID’ (prescribed permanent identification device); ensuring that the relevant dog at all times wears a distinctive collar with an attached identifying tag containing information prescribed under a regulation; ensuring that the dog is muzzled when it is not at the ‘relevant place’ (save where the dog is in an enclosed part of a vehicle and is enclosed or restrained in a way that prevents the dog or any part of the dog from being outside the enclosed part of the vehicle); provision of an enclosure that must be childproof and stop the dog from leaving the enclosure; and that a compliant sign must be placed at or near each entrance to the relevant place notifying the public that a regulated dog is kept at the place.
  4. [64]
    I consider that, in the present case, the rights in s 24(1) is engaged to the extent that the right is ‘relevant’ or ‘apparently limited’.
  5. [65]
    Further, in my view, having regard to the matters addressed in paragraphs [62] and [63] above, the confirmation of the dangerous dog declaration limits[35] Ms Elze’s right to own property[36] (namely, Evie) insofar as the permit conditions impose obligations on Ms Elze that are not imposed on owners of dogs that are not the subject of a regulated dog declaration, and compliance with such conditions placed a financial impost on Ms Elze (and a potential monetary penalty in the event of non-compliance).
  6. [66]
    With respect to s 24(2), I am not satisfied that the confirmation of the dangerous dog declaration will result in a deprivation of Ms Elze’s property and, consequently, that right is not engaged. In any event, that right can only be limited if the deprivation is arbitrary.
  7. [67]
    In BZN, Crowley J said:[37]

… The notion of arbitrary interference extends to those interferences which may be lawful, but are unreasonable, unnecessary and disproportionate. Arbitrariness is concerned with capriciousness, unpredictability, injustice and unreasonableness – in the sense of not being proportionate to the legitimate aim sought.

(citations omitted)

  1. [68]
    In my view, if there were any deprivation of Ms Elze’s property it was not arbitrary. The permit conditions are uniformly imposed in the event that the requirements of s 89 of the AMA are satisfied and a dangerous dog declaration is made. The decision is not unreasonable, unnecessary, or disproportionate. No capriciousness is involved. I consider that any deprivation would be proportionate to fulfilling the purposes of the AMA addressed in paragraph [69](b) below.
  2. [69]
    In relation to the limitation of the right under s 24(1) addressed above,[38] I am of the view that it is reasonable and justifiable pursuant to s 13 of the HRA having regard to the following factors:
  1. whilst the right concerns property rights, it does not concern one of the core property rights identified by Freeburn J in Austin BMI;
  1. sections 89, 93 and 97 of the AMA form part of Chapter 4, the purposes of which are to:[39]
  1. protect the community from damage or injury, or risk of damage or injury, from regulated dogs; and
  1. ensure regulated dogs are—
  1. not a risk to community health or safety; and
  1. controlled and kept in a way consistent with community expectations and the rights of individuals;
  1. the operation of, in particular, sections 89 and 97 achieves those purposes[40] by imposing conditions on the keeping of, and requirements for the control of, regulated dogs;
  1. in my view, having regard to the above purposes, the limitation is consistent with a free and democratic society based on human dignity, equality and freedom, and serves an important purpose having regard to the protection of the health and safety of the community in general;
  1. the making of a dangerous dog declaration and the consequential imposition of the permit conditions achieves a reasonable balance between achieving the purposes of the AMA (including those of Chapter 4) and the limitation on property rights to the extent of the financial impost of complying with the conditions (and a potential monetary penalty in the event of non-compliance);
  1. in my view, there is no less restrictive and reasonably available way to achieve those purposes having regard to the operation of the AMA.

Section 25

  1. [70]
    Section 25 of the HRA provides:

A person has the right—

  1. not to have the person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and
  1. not to have the person’s reputation unlawfully attacked.
  1. [71]
    In my view, s 25(b) is not engaged; the decision to confirm the dangerous dog declaration does not involve an attack on Ms Elze’s reputation, much less an unlawful attack.
  2. [72]
    With respect to s 25(a), in BZN, Crowley J said:[41]

The right to privacy is a broad right, with many dimensions. It includes informational privacy but also extends to physical and mental integrity.

(citation omitted)

  1. [73]
    However, the interference must be unlawful or arbitrary. If the interference is not unlawful or arbitrary it follows that the right is not limited.[42]
  2. [74]
    An ‘unlawful’ interference must be one which infringes an applicable law and must constitute an infringement other than a breach of s 58 of the HRA.[43] In my view, there is no basis for a finding of unlawful interference with Ms Elze’s right or rights under s 25(a) of the HRA.
  3. [75]
    The issue of arbitrariness has been addressed above. For the same reasons, I am of the view that there is no basis for a finding of arbitrary interference with Ms Elze’s right or rights under s 25(a) of the HRA.
  4. [76]
    In any event, for the reasons set out at paragraph [69] above, I am of the view that any interference would be reasonable and justifiable pursuant to s 13 of the HRA.

Conclusion

  1. [77]
    I consider that my interpretation of s 89 of the AMA has been, to the extent possible consistently with the purpose of that provision, interpreted in a way that is compatible with human rights, in particular, the right under s 24(1) of the HRA.
  2. [78]
    Having considered the evidence and submissions made in this proceeding, and concluding that s 89(2)(a) of the AMA has been satisfied and that the limitation on the identified property right is reasonable and justifiable, the internal review decision of the Respondent made on 20 March 2023 must be confirmed.

Order

  1. [79]
    For the above reasons, it is the decision of the Tribunal that:

The decision of the Respondent made on 20 March 2023 confirming the decision to declare the Applicant’s dog named ‘Evie’ to be a declared dangerous dog is confirmed.

Footnotes

[1]QCAT Act s 19(a).

[2]Ibid s 19(b).

[3]Ibid s 19(c).

[4]Ibid s 20(1).

[5]Ibid s 20(2).

[6]Ibid s 24(1).

[7]Ibid s 24(2).

[8]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[9]Ms Moore was the Animal Attack Officer who investigated the complaint of an attack on betty.

[10]At [5]-[11].

[11]Paragraph 4.

[12]At [5]-[8].

[13]Paragraph 4.

[14]Paragraph 5.

[15]Paragraph 6.

[16]Paragraph 7.

[17]Betty was plainly an ‘animal’ within the meaning of s 89: see AMA ss 89(6), 191.

[18][2012] QCA 284, [10]-[12], White JA and Applegarth J agreeing. Special leave to the High Court was refused: Lee v Brisbane City Council [2013] HCASL 37.

[19]Within the meaning of AMA, s 89(6)(b).

[20]HRA, s 58(5).

[21]Ibid, s 58(2).

[22][2023] QSC 95, [305]-[306].

[23]BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266 (‘BZN’), [235].

[24]BZN, [235].

[25]BZN, [246], citing Owen-D’Arcy v Chief Executive, Queensland Corrective Services (2021) 9 QR 250, [2021] QSC 273, [133], [137] and Austin BMI, [355].

[26]That phrase is defined in Schedule 1 by reference to s 9 of the HRA.

[27]HRA, s 9(1)(f).

[28]QCAT Act, s 161.

[29]See, in particular, ss 10(1)(a) and (d) of the HRA, noting s 10(2) of the HRA.

[30]HRA, s 9(4)(b).

[31]QCAT Act, s 19(c).

[32]Cf Yanner v Eaton (1999) 201 CLR 351, [17]-[26].

[33]AMA, s 97.

[34]AMA, Sch 1, ss 2-6, 8.

[35]In the manner identified by Freeburn J in Austin BMI, [306](b).

[36]See HRA, s 24(1).

[37]At [230]. See also Johnston & Ors v Commissioner of the Queensland Police Service [2024] QSC 2 (‘Johnston’), [367]. 

[38]And in relation to s 24(2) if my conclusion in this regard is incorrect.

[39]AMA, s 59(1).

[40]And, more broadly, the purposes, and means for achieving the purposes, identified in s 3(d) and 4(m) of the AMA.

[41]At [230]. See also Johnston & Ors v Commissioner of the Queensland Police Service [2024] QSC 2 (‘Johnston’), [367]. 

[42]Cf Austin BMI, [306].

[43]Johnston, [360]-[362].

Close

Editorial Notes

  • Published Case Name:

    Elze v Brisbane City Council

  • Shortened Case Name:

    Elze v Brisbane City Council

  • MNC:

    [2025] QCAT 195

  • Court:

    QCAT

  • Judge(s):

    Lumb

  • Date:

    19 May 2025

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Austin BMI Pty Ltd v Deputy Premier(2023) 16 QR 377; [2023] QSC 95
2 citations
Jump To
Cite 1 - [2023] QSC 95
Cite 2 - [2023] QSC 95
BZN v Chief Executive, Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266
2 citations
Jump To
Cite 1 - [2023] QSC 266
Cite 2 - [2023] QSC 266
Johnston v Commissioner of Police [2024] QSC 2
3 citations
Jump To
Cite 1 - [2024] QSC 2
Cite 2 - [2024] QSC 2
Cite 3 - [2024] QSC 2
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Lee v Brisbane City Council [2012] QCA 284
2 citations
Jump To
Cite 1 - [2012] QCA 284
Cite 2 - [2012] QCA 284
Lee v Brisbane City Council [2013] HCASL 37
1 citation
Jump To
Cite 1 - [2013] HCASL 37
Owen-D'Arcy v Chief Executive, Queensland Corrective Services(2021) 9 QR 250; [2021] QSC 273
2 citations
Jump To
Cite 1 - [2021] QSC 273
Cite 2 - (2021) 9 QR 250
R v Da Costa [2005] QCA 385
1 citation
Jump To
Cite 1 - [2005] QCA 385
Yanner v Eaton (1999) 201 CLR 351
2 citations
Jump To
Cite 1 - (1999) 201 CLR 351
Cite 2 - (1999) 201 CLR 351

Cases Citing

Case NameFull CitationFrequency
Keegan v North Burnett Regional Council [2025] QCAT 2852 citations
Murdock v Brisbane City Council [2025] QCAT 2975 citations
1

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