Cats, curfews & local councils By David Robertson & Diana Thomas

Cats, curfews and local councils

DAVID ROBERTSON AND DIANA THOMAS, ANIMAL LAW COMMITTEE

The Dog and Cat Management Act 1 allows for local councils to take responsibility for the control of cats in their areas which includes microchipping, 2 desexing 3 and registration of cat breeders. 4

“Nuisance” cats may cause property damage and pollution as well as the harassment and killing of other pets and native fauna. Stray cats may also pose a risk via the transmission of toxoplasmosis, ringworm and fleas.

“The per capita kill rate of pet cats is 25% that of feral cats. However, pet cats live at much higher densities, so the predation rate of pets per square kilometre in residential areas is 28–52 times larger than predation rates by feral cats in natural environments, and 1.3–2.3 times greater than predation rates per km 2 by feral cats living in urban areas.” 5

Local councils may control nuisance cats via by-laws; 6 they may also appoint cat management officers 7 who have the authority to seize, detain 8 or destroy 9 unidentified cats in their council area.

Local councils must be mindful that by-laws are expected to be:

“for the good rule and government of the area, and for the convenience, comfort and safety of its community.” 10

When first considering the making of a by-law to control cats the council may have regard to the Dog and Cat Management Board guide to preparing a cat by-law 11 .

A council proposing to make a by-law under the Dog and Cat Management Act 12 must give 42 days’ notice to the Dog and Cat Management Board and provide a report which: 13 • outlines the objects of the proposed by-law; • sets out how it is proposed to implement or enforce the proposed by-law; and • explains the reasons for any difference in the proposed by-law from other by-laws about a similar subject matter applying or proposed to apply in other council areas.

Council must consider any recommendations of the Board relating to the by-law.

At least 21 days before resolving to make the by-law, the council must make copies of the proposed by-law available for public inspection usually at council offices or via the internet 14 .

The council must also advertise the availability of the proposed new by-law for inspection via the local paper. 15 This may be anachronistic as many local papers are now online only and physical papers are less attractive due to the fear of COVID-19 transmission.

Council must give reasonable consideration to a written or other acceptable submission made concerning the proposed by-law. 16 This is especially relevant if the by-law is controversial, as in the case of cat control or curfew.

Before the resolution can be considered, the council must obtain a certificate from a legal practitioner certifying that the council has the power to make the by-law and the proposed by-law is not in conflict with the Local Government Act 1999. 17

When the by-law comes before the council for a decision at least two-thirds of the members of the council must be present and it must be passed by an absolute majority. 18

By-laws usually become operative four months after publication in the Government Gazette 19 and expire on the first of January in the seventh year after commencement. 20 For this reason, regular reviews are usually written into the by-law with community comment and engagement sought 12 to 18 months prior to any expiration date.

However, despite the rigorous process described above, by-laws can be disallowed by the Legislative Review Committee of Parliament 21 . This is what happened to Marion’s proposed cat by-law.

MARION’S PROPOSED CAT CURFEW BY-LAW

Marion Council endorsed the proposed draft Cats (Confinement) Variation By-law No. 7 2019 22 for community consultation on 29 January, 2019. Under the proposed by-law cats and their owners would be under the following restrictions: • Create an offence of “cat wandering at large”. This means cats cannot wander from their owner’s property during times determined by Council. Council gave in-principle support for this to be from 9pm to 7am daily • Residents requesting cages from

Council to help catch wandering cats on their property • Proposed to give Council’s Community

Safety Inspectors the powers to seize and detain cats. If owners cannot be identified, cats could be impounded at the RSPCA

Fines of $187.50 could be issued to owners who don’t keep their cats indoors during the proposed times

A report by the Legislative Review Committee did not support the by-law for a number of reasons including only allowing 72 hours for cats to be held before being destroyed, lack of certainty with regards to the curfew times and a lack of consultation in some aspects of the by-law.

At its July, 2020 meeting, Marion Council 23 voted to wait for a response from Environment and Water Minister David Speirs, possibly involving a state wide model by-law.

CAMPBELLTOWN CAT CURFEW

In June, 2020 Campbelltown Council endorsed a draft Cats By-Law for consultation which is currently with the Dog and Cat Management Board for comment. Once the Board’s comments have been received, a broader public consultation will commence, anticipated to be September, 2020 24 .

The draft by-law would: • Introduce a cat curfew between 9pm and 7am daily until 1 January, 2024; • From 1 January, 2024 Council will move to full confinement of cats; • A requirement to register cats (no fee has been discussed or set at this stage); • Limit cats to two per household without further permission from

Council; • Ensure cats are registered and can be identified if they leave their owner’s premises; cats not to cause a nuisance when roaming from their owner’s property.

Following consultation with the Board and the public, Council will reconsider the by-law. If Council then proceeds to adopt the by-law and it is approved by the State Government, it is anticipated the by-law will take effect during early-mid 2021. MOUNT BARKER DISTRICT COUNCIL

More than 70% of participants supported a cat curfew during public consultation for the new proposed cat bylaw by Mount Barker District Council: 25

“Cat predation on our native fauna has been identified as a key threat to 35 species of birds, 36 species of mammals, 7 species of reptiles and 3 species of amphibians.

Mount Barker District Council takes its role of protecting the biodiversity of our region seriously and Council’s Cat By-law especially the curfew aims to minimise the impact that cats have on our environment”.

The draft cat by-law 26 proposes the following: • Introduce a cat curfew between 8pm and 7am daily • Council aim to reunite cats found to be in breach of the curfew with their owners • Limit of two cats per residence without specific Council permission • Control nuisance cat behaviour.

Nuisance cat behaviour includes: о Unreasonably interferes with the peace, comfort or convenience of a person, including but not limited to a cat(s) displaying aggressive nature or creating unpleasant noise or odour; о Damages or otherwise has an adverse impact upon native flora or fauna; о Acts in a manner that is injurious to a person’s real or personal property; о Wanders onto land without the consent of the owner or occupier of the land or о Defecates or urinates on land without the consent of the owner or occupier of the land

The Council is planning to trial a transition period to finalise details (including dispensation processes, fines and actions).

The UniSA Cat Tracker 27 project analysed the roaming habits of 428 cats. Roughly 40% of the cats that had been classified by their owners as being kept inside at night had in fact been out and about with night-time home-ranges of over one hectare. Given cats do not recognise council borders or by laws perhaps a state wide model by-law with regards to curfews and controls may be in order. B

Endnotes 1 Dog and Cat Management Act 1995 (SA) s 26, 26A. 2 Ibid s 42A. 3 Ibid s 42E. 4 Ibid s 68, 69. 5 We need to worry about Bella and Charlie:

the impacts of pet cats on Australian wildlife

Sarah Legge A B G , John C. Z. Woinarski C , Chris

R. Dickman D , Brett P. Murphy C , Leigh-Ann

Woolley C F and Mike C. Calver E https://www.publish.csiro.au/WR/WR19174 6 Local Government Act 1999 (SA) s 246 – 253 inclusive; Dog and Cat Management Act 1995 (SA) s 90. 7 Dog and Cat Management Act 1995 (SA) s 8 8 Ibid s 64 9 Ibid s 63, 64A 10 Local Government Act 1999 (SA) s 246 (2). 11 http://goodcatsa.com/media/W1siZiIsIjIw

MTUvMDMvMTcvM211ZHc5NmljYl9BX0d 1aWRlX3RvX1ByZXBhcmluZ19hX0NhdF9C eV9sYXcucGRmIl1d/A%20Guide%20to%20

Preparing%20a%20Cat%20By-law.pdf 12 Dog and Cat Management Act 1995 (SA) s 90 13 Ibid s 90 (5). 14 Local Government Act 1999 (SA) s 249 (1)(a) 15 Local Government Act 1999 (SA) s 249 (1)(b) 16 Local Government Act 1999 (SA) s 249 (2). 17 Local Government Act 1999 (SA) s 249 (4). 18 Local Government Act 1999 (SA) s 249 (3) 19 Local Government Act 1999 (SA) s 249 (5) 20 Ibid s 251 21 Parliamentary Committees Act 1991 (SA) s 12,

Subordinate Legislation Act 1978 (SA) s 10A (2). 22 https://www.makingmarion.com.au/45517/ widgets/242021/documents/104493 23 Page 12, https://cdn.marion.sa.gov.au/ meetings/minutes/GC200728-Final-Minutes. pdf?mtime=20200731153921&focal=none 24 https://www.campbelltown.sa.gov.au/council/ have-your-say/future-engagements/draft-catsby-law 25 https://www.mountbarker.sa.gov.au/ community/animals/cats 26 https://www.mountbarker.sa.gov.au/__data/ assets/pdf_file/0029/687413/Cats-By-law-2019. pdf 27 https://data.unisa.edu.au/dap/Project. aspx?ProjectID=33202

Not one to just sit there: The fascinating career of Brian Martin

LINDY MCNAMARA

Reflecting on a legal career in which he was involved in many high profile cases, former Supreme Court Judge Brian Martin AO QC says the Snowtown murder trial was “undoubtedly the hardest” during his time on the Bench.

Mr Martin said the evidence presented in the nine-month jury trial was “distressing” and it was a “huge mental challenge” to understand the sheer volume of material provided.

“It was a case with extraordinary public profile,” he said during an oral history interview for the Law Society.

“It involved 12 murders in one trial. The details of various aspects of it were both graphic and traumatic. Very distressing.

“There were logistical challenges surrounding the technical side of how this would all be presented, and how the court would handle well over a thousand exhibits and all the material that was there. There were logistical challenges with getting a jury, and how we would deal with a jury.

“In fact, coping - helping the jury cope with a trial of that magnitude, notoriety and graphic detail. All of those things come together into one large case, which was extraordinarily difficult, but you just had to go day by day.

“So, it took up 18 months of my life, and nine months of that was with the jury.”

Mr Martin said as intense as it all was, a shining light was how the process reinforced his belief in the jury system.

“They acquitted of one count. Their verdict of acquittal was, in my view, correct.

“So, it showed they weren’t overwhelmed by the totality of it, or they hadn’t taken such an adverse view they were going to convict of everything. They worked it through. They brought back the correct verdict.”

Mr Martin’s love of being involved in the courtroom process was evident early in his career. Admitted in 1970, his first job was with Wallman and Partners, however the desire to do more court work saw him leaving the firm in 1974 to join the Crown Law Office.

“Lying in bed one Saturday morning - I never read the positions vacant - there was an advertisement for an Assistant Crown Prosecutor,” he recalled.

“I looked at the people in the firm (Wallmans), the extraordinary amount of work they pushed out and the toll it took on them, and I thought two things.

“One, I really didn’t want that sort of toll taken on me, because I’d built up a large number of files pretty quickly, and secondly, perhaps more importantly, the job of Assistant Crown Prosecutor, doing the court work, appealed to me.”

Rising through the ranks he was appointed Crown Prosecutor in 1982, admitting he was “extraordinarily lucky” to be involved with so many interesting cases.

“Some good cases came my way and some fantastic legal issues arose from time to time. In the later years, the prosecution of Emily Perry was a fascinating exercise.

“Somebody accused of poisoning their husband and other husbands or relatives, and the forensic exercise of putting all that together, coupled with the fact that the alleged victim, Ken Perry, did not believe she had tried to poison him and ended up as a witness for the defence.

“And he was not beyond being quite voluble, outside the court sitting times, about what was happening. That in itself made life interesting. The whole thing - and the law surrounding what was then called similar fact evidence - it was a great exercise in itself, and, of course, we ended up in the High Court, and that was terrific.”

Another stand-out case was the prosecution of Bevan Spencer Von Einem as it uncovered the “whole scene around the issue of what was happening in parts of our community that we didn’t know about”.

After his appointment as a Queen’s Counsel in 1984, Mr Martin decided he had “had enough” and moved back to private practice, joining Murray Chambers.

“When I say ‘had enough’, what I mean is you reach a point where, not that you’ve done it all, but you’re doing things you’ve been doing for so long. I was

Brian Martin

looking for a change at that stage. I was ready for a change, and the opportunity to go to the Bar came,” he explained.

During this next phase of his career he and wife Leigh spent two years in Perth while he worked as Senior Counsel with the WA Inc. Royal Commission. Back in Adelaide he was appointed Commonwealth Director of Public Prosecutions in 1997, dealing with cases around Australia, with a lot of travelling to Canberra and Sydney.

“I finished after two years, when I accepted the call to be a judge, and I regret that in many ways. I was doing cases around the country in different appellant courts. There were a lot of High Court cases, and just dealing with an office of 400 odd people around the country. The management exercise… that was a terrific time.”

Joining the Supreme Court in 1999, Mr Martin had to adjust his thinking about his role in the cases before him.

“The one thing I did have to concentrate on was that I was no longer running the case,” he said.

“I didn’t have to worry about whether that particular counsel was asking the right questions or not, or whether they were making the points they should. I was there to sit and let them run the cases. So that was a change.

“But as time went by, as plenty will tell you, I was never one to just sit there. If I thought they hadn’t asked questions the jury would want to know the answer to, then I’d ask the questions. That’s my approach.”

When it came to writing judgments he drew on the teachings of mentors and judges before him who “had it right”.

“My principal, John Mangan, taught me how to write letters and to think in detail. Eventually, I wrote letters like he did, and he still corrected them, so in that sense he was a mentor, but the others, by example and so on, were Len King, Andrew Wells, George Walters.

“In those days, we used to talk to the judge, not as much to Len King, because he came in later, but in the early days, Andrew Wells and George Walters. I learnt from those sort of things. They were very good.

“But there were a whole lot of other judges who set examples - Roma Mitchell was a fantastic example of how you do things, get to the point. Don’t mess around. Get to the point. Get on with it and do it.

“I heard her sum up in a rape case one day. I reckon it was about 12 minutes and she got everything right. That was it. Out you go, ladies and gentlemen. She had it right. She knew how to get to the point. And so did some of the other judges.”

Five years after joining the Bench he received a call “out of the blue” asking him to be the Chief Justice of the Northern Territory. This was to open the door to another phase of his career and he admits he debated the move north long and hard.

“I was flabbergasted. I was honoured, and I thought, ‘Hell, do I really want to go and live in the tropics? I like cool weather’.

“I didn’t think, ‘Oh, no. I could never do that’. I was quite positive, but there were issues that I had to deal with. In the end, we went and had a look, and the answer was yes.”

To read more about Mr Martin’s work as Chief Justice in the NT, his love for playing football and later role as SANFL Commissioner, go to

www.lawsocietysa.asn.au B