UNCONSTITUTIONALLY VAGUE

jmoko2@hotmail.com

P.O. Box 156

Labrador Qld 4214

Please answer this in a proper manner rather than fob me off or as most do, just don’t reply as it is too hard to give a reasonable answer. After reading this you the reader will fall into one of three categories, denial, violent opposition or acceptance.

Question, is the wording of the restricted dog laws unconstitutionally vague and therefore be void due to vagueness?

I have a concern regarding the correct use of the term Pit bull or American Pit bull terrier as used in the Local Law No12 of the Gold Coast City Council, and the State Law Local Government Act 1993 Chapter 17 A.

My reason for this is as follows:

A person owns a Short haired, dog of medium size, brown, with a large head.

This person is unsure of the dogs parentage or may know one or more of it parents, but they do not have pedigree papers, as is the case for most of the dog owners with non showing or breeding dogs, and wants to know if he is breaching any by- laws.

Restricted dog, 1193E (1) A “restricted dog” is a dog— (a) of a breed as follows—

(I) dogo Argentino; (ii) fila Brasileiro; (iii) Japanese tosa; or (b) of the type commonly known as ‘American pit bull terrier’ or ‘pit bull terrier’; or (c) of a breed or type prescribed for this paragraph under a regulation; or (d) that is a crossbreed, or the offspring of, a dog of a breed or type mentioned in paragraph (a), (b) or (c), whether or not the dog appears to be a dog of that type or breed.

(2) Also, a dog is a “restricted dog” if it is the subject of a restricted dog declaration.

(3) A breed or type may be prescribed under subsection (1)(c) only if, under the Customs Act 1901 (Cwlth), it is prohibited from importation into Australia.205

Under Local Law section 10(1) of the local law Council may by subordinate local law prohibit absolutely certain dogs, namely as above.

So, do we own American pit bull terrier’ or ‘pit bull terrier’; or American Staffordshire terrier or Staffordshire terrier or English Staffordshire terrier cross, or any number of possible dog crosses that will produce a dog of the description named above, a Short haired, dog of medium size, brown, with a large head.

The worst case - the dog we have is a Pit bull or American Pit bull terrier, how do we find out?

You look in the Dictionary under Pit bull terrier, results as follow:

From Merriam-Webster: [1] pit bull
Function: noun
: a dog (as an American Staffordshire terrier) of any of several breeds or a real or apparent hybrid with one or more of these breeds that was developed and is now often trained for fighting and is noted for strength and stamina

From Merriam-Webster: American pit bull terrier
Function: noun
: any of a breed of dogs developed to combine the traits of terriers and bulldogs that have extremely powerful jaws and great strength and tenacity -- called also pit bull terrier

From Merriam-Webster: pit bull terrier
Function: noun
1 : PIT BULL
2 : AMERICAN PIT BULL TERRIER

From Encyclopedia Britannica Online [2] pit bull terrier. Dog breed developed in 19th-century Britain for fighting other dogs in pits.

or Staffordshire terrier It was created by crossing the bulldog (which at the time was longer-legged and more agile) with a terrier, possibly the fox terrier. Once known by such names as bull-and-terrier and half-and-half, the pit bull is a stocky, muscular, unusually strong dog with powerful jaws, standing 17–19 in. (43–48 cm) tall and weighing 30–50 lb (14–23 kg). Its stiff, short coat may be any colour, solid or variegated.

· From Wikipedia Encyclopedia: [3] A pit bull is a member of any of a number of breeds of dogs developed from the English Bulldog. Breeds recognized as pit bulls include the American Bulldog, American Pit Bull Terrier, American Staffordshire Terrier, and Staffordshire Bull Terrier although the name is also often used to refer to crossbreeds and other breeds of similar characteristics.

Conclusion: A pit bull is a type of dog not a breed, like our dog is a brown dog, there are many brown dogs, that does not mean all brown dogs are Pit bulls and similarly all Short haired, dog of medium size, brown, and with a large head are not Pit bulls either. This has not helped at all, in fact now we don’t know if an American Bulldog, American Pit Bull Terrier, American Staffordshire Terrier, and Staffordshire Bull Terrier are Pit bulls.

We contact the Australian National Kennel Club [4] for advice, we find they do not hold or have breed standards for Pit bull terriers, however do have breed standards for American Staffordshire terriers, we compare our dog and it complies.

We contact the Canine Control Council Queensland’s [5] web page on dog breeds, and were sent to the ANKC, however I wrote to them on breed standards and as stated, once again no Pit bull breed standards, they also have American Staffordshire terriers, we compare our dog and it complies.

United Kennel Club of America , [6] Official U.K.C. Breed Standard
Revised October 21, 2004 , we have breed standards for the Pit bull, and our dog complies with these as well. However this site does not have the breed standards for the American Staffordshire terrier.

American Kennel Club [7] we find the breed standards for the American Staffordshire terrier, yes our dog meets the breed standards so is he an Amstaff? We will check on the breed standards for Pit bulls, No Pit bull terrier or American Pit bull terrier breed standards.

Canadian Kennel Club [8] Yes we find the American Staffordshire terrier, and once again the Pit bull terrier or American Pit bull terrier do not have breed standards.

Kennel Club from England, [9] Home of Crufts, I look under Terriers and find the Staffordshire Bull terrier but nothing else.

The Gold Coast City Council Animal Control, requirement that a legislature establish minimal guidelines to govern law enforcement. The famous Checklist that was handed to several departments throughout the South East Queensland council region from a person that no one can remember and told to use it as a subjective test to identify if a dog that is suspected to be a Pit bull. This test will enable you to know if it is in fact a part Pit bull or full Pit bull, sounds like a load of Bull to me.

The origin of the Checklist is unknown but if you look at the [10] HISTORICAL PURPOSES ONLY: THIS IS THE OLD UKC STANDARD THE NEW STANDARD IS ON THE UKC-ADBA-AKC STANDARD PAGE AND THE UKC WEBSITE Official U.K.C. Breed Standard* (FROM 1978)

Terriers Group
Revised January 1, 1978
© Copyright 1978, United Kennel Club, Inc.

you will notice that the checklist is a copy word for word. I contacted the United Kennel Clubs President and asked if this was a correct use for breed standards as I believe they are developed to be used in circumstances where, in a dog show judging context, the breed of the dog is a "given", and the question is which dog most closely conforms to what is regarded as "perfection" for that breed. The breed standard represents that "perfection". The reason why breed standards are so broadly worded (and capable of application to so many breeds of dog having nothing to do with the "target") is that they are written on the assumption that they will be applied to a dog already known to be off the relevant breed, by a person who already has long experience in show judging for that relevant breed. His reply is attached to this letter.

For this reason Animal control officers know it is impossible to positively identify a suspected dog as a Pit bull or part Pit bull by using a checklist from Breed standards that are an unattainable measure of perfection. If they could, I would therefore own a very valuable dog as it was assessed by our learned ACO’s, scored almost 60 points, by their checklist, so if I took this dog to the USA and put it in American Pit bull dog shows according to G.C.C.C’s ACO’s this dog should be a Grand Champion straight away. I don’t think so.

Are the Animal Control Officers adequately trained to use the breed standards, a good comparison is the training an All Breed Show Judge has in order to use the breed standards in the proper way properly,

[11]To be eligible to be accepted as a trainee judge you have to first be over 18 years old, been a member of the ANKC for 8 years during a 10 year period immediately prior to the application.

Prove experience as a breeder, bred at least 3 litters, have owned or bred 2 champions, then if accepted you can start training as Trainee judge.

After several courses and guidance from judge trainers you take the steps until you qualify as a group judge where you will have to judge 200 dogs within this group with awarding points, then you can commence training in further groups of dogs undergoing similar standards.

In order to be a sound judge to identify a dog to be the subject as a Pit bull you would need to be an all breeds judge to have the experience to assess any combination of dogs present. This training would take a minimum of around 15 to 20 years to complete.

Council Animal Control Officers training consists of a two day course currently being trained by an officer with far from adequate qualifications.

The trainer has been a vet nurse, 5 years as a lab technician looking after lab animals at a university, (rats and mice ect), has sat a correspondence course from England (an entry level course normally set aside for 15 to 16 year old school children), has completed a course on how to identify a Pit bull by the RSPCA and obtained a certificate, but bear in mind, who do you think put the course together and has worked as an ACO?

Has any Animal Control Officers ever misidentified a dog using the standard provided by the state government who imposed this legislation?

Brisbane -Two ACO’s took the owner of a Mastiff and a Great Dane to court as they identified it as a Fila Brasileiro, despite the fact that there is no living Fila Brasileiro in Australia . Bronson was returned home after a lengthy stay at the Pound and a day in court.

Justin Taylor - a quadriplegic on the Gold Coast, his dog Fonzie, was misidentified as a Pit bull however a senior Animal Control officer in court was unable to convince the Magistrate that she was an expert capable of understanding the principles to enable her to use the checklist to identify Fonzie as a Pit bull. Fonzie was returned.

Tom Bowling from the Gold Coast had his dog identified as a pit bull despite the fact it was a bulldog Labrador cross, he opted to move the dog out of the state, and now he and his dog are living in Venezuela, as it was not a Pit bull it passed through several custom checks and once again shows how flawed the councils checklist and training is inadequate.

James Thompson - was forced to register his dog, Peanut, as a Pit bull by the Gold Coast City Council Officers, who after examining him stated, Peanut was an American Pit bull terrier therefore had to be registered as one. Peanut is in truth a Boxer Cross Beagle. This point is hard to understand as Peanut came from the USA, through possibly the toughest customs laws, then sat in Australian Quarantine, before being allowed to be reunited with James his owner. If Peanut is a Pit bull as The G.C.C.C ACO’s identified, how did he get into the country?

Christine Moroski from Logan, magistrates judgment within two weeks, her dog Bella, a Rhodesian Ridgeback, English Staffy cross, has been in the Logan City Council Kennel for just on 12 months, with the cost for Bella’s legal defence of around $30,000.00 was found that Logan Council’s 4 ACO’s and an officer from the RSPCA trained by a Brisbane City Council ACO and a Vet, have to prove beyond reasonable doubt that Bella was a Pit bull.

The list is long and only getting longer.

Conclusion: With the information now available to dog owners facing destruction orders placed on their dogs by councils, this action to take to court will be a clear waste of rate payer’s money and the courts time and resources. The subsequent compensation claims will be retrospective and I see councils within the South East Queensland district will have to review their action on dog identification procedures and compensation.

Am I the only person who is finding this wording and the subsequent law hard to understand, therefore inadvertently breaking local laws?

Take an average weekend newspaper, Pets for sale, say the Gold Coast Bulletin. April 30-May1st 2005 Page 165, American Staffy

9 pups

Mother American Staffordshire terrier, No papers.

Father English Staffy with papers,

One advertisement, 9 pups, who by Gold Coast City Councils Standards are Pit bulls, the mother also a Pit bull, the owner has also committed an offence which is subject to a maximum penalty of 150 units. 10 dogs to be destroyed all of which have not killed, maimed or attacked anyone, their crime; they look like a Pit bull.

Now we go through this paper only, over the say last 25 weeks looking for Staffy cross, Staffy pups for sale and the American Staffy we average over this short period around about 4 litters a week multiply this by say an average of 7 pups per litter and we get 700 Pit bulls now residing in and around the Gold Coast. This does not include dogs advertised in other papers, dogs bought from Pet shops, litters sold to friends and family, or dogs coming with people moving into this area under the belief that their dog is not a Pit Bull.

This law has been in place since 2001, back then and to date pups have grown up and will continue to breed, thus to give you an indication of how many Pit bulls reside on the Gold Coast, Thousands, many of which truly believe their dog is a cross or Amstaff, or cross of.

Conclusion: The term American Pit Bull Terrier, and Pit bull used in the State law and Local law No 12 reference restricted dog to describe a breed of dog to be legislated against, would be Unconstitutionally Vague. "First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.

Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them (the Checklist, Poorly trained ACO’s). A vague law impermissibly delegates basic policy matters to judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application."

1. Whether a statute is unconstitutionally vague is a question of law over which appellate review is de novo and unlimited.

2. The constitutionality of a statute is presumed. All doubts must be resolved in favour of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it the court's duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be struck down unless the infringement of the superior law is clear beyond substantial doubt.

3. In construing a statute, ordinary words are given their ordinary meaning.

4. A two-part test governs whether a statute is unconstitutionally vague. First, a court considers whether the statute conveys a sufficiently definite warning of the proscribed conduct when measured by common understanding and practice. Next, it considers whether the statute adequately guards against arbitrary and discriminatory enforcement. The second part of the test embodies the requirement that a legislature establish minimal guidelines to govern law enforcement.

5. A party challenging a statute's constitutionality bears a high burden, but courts must remember that the standards of certainty in a statute punishing criminal offences are higher than in a statute depending primarily upon civil sanctions for enforcement.

6. In the USA this has been upheld in several court trials, and when lost the difference is in the USA compared to Australian laws they cover all their bases where here we don’t.

USA :

The definition of "pit bull" is problematic. According to the second reading version of Bill 132, the Dog Owners' Liability Act, s. 1(1) "pit bull", (2) will read as follows:

"pit bull" includes,

(a) a pit bull terrier,
(b) a Staffordshire bull terrier,
(c) an American Staffordshire terrier,
(d) an American pit bull terrier,
(e) a dog that has an appearance and physical characteristics that are substantially similar to those of dogs referred to in any of clauses (a) to (d);

(2) In determining whether a dog is a pit bull within the meaning of this Act, a court may have regard to the breed standards established for Staffordshire Bull Terriers, American Staffordshire Terriers or American Pit Bull Terriers by the Canadian Kennel Club, the United Kennel Club, the American Kennel Club or the American Dog Breeders Association.

7) The Queensland Legislation Handbook Governing Queensland [12]

7.2.11 Is the legislation unambiguous and drafted in a sufficiently clear and precise way?

The Scrutiny of Legislation Committee’s expectations are that legislation should:

· be user friendly and accessible so ordinary Queenslanders can gain an understanding of the laws relating to a particular matter without having to refer to multiple Acts of Parliament

· contain coherent provisions, addressing foreseeable matters (See the Scrutiny Committee Annual Report 1998–1999, para. 2.14.)

· be drafted in a style that is as simple as possible, consistent with the nature of the subject matter

· be structured in a logical, user-friendly and accessible way

· contain provisions that are precisely drafted.

7.2.12 Does the legislation in all other respects have sufficient regard to the rights and liberties of individuals?

The Scrutiny of Legislation Committee has consistently taken the approach that the matters specifically listed in the Legislative Standards Act 1992, section 4(3) are not exhaustive of all matters relevant to an individual’s rights and liberties.

The Scrutiny Committee takes an expansive approach in identifying rights and liberties. These include traditional common law rights. The Scrutiny Committee has made comment about legislation in relation to the following broad principles:

· Restrictions on ordinary activities must be justified.

· Legislative intervention should be proportionate and relevant in relation to any issue dealt with under the legislation.

· Imposition of liability under legislation should provide for the following:

· Adequate definition of the basis for the liability, with reasonable defences

· Imposition of responsibility for the actions of others only with strong justification

· An appropriate and fair onus and standard of proof

· Equality under the law for all persons responsible for the events from which the liability arises.

· Treatment of all persons affected by legislation should be reasonable and fair.

· There should be a balance within legislation between individual and community interests.

8) This last point, the communities interest, by identifying Pit bull terriers and destroying or ordering them out of the state, has this from the introduction of the law reduced or limited dog attacks, or the inclusion of the four dog breeds, dogo Argentino, fila Brasileiro, Japanese tosa; or an’ American pit bull terrier’ or ‘pit bull terrier’. Has the Queensland state Government conducted any studies of factual statistic on the number of dog attacks by each breed, to justify the community’s interests or safety?

9) QUEENSLANDERS' BASIC RIGHTS Prepared by the Legal, Constitutional and Administrative Review Committee of the Queensland Legislative Assembly [13]

Right to natural justice, procedural fairness, and due process

Right to acquisition of property only on just terms: In Queensland, proposed legislation is also scrutinised to ensure that it has sufficient regard to the

rights and liberties of individuals by providing "for the compulsory acquisition of property only with fair compensation", under section 4(3)(i) of the Legislative Standards Act 1992 (Qld).

10) LEGISLATIVE STANDARDS ACT 1992 [14] when laws are drafted they must be:

PART 2—LEGISLATIVE STANDARDS

The purposes of this Act include ensuring that— (a) Queensland legislation is of the highest standard

(3) Whether legislation has sufficient regard to rights and liberties of

individuals depends on whether, for example, the legislation— (d) does not reverse the onus of proof in criminal proceedings without adequate justification; and (g) does not adversely affect rights and liberties, or impose obligations, retrospectively; and (I) provides for the compulsory acquisition of property only with fair compensation; and (k) is unambiguous and drafted in a sufficiently clear and precise way.

The wording American pit bull terrier’ or ‘pit bull terrier’ used as an easily identifiable breed of dog is clearly vague and in no way sufficiently clear and precise therefore violates equal protection and due process, by not stipulating specific guidelines to inhibit Councils Animal Control Officers from enforcing the law in an arbitrary or discriminatory fashion and on the ground that the ordinance's definition of an American pit bull terrier’ ,pit bull terrier, is on its face unconstitutionally vague or void due to vagueness.

Final Conclusions:

Whenever lawmakers attempt to short cut their drafting of effective laws by prohibiting ownership of breeds rather than defining unacceptable animal behaviour, they unnecessarily indict many innocent individuals. The Constitution does not allow for the criminalization of status or class among human beings. Although the courts do not value animal life to the same extent they do human life, they should not allow entire breeds of animals to be criminalized. Instead, lawmakers must understand that these laws can ruin countless human lives as well as needlessly cause the destruction of many kind and innocent animals

The term "pit bull," however, identifies no specific breed of dog recognized by the Australian National Kennel Club, American Kennel Club or the Kennel Club from England (Crufts. Therefore, it is difficult to determine exactly which registered breeds a pit bull dog ordinance encompasses. The American Kennel Club, for example, registers three breeds that are mixtures of bulldog and terrier: the American Staffordshire terrier, the Staffordshire bull terrier, and the Bull Terrier. The United Kennel Club registers the American Pit Bull Terrier. Even if an ordinance named all of these breeds, however, the enforcement and notice problems created by the pit bull dog laws would not be resolved because the vast majority of dogs are unregistered.

To take a recent example that I liken this situation to: The Australian Muslim community is outraged that they are all UNFAIRLY being labelled terrorists because of the actions of a few. The media is publicising their outrage, and supporting it. Now I consider this situation EXACTLY the same for the Pit Bull Terrier. They are labelling ALL Pit Bull Terriers as dangerous Killing machines because of the actions of a few and many others that look like them. It is total hypocrisy.

There are over 10,000 ACCIDENTAL deaths in hospitals due to malpractice nationally - are we looking at that problem? More than 1000 people are killed nationally on the roads, a solution would be to ban Japanese cars as they represent the largest % of deaths on our roads, this sounds silly, think about it, so does banning a type of dog based on their general appearance. People will still be killed on our roads and people will still be bitten by dogs.

Founded on fear, it defies all logic except the most crassly political. It exploits the grief of those who have suffered dog attacks. Yet, it offers no realistic solution to the problem.

The Local law No12 of the Gold Coast City Council and the State law Local Government Act 1993 Chapter 17 A is deeply flawed and unconstitutional. It literally bans any dog that has a short coat and a big head, or in the case at the start of this letter a Short haired, dog of medium size, brown, with a large head regardless if they are a pit bull or not.

Who should bear the blame for not catching on to this before now? Back in November 2001, Greg Hoffman PSM, Director Policy and Research, Local Government Association of Queensland INC. thanked the Association Solicitors Kings & Company, 95 North Quay, Brisbane, Page 3, From James Neilson, for their review of the proposed law, which stated that there was according to a number of Councils no such thing as a pure breed Pit bull, and that Chapter 17A makes no mention of the various “Breeds which when combined result in a dog being identified as an American Pit bull terrier. Chapter 17A also dose not exclude pure breed dogs of other recognised breeds of such as American Staffordshire terriers, Staffordshire bull terriers, Bull terriers, Bull Mastiffs and Bulldogs. Our understanding is that all of these breeds have at least same components of Pit bull terrier. The end result of current definition of “restricted dog” is that the net is cast as wide as possible plus increasing the scope of operation of Chapter 17A and administrative burden on Councils. Presumably all of the pure breed dogs referred to above would be caught by the legislation regardless of whether the keeper of the dog can produce pedigree evidence or not because on our understanding they are all a cross breed of a dog commonly known as an American Pit bull terrier.”

So right from the start it was known that this law was flawed and the end result was it would mislead innocent dog owners, cause distress and financial burden on others, destroy many dogs for no relevant reason, force local laws to be manipulated for the good of no one, force ACO’s and the RSPCA to willingly manufacture evidence in order to justify this law and mislead the general public.

We thank you for taking the time out of your busy day to read this letter and look forward to reading your reply.

John Mokomoko and Kylie Chivers

Reference:

[1] http://www.m-w.com/cgi-bin/dictionary

[2] http://www.britannica.com/ebc/article?tocId=9375342&query=pit%20bull&ct=

[3] http://en.wikipedia.org/wiki/Pit_bull

[4] http://www.ankc.aust.com/breed_list.html

[5] http://www.cccq.org.au/

[6] http://www.ukcdogs.com/breeds/terriers/americanpitbullterrier.std.shtml

[7] http://www.akc.org/breeds/american_staffordshire_terrier/index.cfm

[8] http://www.ckc.ca/Default.aspx?tabid=73

[9] http://www.the-kennel-club.org.uk/

[10] http://www.americanpitbullterrier.org/old_ukc_standard.htm

[11] http://www.cccq.org.au/judges.html

[12] http://www.legislation.qld.gov.au/Library%20Docs/Legislation_Handbook.pdf

[13] www.johnston-independent.com/Downloads/BasicRights.pdf

[14] www.legislation.qld.gov.au/ LEGISLTN/CURRENT/L/LegisStandA92.pdf