Friday, 19 September 2008

Ultra vires, meaning: Warringah drop dog poo on our Federal Constitution

Manly Daily Article ~~ Barking Mad Media Release (delayed, went sailing & have a Newcastle event Sunday) ~~ Ultra vires definition
Wow, this is hard. How do I explain to you why this lower court judgment favouring Warringah Council is but a drop of water in a bucket, on the wrong field, on the wrong issue? (Trying not to use military analogies...). How do I explain it is yet another example of small-government-syndrome which implies a right to act independently of the principles of our federation?

How to I explain to anyone new to Barking Mad that we are not about dogs or pets, but about our access as pet-owners to a fair-share of public and living space? (Or how CUTE that photo of Pema is...)

And, how do I explain our federal Constitution? (Big sigh). Or how our signing of an international treaty, in this case the International Covenant on Civil and Political Rights (ICCPR) gives regulatory power to the Federal government OVER State government, when generally, our Constitution is prohibited from such power?
Attempt #1:
  • When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. (Section 109 Inconsistency of laws).
  • So, let's take that as an admission that this inconsistency can and does exist. When it does, it's not OK for Warringah Council to act beyond the power of their authority.
  • Because, as stated in the first point, the Commonwealth law prevails.

What is this Commonwealth law that we accuse Warringah Council of shitting upon? In addition to our implied right to political expression, we have ratified the International Covenant on Civil and Political Rights (ICCPR), which includes Article 21:

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.

Well, our assembly never interfered with these conditions, nor did Warringah argue that we did. (Probably because they don't see Constitutional law applicable to their small-government-syndrome).

In summary we won. After 18 months of winning cases assisting our members in 'baby courts', we finally have one we can appeal to a jurisdiction that sets precedent. As this is a constitutional issue, we are looking at our options in the higher courts. NOW WE ARE BARKING UP THE RIGHT TREE. Thank you Warringah. We are THRILLED you read our website and blog and look forward to working with you from the same side of the table.

(PS: Our newly elected Warringah Councillors will table a Notice of Motion for equitable access to off leash walking areas and beaches at the first meeting of Council in late October.)


Anonymous said...

You are Barking Mad and we so need you. Thank you for doing this for us and for your courage. As a member, I will do my best o find sponsorship for Barking Mad because the issues of transort, housing and open space are so important, especially with so many people living alone with thier pet as primary company. We need more of you - you are very brave. Signed, Irene, widow, Sydney Northern Beaches. Please tell me how I can contribute financially on a regular basis to taht we can keep you working for us.

Tarnie said...

I feel that you would probably have been better to argue it from a Disability Discrimination viewpoint rather than a 'right to protest' viewpoint (I assume the newspaper article is correct in saying that your dog is an Assistance Dog?)

Was the fact that your dog is an Assistance Dog for your disability brought up in court? And if so, what did the Judge say about it?
I'm curious.


Eedra at Barking Mad said...

Tarnie, The magistrates court is not a forum for the DDA or a constitutional case. The magistrate DID however instruct Warringah lawyers on the DDA, and Warringah came back and said they will not accept that argument. Fine with us; as I said, we have been trying to lose a case for 18 months and this was a great one to lose.

We did run an event for International Day for People with Disability last year at Collaroy Pool. Warringah refused to support this event, held as an official event of PWD. We had assistance animals and poeple with invisible disabilities. It got no media coverage and no support from Council. We will do it again this year.

If you join as a member, I can discuss the court case further, including the transcript.

Eedra at Barking Mad said...

PS. Tarnie....NEVER assume the newspaper articl is correct!!!!!!

Anonymous said...

Is there a date set for the next court case about this?

Will they be in a lot of trouble for discriminating against you?

Eedra at Barking Mad said...

Details on this matter will be on the web in the members area. Email us if you need your password. Not a member? Well...why not if this interests you?

Shell said...

After reading this, I contacted Warringah council and was told they always comply with the DDA in relation to assistance animals on beaches within their council area, and that I'm welcome to have my trained assistance dog with me on any beach.

Did you immediately tell the ranger it was an assistance dog when they approached you?

Eedra at Barking Mad said...

LOVE the comment that Warringah council claims to 'always comply' with the DDA. What a joke.

Most council rangers (and police for that matter) don't even know about self-trained assistance dogs, let alone seizure or diabetes dogs.

Just do it. Take your 'trained assistance dog on any beach' with you 5 times and see what response you get. I have ranger WC08 ON VIDEO saying 'you are crazy, you need psychiatric help'. True, but not ok for a ranger to say this! Of course, Warringah refuse to look at the video and take the word of the ranger.

In our event for IDPwD last year, Warringah even said if dogs were there, they would be issuing fines - and that is for a day of awareness about people with disability. Ha. Warringah. Thank goodness for the backside of their administrator.

Barking Mad surveyed at least 450 councils across Australia. The LARGE MAJORITY did not even know about assistance animals and claimed to enforce doggie things by doggie laws - NOTHING to do with health matters. It was shocking research, and one that our governments have not yet requested our results - wonder why?

shell said...

They legally have to comply with the DDA.

If you go to court and if your assistance dog is legitimate then you will win and they'll lose.

The biggest problem you might have is proving your assistance animal is legitimate in court. It's a lot harder for the users of self trained assistance animals to win in court than it is for users of program dogs. It's not impossible though, you just need a lot more documentation like a doctor who will vouch that you are disabled, and vouch that you need an assistance dog to help mitigate your disability.

As long as all that checks out, and as long as your assistance dog wasn't acting out on the beach, I don't see how you would lose the case.

I hope you did tell the ranger your dog is an assistance dog as soon as you were approached, though. Did you?

shell said...

Relating to your comment that "Warringah even said if dogs were there, they would be issuing fines."

I have heard a lot of other organisations say the same, but when they say "dogs" they were not referring to trained assistance dogs. They are referring to pet dogs not being welcome. Trained assistance dogs with their disabled handlers are an exception to the no pets rule. It's the same at the stores, most of them say 'no pets' or 'no dogs' but that does not mean trained assistance dogs cannot go there.

Eedra at Barking Mad said...

We're back in court for the appeal on the 23rd of March 2009 if my health doesn't limit my ability to travel. Downing Centre, Sydney.

Anonymous said...

How did it go Eedra? Is there anything about it online?

Eedra at Barking Mad said...

AT LONG LAST. This is REALLY getting exciting and to the court juridiction we neeed to be in. Detail will be on the members pages, and update is on 24 March 09

If more dog owners were willing to stand up and say, as well as demonstrate, that we are responsible, contributing members of society, this would be going A LOT FASTER. Dogs and beaches don't mix - bullsh*t. SHARE.

Anonymous said...

Pity there are so many irresponsible dog owners though. I live next door to one and they have caused us nothing but grief for over three years. I think the laws need to be much stricter. Its currently very difficult to get the council to do anything about barking dogs.
This is what happens-
You ring them, they go to the house and talk to the people. They sit outside a few times a week. If the dog doesnt bark during those times they are there (usually around 15-20 minutes) they tell you they can do nothing because they dont consider it a nuisance. It basically has to bark 24/7 for anything to be done. We no longer go out in our backyard because our neighbours dog barks at us through the fence every we time we go out there. These neighbours refuse to do anything and our problem has now escalated into a war.
The solution is so simple but these people are ignorant and would rather have the right to make as much noise as they want than to have peace with their neighbours.
I say bring on more laws.
Im also sick to death of seeing plastic bags of dog shite left everywhere. At least before the shite could go back into the ground eventually or get washed away with rain but now people just leave plastic bags of crap everywhere. Been to Centennial park lately in sydney? Theres bags of shite under every second tree, its disgusting.

Eedra at Barking Mad said...

I agree. I HATE dogs barking – I live in a really quiet place, and I’ve worked from home for over 10 years. People leave their dogs all day and don’t want to know they bark.

I’ve had one great experience from this – I befriended the dog (and owner) that was barking and we were mates for 6 years before she died. If I was working and the dog was barking, I would collect her and bring her home with me where she was happy and so was I.

I have video of a dog barking in my quiet neighbourhood - a LOUD bark and a stressed bark because it never barks when it isn’t alone. Lovely dog, lovely people, but they honestly think that the dog barking is OK. HONEST! They think I’m the nutter. I worry about the welfare of the dog.

I’ve even had construction workers building around here complain about the dog – over the noise of all their power tools.

We even have a member who thinks it’s ok for their three dogs to bark like mad every time a dog walks by – even on the other side of the street. This is difficult. Responsible ownership means different things.

Basically, in an urban environment, we don’t tolerate barking dogs any more if it’s a regular occurance.

I finally met the classic irresponsible owner. In the vet, for Pema’s knee surgery post- op, there was a person at the counter paying the bill. The dog on the other end of the lead was going off it’s head. The other person in the vet with her dog just rolled her eyes at me.

I HAD TO SAY SOMETHING. Here is this lady trying to have a conversation about the bill and her dog is going nuts (and it wasn’t a pain or injury thing).

I said to her “lady, how can you let you do just keep behaving like that – do something”.

Her response shocked me. She said “it’s not me, it’s the dog”.

I said “lady, there are two ends to the lead – you’re on one of them, you are responsible”.

She said ‘it’s not my dog, it’s my daughters”.

I said “I don’t care whose dog it is, if you can’t control it, train it or have it act appropriately in this situation, put it in the car. YOU ARE THE REASON THERE ARE SO MANY DRACONIAN DOG LAWS”.

She never got it. She never got that she needed to be top dog, pack leader, or just a respectful member of the community.

All I can say if you have a barking dog problem in your area is to take video/audio of it and keep a good diary including the times, and also how it affected you. For me, I had to get OFF THE PHONE when the neighbours dog went off. Here I am talking to politicians about dog laws with this obnoxious dog barking in the background. Not good.

If you are in NSW, we can help if you are a member. The noise regulations are quite good, but their enforcement by council isn’t always. Better to go to a local court and get an abatement order. Try to do it before you’re ready to strangle the dog owners. If you are in another state, we can still help but I have to brush up on the regulations and case law.

As for poo – it’s nice to hear that someone understands leaving poo out in nature (just like birds do) can be a solution. It is a very low environmental risk – miniscule in fact compared to native waterbird poo, fishing litter and stormwater. It’s well proven that people use bins if they are there.

It’s required that they be there in dog areas, so this may be easily solved. I would love to trial worm farms for dog poo at Centennial park. Worms love poo and if you don’t give them food scraps as well, you’ve got a valuable fertiliser – completely sanitised, within about 6 weeks with no odour. Glorious use of dog poo! Another solution is a dog poo area with wee posts. This would be an area that is not mowed or used by people. It's common overseas.

Barking Mad will run local campaigns (bins in the park, worm farm trials) if we have the local support. Generally we need 50 members to run a local campaign as our main focus in on State and Federal legislation.

Eedra at Barking Mad said...

PS - irresponsible dog owners make us less that 10% of us. (council stats and rspca data).

The laws exist now and can be enforced - but it is easier to go the lady on the bus with her dog (though that IS legal) or go the person walking their dog at 7am on a beach in Sydney.

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