Under section 47 of the Dog Control Act 2000 councils may set and charge a Barking Complaint Fee before being legally obliged to investigate an allegation of Nuisance Barking. If, after its formal investigation, a council deems the Complaint had substance then it must refund the fee in full. If it deems the Complaint as one lacking in substance it may retain the fee. (This fee was originally imposed to deter frivolous and/or vexatious Complaints, for example those lodged because of neighbourhood hostilities.)  --- o0o --- In its role as forensic investigator a council is obliged to gather evidence of such quality that it will withstand any challenge in a courtroom. Very often, this is far more difficult than anyone realises; for example there is no legal definition of what constitutes “nuisance barking.” Nobody knows what’s too much. Councils have a right to a legal definition of what constitutes Nuisance Barking. Section 46 (3) below offers no practical standard.   DOG CONTROL ACT 2000 Dogs creating nuisance 46. (1) The owner or person in charge of a dog must not permit the dog to be, become or create a nuisance in a public place. Penalty: Fine not exceeding 5 penalty units. (2) The occupier of any premises must not permit a dog to be, become or create a nuisance on those premises. Penalty: Fine not exceeding 5 penalty units. (3) A dog is a nuisance if – (a) it behaves in a manner that is injurious or dangerous to the health of any person; or (b) it creates a noise, by barking or otherwise, that persistently occurs or continues to such an extent that it unreasonably interferes with the peace, comfort or convenience of any person in any premises or public place. With no realistic definition of nuisance, councils are left to navigate a legal minefield. It’s no wonder then, that they are increasingly reluctant to take on barking investigations. This reluctance can be so extreme that some councils will evade them on pretexts, for example by falsely declaring that there’s no nuisance and therefore there’s nothing to investigate. Council investigations into barking nuisances are usually quite time-consuming while the premises alleged to contain the barking dog are monitored (preferably from a distance to avoid triggering the offence) often enough to log sufficient evidence of the alleged offence. The catch here is that no dog barks continuously even though that is the subjective impression of those distressed or tormented by the din. The chances of a dog being found barking while an authorised council officer is waiting nearby at random intervals for 15 minute monitoring periods is actually quite small, and repeats of this procedure may still not reveal the truth of the situation. The availability of council officers for this task is very limited, for example there’s usually no night monitoring and no weekend monitoring either. Out of council hours, Tasmania Police may be called to attend the premises alleged to contain a barking dog however they are not permitted to do anything about it. A complainant may ask attending police to furnish the council with a report of their confirmatory findings and the police may do this at the end of their shift when they report back to their local police station, however a council may refuse to act on such reports if there’s no formal Complaint extant. They may also deny remedial intervention on the specious grounds that as it was not the council’s own officers who confirmed the nuisance allegation then they cannot therefore be called give evidence in court. This is despite the fact that a council may call the attending police officers into the witness box. With all these difficulties to deal with, it should be no surprise that council staff increasingly try to deny help from the very beginning. One way is to pretend that there’s really no problem, or that it’s too trivial to justify council involvement. But in recent years it has emerged that councils have found another way to dodge duty. They have developed the illicit practice of falsely declaring the noise victim’s formal complaints unsubstantiated and then confiscating the complainant’s Barking Complaint Fee. THIS APPROPRIATION OF FEES CANNOT BE JUSTIFIED Why not? When a complainant lodges his formal Complaint with his council it’s because he’s been troubled by local barking  up to that point. But because the council does not know the history of the matter to that point it launches its investigation to establish whether or not its remedial intervention may be justifiable. What it finds during its investigation may, or may not, be representative of the circumstances prior to the commencement of its investigation. What this means is that a council which has NOT been monitoring the premises BEFORE the start of its investigation cannot validly claim that a Complaint based on the barking history beforehand is lacking in substance. It follows that councils have NO justification for Fee retention and that they must ALWAYS refund the complainant’s fee in full UNLESS they can prove that the details which triggered his formal complaint were foundationless at the times they allegedly occurred. (It follows that all barking complaint fees confiscated to date must be returned)     Complaints relating to nuisance 47. (1) A person may make a complaint to the general manager in respect of a dog that is a nuisance. (2) A complaint is to – (a) be in an approved form; and (b) be accompanied by any appropriate fee; and (c) state the nature of the nuisance. Investigation of complaint 48. (1) On receipt of a complaint, the general manager is to investigate the subject matter of the complaint. (2) If the general manager considers that the complaint has substance, the general manager – (a) may institute proceedings for an offence under section 46; and (b) is to refund the fee that accompanied the complaint to the complainant.