GRAFFITI CONTROL (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 29 May 2012.)

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (16:17): I believe that there are no further second reading contributions to this bill, so I would like to make a couple of concluding remarks. I want to thank all those members who contributed to the second reading debate. As has been pointed out, the bill seeks to introduce tougher legislative measures to minimise graffiti vandalism and to deter potential offenders. These measures include increased penalties; further restrictions on the sale, display and supply of graffiti implements; an increased range of sentencing options for courts; and new police powers to seize graffiti implements.

The bill seeks to prescribe by regulation the different types of graffiti implements that will be captured by the different provisions of this bill. Some members have expressed concerns that what is prescribed in the regulations might be too wide and thus impose a significant burden on the retail sector. I can appreciate that this is a concern; however, I can assure members that it is not the government's intention to impose onerous obligations on businesses.

The purpose of leaving the definition of 'graffiti implement' to the regulations is to ensure that different implements can be prescribed for different provisions; for example, the types of implements that will be prescribed for the carrying offences will be wider than those prescribed for the purposes of the retailer offences relating to the sale and display or for the supply offence.

The Attorney-General has also met with the Hardware Association of South Australia to reassure its members about the aims of the bill and to give the Hardware Association an undertaking that it will be consulted about the definition of a 'graffiti implement' when the regulations are being drafted.

The government's preference has always been to prescribe this kind of detail in the regulations so that the government can respond quickly to change. If the foreshadowed opposition amendments to define 'graffiti implements' as spray paint cans or graffiti implements designed or modified to produce a mark that is not readily removable by wiping or by use of water or detergent and is more than 15 millimetres wide were to succeed, it is quite possible that retailers would find that this definition is way too wide and that it imposes a significant burden on their business. Instead of a quick amendment to the regulations to address the problem, the government would have to return to parliament to amend the act.

The Hon. Ms Bressington questioned whether police would be able to prosecute offenders caught doing their tag. For all known offences where the same tag has been left once the Evidence (Discreditable Conduct) Act 2011 comes into operation. The act provides that a court may allow evidence of the previous acts and/or convictions of an accused to be admitted at a criminal trial. Although it will depend on the precise facts and purpose for which the evidence is to be admitted, it should be possible under the new legislation for evidence of a previous graffiti tagging to be admitted as evidence provided the probative value outweighs any prejudicial effect on the defendant and the evidence is of a strong probative value.

This test is less stringent than the present common law test and, though evidence of a mere criminal character or disposition is unlikely to be admissible, the new act should allow the evidence of the previous tagging to be admissible if it shows some distinctive or particular trademark or nexus that goes beyond coincidence or a mere general propensity to commit such crimes. Members have also expressed concerns about the driver's licence provisions: that it is not a credible punishment because there is no requirement for the offence to have any connection with the offender's driving record or use of a motor vehicle.

The power to disqualify an offender's driver's licence is a complement to the existing powers allowing for the clamping and impounding of an offender's vehicle. It is the government's view that a driver's licence is a privilege and not a right and that if a person wants to commit antisocial behaviour, such as graffiti vandalism, then there should be an opportunity to take that privilege away for a time. Members should note, however, that this applies only to repeat offenders and is a discretionary power. A court will consider the impact on the offender, including whether keeping their licence would assist in their rehabilitation or make orders accordingly. I thank members for their support of this bill and look forward to the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: As we commence the committee consideration of this bill I thought it might assist the council if I provided an overview of the opposition approach in relation to it. The opposition supports the bill but thinks that it is poorly written and should be improved. The bill is drafted so broadly that you would think that the businesses were the criminals rather than the graffiti vandals. The law, in our view, should target bad behaviour rather than using broad regulation-making powers under the bill to penalise every hardware, stationery and paint store across the state and law-abiding citizens for the actions of a few.

The government has proposed that all graffiti items should be able to be prescribed by regulation for almost all instances dealt with by the bill. In fact, as I read the government's bill, it proposes five separate lists of items to be prescribed by regulation. In our view, this is a recipe for confusion. The amendments I have tabled seek to change the definition of 'graffiti implement' in the bill, so that in some cases the items may be described by regulation and in others they are clearly defined in the act itself. The opposition recognises that regulations often need to supplement the operation of legislation to ensure the legislation is responsive to emerging trends.

Graffiti is an evolving area where new trends and new tools emerge. However, we consider that it is appropriate for parliament to maintain more direct oversight of areas which impact most heavily on law-abiding citizens. Businesses and individuals should have a reasonable opportunity to be aware of any changes affecting them and to be involved in reviewing them through their parliament.

I appreciate that the government will respond that any variation to the list can be disallowed by this parliament, and we accept that that is an acceptable approach when we are talking about a long and broad list of implements that may be necessary for some of the, shall we say, offences targeting the graffiti vandals directly. However, in relation to the sale and securing of graffiti implements, the government assures us that it is not talking about a broad, long list, and we believe that the current practice in the legislation (which is for that short list of items to be maintained in the legislation) is the appropriate approach.

In accord with this view, our amendments would create three levels of graffiti implement management: first, our amendments propose to define in the act the items that cannot be sold to minors and the items that need to be secured; secondly, we support the use of regulations to identify items for offences related to the supply or seizure of graffiti items; and, thirdly, we support the status quo in the bill when it comes to what items are deemed to be implements for the purposes of the offence of carrying a graffiti implement under section 10.

I will outline the rationale for the approach in each case at the appropriate clause. As we have noted in previous debates, disallowing regulations is a very blunt tool. We should not rely on having the opportunity to do so on this legislation in terms of the government's proposed approach. There no doubt will be items on the list that can be justified alongside items that cannot.

In disallowing regulations we do not get to pick and choose; that is why in relation to matters with the greatest impact on businesses and law-abiding citizens (and we are talking about short lists), we propose that it be specified in the act.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. S.G. WADE: I move:

Page 3, lines 1 and 2 [clause 4(2)]—Delete subclause (2) and substitute:

(2) Section 3—after the definition of minor insert:

prescribed graffiti implement means—

(a) a can of spray paint; or

(b) a graffiti implement designed or modified to produce a mark that—

(i) is not readily removable by wiping or by use of water or detergent;

and

(ii) is more than 15 millimetres wide;

The act currently explicitly identifies items that need to be secured in retail premises and that cannot be sold to minors. The opposition wants to continue to have items specified in the act and not leave it to the regulations. We consider that it is appropriate for parliament to maintain more direct oversight of areas which impact most heavily on law-abiding citizens. Businesses and individuals should have an opportunity to be aware of any changes affecting them and be involved in reviewing them through their parliament.

The amendment proposes to identify the relevant implements using the definition currently contained in section 10 of the act which relates to carrying graffiti implements. These items are cans of spray paint and graffiti implements designed or modified to provide a mark that is not readily removable by wiping or use of detergent and is more than 15 millimetres wide.

The government objects to the amendment. The Attorney-General suggested during debate in the other place that a wide range of items could be included in the regulations, such as 20-litre cans of paint, compasses, glass cutters, screwdrivers, sandpaper, paint brushes and fine textas. The Attorney-General has assured me that he does not intend these items to be included in the regulations in relation to securing items in retail premises and what can be sold to minors—what he calls the 'retailer list'.

However, we need to remember that all graffiti items will need to be kept securely in a manner prescribed by regulation unless the regulations exclude that particular item. The default is essentially an ID check at the door of every hardware or stationery store. The government has not given itself any power to exempt classes of businesses or individuals.

To summarise, while we support a broad approach in the context of confiscation of items and so forth, we do not consider that a broad regulation approach is appropriate when it comes to the retail provisions. We consider the parliament should maintain the approach that it has taken in the past and specify these items in the act itself. The government may prefer another specific list, other than what is proposed in this amendment, and the opposition would be open to variations to the amendment in that regard, but we believe it is appropriate that the retailer list should be in the act and not in the regulations.

The Hon. G.E. GAGO: The government opposes this amendment. The amendment is linked to a number of other amendments to be moved by the Hon. Stephen Wade which remove various references in the bill to graffiti implements and replace them with a reference to 'prescribed graffiti implements'. The Hon. Stephen Wade's amendment does not seek to identify individual implements and list them: his amendment is a completely general approach, which the government believes is quite simply unworkable, and I will explain why.

A prescribed graffiti implement is defined as a can of spray paint or an graffiti implement designed or modified to produce a mark that is not readily removable by wiping or using water and detergent and is more than 15 millimetres wide. This approach is extremely problematic, and we do not believe it is workable at all. For instance, a hardware store owner or other retailer would have to identify every item in their store that is capable of being used for graffiti vandalism and then get out their tape measure to determine whether it would make a mark that is more than 15 millimetres wide.

Under the current proposal before us, it would capture things like mops, a compass and sandpaper, because these things could be used for scratching. It would include things like all paint brushes, except those that were less than 15 millimetres wide. It would include things like a dustpan brush. So, you can see that there are many implements or articles in a hardware store that would be captured by this.

The next question then is whether or not the mark made by the item is not readily removable by wiping or by using water and detergent. If the answer to both these questions is yes, then under the opposition amendments a store owner would not be able to sell these items to a minor and they would have to either lock up their items or store them in an area of the store that the public is not permitted to access without the assistance of employees. So, it starts to make a real nonsense of an ordinary hardware store.

The Hon. Stephen Wade might argue that there is still a power to exclude certain graffiti implements from the operation of display restrictions if they are prescribed in the regulations, and that might be true, but it is a very messy and protracted way of going about doing it. Identifying all the items that might need to be excluded from the operation of the display restrictions could be an extremely onerous exercise for both government and retailers and could result in a long list of items being prescribed in the regulations.

The Attorney-General has already met with the Hardware Association of South Australia to discuss the concerns around the definition of graffiti implements and has given an undertaking to the association that it and other industry bodies will be consulted when developing the regulations to ensure that the definition that applies to the retailer offences is unambiguous and easy to comply with and does not impose a significant or unreasonable burden on retailers. For these reasons the government opposes the opposition's proposed definition of 'prescribed graffiti implement' and the amendments related to it.

The Hon. S.G. WADE: I remind the minister that the definition that is being proposed to be inserted as 'prescribed graffiti implement' is the definition used in section 10 of the act relating to carrying graffiti implements. I think she is misreading it because, firstly, she suggested that a compass might come within it; I can assure you that a compass is not more than 15 millimetres wide. Secondly, she suggested that a dustpan brush could come within it; I am not aware of any dustpan brushes that can produce a mark.

I would not want us to get distracted from the threshold issue that the opposition is trying to highlight. If it helps the minister to understand that threshold issue, I would be happy to see subclause 2(b) deleted because the threshold issue here is whether the parliament should maintain the approach that it has maintained under this act, which is that, in relation to the most onerous duties on retailers in terms of the securing and sale to minors, that be specified in the act. The minister has assured us that the provisions will not be onerous on retailers—that is good, I assume it will not be a long list—in which case let us continue to do what we have done. Let us continue to put it in the act.

The minister has said that the hardware industry is happy for it to be in the regulations. I am not sure if the minister said it but certainly the Attorney-General, in correspondence with me, has assured me of that. I suggest that the hardware association would be just as happy to see it in the legislation. We as parliamentarians are the legislative craftsmen deputised by our community to produce the best laws. I would suggest to my honourable colleagues in this house that we should maintain the position that the legislature has taken in relation to these provisions—in other words, the 'retail list' to use the government's words. We believe the retail list should stay in the act; it should not be relegated to the regulations.

As I said in my comments when moving the amendment, we are open to improving the list. In relation to inserting elements from the current section 10, we want to indicate our willingness to move beyond cans of spray paint, which is the only item that is identified in the act at this stage. We appreciate that the government clearly does intend to move beyond cans of spray paint but how about telling us? How about telling the retailers, 'Let's put it in the act.'

The Hon. A. BRESSINGTON: This particular piece of legislation brings back the nightmare of the weapons debate that we had on knives. It has been drafted in a way that is going to be confusing for the retail industry who, in fact, represented to me with concerns. It also takes the focus off the offenders and I think it has missed its target.

I do agree with the Hon. Stephen Wade that there does need to be a cut-off point for what could be used as a graffiti implement and it does need to be in legislation. What is graffiti? It is property damage. If we really get down to it, I do not agree for one minute with anyone out there who thinks that graffiti is a form of art and self-expression when I see in my own street a struggling family who puts up a fence at a cost of about $3,500 and who wakes up the next morning and it has tags all over it. They do not see that as self-expression and art, they see it as property destruction, as it should be seen. We need to get tough on the offenders because they are not just waylaid youth who need to find a way to express their inner feelings. They are little—

The Hon. D.G.E. Hood: So-and-sos.

The Hon. A. BRESSINGTON: —so-and-sos—thank you—who take delight (especially in my area and low socioeconomic areas where people struggle to improve their properties and their businesses) in going back week after week and making those families and businesses foot the bill for their mischievous and destructive behaviour. I did ask a question—and I am not sure if the minister answered it, because I had to take a phone call—about giving police the ability to charge a person who has a tag.

The Hon. G.E. Gago interjecting:

The Hon. A. BRESSINGTON: Yes, I am talking to you about a graffiti vandal who has a known tag in the community and that tag is seen literally hundreds of times on fences, businesses, wherever, throughout the community. It was my intention actually to move an amendment that the police would have the power to charge them for each and every tag that they could identify as belonging to that person because, as I said in my second reading speech, a tag is like a signature in the world of graffiti.

Nobody dare copy a tag; it is seen as some sort of sacrilege. I believe, if police could identify a person caught in the act who has that tag, and there are 300 tags in the community that are identical to that one, that are known to be that person's tag, that person should be able to be charged with 300 offences of graffiti and property damage—whatever it is. I am inclined to support the Hon. Stephen Wade's amendment, merely because it does draw a line and it does give legislative certainty for the community and for business owners who will need to understand this legislation, rather than just putting this in regulation.

I agree that the ability of this council to disallow regulations is onerous, to say the least, and ineffective, in my experience in here. Not only that, when we do disallow a regulation, the minister can the very next day reinstate that particular regulation without consultation. In saying all that, I would like to know if the government would consider giving police those powers. I know it gets back to propensity evidence and, in the past, I have argued against the use of that in trials and in court hearings but, applied to graffiti, I think police need to be given that much more leeway to be able to rein in these people in our community.

If you see one person being charged with 300 counts of graffiti because their tag has been identified and fined for that then, in fact, that may be a reasonable deterrent. In saying that, I am supporting the Hon. Stephen Wade's amendment but, if the government can come up with an amendment to Stephen Wade's amendment that is acceptable to him, I would also be inclined to consider that as well.

The Hon. G.E. GAGO: I addressed the issue to do with tagging in the second reading summary, so I will read that out again for the benefit of the Hon. Ann Bressington, who questioned whether police would be able to prosecute offenders caught doing their tag for all known offences where the same tag has been left, once the Evidence Act comes into operation. The act provides that a court may allow evidence of the previous acts or convictions of an accused to be admitted at a criminal trial, though it will depend on the precise facts and the purpose for which the evidence is to be admitted.

It should be possible under the new legislation for evidence of previous graffiti tagging to be admitted into evidence, provided the probative value outweighs any prejudicial effect on the defendant and the evidence is of a strong probative value. This test is less stringent than the present common law test and, though evidence of a mere criminal character or disposition is unlikely to be admissible, the new act should allow the evidence of a previous tagging to be admissible if it shows some distinctive or particular trademark or nexus that goes beyond coincidence or a mere general propensity to commit such crimes.

I cannot believe the Hon. Ann Bressington is supporting an amendment of the Hon. Stephen Wade that he does not even support himself. He got up in this place and basically said, 'Yes, the government is right.' His amendment is far too broad. It captures dustpan brushes, mops, compasses, anything that can scratch a mark that is wider than 15 millimetres. I have seen some work done with compasses and I can tell you that mark ends up being wider than 15 millimetres.

So, we have this absurd thing happening with an amendment in front of us that captures large numbers of implements that are routinely sold in a hardware store. Not even the Hon. Stephen Wade supports it. He is not saying, 'Let's look at another amendment that might amend the act to provide a list of implements.' The government does not support that because it believes that every time a new implement comes onto the market we are going to have to go back and amend legislation. It is much easier to adjust regulation. So, we believe that is the way to go. The Hardware Association is happy for us to move that way as well.

The Hon. S.G. WADE: I do not know whether the minister misheard me; she certainly misrepresented me. I do not believe my amendment would capture a compass. I do not believe that a compass is more than 15 millimetres wide. I certainly do not believe that a dustpan brush can make a mark. So, I specifically dispute that those items come within my amendment. I reiterate that the point of this amendment is to establish the principle: does the council want to maintain the practice in the act to have prescribed in the legislation what will be subject to controls in relation to the securing in retail premises and what can be sold to minors?

The parliament, up to this point, has only specified cans of spray paint. The government has clearly indicated that it wants to expand the list. We are using a definition brought in from section 10 of the current act. I do not want to be as gracious as I have been because the minister will take the opportunity to misrepresent me. All I am saying is that any bill is subject to improvement; any amendment is subject to improvement. We are open to improvement. What we are not willing to budge on is our belief that in matters that are onerous on retailers, which the government has acknowledged, matters which will have an impact on law-abiding citizens, it should be in the act. The opposition is committed to that and seeks the support of the council.

The Hon. A. BRESSINGTON: In response to what the minister said, there is a saying that the law is an ass. It is that kind of thinking and that kind of rationale that makes it so. One would think that a dustpan brush is a dustpan brush, that it is not a graffiti implement. Who in their right mind would consider a dustpan brush or a mop to be a graffiti implement?

The Hon. G.E. Gago interjecting:

The Hon. A. BRESSINGTON: No; this is a silly interpretation.

The Hon. G.E. Gago interjecting:

The Hon. A. BRESSINGTON: Yes, it is. It is a stupid—

The Hon. G.E. Gago interjecting:

The CHAIR: Order!

The Hon. A. BRESSINGTON: —interpretation of an amendment that has been put up. We went through this, as I said, with the weapons bill and knives, where the minister herself, in that particular debate, was quite happy for steak knives to be locked up behind a glass cabinet and to have shop assistants have to unlock a cabinet to sell a steak knife to somebody under the age of 18, and they would have to show ID to buy it.

Now we get into the other side of the most ridiculous, where mops, dustpan brushes, toilet paper, and God knows what else, under this, she says, could be interpreted as a graffiti implement. Common sense, you would think, would rule in this, but apparently not. So, when it suits, we can make it as onerous and ridiculous as possible when the government is trying to sell a bill. When the government is trying to oppose an amendment, we do not want stupid and onerous. The inconsistency of all this and how this legislation is written in the first place is the problem, as it was with the weapons bill when we were dealing with knives. It is badly drafted legislation.

The Hon. S.G. WADE: I think the Hon. Ann Bressington's reference to the weapons bill is extremely apposite. Let's remember that we had 61 amendments rejected outright by this government; 50 per cent of those were accepted by the government through the deadlock conference process without amendment. These are amendments that we spent hour after hour being told that they were ridiculous, how silly, they could never work.

Of course, nobody would ever arrest a police officer for going into the presence of a person with a weapons prohibition order. The government accepted that amendment without amendment. Another 25 per cent of those amendments were accepted with modifications where the spirit of the amendment was maintained. Admittedly, 25 per cent of the amendments were rejected by the government and we did not insist on them. This council did not insist on them.

But I think that three out of four ain't bad and, if this council is going to maintain its relevance, it has to continue to challenge the government to improve legislation. Sure, 25 per cent of the amendments on weapons were not perfect. They went through the deadlock conference process. We fixed them. We have a better act because of it. If we cannot cope with these tirades from the minister about how the world will fall in—you never know what people are going to do with a dustpan brush!—we are not going to do our job and we are not going to improve legislation.

The government may well recommit this clause and improve it, it might want to discuss it between the houses, it might want to go to deadlock conference, but I encourage the Legislative Council to maintain its relevance and say that these things should be specified in the act, whatever the final wording might be. Let us keep true to the principle of this council, and this parliament has argued in relation to this act since it was enacted, that these strong provisions should be subject to specific reference in the act.

The Hon. T.A. FRANKS: I thought this might be an appropriate juncture to indicate that the Greens will support the amendment in the name of the Hon. Stephen Wade, not because we support the intent but because we support the definition of 'graffiti implement' actually being defined in the act and not in delegated legislation. We would also prefer to see the definition of 'graffiti' given more clarity in the actual act. We think this bill is not only a craven exercise in more law and order vote-grabbing but also an exercise in stupidity.

When you look at the definition of 'graffiti' under this act that this amendment bill relates to, it is not clear enough to ensure what I believe the government has the intent to do. Certainly the word 'deface' is a subjective word, opening up the whole debate for challenge. Given that, and the Greens opposition to this bill overall, we believe that these measures should be in the act where it is clear and transparent not only for hardware retailers but also for legislators.

The Hon. D.G.E. HOOD: Family First does not support the amendment, basically because I think the government's logic is compelling. The reality is that it does seem to me that the wording of this amendment would make it possible to include other things. I do not think a dust brush is a very good example, mind you, but I think potentially could not a chisel or plane be included or something of that nature? I am sure that is not the Hon. Mr Wade's intention; I am sure it is not the government's intention, but I think under the wording of this amendment it is possible. Certainly, that is not something that we would want to impose upon them.

The Hon. J.A. DARLEY: I will not be supporting the Liberals' amendment.

The committee divided on the amendment:

Amendment thus carried; clause as amended passed.

Clause 5 passed.

Clause 6.

The Hon. T.A. FRANKS: My question is with regard to the creation of an offence for advertising. From what examples of this practice has the government drawn this legislation, in terms of creating this new offence?

The Hon. G.E. GAGO: I have been advised that we are not aware of any other provision that is the same as this but obviously what we are seeking to do is to prevent advertising of an item in an explicit way that could promote graffiti.

The Hon. T.A. FRANKS: Does that mean that advertising depicting somebody drawing on a wall in some way or drawing on a piece of property, legal or illegal, would actually fall foul of this new offence, regardless of where that was done—whether it was on the Internet, whether it was on TV or whether it was in a magazine?

The Hon. G.E. GAGO: It is unlawful graffiti that is guilty.

The Hon. T.A. FRANKS: Given that it would be advertising, would it not be selling a product? How would that be unlawful?

The Hon. G.E. GAGO: It would have to depict an unlawful event.

The Hon. T.A. FRANKS: Would that include the 'enrol to vote' campaign currently being undertaken by the AEC on the footpaths of Adelaide?

The Hon. G.E. GAGO: I understand that that is not an unlawful campaign.

The Hon. T.A. FRANKS: Yet it depicts graffiti on the streets of Adelaide, having been done by stencils and spray paint. Does that not give rise to an example of a potentially unlawful graffiti act?

The Hon. G.E. GAGO: I have been advised that it is only unlawful graffiti if they do not have permission, a licence or the appropriate authority to perform that graffiti.

The Hon. T.A. FRANKS: I am happy to think that that has probably demonstrated the stupidity of this new offence.

The CHAIR: I would have thought if it was unlawful, it is unlawful, and if they are doing it unlawfully they cop the consequences.

The Hon. T.A. FRANKS: Yes, but this is advertising—specifically advertising being used. If a body is advertising in the way of doing graffiti, clearly the act of the making of that advertisement would not be unlawful, so I am not sure what the point of this offence is, other than for the government to get out and talk about law and order again.

The Hon. G.E. GAGO: It is not rocket science; it is about advertising an implement for the unlawful use of graffiti.

Clause passed.

Clause 7.

The Hon. S.G. WADE: I move:

Page 3, line 14 [clause 7(1)]—Delete 'graffiti implements' and substitute 'prescribed graffiti implements'

I believe it is consequential on [Wade-1] 1.

Amendment carried.

The Hon. S.G. WADE: If it might assist the chair, my understanding and I understand the minister's understanding also is that [Wade-1] 3 through to [Wade-1] 9 are all consequential on [Wade-1] 1.

The CHAIR: That is okay. What you and the minister agree to I might not. This is clause 7, [Wade-1] 3.

The Hon. S.G. WADE: I move:

Page 3, lines 22 and 23 [clause 7(5)]—Delete subclause (5) and substitute:

(5) Section 4(2)—delete subsection (2) and substitute:

(2) However, subsection (1) does not apply in relation to the sale of prescribed graffiti implements of a type excluded from the operation of subsection (1) by the regulations.

Amendment carried; clause as amended passed.

Clause 8.

The Hon. S.G. WADE: I move:

Page 3, line 27 [clause 8, inserted section 5(1)]—Delete 'graffiti implement' and substitute 'prescribed graffiti implement'

Amendment carried; clause as amended passed.

Clause 9.

The Hon. S.G. WADE: I move:

Page 4—

Line 22 [clause 9(1), inserted subsection (1)]—Delete 'graffiti implements' and substitute 'prescribed graffiti implements'

Line 24 [clause 9(2)]—Delete 'graffiti implements' and substitute 'prescribed graffiti implements'

Amendments carried; clause as amended passed.

Clause 10.

The Hon. S.G. WADE: I move:

Page 4, line 29 [clause 10, inserted section 6A]—Delete 'graffiti implement' and substitute 'prescribed graffiti implement'

Amendment carried.

The Hon. T.A. FRANKS: Mr Chairman, I have a question on clause 10. Did the government consult with offenders as to why they offended and specifically as to whether the punishment of the withdrawal of a driving licence would in fact have impacted upon their behaviour?

The Hon. G.E. GAGO: I am advised that we are not aware of that occurring.

The Hon. T.A. FRANKS: So, why did the government think that this would work?

The Hon. G.E. GAGO: I have been advised that, for some repeat offenders, community orders and fines generally do not appear to be working, so this was considered to be one other option that is available to target repeat offenders. It is another tool, if you like, to assist in trying to curb the behaviour of repeat offenders. It involves a discretionary aspect, and it involves the suspension of their driver's licence.

The Hon. T.A. FRANKS: Given the lack of evidence with regard to whether or not this will in fact have any impact on offenders and repeat offenders, is there also any concern by the government that perhaps this will have an impact on increased offending on public transport?

The Hon. G.E. GAGO: I am advised, no.

Clause as amended passed.

Clause 11 passed.

Clause 12.

The CHAIR: There are two amendments in the name of the Hon. Mr Wade. Are they both consequential?

The Hon. S.G. WADE: That is my understanding. I move:

Page 6—

Lines 2 and 3 [clause12(1)]—Delete subclause (1)

Lines 4 and 5 [clause 12(2)]—Delete subclause (2) and substitute:

(2) Section 10(1)(b)—delete 'graffiti implement of a prescribed class' and substitute:

prescribed graffiti implement

Amendments carried; clause as amended passed.

Clause 13.

The Hon. S.G. WADE: I move:

Page 7, after line 25—Insert:

10BA—Expiry of sections 10A and 10B.

Sections 10A and 10B will expire on the expiration of 4 years from the commencement of the sections.

This is in relation to the issue of licence disqualification. The Liberal opposition has always supported the bill as a whole. We supported doubling penalties and increasing imprisonment levels. We are sceptical, though, about the relevance of licence disqualification and whether it will actually produce a reduction in graffiti. As the Hon. Tammy Franks has highlighted, the government has provided no evidence that it has worked, and I am not aware of any evidence that it has worked elsewhere in the world. However, there is a diversity of views as to whether it would work, so we as a Liberal opposition believe there would be value in basically a trialling of these provisions.

The amendment would support the introduction of licence disqualification with a review of the act and, in particular, a review of these provisions in three years from the commencement of the act, and a sunset clause on the provision in four years. That will give us all—both the community and the parliament—the opportunity to see what impact licence disqualification is having. After all, we can look at whether the courts are using it, and I acknowledge here the strong case that the Family First Party makes about the fact that the expectations of the parliament are not always reflected in what is done in the courts. This, as the government has stressed, is a court-based discretionary penalty.

With a review in three years' time and a sunset clause in four, we could assess whether the courts are using it and whether it is actually having an impact on offending behaviour, and, in that sense, it would give us an opportunity to see whether the findings of that review suggest that licence disqualification could be a penalty used in other offences. Let us remember that the basic penalties that our legal system uses are fines, imprisonment and community service.

We do use licence disqualification in relation to traffic offences, but it is not a general penalty but a targeted penalty. If the evidence of the review is that it has a significant impact, this parliament may well be attracted to its broader use, not even maintaining the licence disqualification in this bill, but it may be relevant otherwise. I am actually suspicious of the government's motives in wanting to try licence disqualification. Let us remember that the government has a backlog of more than $200 million in fines that it has not collected. It is certainly easier and cheaper to cancel somebody's licence than it is to chase them for a fine, but I suggest to the parliament that the easy option is not always the best option.

In terms of the general effectiveness, the fact is that penalties tend to have a greater impact when they are connected to the event, and we are also concerned about the impact on regional South Australians. These are all factors that could be wound into the review, which we propose would start in three years' time, and they can be part of parliament's consideration of whether to endorse the continuation of licence disqualification after the four-year point.

The Hon. G.E. GAGO: The government opposes this amendment, which would result in the expiry of sections 10A and 10B after four years of operation. Graffiti is an ongoing problem and we need to look at alternative sentencing options to try to deter offenders from committing further acts of graffiti vandalism. If a person is going to continue to vandalise property, then they should not be entitled to the same privileges that law-abiding citizens enjoy.

That being said, the power to make such an order is discretionary, so the court can take all the offender's circumstances into account during sentencing, including what impact a licence suspension would have on the offender. The government would be happy to review the operation of this act. However, it sees no reasons why sections 10A and 10B should expire after four years. They are not mandatory provisions but simply another tool with which to deter repeat graffiti vandals.

The Hon. D.G.E. HOOD: I indicate that Family First will be inclined to support a review of the act, which I understand is the next amendment from the Hon. Mr Wade. We do so because we believe that the clause the government has within this bill dealing with section 10, which seeks to provide the courts with the power to remove the driver's licence of an offender for a given period, is somewhat contentious—we acknowledge that. However, there is some evidence from the UK and certain states in the US where they have similar deterrents in place available to the courts.

They do have that power, and there is some evidence that it has had at least some level of success, so we will not support a sunset clause on this particular provision because, if a review takes place in three years and the government of the day decides that that law either does not work, needs beefing up or should be removed or whatever the case may be, then we believe a review is the best way to do that rather than simply to remove that particular provision from the bill (or the act as it would be then).

The Hon. T.A. FRANKS: I indicate that the Greens will be supporting this amendment. I say with some cynicism that I think putting a sunset clause in is possibly a way to ensure that the review, in fact, happens. Given that we have just heard from the government that this initiative is not evidence-based and has no research behind it in terms of the drafting and the legislation that we have before us in terms of its effectiveness—and certainly restorative justice does not seem to have been pursued, as something that we know does have an impact on these sorts of behaviours—I welcome the Hon. Stephen Wade's amendment and the Greens will be supporting it.

The Hon. J.A. DARLEY: I will be supporting the opposition's amendment.

The Hon. A. BRESSINGTON: I will be supporting the amendment as well.

The Hon. K.L. VINCENT: I will be supporting it.

Amendment carried.

The Hon. S.G. WADE: I suggest this is consequential on [Wade-1] 1. I move:

Page 7, line 28 [clause 13, inserted section 10C(1)]—Delete 'this section' and substitute '5(2)'

Amendment carried; clause as amended passed.

New clause 14.

The CHAIR: There are two further amendments to insert new clauses: one by Mr Wade and one by the minister.

The Hon. S.G. WADE: I move:

Page 7, after line 40—Insert:

14—Review of Act by Attorney-General

(1) The Attorney-General must cause a review of the operation and impact of this Act to be undertaken after the third anniversary of the commencement of this Act.

(2) The review must include consideration of the effectiveness of sections 10A and 10B of the Graffiti Control Act 2001 (as inserted into that Act by section 13 of this Act) in reducing offending for prescribed graffiti offences (within the meaning of those sections).

(3) A report on the results of the review must be submitted to the Attorney-General within 3 months after the third anniversary of the commencement of this Act.

(4) The Attorney-General must, within 12 sitting days after receiving the report under this section, cause copies of the report to be laid before both Houses of Parliament.

I suggest to the minister that, considering that the committee supported [Wade-1] 10, my amendment is the consequential amendment to [Wade-1] 10 and should be preferred. Put it this way: if the committee had not supported the sunset clause on licence disqualification then the simpler review that the government is suggesting would have been relevant but, considering that the committee has supported the sunset clause on licence disqualification, it is appropriate that proposed subsection (2) in my amendment is the preferred form of the review. In any event, I have moved [Wade-1] 12. If the minister does not regard it as consequential I am happy to speak to it.

The Hon. G.E. GAGO: I think this might be a good time to report progress. There are implications here that the Attorney-General should have an opportunity consider. There have also been amendments which have been supported in this place and which I am sure the Attorney would like an opportunity to reconsider as well, with the possibility of perhaps recommitting certain sections.

Progress reported; committee to sit again.