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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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GRAFFITI CONTROL (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 22 July 2010.)

Mrs VLAHOS (Taylor) (11:15): I rise to address the Graffiti Control (Miscellaneous) Amendment Bill 2010. The government is committed to fighting graffiti vandalism and applauds the member for Fisher's commitment to tackling graffiti; however, it does not support this bill for a number of reasons. Although well-intentioned, the government does not think that this bill will achieve what it is supposed to: the reduction of graffiti vandalism. The government is also concerned that the bill will impose costs on South Australian retailers and consumers with little benefit.

The first proposed offence under the bill is the selling of a can of spray paint by retail unless licensed to do so by the Commissioner for Consumer Affairs. Licensing generally exists to protect consumers. This can include protection from substandard work, fraud, provider failure or risks to health and safety, none of which are particularly relevant to the prevention or minimisation of graffiti vandalism.

Although a licensing system would mean that the government would have a list of current retailers, which may assist in preventing people who have graffiti-related convictions from being able to sell spray-paint cans, it is difficult to see how this would help reduce actual graffiti vandalism. Further, the information that the government would have would be quite basic, and merely knowing who is in the industry does not directly prevent graffiti vandalism from occurring.

Any licensing system would also impose significant administrative and processing costs on legitimate businesses that are going about their day-to-day business and could possibly result in an increase in the cost of spray-paint cans in an attempt to recoup the costs of this licensing system. This would, in turn, impact on legitimate users of spray-paint cans. We hear constantly from the business community that they want red tape reduced, not increased. The bill then creates two associated offences that require sellers to sight and record evidence of a purchaser's identification and to obtain and record a description of the use to which the can of spray paint will be put.

Proposed section 5A would require all purchasers of spray paint, including adults, to produce identification and describe the use to which the spray paint cans will be put before the retailer can sell them a can of spray paint. While there is clearly a capacity for spray-paint cans to be used for illegal purposes, they have many legitimate uses. The proposed provision has the potential to make ordinary customers feel like criminals as well as infringe on their right to privacy. It will also extend the time required to process transactions.

Proposed section 5B requires a seller to record details of evidence of age (produced under section 5), details of the identification produced and the reason given by the purchaser for the purchase. The imposition on businesses from these requirements would be quite significant, and the recording of a purchaser's name and address, even the reason for the purchase, does not link the person to any act of graffiti vandalism. The purpose behind these requirements appears to be the collation of information which can then be forwarded to the Commissioner of Police, who would then have a record of who is purchasing spray-paint cans, and for what purposes, for the purpose of criminal intelligence.

As these records are now required to be forwarded to the Commissioner of Police, it could also be argued that these records, over a period of time, would show a pattern of behaviour. Police could then follow up and ask questions of the purchaser. Even then, it is difficult to see how police could then link the purchaser to the actual act. The mere fact that a person purchased a significant volume of spray-paint cans over a 12-month period does not prove that the person is engaged in graffiti vandalism.

Another requirement of the bill is that a court, upon finding a person guilty of the offence of marking graffiti, must order that compensation be paid to the owner or occupier of the property that was defaced and that the person be disqualified from holding or obtaining a driver's licence for a period of one to six months. These orders are in addition to any final sentence of imprisonment that may be imposed by the court.

At present, the Graffiti Control Act provides that, where a court finds a person guilty of an offence of marking graffiti, the court must order the offender to remove the graffiti if it is reasonably practicable to do so. If it is not reasonably practicable to do so, the court must order that the offender pay compensation. The provisions in the bill makes a compensation order mandatory, regardless of whether the court has also ordered the offender to participate in a graffiti removal program. The disqualification of the person's driver's licence would also then be mandatory.

The problem with mandatory sentencing is that it can interfere with the flexibility of the court to order sentencing packages tailored to the offender's current situation. For instance, there is no point imposing a fine if there is no way of collecting the money. In that situation, a community service order would probably be more appropriate and effective. In addition, disqualifying a person from obtaining a driver's licence is likely to have the desired result of minimising incidents of graffiti vandalism and could, in fact, negatively impact on the person's ability to keep or gain employment.

Considering that it is largely a young population who may engage in these activities, that is counter to the idea of making them productive and useful members of society, because employment means they will probably have less time to conduct nefarious deeds after hours with spray cans. A court already has the option, under the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007, of ordering an offender's vehicle to be clamped for up to seven days, or 90 days with a court order, and impounded or forfeited for a range of offences including graffiti.

The bill also seeks to amend the Graffiti Control Act to introduce a new offence of carrying a graffiti implement of a proposed class without reasonable excuse in a prescribed area during the hours between 10pm and 6am. A 'prescribed area' is defined as an area within 20 metres of any railway track, the grounds of a school and an area within 20 metres of the boundary of a school, but does not include any privately occupied areas. The bill then goes on to provide wider search powers in these prescribed areas. I know from my own experience, in fact, in the area of Angle Vale in the north of Adelaide, there is a serious graffiti problem we are trying to address at the moment. It is not the school that is being really badly affected, it is the local shops. They are regularly attacking that site, but the owners of that shop would not be covered by this bill, so that is another reason why we cannot support it.

The proposed new offence in the bill is more limited than the current offence as it only applies to carriage of a prescribed graffiti implement in a prescribed area between 10pm and 6am. The current offence applies to all public places, including schools and railway tracks, at all times. The current offence does not have the limitation imposed by the proposed offence in the bill and it imposes greater penalties.

It appears that the only purpose for such a provision is to widen police powers of search in prescribed areas. Police already have powers to stop, search and detain a person who is reasonably suspected of having on or about their person an object, possession of which may constitute an offence. That ought to be sufficient, but the proposed power is in addition to that. In the government's view, the police should not be entitled to search people without good reason.

Finally, the bill proposes to insert a new section 85A into the Criminal Law Consolidation Act 1935 to set out special sentencing provisions for offences involving graffiti, including a requirement that the court record how many offences of damaging property are actually graffiti related. The requirement for a court to record how many offences charged under section 85 of the Criminal Law Consolidation Act are graffiti related would require costly changes to the court system for collecting data. Given the fact that only 2 per cent of graffiti gets reported to police, it is not a cost-effective option, and would be better achieved as an administrative option rather than as a legislative obligation.

At the 2010 state election, the state government committed to strengthening legislation to reduce the incidence and impact of graffiti vandalism. Indeed, the Attorney-General has been widely consulting on this issue over a period of time. New proposals include:

new and tougher penalties, including for vandalism or graffiti on memorials, cemeteries and other places of worship or religious importance to people;

further restricting supply and display of graffiti tools, for example, tyre-blackener spray and broad-tip markers;

giving police powers to seize cans from suspected offenders; and

increasing community crime prevention grants aimed at reducing graffiti.

Some of these commitments are similar to the provisions adopted by the member for Fisher in his bill, such as the provision of restricting the spray-paint cans to minors and inclusion of the definition of 'spray-paint can'.

However, while the government is committed to addressing graffiti vandalism, it remains concerned that this bill may not achieve its objectives and that many of the provisions will, in fact, impose costs on South Australian retailers and consumers for little benefit and administrative burden. The government believes that the legislation, as a whole, should be considered as a subject of review rather than amended on a piecemeal basis, and we are conducting a review currently. For this reason, the government opposes the bill.

Mr VENNING (Schubert) (11:24): This is the second time the member for Fisher has introduced this bill and I think, from memory, it was back in September 2009 when he put the first proposal to us. Like that bill, this bill responds to community concerns about the prevalence of graffiti in public places and the considerable cost borne by residents and local government to clean it up. The member uses the example of the City of Onkaparinga, which reportedly spends half a million dollars cleaning up graffiti in its district alone. Over the years the previous member for Bright (Hon. Wayne Matthew) was a strong campaigner against graffiti, and we have had this debate in this house many times before. It is certainly a ruinous and wasteful situation, and we should be doing something about it.

This bill, though, contains the key element of prohibiting the supply of spray cans to minors, as opposed to the sale, e.g. gifting, and it imposes a sale control regime. I have personal concerns about that, to some degree, because I personally purchase and use a lot of spray cans. I am a fix-it man at home and I do a lot of repairs and quick fixes and, being a bit lazy, I am not in to washing out paint brushes, so the can is a very convenient, quick and fast-dry method of finishing off the repair job. I reckon I would buy 20 or 30 of these a year. They are very convenient and do a very good job.

I am happy to go to the hardware shop and get the key to the locker and get one out, but I do not want any greater restrictions or to be chatted as I walk out of the shop with them, because I hope I do not look like a graffiti artist—but, if you read this act exactly, that could be the case.

While the opposition supports initiatives to reduce the crime of graffiti, we think this bill has a number of deficiencies, and I will briefly explain them. In relation to the register, the bill puts a significant cost and burden on business and the community through a sale control regime. The bill also proposes creating a register of retail transactions related to the sale of spray paint (proposed section 5B). The bill would require retailers to collect information relating to the provision and type of identification provided by consumers and a description of the intended use stated by the consumer for the product. A retail business would be compelled to provide this information to the police as determined by regulation.

The second area of concern is in relation to sentencing. The Law Society also notes that the bill would insert sentencing provisions into the Criminal Law Consolidation Act 1935, when sentencing provisions are normally inserted in the Criminal Law (Sentencing) Act 1988.

The bill provides mandatory penalties in the following form. Compensation for damage and the removal costs to property are mandatory, although there is no minimum. The mandatory driver's licence disqualification is a minimum of one month and a maximum of six months. The driver's licence disqualification would be applied regardless of whether a person carrying holds a licence or is eligible to hold a licence or uses a vehicle to commit the offence.

The Law Society objects to penalties which bear no connection with the offending, including because it will penalise some offenders more than others for the same offence. The penalty would also be likely to increase the risk of disaffected young persons losing employment or remaining unemployed and becoming a greater risk to the community.

In relation to the search powers, the Law Society notes that the increased search powers proposed under new section 8A would enable police to question any person in a prescribed area to determine their personal details and the reason for being in a prescribed area without requiring the officer to have a reasonable suspicion. This part causes me a fair bit of concern. If the officer suspects an answer given is false or the person has not provided a reasonable excuse for being in a prescribed area, the officer may search and detain a person and their vehicle. There is no limit on the period of detention permitted. I would have a lot of concern about that and, should this bill pass this house, even though we support it, I would certainly like that tidied up before it goes to the upper house.

Certainly we need to put some curtailment in there because we have had a lot of complaints recently about officers and inspectors, and there has also been a lot of complaints about them in many other areas of law and order, the NRM, etc. In relation to the offenders, the Local Government Association expressed concern that councils will be responsible for the costs of supervising offenders' community service and the removal of graffiti by offenders. In consultation this bill was heavily criticised by the Law Society and the Hardware Association. The Local Government Association has also raised a number of concerns.

Debate adjourned.

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