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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2012-03-01 Daily Xml
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GRAFFITI CONTROL (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (15:45): Obtained leave and introduced a bill for an act to amend the Graffiti Control Act 2001. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (15:45): I move:

That this bill be now read a second time.

The Graffiti Control (Miscellaneous) (No. 2) Amendment Bill 2011 was first introduced into the parliament on 9 November 2011. Further consultation on the bill after its introduction with members in the other place, SAPOL and the Department of Planning, Transport and Infrastructure identified some issues with the operation of the new sections 10A and 10B in clause 13 of the bill.

These concerns have been addressed in the bill now before the house. The drivers licence sanctions have been amended so that a court may, for second and subsequent offences, order the suspension of an offender's driver's licence, including a learner's permit. A duty to produce a driver's licence in court, if required by the court, a police officer or registrar, has also been imposed.

Finally, the new police power to seize a prescribed graffiti implement has been amended so that the procedures relating to the seizure of a graffiti implement and the circumstances in which the graffiti implement may be returned or forfeited to the Crown are prescribed in the regulations. I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

Report

Graffiti vandalism is a significant issue not only because of the economic costs to State and local government, as well as individuals and businesses, but also because of the social costs. It is damaging and unsightly and can significantly impact on the amenity of an area and community perceptions of safety.

The South Australian Government is committed to ensuring that those who engage in destructive behaviour face serious consequences. As part of its election platform, the Government pledged to strengthen existing graffiti legislation to reduce the incidence and impact of graffiti vandalism. This Bill amends the Graffiti Control Act 2001 to ensure that our laws act as a strong deterrent to offending and effectively deal with the perpetrators of graffiti vandalism.

Consultation

The Bill is the culmination of a six week public consultation on the Graffiti Prevention Discussion Paper.

During consultation, comment was received from over 45 interested parties, including retailer associations, government agencies, SAPol, local government, the Law Society, the SA Graffiti Network, the Youth Affairs Council of South Australia, the Hon. Bob Such and members of the community. All of the submissions received were considered by the Government and were taken into account in the drafting of the Bill.

What emerged from the public consultation was that there is broad support for tougher legislative measures to minimise graffiti vandalism and to deter potential offenders. Respondents also supported the use of non-legislative measures such as the education of young people and rapid removal strategies.

The Government recognises that graffiti prevention is not just about law reform. The Government is therefore committed to crime prevention through other measures, including the Crime Prevention and Community Grants program.

This program funds innovative and grassroots crime prevention and community safety projects and offers grants from $10,000 to $50,000 for community projects. The total of funding on offer through the grants program is up to $800,000 per year, with $200,000 set aside in the 2011-12 specifically for projects aimed at combatting graffiti. This is double the amount allocated for anti-graffiti projects last year.

Detail of the Bill

Preventative and educative strategies, although important tools in managing graffiti, need to be supported by criminal offences with adequate penalties in order to deter potential graffiti vandals.

Accordingly, the Bill will aid in the prevention and minimisation of graffiti vandalism by increasing penalties for existing offences, further restricting the sale and display of graffiti implements, giving the courts new penalty options and giving police the power to confiscate graffiti implements.

A major feature of the Bill is the increased range of sentencing options available to a court when sentencing graffiti offenders.

First, the Bill amends section 9(3)(a) of the Act to provide courts with an alternative to the requirement that a court must order that an offender remove the graffiti.

At present, a court that convicts an offender of the offence of marking graffiti must either order that the offender take action to remove the graffiti that was the subject of the offence or, if that is not reasonably practicable, order that the offender pay such compensation as the court thinks fit.

Effectively, this means that where the graffiti that was the subject of the offence has already been removed, the court must order that the offender pay compensation. Depending on the offender's financial circumstances, such an order may be nominal and therefore not reflective of the actual cost of rectifying the damage.

Where an offender is a minor, or an adult with limited financial means, participation in graffiti removal generally may be a more appropriate penalty in some instances than a compensation order. Under the changes to the Act the court will be able to order that an offender remove graffiti on any property, including the graffiti that was the subject of the offence.

This power will still be qualified by a requirement that an order should only be made if it is reasonably practicable to do so as in some cases removal of the graffiti or participation in a graffiti removal program may not be possible, either because the offender is physically incapable of performing the work or because there are no places available on a supervised program.

Whether an order is reasonably practicable will be left to the courts to determine based on the offender's circumstances and information given to the court about the availability of suitably supervised graffiti removal programs.

Second, the Bill creates a new penalty option in the form of a cost recovery provision.

Although an offender can be ordered to remove the graffiti that was the subject of the offence, the graffiti is often removed from the property prior to the offender being sentenced. For example, if the graffiti is on private property it may have already been removed by the owner or occupier of the property or by the council exercising its removal powers under section 12 of the Act.

Graffiti removal from public and private property within a council area can cost councils upwards of hundreds of thousands of dollars a year. For the most part, these costs cannot be recouped. To address this, the Bill empowers a court to order that an offender pay to the person who removed or obliterated the graffiti a reasonable amount for the removal or obliteration.

This new penalty option was supported by the majority of respondents. However, there were concerns that an offender's capacity to pay would not be able to be taken into consideration by the court. The power to make such an order is therefore discretionary so that the financial circumstances of the offender can be taken into account in sentencing.

Third, a new section 10A of the Bill empowers a court to impose restrictions on a driver's licence for graffiti offences committed under Part 3 of the Act.

At present, the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 allows an offender's vehicle to be clamped or impounded for up to 28 days (or up to 90 days with a court order) or forfeited for a range of offences, including graffiti offences.

As a complement to these existing powers, the new section 10A provides that a court may order the suspension of an offenders licence for up to six months where the offender has been convicted of an offence of marking graffiti or carrying a graffiti implement. The possibility of a licence suspension should act as a deterrent to repeat offenders.

A driver's licence is a privilege not a right and one that should be reserved for responsible members of the community. A person who engages in graffiti vandalism is not acting responsibly and should not be not be entitled to the same rights that are afforded law-abiding members of the community.

Another feature of the Bill is the new restrictions on the sale and display of graffiti implements.

It is currently an offence under the Act to sell a spray paint can to a minor. The Act also restricts the storage and display of spray paint cans by retailers as the effectiveness of a ban on sale is reduced where the items in question can simply be stolen. Retailers are therefore required to store spray paint cans either in a locked cabinet or in an area of the store to which the public is not permitted access.

In line with the Government's election commitment to strengthen existing legislation, the Bill imposes similar restrictions on the sale and display of other implements that are commonly used for unlawful graffiti.

A ban on the sale of other graffiti implements was supported by a majority of respondents to the public consultation. There were concerns, however, that the imposition of similar restrictions on the storage and display of such items would impose an unreasonable burden on retailers, particularly given the diverse range of items that could be considered graffiti implements.

It is not the Government's intention to require retailers to lockup every possible implement that could be used for unlawful graffiti, particularly when so many of them are commonly used as school or office supplies.

However, bans on sale are more effective if they are supported by display restrictions to prevent the theft of such items. The Government therefore intends to only capture those implements that are frequently used for graffiti vandalism, such as wide-tip marker pens.

The current ban on the sale of spray paint cans to minors will also be extended to include a ban on supply to deter those over 18 from purchasing spray paint cans for the express purpose of supplying them to younger associates to use for an illegal purpose.

Of course the Government acknowledges that there will be instances when it is perfectly appropriate for a minor to be supplied with a spray paint can. For example, for the purposes of participating in an art class, in the course of lawful employment or to assist a parent in a renovation or other project around the home.

To address this issue, a defence will be available where the supplier believes on reasonable grounds that the minor intended to use the spray can for a lawful purpose.

The Bill also creates a new offence to advertise a graffiti implement for sale in a way that is likely to encourage or promote unlawful graffiti and a new offence of marking graffiti on memorials, cemeteries or places of worship or religious significance.

It is intended that the advertising offence will have extraterritorial application such that it will apply to advertising conducted in this State whether it is produced here or it is produced elsewhere and transferred here. In other words, it doesn't matter where the advertisement was made, it matters where it is displayed. For example, an advertisement made in New South Wales and displayed here would be caught by the offence.

The potential for the unlawful use of spray paint cans and other graffiti implements such as wide tip marker pens, is an ongoing problem. Advertising a product by promoting it as being suitable for graffiti vandalism is inappropriate and irresponsible as it encourages unlawful behaviour.

Retailers and manufacturers who choose to market a product in this manner glamorise an activity that is destructive and illegal and sends a message to impressionable people that this kind of behaviour is acceptable. Requiring retailers to advertise graffiti implements in a responsible manner will assist in the fight against graffiti vandalism.

The new offence of marking graffiti on memorials, cemeteries or places of worship or religious significance will attract a penalty of $7,500 or imprisonment for 18 months. This was supported by many of the respondents to the public consultation who agreed that vandalising these places constituted a more serious offence than marking graffiti on other public places.

Finally, the Bill gives police the power to seize a graffiti vandal's 'tools' thereby preventing graffiti vandalism from occurring in the first place.

New section 10B empowers police to seize a graffiti implement of a prescribed class from a person in a public place if the officer reasonably suspects that the implement has been, is being, or may be used in contravention of the Act.

This new provision helps to prevent graffiti vandalism from occurring in the first place by giving police the power to confiscate a graffiti vandal's tools of trade. This can be done without resorting to an arrest or charges which is currently necessary in order to seize a graffiti implement from a person.

Graffiti is not a trivial offence. The economic and social costs associated with graffiti are considerable. Graffiti undermines community perceptions of safety and is seen by many as a visible sign of social decline and anti-social behaviour.

This Bill sends a message to all potential offenders that participation in graffiti vandalism will not be tolerated by the Government or the community and that such destructive behaviour will attract serious consequences.

This Bill is an important piece of legislation and I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Graffiti Control Act 2001

4—Amendment of section 3—Interpretation

This clause substitutes the definition of graffiti implement for the purposes of the measure and inserts a definition of driver's licence.

5—Insertion of section 3A

This clause inserts proposed section 3A.

3A—Extra-territorial operation

Proposed section 3A states that it is the intention of the Parliament that the measure apply within the State and outside the State to the full extent of the extra-territorial legislative capacity of the Parliament.

6—Substitution of heading to Part 2

This clause substitutes the heading to Part 2.

7—Amendment of section 4—Graffiti implements to be secured

(1) Subclauses (1) to (3) and (5) substitute references to cans of spray paint with references to graffiti implements.

(2) Subclause (4) increases the maximum penalty and the expiation fee.

8—Substitution of section 5

This clause deletes and substitutes section 5.

5—Sale or supply of graffiti implements to minors

Proposed section 5 prohibits the sale of a graffiti implement to a minor and the supply of a graffiti implement of a class prescribed for the purposes of proposed subsection (2) to a minor.

9—Amendment of section 6—Notice to be displayed

The changes to section 6 made by this clause are consequential to the replacement of the term 'cans of spray paint' with 'graffiti implement' throughout the measure.

10—Insertion of section 6A

This clause inserts new section 6A

6A—Advertising graffiti implements for sale

Proposed section 6A makes it an offence to advertise a graffiti implement for sale in a way that is likely to encourage or promote unlawful graffiti.

11—Amendment of section 9—Marking graffiti

(1) The amendment to subsection (1) increases the maximum penalty for marking graffiti to $5,000 or imprisonment for 12 months.

(2) Proposed subsection (1a) creates an additional, more serious offence for marking graffiti within a cemetery, on or within a public memorial or on or within a place of public worship or religious practice.

(3) Proposed subsections (3) and (3a) give a court the power to make certain orders when finding a person guilty of a prescribed graffiti offence.

12—Amendment of section 10—Carrying graffiti implement

This clause increases the maximum penalty for an offence of carrying a graffiti implement to $5,000 or imprisonment for 12 months.

13—Insertion of sections 10A to 10C

This clause inserts new sections 10A, 10B and 10C

10A—Court may make orders in relation to driver's licences

Proposed section 10A provides that a court finding a person guilty of a prescribed graffiti offence that is not a first offence may, in addition to making any other order under Part 3, order that the person be disqualified from holding or obtaining a driver's licence for a period (of whole months only) being not less than 1 month but not exceeding 6 months.

10B—Duty to produce driver's licence at court

Proposed section 10B ensures that, if required, a person who holds a driver's licence and is charged with a prescribed graffiti offence that is not a first offence must produce his or her driver's licence to the court at the time of the hearing of the charge.

10C—Seizure of prescribed graffiti implement

Proposed section 10C gives a police officer the power to seize a graffiti implement of a class prescribed for the purpose of the proposed section that is in the possession of a person in a public place, if the police officer reasonably suspects that the implement has been or may be used in contravention of the Act.

Debate adjourned on motion of Ms Chapman.

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