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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
2021-02-17 Daily Xml
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Criminal Law Consolidation (Protection of War Memorials) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 2 December 2020.)

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (11:15): On 2 December last year, the Leader of the Opposition introduced the Criminal Law Consolidation (Protection of War Memorials) Amendment Bill 2020 into the House of Assembly. It followed a circumstance where there had been acts of wilful destruction of the memorial on North Terrace, which was outlined in that contribution.

It is not a common occurrence, but it is very disturbing when any war memorial site is in any way defaced, graffitied, destroyed, damaged or urinated on. There are lots of different circumstances. It does not occur a lot but, when it does, it offends every sense of any of us who are respectful of the memorials and why they are there.

The bill proposes to insert a specific offence in the Criminal Law Consolidation Act (CLCA) 1935 for desecrating war memorials and their surrounds, with a maximum penalty of 10 years' imprisonment. It also provides that if a person is found guilty of the offence, they can be ordered to undertake remedial action to restore the war memorial if a suitable program exists or pay the costs of taking remedial action.

There are currently two main areas of law that apply to defacing public war memorials, namely property damage offences under the Criminal Law Consolidation Act and graffiti offences under the Graffiti Control Act 2001. The Criminal Law Consolidation Act already includes offences for property damage and arson. Section 85(3) of the Criminal Law Consolidation Act provides for the following non-arson damage to property:

(3) A person who, without lawful excuse, damages another's property (other than a building or motor vehicle)—

(a) intending to damage property; or

(b) being recklessly indifferent as to whether his or her conduct damages property,

is guilty of an offence.

This offence is likely to apply to defacing a public war memorial and attracts a maximum penalty of 10 years' imprisonment.

Let me outline to the house the Graffiti Act offences. The Graffiti Control Act defines 'marking graffiti' to include defacing property in any way. The offence of marking graffiti in section 9(1) attracts a maximum penalty of $5,000 or imprisonment for 12 months. Section 9(1a) provides a more serious offence of marking graffiti within a cemetery, public memorial or a place of worship or religious practice. This offence attracts a slightly higher maximum penalty of $7,500 or imprisonment for 18 months.

There are some additional sanctions. Pursuant to the Graffiti Control Act, a court that convicts a person of an offence of marking graffiti, whether under the CLCA or the Graffiti Control Act, must either (1) order the offender to take part in a suitable graffiti removal program if available and reasonably practical or (2) order that person to pay appropriate compensation to the owner or occupier of the property in relation to which the offence was committed. If the graffiti is on public property or visible from a public place, the court may also order that the offender pay to any person who has removed or obliterated the graffiti a reasonable amount for the removal or obliteration; i.e. if local council comes in to clean it up, then they can seek that recompense.

When sentencing a person for a second or subsequent graffiti offence, a court has discretion to order a one to six-month licence disqualification in addition to any other penalty. Offences against both section 85 of the CLCA and section 9 of the Graffiti Control Act are taken into account for determining whether a person has committed a second or subsequent graffiti offence.

In his second reading speech and media release, the Leader of the Opposition, I suggest, conveniently failed to mention or acknowledge the CLCA offence of damaging property, which already attracts a maximum penalty of 10 years' imprisonment. Instead, he focuses on the lesser offence contained in the Graffiti Control Act. Given the offence already available under the CLCA attracts exactly the same maximum penalty of 10 years' imprisonment, also coupled with the additional sanctions that I have outlined, I suggest that the bill simply has served to duplicate the laws and penalties that already exist.

It is simply not enough for the Leader of the Opposition, who has been a police minister and understands how these things work, to come out and say, 'Ten years' imprisonment,' and omit to mention that we actually already have a law that does that. That is simply not adequate. I think it is important to recognise the significance of what happens.

In this instance that he has cited, my understanding is that, subsequent to that, there was media coverage to suggest that a person or persons have been charged in relation to the offence. We all agree the circumstances of the pillage and damage to the crosses on North Terrace at the time were disgusting. I feel offended and absolutely outraged about that, as anyone else in the community would be. It is unacceptable. The police have acted on the matter. As I understand it only from media reports, they have been charged. That is now a process to be undertaken with the laws that we already have, which already provide for what the mover of the motion is doing.

I do not in any way criticise the Leader of the Opposition for highlighting the concern the community has when these types of acts of wanton damage to something that is sacred occur. I totally support that, but he does need to get up to speed in relation to what is already there. If he has not, then simply coming out and making these sorts of statements to suggest that this is some way of managing a social issue is hardly helpful. Repeating the law does not make it any easier or any harder.

Second reading negatived.

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