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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-17 Daily Xml
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GRAFFITI CONTROL (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 3 May 2012.)

The Hon. A. BRESSINGTON (16:35): I rise to indicate my support for the second reading of the Graffiti Control (Miscellaneous) Amendment Bill 2012. The main thrust of the bill before us is the proposal to suspend the licences of those caught repeatedly marking graffiti. I have spent much time considering my position in relation to this and, like other members, I have previously expressed my concern about the lack of nexus between offences and proposed penalties. However, on this occasion I find myself willing to give it a try.

The reality is that this class of offenders is seemingly undeterred by traditional penalties and, given that this is most commonly community service, anecdotes suggest that young offenders treat it as a joke. Losing their licence, however, will be no laughing matter. Whilst there may be no nexus between the offence and the penalty, I am sure those convicted of marking graffiti will see the connection between any subsequent reoffending and the loss or delay of being able to drive and the independence this brings. Given the failure to curb the prevalence of graffiti by traditional penalties, as I said, I am willing to give this a try. In case it does not, however, I will be supporting the Liberal amendment for the review and the sunset clause attached to the proposed sections 10A and 10B.

I also note that clause 13 was amended by the Attorney-General prior to the bill's re-introduction in the other place and, somewhat disappointingly, unlike him, note that the need for this change was identified by me during the government briefing, as confirmed in a subsequent email by the Attorney-General's office. As I recall it, the previous wording created a disproportionate penalty for those on an unrestricted licence to those with a provisional learner's permit.

Like other members, I am concerned about the proposed definition of 'graffiti implement' not being included in the bill but, rather, via unseen regulation, particularly as it will apply to the requirement to secure such items in a locked cabinet and to the offence of selling them to a minor. Given the not insignificant cost of compliance, this has created a great deal of anxiety, especially within the hardware sector, anxiety only exacerbated by the Attorney-General in another place discussing the broad range of implements used to mark graffiti, namely, screwdrivers through to large tins of paint. In doing so, he left open the possibility that these could be included in the definition of a graffiti implement.

The reality is that graffiti can take many forms, from scratching on windows to scrawling on objects with black felt-tip textas, and from larger tags with aerosols to full wall-size pieces, which in some cases can cross over into what is considered to be art. The term 'graffiti' captures them all. Similarly, graffiti can, to use the wording of the bill, 'be marked with any number of items', especially when it comes to scratching windows. To suggest that we should attempt to prohibit the sale of any potential graffiti implement is ludicrous. Whilst I do not believe this is the government's intention, I can nonetheless understand retailers' anxieties.

I am aware the Hon. Stephen Wade will be moving amendments that will attempt to address this by restricting the term 'graffiti implement' to the definition currently applicable to the offence in the act of carrying a graffiti implement. Whilst I have not determined my position, I do indicate that I am attracted to the amendments and do see how they will address the concerns of the Hardware Association and others. Whether it be this amendment or an alternative, I notify the government that, if no amendments to clauses 7 and 8 are successful, then at the very least my support for the third reading of the bill will be conditional upon the draft regulations being made publicly available and being acceptable to concerned stakeholders.

On a slightly different matter, one question I have had difficulty getting answered is whether, following the passage of the Evidence (Discreditable Conduct) Amendment Bill, the police are able to prosecute offenders caught doing their tag for all known offences where the same scrawl has been left.

Whilst there are of course concerns about the use of propensity evidence, given that a tag is comparable to a signature and given that, in the graffiti scene, imitation is discouraged and in some cases physically punished, it follows (at least in my mind) that, in the unlikely event that an offender is identified, caught and then convicted for marking their particular tag, they should be held accountable for all known matching tags.

I ask the minister to clarify whether this is currently possible and, if not, whether the government, recognising that tags are the equivalent of a signature in the graffiti world, has considered enabling this. With that said, the second reading has my support and I (sort of) look forward to the committee stage.

Debate adjourned on motion of Hon. Carmel Zollo.

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