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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-05-29 Daily Xml
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GRAFFITI CONTROL (MISCELLANEOUS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 17 May 2012.)

The Hon. G.E. GAGO: Mr President, I draw your attention to the state of the council.

A quorum having been formed:

The PRESIDENT: The Hon. Mr Wade.

The Hon. S.G. WADE (16:38): Thank you, Mr President. I thank the council for its patience. It does raise the issue of whether the council wants to continue to allow deadlock conferences to continue while the house is sitting. In relation to this bill, I stress that graffiti is a crime; it is against the law. It also offends community values to use the property of another, or the public property of the broader community, without consent.

Graffiti damages the property of another and puts them to the inconvenience, even grief, of an expense of their needing to restore their property. Graffiti often undermines people's living environment and often leads to people feeling violated or invaded. Graffiti also affects the broader community, and undermines the amenity of the physical urban environment, and promotes within the community a lack of a sense of safety and a lack of connectedness within the community. At times, it can even have more sinister connotations, where gangs use graffiti to claim territory.

The Liberal Party supports action against crime; the Liberal Party supports action against graffiti but, having said that, we are not uncritical of the government in this bill. We are very critical, for example, of how long it has taken for the government to bring this bill forward. The government's lack of interest in this area is stark. Let us remember that this is the government that legislate on anything that moves—in fact, even anything that does not move. It legislated to stop people eating cats—not that there were any substantiated reports of any cats having been eaten, but it legislated nonetheless—yet this is the first time it has legislated to deal with graffiti in its 10 years of office.

The Hon. Bob Such, a member of the other place, has had a series of bills and this government bill picks up a number of the elements of those bills. The Liberal Party supports the key elements of the bill which include increasing and in many cases doubling a range of penalties; introducing a penalty for supplying a prescribed graffiti implement to a minor; introducing an offence of advertising a graffiti implement in a way that is likely to encourage or promote unlawful graffiti; introducing a specific and higher penalty for marking graffiti on or within a cemetery, public memorial or place of worship or religious practice; introducing the use of community reparations for offenders by empowering courts to order that reasonable costs of removal be paid, or participation in graffiti removal programs; and allowing police to temporarily confiscate graffiti implements in the possession of a person in a public place if the officer reasonably suspects the implement has or may be used in contravention of the Graffiti Control Act 2001.

The opposition is keen to observe the impact of the legislation. For example, it will be interesting to see whether a doubling of maximum fines will see a doubling of the average fine. The average fine imposed by courts on adults convicted of graffiti offences has been $258 and for juveniles $117. While the bill doubles the limits, the discretion does remain in the courts. The Liberal Party also has a number of concerns with the current proposals.

The Attorney-General wants graffiti implements to be defined in a broad list by general regulation. Comments by the Attorney-General in the House of Assembly debate suggest that this list, in his mind, could include a broad list of items such as 20-litre cans of paint, compasses, glass cutters, screwdrivers, sandpaper, and fine textas.

The Attorney-General apparently intends to prescribe through regulation a broad list including items that one could possibly foresee would be used to carry out any form of graffiti. Some of these items will need to be secured by businesses, some will be unable to be supplied to a minor, some may be unable to be carried in a public place and some may be confiscated by the police. The result is a long list of random items. Putting restrictions on relatively low-risk items is, in our view, an unnecessarily onerous burden on businesses and targets innocent minors who simply need these items for school, work or legitimate recreation.

The Liberal Party believes that we should include a smaller and more appropriate list within the act itself that imposes a more reasonable duty on businesses and a fairer outcome for minors. In this context, I note that the opposition's concern at the burden on retailers of these provisions is supported in a government discussion paper by the then families and communities minister, the Hon. Jennifer Rankine. Her submission stated:

Such a provision will likely also place a significant and unjust imposition on retailers who would likely grapple with the complexity of determining a graffiti implement.

The bill also provides for a court to have discretion to order an extension of an offender's learner's or provisional licence or disqualification of a driver's licence, ranging from one to 6 months. However, there is no requirement for the person's offending to have a connection with their driving record or use of the vehicle.

The Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 already allows courts to order the clamping or impounding of an offender's vehicle for offences including graffiti. The government's own figures show that these penalties are rarely called upon. From 2002 until 2009 there were 1,298 court cases where the major charge was graffiti, yet in only 26 cases were offenders' licences disqualified, and this was where the use of a motor vehicle was related to the offending behaviour.

Studies suggest that penalties are most effective when they relate to the offending behaviour. What we do know is that studies suggest that many disqualified drivers still drive while disqualified. One study I recall suggested that figure could be as high as 60 per cent. A licence disqualification which is ignored is no penalty at all. To the extent that disqualifying someone's licence places limitations on an offender's ability to attend school, work and other community activities, it increases the prospects of reoffending in the future.

In this context, the opposition will be moving amendments to put a sunset clause on these provisions, and a review, so that we can assess whether, in fact, they have the impact that the government hopes they might have. I look forward to discussing these and other amendments in the committee stage.

The Hon. K.L. VINCENT (16:45): I wish to place on the record my rather vehement opposition to this bill. Indeed, whilst I can to some extent appreciate the premise on which this bill has been created, I must say that I find the bill itself far too prescriptive in nature and too simplistic and far-reaching in its scope.

I would like to begin by stating that I am particularly affronted by the bill's tendency to overwhelmingly correlate graffiti with young people. I am not amenable to the condescending, generalist and reproachful attitude toward the youth of our society which this bill perpetuates. It may or may not be the case that the majority of graffiti is created by young people. Regardless, I do object to the overall tone of this bill, which would seemingly have you believe that all our state's young people are out on the streets late into the night creating havoc and blanketing our buildings, bus stops, railway stations and the like with senseless scribblings.

I believe that the blanket approach to all graffiti and young people which this bill seeks to instate is most highlighted in the section of the bill which would flatly prohibit the sale of spray paint to persons under the age of 18 years. To me, this says, 'Young people are more likely to engage in graffiti than other people. It is possible that not all of them do, but we had better make it unavailable to all of them, just in case.' To me, this seems quite ridiculous. I oppose most of the bill on similar grounds.

I also take issue with the suggestion that, where a court finds a person guilty of creating graffiti for a second time, it must prohibit that person from obtaining or using a driver's licence for a period of one to six months. I find this absurd for many reasons, not the least of which is the fact that this is, once again, a measure which is seemingly focused on young people for insultingly generalist reasons.

There is, of course, no direct correlation between graffiti and a person's ability to drive a car, particularly drive a car safely. Therefore, I assume that the government has put forward this idea with a view to punishing young people specifically, as we all know that often when a young person obtains a driver's licence it can be a great door opener for them, something which gives them a lot of liberty and autonomy which they may not have had previously. Therefore, taking that away from them as a young person is sometimes seen as an effective way to punish them.

I also think it is ridiculous, as the government is suggesting that everyone has a licence, like it is something that all young people have. I am able to report to you that I do not have a driver's licence but could theoretically still mark graffiti around the place—but, of course, Mr President, I am quick to assure you that I do not plan on doing that at any time soon. How, then, would you penalise someone like me for an offence?

There is no connection between driving a car and graffiti. If someone drives a car dangerously or while over the legal alcohol limit, we do not remove their job as a surgeon, for example. This is because there is no connection between the crime and the punishment, and this is perfectly logical legislating.

Indeed, I think it would be fair to say that this technique of licence removal is often employed by parents to punish their own children, and I suppose that as parents that is their right. However, I think most honourable members would agree with me that there is and should be a line between the role of parliamentarians in this state protecting its young people and having too much control over them. It is my belief that this section of the bill oversteps that line all too much and that there should be only room in our statute books for punitive measures which directly relate to the offence committed.

Finally, I place on record my concern about an issue which does not relate to this bill per se but rather to the current Graffiti Control Act itself. As I am sure the members are aware, the current act does not actually give a definition of what exactly does constitute graffiti, therefore I am concerned that if this act is amended in the way that is proposed by this bill we would not only limit the opportunities for young people to create what I would define as harmful graffiti, we would also limit their opportunities to create what I would consider real graffiti.

Because of the blanket approach this bill takes, it is possible that we may also limit the opportunity to create what we may call legitimate street art—murals and the like—which can be seen on many of our beloved Adelaide buildings and streets. While I understand that street art may not be everyone's cup of tea, I think we can all agree that it does add some colour to our city and is in no way harmful.

As we all know, the arts industry is highly competitive and difficult to break into in the first place, so I think it would be a great shame if we were to further limit the opportunities available to the artists of our state to add colour, vibrancy and perspective to our lives through their work. In fact, an Adelaidenow article from 1 June 2011, if my memory serves me, has shown us that this has already occurred: the Stepney council painted over a legitimate mural on a gallery wall after mistaking it for graffiti.

As I said, I am concerned that the lack of definition of graffiti in the current act, in addition to the narrow-minded blanket approach to the issue of graffiti taken by the government in the form of this bill, will take away unnecessarily from the civil liberties and opportunities of the people both young and old of South Australia and, therefore, I am quite unable to support it.

Debate adjourned on motion of Hon. J.M. Gazzola.

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