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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-09-06 Daily Xml
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GRAFFITI CONTROL (MISCELLANEOUS) AMENDMENT BILL

Final Stages

Consideration in committee of the House of Assembly's message.

The Hon. G.E. GAGO: As honourable members are aware, the House of Assembly rejected amendments made by this place to the bill. In an effort to avoid a deadlock conference, the government put forward a proposal to compromise, and put that forward to the Hon. Stephen Wade on amendments to the bill by letter on 20 August 2012. The government received no response to this letter and so sent a further letter to the Hon. Mr Wade yesterday. The letter enclosed a draft of the government's proposed resolution. The government's proposed resolution would have this place not insist on its amendments to the definition of 'graffiti implement', together with the associated consequential amendments.

The resolution would also have this place not insist on the amendment requiring a sunset date for the driver's licence suspension provision, being Wade amendment No. 10. The government was advised at about 12 noon today that its proposed compromise was not going to be agreed to by the opposition, through the Hon. Stephen Wade. Rather than this bill simply going back to deadlock, however, the Hon. Stephen Wade at 3pm today filed an alternative proposal which, I have to say, is completely unacceptable; it is procedural insanity. Having said that, the government obviously does not support the Hon. Stephen Wade's amendment and the government will be seeking to put its resolution.

The Hon. S.G. WADE: Just briefly, and we will consider each amendment in due course, I indicate that I do regret that there was a procedural issue in terms of filing the amendments. It certainly had been our intention to get them to the government earlier. What is clear is that, in consultation with our crossbench colleagues—the members who share our concern about the review, the members who share our concern about the proposal to remove the definition from the act—the government's compromise was not acceptable. Those discussions continued until this morning. The government's alternative compromise is not really a compromise. It is called a compromise but it is the government insisting on pursuing regulations and commits to consulting with the one agency. I will address that in more detail in my comments on amendment No. 1.

Amendment No. 1:

The Hon. G.E. GAGO: I move:

That the council do not insist on its amendment No.1.

I will just say at this point, so that everyone is clear, that I think the Hon. Stephen Wade will now, no doubt, put his amendment. The government sees his first amendment as a test amendment. Just so everyone is clear, if the Hon. Mr Wade's amendment No. 1 is supported, then the government will not move its amendment or its resolution. However, if the Hon. Mr Wade's amendment No. 1 is not supported, then obviously the government will move its filed resolution or amendment.

The Hon. S.G. WADE: I thank the minister for that suggestion. I think that is a sound way to go ahead, depending on how the government wants to handle it. The government may want to take amendment No. 1 as a test clause on the implements definition cluster and it may choose to have a different test clause on the issues related to the review. Therefore, I move:

That the Legislative Council does not insist on its amendment but makes the following amendment in lieu thereof:

Clause 4, page 3, lines 1 and 2 [clause 4(2)]

Delete subclause (2) and substitute:

(2) Section 3—after the definition of minor insert:

prescribed graffiti implement means—

(a) a can of spray paint; or

(b) a pen, marker pen, or similar implement that—

(i) has a tip that is more than 6mm wide; and

(ii) contains a fluid that is not water soluble and that is capable of marking a surface;

I think it would be beneficial to talk to it now because it would put it in context. On Thursday 14 June the opposition was disappointed that the government gagged debate on this bill. We saw recommittal as the best way to negotiate on the clauses but the government chose to send it back to the house and insist. They chose the course to a deadlock conference. This is taking their decision through to its fruition. Unfortunately, that approach by the government has resulted in delays. They are completely the responsibility of the government.

The law, in our view, should target bad behaviour rather than using broad regulation-making powers to penalise every hardware, stationery and paint store across the state and, for that matter, a large range of other retailers and impacting on law-abiding citizens because of the actions of a few. The opposition considers that it is appropriate for parliament to maintain more direct oversight of areas which impact most heavily on law-abiding citizens. That is the current approach in the act and we see no benefit in shifting the list of secure items into the regulations. Businesses and individuals should have a reasonable opportunity to be aware of any changes affecting them and to be involved in reviewing them through their parliament.

We believe the current practice of a short stable list of secure items should be maintained in the legislation; that is the appropriate approach. We support a broader approach in the context of the confiscation of items and so forth; however we do not consider that a broad regulation approach is appropriate when it comes to the secure list. The Liberal opposition amendment proposes that there are only two items on the secure list—cans of spray paint and wide tip markers. The current act already specifies cans of spray paint. The Attorney-General's second reading speech in the other place indicated that the government intended to add wide tip markers to the secure list. The opposition supports the addition of wide tip markers, so we moved a list of the cans of spray paint and wide tip markers. That is our intent.

The opposition is open to further improving the list. It seems clear that the government has decided that it wants a deadlock conference to work through improvements. The opposition puts this amendment down for consideration of the deadlock conference. The definition of 'wide tip marker' in our amendment is based on the relevant provisions on the Western Australian Criminal Code Act Compilation Act. They are used for a very similar purpose. These provisions specify a marker in terms of a 6mm wide tip. To this point, our amendments have referred to a 15mm wide tip. As we head to a deadlock conference, I have initiated consultation with a range of stakeholders on the proposed definition of wide tip marker. We are open to amendments on the width of the marker, other attributes of a marker or, for that matter, any other aspect of the list.

The government may well want other items to be on the secure list. The Attorney-General has already suggested that there could be four or five items on the secure list, but what are they? Why is the government not telling this parliament or the community what items they want on the list? What is the government hiding? I urge the government to come clean and name the items. I appreciate that the Hardware Association is happy with the government's commitment to our user regulation approach in the context of a government commitment to consult on the regulations.

However, even if the government's hidden list only adds wide-tip markers it is our view that the government would need to consult much more than the Hardware Association. Wide-tip markers are sold by a range of retailers. To name a few: newsagents, art stores, department stores, stationers. These businesses are not represented by the Hardware Association. I urge the council to support the alternative amendment No. 1 that I have moved.

The Hon. G.E. GAGO: I rise to oppose the Hon. Stephen Wade's amendment. I also put on the record that the government rejects the Hon. Stephen Wade's suggestion that there be a number of tests. I have said quite clearly that we believe that this amendment No. 1 is the test clause for all of the Hon. Stephen Wade's amendments. We are simply not going to waste the time of this chamber any further on this absolutely ridiculous pantomime that is going on. We see this as the test clause, and if this is supported then the government will withdraw its amendment and will not proceed with it.

The government opposes this Wade amendment. The government maintains that it is appropriate that the graffiti implement be defined as 'implements to be listed in regulations'. The government has committed to consulting with the industry groups who will be affected by these regulations. We spoke at length about this during the committee stage and I do not think there is any point in going over all of those arguments because they are all on the record and they are well documented. Let's get on with it.

The Hon. T.A. FRANKS: The Greens will be supporting the opposition amendment. I want to put it on the record that, while the minister feels that we spoke at length with regard to this issue, there was an agreement in the committee stage in the debate of this bill that we recommit this clause. This clause was inadequate in its wording then and I do believe it is inadequate in its wording now. However, at least it will be in the act, which is more preferable to it being in regulations, where we do not trust this government to get it right. We do not trust this government to give certainty to retailers, to young people, to their parents or to schools who might be affected by this.

I draw the attention of all members to the workings of this particular amendment and how it has been implemented in WA. From my understanding of reading the Hansard where this definition of graffiti implement (which has been adopted in that state) was discussed, the Retailers Association expressed that 20 to 30 items at Officeworks would be caught by this. Certainly school kits and art kits would be caught by this. What has not been mentioned so far is that haberdashers like Spotlight, Lincraft and smaller ones would be caught by this.

I think that the government 'doth protest too much' about having consulted properly. Had they actually done the consultation before bringing this bill to this place, we would have a definition that the government could tell us was agreed to by all of those stakeholder groups.

The Hon. D.G.E. HOOD: I see no reason why these matters should not be inserted into regulation, which can be disallowed by this chamber (or the other) if we so choose. For that reason we will not be supporting the amendment.

The Hon. A. BRESSINGTON: I will be supporting the opposition amendment for all of the reasons expressed by the Hon. Tammy Franks and because of the Hon. Stephen Wade's accurate description that what we should be doing in this place is dealing with the bad behaviour. I remind the Hon. Dennis Hood, who still somehow holds onto this illusion that we successfully disallow regulations in this place and that it is a fair and proper process, that it has rarely been a successful process. If there was a subordinate legislation act that was already in place, I would have more faith in the fact that we could move forward with this. However, I stand by my decision and my vote the last time this came before the house, and I support the opposition amendment.

The Hon. J.A. DARLEY: I will not be supporting the opposition's amendment.

Motion carried.

The committee divided on the Hon. S.G. Wade's motion:

AYES (10)
Bressington, A. Dawkins, J.S.L. Franks, T.A.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Stephens, T.J. Vincent, K.L.
Wade, S.G.
NOES (9)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V.
Gago, G.E. Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. Kandelaars, G.A. Zollo, C.
PAIRS (2)
Lee, J.S. Wortley, R.P.

Majority of 1 for the ayes.

Motion thus carried.

Amendment Nos 2 and 3:

The Hon. G.E. GAGO: I move:

That the council do not insist on its amendment Nos 2 and 3.

The Hon. S.G. WADE: The opposition does not support the motion.

Motion negatived.

Amendment No. 4:

The Hon. G.E. GAGO: I move:

That the council do not insist on its amendment No. 4.

The Hon. S.G. WADE: I move:

That the Legislative Council does not insist on its amendment but makes the following amendment in lieu thereof:

Clause 8, page 3, lines 27 and 28 [clause 8, inserted section 5(1)]

Delete subclause (1) and substitute:

(1) A person must not sell a prescribed graffiti implement to a minor.

Maximum penalty: $5,000.

(1a) However, subsection (1) does not apply in relation to the sale of prescribed graffiti implements of a type excluded from the operation of subsection (1) by the regulations.

The Hon. G.E. Gago's motion negatived; the Hon. S.G. Wade's motion carried.

Amendment Nos 5 to 7:

The Hon. G.E. GAGO: I move:

That the council do not insist on its amendment Nos 5 to 7.

The Hon. S.G. WADE: The opposition does not support the motion.

Motion negatived.

Amendment Nos 8 and 9:

The Hon. G.E. GAGO: I move:

That the council do not insist on its amendment Nos 8 and 9.

The Hon. S.G. WADE: The opposition supports the motion.

Motion carried.

Amendment No. 10:

The Hon. G.E. GAGO: I move:

That the council do not insist on its amendment No. 10.

The Hon. S.G. WADE: The opposition does not support the motion.

Motion negatived.

Amendment No. 11:

The Hon. G.E. GAGO: I move:

That the council do not insist on its amendment No. 11.

The Hon. S.G. WADE: We support the motion.

Motion carried.

Amendment No. 12:

The Hon. G.E. GAGO: I move:

That the council do not insist on its amendment No. 12.

The Hon. S.G. WADE: The opposition does not support the motion.

Motion negatived.

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