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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-07-05 Daily Xml
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Parliamentary Committees

Legislative Review Committee: Graffiti Control (Miscellaneous) Amendment Act

The Hon. J.E. HANSON (15:59): I move:

That the report of the committee, entitled Inquiry into the Operation and Impact of the Graffiti Control (Miscellaneous) Amendment Act 2013 (SA) Amendments to the Graffiti Control Act 2001 (SA), be noted.

The Graffiti Control (Miscellaneous) Amendment Act 2013, which I will refer to as the amending act, inserted section 14 into the Graffiti Control Act by way of the following text:

As soon as practicable after the expiration of three years from the commencement of this Act, the Legislative Review Committee must inquire into, consider and report to the Parliament on the operation and impact of this Act, including the effectiveness of sections 10A and 10B of the Graffiti Control Act 2001 (as enacted by this Act) in reducing offending for prescribed graffiti offences (within the meaning of those sections).

The amending act commenced on 3 August 2013. Consequently, the committee was required to conduct the inquiry under the terms of reference set out in section 14 of the act as soon as practicable on or after 3 August 2016.

On 6 August 2016, an invitation to make submissions to the inquiry was published in The Advertiser. The committee invited 34 organisations and individuals to make submissions to the inquiry. Eight submissions were received and three public hearings were held. Resulting from a public consultation process undertaken in 2012 by the Attorney-General's Department, the amending act inserted new offences, sentencing options and a new power to seize graffiti implements into the Graffiti Control Act. Respondents to the 2012 public consultation included agencies of the government of South Australia, local government, non-government organisations, retailer associations and members of the public.

The Attorney-General noted in another place during the second reading of the Graffiti Control (Miscellaneous) Amendment Bill that submissions generally supported tougher legislation measures to minimise graffiti vandalism and to deter potential offenders. They also noted that respondents supported wider programs to reduce incidences of unlawful graffiti, including education and rapid removal. In summary, section 4 of the report notes the new offences introduced in 2013, including:

marking graffiti in a cemetery, public memorial or place of worship or religious practice;

failure by a retailer to securely store all graffiti implements, extending the obligation from spray cans only;

the sale of a graffiti implement to a minor, extending the obligation from spray cans only; and

supplying a spray can to a minor, not including the sale, which was intended to dissuade persons 18 years of age or above from purchasing spray cans on behalf of younger associates.

Section 4 also notes a number of further matters introduced by the amending act, such as increased maximum penalties for the offences of mark graffiti and carrying a graffiti implement.

In relation to a prescribed graffiti offence, where the offence is not a first offence, courts were empowered with a discretion to disqualify a graffiti offender from holding or obtaining a driver's licence for between one month and six months. Courts were also empowered to order a graffiti offender to participate in the removal of graffiti from any location, amending the provision so that a court was no longer restricted to ordering the removal of the graffiti marked by the offender, and to order a graffiti offender to pay a person who has removed or obliterated graffiti a reasonable sum for that removal or obliteration.

Police were empowered to seize graffiti implements in the possession of a person in a public place without charge on the basis of a reasonable suspicion that they would be used in contravention of the act.

Section 5 of the report considers matters of importance, as set out in the submissions received and evidence heard, including:

the suggested causes of graffiti;

finalised graffiti offences from 2011 to 2016 in South Australia;

finalisation of new offences enacted in 2013;

the power to seize graffiti implements without charge;

issues arising as a result of disqualifying graffiti offenders from holding or obtaining a driver's licence under section 10A of the act;

other sentencing options under the Road Traffic Act 1961 (SA), the Young Offenders Act 1993 (SA) and the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA);

the penalties considered most likely to deter graffiti offending;

other programs which may reduce graffiti offending;

the compliance costs of the 2013 amendments;

online sales of graffiti implements;

the impacts of licence disqualification upon offenders located in regional areas; and

the difficulties with assessing the operation and impact of the amending act.

As a result of the submissions and evidence received, the committee made four recommendations. Recommendation 1 noted that there was limited available information upon which the committee could justifiably base findings regarding the operation and impact of the amending act in reducing incidences of prescribed graffiti offending as defined by the act. As a result, it was recommended that the Attorney-General give consideration to conducting a further review after the passage of six years from the commencement of the amending act, that is, as soon as practicable on or after 3 August 2019.

Despite recommendation 1, the committee's second recommendation was that consideration be given to increasing the funding available to provide crime prevention and community safety grants for the purposes of reducing incidences of prescribed graffiti offending. The committee accepted evidence to the effect that whatever the status of the criminal law, it must operate in conjunction with broader strategies that seek to address the causes of graffiti offending.

Thirdly, the committee recommended that consideration be given to identifying ways to increase the number of sites available for the marking of graffiti with lawful authority. The committee considered that this had the potential to reduce incidences of graffiti in the vicinity of the legal space, to improve the quality of works where the content is managed and to improve the safety of participants.

Finally, the committee recommended that consideration be given to providing educational material to learner drivers with respect to all offences that may result in the disqualification of a person's right to hold or obtain a driver's licence, or which may result in the imposition of restrictions regarding the use, or possession, of a motor vehicle. At present, that information is limited to driving offences, and the evidence suggested that a proportion of offenders may be unaware of the potential for such penalties to apply in relation to graffiti offending.

In conclusion, the committee would like to thank the committee secretary, Mr Matt Balfour, and the committee's research officer, Mr Ben Cranwell, who provided helpful support to the committee throughout the conduct of the inquiry. I would also like to thank the other members of the committee for their contributions to the inquiry: the Hon. John Darley; the Hon. Andrew McLachlan; the member for Little Para, Lee Odenwalder; the member for Fisher, Nat Cook; the member for Davenport, Sam Duluk; former presiding member of the committee, the Hon. Gerry Kandelaars; and former member of the committee, the member for Heysen, Isobel Redmond. I commend the report to the council.

Debate adjourned on motion of Hon. T.J. Stephens.

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