Graffiti Control Act 2008

This Act is the Graffiti Control Act 2008.

This Act commences on a day or days to be appointed by proclamation.

In this Act—

exercise a function includes perform a duty.

function includes a power, authority or duty.

graffiti implement means any of the following—

spray paint,

a marker pen,

any implement designed or modified to produce a mark that is not readily removable by wiping or by use of water or detergent.

premises includes the whole or any part of a structure, building, vehicle, vessel or place, whether built on or not.

property includes a tree.

spray can includes anything that is made or adapted for use for emitting a liquid or substance and that operates by means of air, gas or vapour pressure.

spray paint includes any liquid or other substance that is designed to stain, mark or corrode and to be applied from a spray can, and includes the spray can.

spray paint can means a spray can that contains spray paint.

vehicle includes—

a motor vehicle (whether or not still capable of being driven), and

a train or other vehicle used on a railway or monorail, and

a trailer or anything else constructed to be drawn by a vehicle or animal.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Notes included in this Act do not form part of this Act.

A person must not, without reasonable excuse (proof of which lies on the person), intentionally mark any premises or other property, unless the person has first obtained the consent of the following—

in relation to premises that are occupied—the occupier or person in charge of the premises,

in relation to premises that are unoccupied or other property—the owner or person in charge of the premises or property.

Maximum penalty—4 penalty units.

A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation.

Maximum penalty—20 penalty units or imprisonment for 12 months.

(Repealed)

A court that convicts a person of an offence under subsection (2) must not sentence the person to imprisonment unless the person has previously been convicted of an offence under this section or section 5 (or under section 10A or 10B of the Summary Offences Act 1988 as in force before their repeal by this Act) on so many occasions that the court is satisfied that the person is a serious and persistent offender and is likely to commit such an offence again.

Subsection (1) does not apply to the marking of any public footpath or public pavement with chalk, including, but not limited to, marking out a hopscotch or handball court with chalk.

In this section—

circumstances of aggravation means circumstances involving 1 or more of the following—

the person intentionally marks the premises or other property by means of a graffiti implement,

the person marks the premises or other property in a way that the mark is not readily removable by—

wiping, or

the use of water or detergent,

the premises or other property is a place of worship.

place of worship has the same meaning as in the Crimes Act 1900, section 214B.

A person must not have any graffiti implement in the person’s possession with the intention that it be used to commit an offence under section 4 (2).

Maximum penalty—10 penalty units or imprisonment for 6 months.

A court that convicts a person of an offence under this section must not sentence the person to imprisonment unless the person has previously been convicted of an offence under this section or section 4 (2) (or under section 10A or 10B of the Summary Offences Act 1988 as in force before their repeal by this Act) on so many occasions that the court is satisfied that the person is a serious and persistent offender and is likely to commit such an offence again.

If a person is convicted of an offence under this section, the court may, in addition to any other penalty it may impose, make an order that the graffiti implement be forfeited to the Crown, and the graffiti implement is forfeited accordingly.

A person must not intentionally affix a placard or paper on any premises so that the placard or paper is within view from a public place, unless the person has first obtained the consent of the following—

if the premises are occupied—the occupier or person in charge of the premises,

if the premises are unoccupied—the owner or person in charge of the premises.

Maximum penalty—4 penalty units.

A person who sells a spray paint can to a person under the age of 18 years is guilty of an offence.

Maximum penalty—10 penalty units.

It is a defence (proof of which lies on the person selling the spray paint can) to a prosecution for an offence under this section that the person selling the spray paint can believed on reasonable grounds that the person to whom the spray paint can was sold was of or above the age of 18 years.

If an employee contravenes subsection (1), the employer is taken to have contravened that subsection, whether or not the employee contravened the provision without the employer’s authority or contrary to the employer’s orders or instructions.

It is a defence to a prosecution against an employer for such a contravention if it is proved—

that the employer had no knowledge of the contravention, and

that the employer could not, by the exercise of due diligence, have prevented the contravention.

An employer may be proceeded against and convicted under subsection (1) by virtue of subsection (3) whether or not the employee has been proceeded against or convicted under subsection (1).

The regulations may provide that this section does not apply to or in relation to any specified class or description of spray paint can.

The occupier of any shop from which spray paint cans are sold must not display any such can in any part of the shop to which members of the public are permitted access unless the can is properly secured in accordance with subsection (2).

Maximum penalty—10 penalty units.

A spray paint can is properly secured if it is displayed—

in a locked cabinet, or

within or behind a counter in such a manner that members of the public are not able to gain access to the can without the assistance of the occupier or an employee or agent of the occupier, or

in any other manner prescribed by the regulations.

The regulations may provide that this section does not apply to or in relation to any specified class or description of spray paint can.

The Minister is to review the operation of this section (including the corresponding provision of the Summary Offences Act 1988 as in force before its repeal by this Act) as soon as possible after the period of 12 months following the date of commencement of this section.

Note.

The corresponding provision of the Summary Offences Act 1988, before its repeal by this Act, was section 10D.

In this section—

display includes store or keep.

occupier, in relation to a shop, means—

a person who has the right to occupy the shop to the exclusion of the owner, or

the person who is the owner of the shop if there is no person with a right to occupy the shop to the exclusion of the owner.

sell includes offer for sale or expose for sale.

shop includes any retail premises.

A person who supplies a spray paint can to a person under the age of 18 years is guilty of an offence.

Maximum penalty—10 penalty units.

It is a defence (proof of which lies on the person supplying the spray paint can) to a prosecution for an offence under this section that—

the person believed on reasonable grounds that the recipient intended to use the spray paint can for a defined lawful purpose, being the lawful pursuit of an occupation, education or training, or

the supply occurred in a public place and the person believed on reasonable grounds that the recipient intended to use the spray paint can at or in the immediate vicinity of the place where the supply occurred for another defined lawful purpose, or

the supply occurred in a private place and the person believed on reasonable grounds that the recipient intended to use the spray paint can at or in the immediate vicinity of the place where the supply occurred for an activity that does not constitute an offence against this Act or any other law.

In this section, a defined lawful purpose is—

the lawful pursuit of an occupation, education or training, or

any artistic activity that does not constitute an offence against this Act or any other law, or

any construction, renovation, restoration or maintenance activity that does not constitute an offence against this Act or any other law, or

any other purpose authorised by the regulations.

The regulations may provide that this section does not apply to or in relation to any specified class or description of spray paint can.

In this section—

private place means any place that is not a public place.

public place means—

a place (whether or not covered by water), or

a part of premises,

that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include the premises of a school or other educational establishment.

A person under the age of 18 years who is in possession of a spray paint can in a public place is guilty of an offence.

Maximum penalty—10 penalty units or imprisonment for 6 months.

It is a defence (proof of which lies on the person in possession of the spray paint can) to a prosecution for an offence under this section that the person—

had the spray paint can in his or her possession for a defined lawful purpose, being the lawful pursuit of an occupation, education or training, or

had the spray paint can in his or her possession for another defined lawful purpose and was at or in the immediate vicinity of the place where the spray paint can was being used or intended to be used for that defined lawful purpose.

In this section, a defined lawful purpose is—

the lawful pursuit of an occupation, education or training, or

any artistic activity that does not constitute an offence against this Act or any other law, or

any construction, renovation, restoration or maintenance activity that does not constitute an offence against this Act or any other law, or

any other purpose authorised by the regulations.

The regulations may provide that this section does not apply to or in relation to any specified class or description of spray paint can.

A court that convicts a person of an offence under this section must not sentence the person to imprisonment unless the person has previously been convicted of an offence under this section, or under section 4 (2) or 5 (or under section 10A or 10B of the Summary Offences Act 1988 as in force before their repeal by this Act), on so many occasions that the court is satisfied that the person is a serious and persistent offender and is likely to commit such an offence again.

In this section—

public place means—

a place (whether or not covered by water), or

a part of premises,

that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include the premises of a school or other educational establishment.

A police officer may seize a spray paint can in the possession of a person in a public place if the officer suspects on reasonable grounds that the person is under the age of 18 years, unless the person satisfies the officer that the person’s possession of the spray paint can does not constitute an offence under this Act.

A spray paint can may be seized from a person under this section whether or not the person has been or is to be charged with any offence in connection with the person’s possession of the spray paint can.

A spray paint can seized under this section is forfeited to the Crown.

The regulations may make provision for or with respect to—

the procedure to be followed as regards the seizure of spray paint cans under this section and the procedure to be followed after their seizure, and

without limiting paragraph (a), prescribing the circumstances in which and the procedure by which spray paint cans seized under this section are to be returned and providing for the jurisdiction of a court to order their return.

In this section—

public place means—

a place (whether or not covered by water), or

a part of premises,

that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include the premises of a school or other educational establishment.

In this Part—

adult offender means an offender who is not a child offender.

assigned officer in respect of a community clean up order means the assigned officer under the Children (Community Service Orders) Act 1987 or the Crimes (Administration of Sentences) Act 1999, as the case requires.

child offender means an offender in relation to a graffiti offence who—

was under the age of 18 years when the graffiti offence was committed, and

was under the age of 21 years when charged before a court with the graffiti offence.

community clean up order means an order under this Part requiring a person to perform community clean up work.

community clean up work—see section 9C.

fine has the same meaning as in the Fines Act 1996.

graffiti offence means an offence under this Act.

offender means a person who has pleaded guilty to a graffiti offence in a court or who has been found guilty of or convicted of a graffiti offence by a court.