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Bill homepage (legislation.vic.gov.au)The purpose of this Act is to reduce the incidence of graffiti by—
creating graffiti-related offences; and
S. 1(b) amended by No. 37/2014 s. 10(Sch. item 75.1).
providing search and seizure powers for police officers; and
providing power for a Council to enter private property for the purpose of removing graffiti.
Subject to subsection (2), this Act (except sections 10, 11(2) and 11(5)) comes into operation on a day or days to be proclaimed.
If a provision to which subsection (1) applies does not come into operation before 30 June 2008, it comes into operation on that day.
Subject to subsection (4), sections 10, 11(2) and 11(5) come into operation on a day to be proclaimed.
If a provision referred to in subsection (3) does not come into operation before 1 September 2008, it comes into operation on that day.
In this Act—
adjacent public place means a public place that is referred to in paragraph (a), (b), (c), (d) or (j) of the definition of public place in section 3 of the Summary Offences Act 1966 and that is near to and visible from—
trains operated on property of a transport company; or
railway stations or bus depots on property of a transport company; or
property of a transport company on any part of which trains or buses are operated—
whether or not the public place adjoins that property;
authorised officer means an authorised officer appointed under section 224 of the Local Government Act 1989;
authorised person means a person authorised under section 19;
S. 3 def. of Council amended by No. 9/2020 s. 390(Sch. 1 item 49).
Council has the same meaning as in the Local Government Act 2020;
S. 3 def. of designated place inserted by No. 43/2011 s. 22, substituted by No. 37/2014 s. 10(Sch. item 75.2(b)).
designated place has the same meaning as in the Victoria Police Act 2013;
graffiti implement means an implement or substance that is capable of being used to mark graffiti;
S. 3 def. of graffiti offence inserted by No. 52/2010 s. 29.
graffiti offence means—
an offence against this Act; or
an offence against regulation 27, 27A or 48 of the Transport (Conduct) Regulations 2005;
mark graffiti means write, draw, mark, scratch or otherwise deface property by any means so that the defacement is not readily removable by wiping with a dry cloth;
S. 3 def. of police officer inserted by No. 37/2014 s. 10(Sch. item 75.2(a)).
police officer has the same meaning as in the Victoria Police Act 2013;
possession means—
actual physical possession; or
custody or control; or
having and exercising access, either solely or in common with others;
premises includes vehicle;
prescribed graffiti implement means—
an aerosol paint container; or
a graffiti implement, or an implement belonging to a class of graffiti implement, that is prescribed by the regulations;
property of a transport company includes—
any land, premises or other property owned or occupied by the transport company; and
any equipment installed by or on behalf of the transport company on any land or premises of the company; and
any tram, train or bus that is owned by the transport company or operated by it, under contract to it or on its behalf; and
any shelter provided for the use of passengers of any transport company that are owned by the transport company or operated by it, under contract to it or on its behalf;
S. 3 def. of protective services officer inserted by No. 43/2011 s. 22, amended by No. 37/2014 s. 10(Sch. item 75.2(c)).
protective services officer means a protective services officer appointed under section 38 of the Victoria Police Act 2013;
public place has the same meaning as in the Summary Offences Act 1966;
S. 3 def. of transport company amended by No. 6/2010 s. 203(1) (Sch. 6 item 24) (as amended by No. 45/2010 s. 22).
transport company means—
a passenger transport company within the meaning of section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983; or
a bus company within the meaning of section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983;
a rail freight operator within the meaning of section 2(1) of the Transport (Compliance and Miscellaneous) Act 1983; or
a rail corporation within the meaning of section 3(1) of the Rail Management Act 1996.
This Act does not derogate from the Crimes Act 1958, the Summary Offences Act 1966 or any other law.
Part 2—Offences
A person must not mark graffiti on property if the graffiti is visible from a public place unless the person has first obtained the express consent of the owner, or an agent of the owner, of the property to do so.
A person must not mark graffiti that is visible from a public place if the graffiti, or any part of the graffiti, would offend a reasonable person.
Subsection (1) does not apply to graffiti that is reasonable political comment.
A person must not, without lawful excuse, possess a prescribed graffiti implement—
on property of a transport company; or
in an adjacent public place; or
in a place where the person is trespassing or has entered without invitation.
It is a lawful excuse for the purposes of subsection (1) that the person is in possession of a prescribed graffiti implement in the course of engaging in, or carrying out any functions in relation to, his or her employment, occupation, business, trade or profession.
S. 7(3) amended by Nos 43/2011 s. 23(1), 37/2014 s. 10(Sch. item 75.3(a)).
If a police officer or a protective services officer may exercise powers under Division 2 of Part IV of the Drugs, Poisons and Controlled Substances Act 1981 in respect of a person under 18 years of age—
S. 7(3)(a) amended by Nos 43/2011 s. 23(2), 37/2014 s. 10(Sch. item 75.3(b)).
the police officer or protective services officer must deal with the person in the manner set out in that Division; and
the person does not commit an offence against subsection (1).
A person must not possess a graffiti implement with the intention of using it to contravene section 5 or 6.
A person must not advertise for sale a prescribed graffiti implement if the advertisement is likely to incite or promote unlawful graffiti and the person intends the advertisement to incite or promote unlawful graffiti.
In a proceeding for an offence against subsection (1), proof that the advertisement is published—
in a publication; or
on an Internet site—
that contains images or documents which incite or promote unlawful graffiti is admissible in evidence for the purpose of establishing that the advertisement is likely to incite or promote unlawful graffiti and, in the absence of evidence to the contrary, is proof of that fact.
In this section, minor means a person under 18 years of age.
A person must not sell an aerosol paint container to a minor unless the minor produces to the person a letter or statutory declaration from the employer of the minor stating that the minor requires an aerosol paint container for the purposes of his or her employment.
A person who is an employer or principal must take reasonable precautions to prevent an employee or agent of the person from contravening subsection (2) while performing his or her duties as employee or agent.
A prosecution for an offence against subsection (2) or (3) may only be commenced by an authorised officer.
S. 11(1) amended by No. 37/2014 s. 10(Sch. item 75.4).
A police officer may serve an infringement notice on a person who the police officer has reason to believe has committed an offence against section 7(1).
S. 11(1A) inserted by No. 43/2011 s. 24.
A protective services officer may serve an infringement notice on a person who the officer has reason to believe has committed an offence against section 7(1) at or in the vicinity of a designated place.
S. 11(1B) inserted by No. 45/2017 s. 53(1).
A protective services officer may only exercise the power to serve an infringement notice under this section in relation to a person who was at or in the vicinity of a designated place at the time of the alleged offence.
An authorised officer may serve an infringement notice on a person who the officer has reason to believe has committed an offence against section 10(2).
The offences referred to in subsections (1) and (2) for which an infringement notice may be served are infringement offences within the meaning of the Infringements Act 2006.
The infringement penalty for an offence against section 7(1) is 5 penalty units.
The infringement penalty for an offence against section 10(2) is 2 penalty units.
Part 3—Powers of search and seizure
S. 12(1) amended by No. 37/2014 s. 10(Sch. item 75.5(a)).
A police officer may apply to a magistrate for the issue of a search warrant in relation to particular premises if the police officer believes on reasonable grounds that there is on the premises a particular thing that may be evidence of the commission of an offence against this Act.
S. 12(2) amended by Nos 37/2014 s. 10(Sch. item 75.5(b)), 6/2018 s. 68(Sch. 2 item 63).
If the magistrate to whom the application is made is satisfied by evidence on oath or by affirmation, whether oral or by affidavit, that there are reasonable grounds for believing that an offence against this Act has been or is being committed, the magistrate may issue a search warrant authorising the police officer named in the warrant and any assistants the police officer considers necessary—
to enter the premises, or the part of the premises, named or described in the warrant; and
to search for and seize any article, thing or material of a kind named or described in the warrant.
In addition to any other requirement, a search warrant issued under this section must state—
the alleged offence; and
the premises to be searched; and
a description of the article, thing or material for which the search is to be made; and
any conditions to which the warrant is subject; and
whether entry is authorised to be made at any time or during stated hours; and
a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.
A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form prescribed under that Act.
The rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section.
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