Graffiti Vandalism Act 2016

Part 1 — on the day on which this Act receives the Royal Assent;

the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.

spraying, writing, drawing, marking or otherwise applying paint or another marking substance; or

scratching or etching;

a community based order or intensive supervision order made under the Sentencing Act 1995; or

a youth community based order or intensive youth supervision order made under the Young Offenders Act 1994;

a can of spray paint;

a pen or marker pen, or a similar implement that —

has a tip over 6 mm wide; and

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

the Crown, or an agent or instrumentality of the Crown; or

a body corporate established by a law; or

a local government, regional local government or regional subsidiary;

A person must not destroy, damage or deface the property of another person by graffiti without that other person’s consent.

for an adult offender, is a community based order;

for a child offender, is a youth community based order.

Property that is capable of being destroyed, damaged or defaced by graffiti includes vegetation.

This section operates despite the Young Offenders Act 1994 section 46(5a).

A person must not be in possession of a thing with the intention of using it to destroy, damage or deface property by applying graffiti.

A person is presumed to have an intention referred to in this section in relation to a thing in the person’s possession if the person is in possession of the thing in circumstances that give rise to a reasonable suspicion that the person has the intention, unless the contrary is proved.

A person must not sell a graffiti implement to a child.

for a first offence, a fine of $6 000;

for a subsequent offence, a fine of $12 000.

It is a defence to a charge of an offence under subsection (1) to prove the accused, or a person acting on behalf of the accused, believed on reasonable grounds that the person to whom the implement was sold was an adult.

This section applies whether the graffiti —

is visible to the public or not; or

is applied to public property or private property.

A court that convicts a person of an offence under section 5 that involves destroying, damaging or defacing property to which this Act applies may order the offender —

to take remedial action to restore the property to the same state as it was in before the offence or to a state specified in the order; or

to pay another person to take remedial action to restore the property to the same state as it was in before the offence or to a state specified in the order.

The Sentencing Act 1995 Part 16 Division 1 applies to an order referred to in section 8(2) as if it were a reparation order as defined in that Part.

The Sentencing Act 1995 section 122 applies to a person who does not obey an order made under section 8(2)(a) as if the order were a restitution order made under Part 16 of that Act.

The Sentencing Act 1995 sections 119 and 119A apply as if an order made under section 8(2)(b) were a compensation order made under Part 16 of that Act.

Where an offender is sentenced to a community order, the court must impose a condition that a minimum of 10 hours unpaid community work be carried out by the offender.

The unpaid community work is to be performed by the offender (whether adult or child) at the direction of the CEO and the work is to comprise graffiti removal work, where practicable.

This section operates despite the Young Offenders Act 1994 section 46(5a).

An action in tort does not lie against an individual involved in graffiti removal under this Act or under a community order for anything done that —

results in damage to property or injury to a person; and

is done in good faith and does not constitute negligent behaviour.

This section does not relieve the State of any liability that it might have for the doing of anything by an individual involved in graffiti removal under this Act.

In this section, a reference to the doing of anything includes a reference to an omission to do anything.

This section applies to the owner of a place who owes a duty of care to an individual who enters that place.

An action in tort does not lie against the owner of a place for death or injury suffered by an individual resulting from the individual’s involvement in graffiti removal under this Act or under a community order, unless a breach of the owner’s duty of care amounts to gross negligence.

An action in tort against the owner that is prevented by subsection (2) may be taken instead against the State as if the State owed the duty of care.

If a breach of the owner’s duty of care is found to have amounted to gross negligence, the State may recover from the owner as a debt any damages, including costs, paid by the State as a result of any action taken under subsection (3).