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Graffiti Control Amendment Bill 2009 No , 2009 A Bill for An Act to amend the Graffiti Control Act 2008 and related legislation to make further provision with respect to the minimisation and control of graffiti.
Clause 1 Graffiti Control Amendment Bill 2009 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Graffiti Control Amendment Act 2009. 3 2 Commencement 4 (1) This Act commences on the date of assent, except as provided by 5 subsection (2). 6 (2) Schedule 1 [7] and Schedule 2.12.3 commence on a day or days to be 7 appointed by proclamation. 8 Page 2
Graffiti Control Amendment Bill 2009 Amendment of Graffiti Control Act 2008 No 100 Schedule 1 Schedule 1 Amendment of Graffiti Control Act 2008 1 No 100 2 [1] Section 3 Definitions 3 Insert in alphabetical order in section 3 (1): 4 exercise a function includes perform a duty. 5 function includes a power, authority or duty. 6 [2] Section 4 Damaging or defacing property by means of graffiti implement 7 Omit "6 months" from the maximum penalty for section 4 (1). 8 Insert instead "12 months". 9 [3] Section 5 Possession of graffiti implement 10 Omit "3 months" from the maximum penalty for section 5 (1). 11 Insert instead "6 months". 12 [4] Part 3, heading 13 Insert ", supply, possession" after "Sale". 14 [5] Sections 8A and 8B 15 Insert after section 8: 16 8A Supply of spray paint cans to persons under 18 17 (1) A person who supplies a spray paint can to a person under the age 18 of 18 years is guilty of an offence. 19 Maximum penalty: 10 penalty units. 20 (2) It is a defence (proof of which lies on the person supplying the 21 spray paint can) to a prosecution for an offence under this section 22 that: 23 (a) the person believed on reasonable grounds that the 24 recipient intended to use the spray paint can for a defined 25 lawful purpose, being the lawful pursuit of an occupation, 26 education or training, or 27 (b) the supply occurred in a public place and the person 28 believed on reasonable grounds that the recipient intended 29 to use the spray paint can at or in the immediate vicinity of 30 the place where the supply occurred for another defined 31 lawful purpose, or 32 (c) the supply occurred in a private place and the person 33 believed on reasonable grounds that the recipient intended 34 Page 3
Graffiti Control Amendment Bill 2009 Schedule 1 Amendment of Graffiti Control Act 2008 No 100 to use the spray paint can at or in the immediate vicinity of 1 the place where the supply occurred for an activity that 2 does not constitute an offence against this Act or any other 3 law. 4 (3) In this section, a defined lawful purpose is: 5 (a) the lawful pursuit of an occupation, education or training, 6 or 7 (b) any artistic activity that does not constitute an offence 8 against this Act or any other law, or 9 (c) any construction, renovation, restoration or maintenance 10 activity that does not constitute an offence against this Act 11 or any other law, or 12 (d) any other purpose authorised by the regulations. 13 (4) The regulations may provide that this section does not apply to or 14 in relation to any specified class or description of spray paint can. 15 (5) In this section: 16 private place means any place that is not a public place. 17 public place means: 18 (a) a place (whether or not covered by water), or 19 (b) a part of premises, 20 that is open to the public, or is used by the public whether or not 21 on payment of money or other consideration, whether or not the 22 place or part is ordinarily so open or used and whether or not the 23 public to whom it is open consists only of a limited class of 24 persons, but does not include the premises of a school or other 25 educational establishment. 26 8B Possession of spray paint cans by persons under 18 27 (1) A person under the age of 18 years who is in possession of a spray 28 paint can in a public place is guilty of an offence. 29 Maximum penalty: 10 penalty units or imprisonment for 30 6 months. 31 (2) It is a defence (proof of which lies on the person in possession of 32 the spray paint can) to a prosecution for an offence under this 33 section that the person: 34 (a) had the spray paint can in his or her possession for a 35 defined lawful purpose, being the lawful pursuit of an 36 occupation, education or training, or 37 Page 4
Graffiti Control Amendment Bill 2009 Amendment of Graffiti Control Act 2008 No 100 Schedule 1 (b) had the spray paint can in his or her possession for another 1 defined lawful purpose and was at or in the immediate 2 vicinity of the place where the spray paint can was being 3 used or intended to be used for that defined lawful purpose. 4 (3) In this section, a defined lawful purpose is: 5 (a) the lawful pursuit of an occupation, education or training, 6 or 7 (b) any artistic activity that does not constitute an offence 8 against this Act or any other law, or 9 (c) any construction, renovation, restoration or maintenance 10 activity that does not constitute an offence against this Act 11 or any other law, or 12 (d) any other purpose authorised by the regulations. 13 (4) The regulations may provide that this section does not apply to or 14 in relation to any specified class or description of spray paint can. 15 (5) A court that convicts a person of an offence under this section 16 must not sentence the person to imprisonment unless the person 17 has previously been convicted of an offence under this section, or 18 under section 4 or 5 (or under a repealed provision of the 19 Summary Offences Act 1988 that corresponded to section 4 or 5), 20 on so many occasions that the court is satisfied that the person is 21 a serious and persistent offender and is likely to commit such an 22 offence again. 23 Note. The corresponding provisions of the Summary Offences Act 1988 24 to sections 4 and 5, before their repeal by this Act, were sections 10A 25 and 10B. 26 (6) In this section: 27 public place means: 28 (a) a place (whether or not covered by water), or 29 (b) a part of premises, 30 that is open to the public, or is used by the public whether or not 31 on payment of money or other consideration, whether or not the 32 place or part is ordinarily so open or used and whether or not the 33 public to whom it is open consists only of a limited class of 34 persons, but does not include the premises of a school or other 35 educational establishment. 36 Page 5
Graffiti Control Amendment Bill 2009 Schedule 1 Amendment of Graffiti Control Act 2008 No 100 [6] Section 9 Confiscation of spray paint cans from minors 1 Omit "unless the person satisfies the officer that the person has the spray paint 2 can in his or her possession for a purpose that is not unlawful" from 3 section 9 (1). 4 Insert instead "unless the person satisfies the officer that the person's 5 possession of the spray paint can does not constitute an offence under this 6 Act". 7 [7] Part 3A 8 Insert after Part 3: 9 Part 3A Community clean up work 10 9A Definitions 11 In this Part: 12 adult offender means an offender who is not a child offender. 13 assigned officer in respect of a community clean up order means 14 the assigned officer under the Children (Community Service 15 Orders) Act 1987 or the Crimes (Administration of Sentences) 16 Act 1999, as the case requires. 17 child offender means an offender in relation to a graffiti offence 18 who: 19 (a) was under the age of 18 years when the graffiti offence was 20 committed, and 21 (b) was under the age of 21 years when charged before a court 22 with the graffiti offence. 23 community clean up order means an order under this Part 24 requiring a person to perform community clean up work. 25 community clean up work--see section 9C. 26 graffiti offence means an offence under this Act. 27 offender means a person who has pleaded guilty to a graffiti 28 offence in a court or who has been found guilty of or convicted 29 of a graffiti offence by a court. 30 9B Making of order for community clean up work 31 (1) A court that imposes a fine on an offender for a graffiti offence 32 may make an order requiring the offender to perform community 33 clean up work in order to satisfy the amount of the fine. 34 (2) A community clean up order may be made by the court at the time 35 that the fine is imposed or at a later time. 36 Page 6
Graffiti Control Amendment Bill 2009 Amendment of Graffiti Control Act 2008 No 100 Schedule 1 (3) A community clean up order may be made even if part of the fine 1 has been paid (in which case it applies to the part of the fine that 2 remains unpaid). 3 (4) However, a community clean up order is not to be made in 4 respect of a fine if it has been fully paid or the matter has been 5 referred to the State Debt Recovery Office for the making of a 6 court fine enforcement order under the Fines Act 1996. 7 Note. A matter can be referred to the State Debt Recovery Office for the 8 making of a court fine enforcement order if the fine has not been paid by 9 the due date. 10 9C Community clean up work--meaning 11 (1) In this Part, community clean up work means any community 12 service work under the Children (Community Service Orders) 13 Act 1987 or the Crimes (Administration of Sentences) Act 1999 14 that is approved by the relevant Minister as community clean up 15 work for the purposes of this Act. 16 (2) The relevant Minister is: 17 (a) in the case of a community clean up order made in respect 18 of a child offender, the Minister administering the 19 Children (Community Service Orders) Act 1987, or 20 (b) in the case of a community clean up order made in respect 21 of an adult offender, the Minister administering the Crimes 22 (Administration of Sentences) Act 1999. 23 9D Order to be made only if offender suitable and community clean up 24 work available 25 (1) A court must not make a community clean up order unless 26 satisfied, following consultation with an authorised officer, that: 27 (a) the offender is a suitable person for community clean up 28 work and, in the case of a child offender, is sufficiently 29 mature to perform community clean up work, and 30 (b) arrangements exist for persons who reside in the area in 31 which the offender resides or intends to reside for the 32 offender to perform community clean up work, and 33 (c) community clean up work can be provided in accordance 34 with those arrangements. 35 (2) In deciding whether to make a community clean up order, the 36 court must have regard to whether the offender is willing to 37 participate in community clean up work. 38 (3) For the purposes of this section, an authorised officer means: 39 Page 7
Graffiti Control Amendment Bill 2009 Schedule 1 Amendment of Graffiti Control Act 2008 No 100 (a) in respect of an adult offender--the Commissioner of 1 Corrective Services, Department of Justice and Attorney 2 General or an officer of the Department authorised by the 3 Commissioner to exercise the functions of an authorised 4 officer under this section, or 5 (b) in respect of a child offender--the Director-General of the 6 Department of Human Services or an officer of the 7 Department authorised by the Director-General to exercise 8 the functions of an authorised officer under this section. 9 9E Notice of order 10 (1) As soon as practicable after making a community clean up order, 11 the court is to cause written notice of the order to be given to the 12 following persons: 13 (a) the offender, 14 (b) if the offender is an adult offender--the Commissioner of 15 Corrective Services, Department of Justice and Attorney 16 General, 17 (c) if the offender is a child offender--the Director-General of 18 the Department of Human Services, 19 (d) if the offender is a child offender and the order is made by 20 a court other than the Children's Court--the registrar of 21 the Children's Court. 22 (2) The notice must include the following information: 23 (a) the place at which, or person to whom, the offender must 24 present himself or herself, in person, for the purpose of 25 enabling the administration of the order to be commenced, 26 (b) the period within which the offender must so present 27 himself or herself. 28 (3) A community clean up order is not invalidated by a failure to 29 comply with this section. 30 9F Explanation of nature and effect of order 31 (1) A court that makes a community clean up order in respect of an 32 offender must explain, or cause to be explained, to the offender 33 (in language likely to be readily understood by the offender): 34 (a) the requirements to be complied with by the offender 35 under the order, and 36 (b) the consequences that may follow if the offender fails to 37 comply with those requirements, and 38 Page 8
Graffiti Control Amendment Bill 2009 Amendment of Graffiti Control Act 2008 No 100 Schedule 1 (c) the fact that the order may also be satisfied by payment of 1 the fine. 2 (2) A community clean up order is not invalidated by a failure to 3 comply with this section. 4 9G Number of hours of community clean up work 5 (1) The number of hours of community clean up work, specified in a 6 community clean up order, to be performed by the offender is to 7 be calculated at the rate of 1 hour for each $30 of the amount of 8 the fine (or that part of the fine that is unpaid). 9 (2) The number of hours specified in any one order is additional to 10 any number of hours of community clean up work or community 11 service work required to be performed by the offender under any 12 other order. Accordingly, any limit on the total number of hours 13 of community service work that a person may be required to 14 perform at any one time under another Act does not apply to any 15 hours required to be performed by an offender under a 16 community clean up order. 17 9H Offender must participate in graffiti prevention program 18 (1) The community clean up work that an offender is directed to do 19 by the assigned officer under the community clean up order must, 20 if practicable, include at least 2 hours participation in a graffiti 21 prevention program. 22 (2) For the purposes of this section, a graffiti prevention program 23 means a personal development, education or other program the 24 object of which is to prevent offenders from engaging in unlawful 25 graffiti activities. 26 (3) An offender cannot be required by a community clean up order to 27 participate in any personal development, education or other 28 program that is not a graffiti prevention program. 29 9I Satisfaction of fine by community clean up work 30 (1) If an offender who is subject to a community clean up order duly 31 complies with the order, the fine concerned is taken to be 32 satisfied. 33 (2) If an offender who is subject to a community clean up order duly 34 performs part of the number of hours of community clean up 35 work to be performed under the order, the fine concerned is taken 36 to be satisfied by the amount calculated at the rate of $30 for each 37 hour of community clean up work actually performed. 38 Page 9
Graffiti Control Amendment Bill 2009 Schedule 1 Amendment of Graffiti Control Act 2008 No 100 9J Satisfaction of orders by payment 1 (1) If an offender who is subject to a community clean up order duly 2 pays the fine (or the unsatisfied balance of the fine having regard 3 to the number of hours of community clean up work already 4 performed) the order is taken to be satisfied. 5 (2) A community clean up order ceases to be in force when it is 6 satisfied. 7 9K Revocation of community clean up order 8 (1) A court may revoke a community clean up order if it is satisfied, 9 following a report by the assigned officer in respect of the 10 community clean up order, that the offender who is the subject of 11 the order: 12 (a) has failed to report for work under the order within the 13 period of 3 months after being required to do so by the 14 order, or 15 (b) has failed to report for work under the order within any 16 period of 3 months, or 17 (c) has failed to comply with the requirements of the order, or 18 (d) is not capable of performing the work under the order, or 19 (e) is not suitable to be engaged in the work under the order. 20 (2) A court may also revoke a community clean up order on the 21 request of the offender subject to the order if satisfied that it 22 would be in the interests of justice to revoke the order. 23 (3) A court may revoke a community clean up order in the absence 24 of the offender subject to the order. 25 (4) However, a court is not to revoke a community clean up order 26 unless satisfied that the offender has been given notice of the 27 application for revocation and an opportunity to make 28 submissions in respect of the application. 29 (5) A court may, when revoking an order, also revoke other 30 community clean up orders that have been made against the 31 offender. 32 (6) A community clean up order may be revoked by the court that 33 made it or by a court of like or superior jurisdiction. 34 (7) A community clean up order in respect of which the Children's 35 Court is the supervising court may be revoked by the Children's 36 Court even though the Children's Court did not make the order. 37 Page 10
Graffiti Control Amendment Bill 2009 Amendment of Graffiti Control Act 2008 No 100 Schedule 1 9L Effect of appeal against conviction or sentence 1 (1) If a finding of guilt, conviction, or sentence in respect of a graffiti 2 offence is quashed, annulled or set aside, any community clean 3 up order made in respect of the fine imposed for the offence is 4 revoked. 5 (2) If a fine imposed by a court is varied, the court that varies the fine 6 may revoke or vary any community clean up order made in 7 respect of the fine. In such a case, the court may exercise any 8 functions that could have been exercised by the court that 9 imposed the fine. 10 9M Notice of revocation or variation of community clean up order 11 A court that revokes or varies a community clean up order is to 12 cause notice of the revocation or variation to be given to the 13 following persons: 14 (a) the offender, 15 (b) the offender's assigned officer, 16 (c) if the offender is a child offender and the court is not the 17 Children's Court--the registrar of the Children's Court. 18 9N No appeals against order 19 An appeal does not lie in respect of the making of a community 20 clean up order, a failure to make a community clean up order or 21 the revocation or variation of a community clean up order. 22 9O Registrar of court may exercise functions of court 23 (1) The functions of a court under this Part with respect to the 24 making of a community clean up order may be exercised by a 25 registrar of the court, if the offender consents to the making of the 26 order. 27 (2) The functions of a court under this Part with respect to the 28 revocation of a community clean up order may be exercised by a 29 registrar of the court. 30 9P Application of Children (Community Service Orders) Act 1987 to 31 orders made in respect of child offenders 32 (1) The Children (Community Service Orders) Act 1987 applies, 33 subject to this Part, in respect of a community clean up order 34 made in respect of a child offender in the same way as it applies 35 in respect of a children's community service order made in 36 respect of a person to whom that Act applies. 37 Page 11
Graffiti Control Amendment Bill 2009 Schedule 1 Amendment of Graffiti Control Act 2008 No 100 (2) The following provisions of the Children (Community Service 1 Orders) Act 1987 do not apply to a community clean up order: 2 (a) sections 5, 6, 9, 12, 13 and 14, Part 4, and sections 27 and 3 28, 4 (b) such other provisions of that Act as may be prescribed by 5 the regulations under this Act. 6 Note. The excluded provisions are generally provisions that duplicate, or 7 are inconsistent with, the provisions of this Part. 8 (3) The provisions of any regulation made under the Children 9 (Community Service Orders) Act 1987 apply in respect of a 10 community clean up order to the extent that those provisions have 11 effect for the purposes of provisions of that Act that apply to a 12 community clean up order. 13 (4) The regulations under this Act may modify the operation of the 14 Children (Community Service Orders) Act 1987 or the 15 regulations under that Act in respect of a community clean up 16 order. 17 9Q Application of sentencing legislation to orders made in respect of 18 adult offenders 19 (1) The Crimes (Sentencing Procedure) Act 1999 and the Crimes 20 (Administration of Sentences) Act 1999 apply, subject to this Part, 21 in respect of a community clean up order made in respect of an 22 adult offender in the same way as they apply in respect of a 23 community service order made in respect of a person under the 24 Crimes (Sentencing Procedure) Act 1999. 25 (2) The following provisions do not apply to a community clean up 26 order: 27 (a) Divisions 2 and 3 of Part 7 and sections 90 (2) (b) and (3), 28 91, 92 and 93 of the Crimes (Sentencing Procedure) Act 29 1999, 30 (b) sections 113, 114, 115 and 116 of the Crimes 31 (Administration of Sentences) Act 1999, 32 (c) such other provisions of the Crimes (Sentencing 33 Procedure) Act 1999 or the Crimes (Administration of 34 Sentences) Act 1999 as may be prescribed by the 35 regulations under this Act. 36 Note. The excluded provisions are generally provisions that duplicate, or 37 are inconsistent with, the provisions of this Part. 38 (3) The provisions of any regulation made under the Crimes 39 (Sentencing Procedure) Act 1999 or the Crimes (Administration 40 of Sentences) Act 1999 apply in respect of a community clean up 41 Page 12
Graffiti Control Amendment Bill 2009 Amendment of Graffiti Control Act 2008 No 100 Schedule 1 order to the extent that those provisions have effect for the 1 purposes of provisions of those Acts that apply to a community 2 clean up order. 3 (4) The regulations under this Act may modify the operation of the 4 Crimes (Sentencing Procedure) Act 1999, the Crimes 5 (Administration of Sentences) Act 1999 or the regulations under 6 those Acts in respect of community clean up orders. 7 9R Regulations 8 (1) The regulations may make further provision for or with respect to 9 community clean up work and community clean up orders. 10 (2) The regulations may increase the amount of $30 mentioned in 11 sections 9G and 9I. If the regulations do so, the reference to the 12 amount of $30 in those sections is to be construed as a reference 13 to that increased amount. 14 [8] Schedule 1 Savings, transitional and other provisions 15 Insert at the end of clause 1 (1): 16 Graffiti Control Amendment Act 2009 17 [9] Schedule 1, Part 3 18 Insert after Part 2: 19 Part 3 Provisions consequent on enactment of 20 Graffiti Control Amendment Act 2009 21 3 Application of amendments 22 (1) An amendment made to this Act by the Graffiti Control 23 Amendment Act 2009 that increases the penalty for an offence 24 against this Act applies in respect of an offence committed on or 25 after the commencement of the amendment. 26 (2) A community clean up order may be made under Part 3A, as 27 inserted by the Graffiti Control Amendment Act 2009, in respect 28 of a graffiti offence only if it is committed on or after the 29 commencement of that Part. 30 Page 13
Graffiti Control Amendment Bill 2009 Schedule 2 Amendment of other legislation Schedule 2 Amendment of other legislation 1 2.1 Children (Community Service Orders) Act 1987 No 56 2 [1] Section 16 Assignment of officer by Director-General 3 Omit "On receipt of a copy of a children's community service order sent to the 4 Director-General in accordance with section 12 (2) of this Act or section 85 (3) 5 of the Fines Act 1996" from section 16 (1). 6 Insert instead "On receiving notice of the making of a children's community 7 service order". 8 [2] Section 19 Duration of children's community service orders 9 Omit "or the Fines Act 1996" from section 19 (c). 10 Insert instead "or, in the case of an order made under another Act, under the 11 Act under which it is made". 12 2.2 Children (Criminal Proceedings) Act 1987 No 55 13 Section 33 Penalties 14 Insert at the end of section 33 (5) (c): 15 , or 16 (d) to make a community clean up order in respect of a fine 17 imposed for an offence under the Graffiti Control Act 18 2008. 19 2.3 Crimes (Administration of Sentences) Act 1999 No 93 20 [1] Section 110 Duration of community service order 21 Omit section 110 (1) (c). Insert instead: 22 (c) in the case of a community service order that, under the 23 Act under which it is made, can be satisfied by the payment 24 of a fine, until the order is satisfied in accordance with that 25 Act, 26 [2] Section 111 Assignment of officer by Commissioner 27 Omit "On receiving a copy of a community service order sent under section 93 28 of the Crimes (Sentencing Procedure) Act 1999 or section 80 of the Fines Act 29 1996". 30 Insert instead "On receiving notice of the making of a community service 31 order". 32 Page 14
Graffiti Control Amendment Bill 2009 Amendment of other legislation Schedule 2 2.4 Graffiti Control Regulation 2009 1 Clause 11 Penalty notices for offences relating to sale or display of spray 2 paint cans 3 Omit clause 11 (2). Insert instead: 4 (2) The following classes of persons are prescribed as classes of 5 persons who may issue penalty notices under section 16 of the 6 Act: 7 (a) investigators within the meaning of the Fair Trading Act 8 1987, 9 (b) employees of a local council who are authorised persons 10 for the purposes of section 679 of the Local Government 11 Act 1993. 12 2.5 Rail Safety Act 2008 No 97 13 Section 104 Power to direct name and address be given 14 Insert "or the Graffiti Control Act 2008" after "rail safety law" wherever 15 occurring in section 104 (1) (a) and (b). 16 Page 15
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