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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Graffiti Control Bill 2008
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Definitions 2
Part 2 Graffiti related offences
4 Damaging or defacing property by means of graffiti
implement 3
5 Possession of graffiti implement 3
6 Posting bills and other marking offences 3
Part 3 Sale and confiscation of spray paint cans
7 Sale of spray paint cans to persons under 18 5
8 Unsecured display by retailers of spray paint cans 5
9 Confiscation of spray paint cans from minors 6
Graffiti Control Bill 2008
Contents
Page
Part 4 Graffiti removal work by local councils
10 Interpretation 8
11 Graffiti removal work--by agreement with owner or
occupier 8
12 Graffiti removal work--without agreement of owner or
occupier 8
13 Register of graffiti removal work 8
Part 5 Miscellaneous
14 General defence 10
15 Alternative action to imposing penalty for graffiti offences
under sections 4 and 5 10
16 Penalty notices for offences relating to sale or display of
spray paint cans 10
17 Particulars to be furnished 11
18 Payment towards cost of repairing damage 11
19 Regulations 12
20 Proceedings for offences 12
21 Savings, transitional and other provisions 12
22 Amendment of other legislation 12
23 Review of Act 12
Schedule 1 Savings, transitional and other provisions 13
Schedule 2 Amendment of other legislation 14
Contents page 2
I certify that this public bill, which originated in the Legislative Assembly, has
finally passed the Legislative Council and the Legislative Assembly of New
South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2008
New South Wales
Graffiti Control Bill 2008
Act No , 2008
An Act with respect to the minimisation and control of graffiti; to amend the
Summary Offences Act 1988 and certain other legislation; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as
finally passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Clause 1 Graffiti Control Bill 2008
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the Graffiti Control Act 2008.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act:
graffiti implement means any of the following:
(a) spray paint,
(b) a marker pen,
(c) 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) a motor vehicle (whether or not still capable of being driven), and
(b) a train or other vehicle used on a railway or monorail, and
(c) a trailer or anything else constructed to be drawn by a vehicle or
animal.
(2) Notes included in this Act do not form part of this Act.
Page 2
Graffiti Control Bill 2008 Clause 4
Graffiti related offences Part 2
Part 2 Graffiti related offences
4 Damaging or defacing property by means of graffiti implement
(1) A person must not, without reasonable excuse (proof of which lies on
the person), intentionally damage or deface any premises or other
property by means of any graffiti implement.
Maximum penalty: 20 penalty units or imprisonment for 6 months.
(2) 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 5 (or under
the corresponding provisions 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.
Note. The corresponding provisions of the Summary Offences Act 1988, before
their repeal by this Act, were sections 10A and 10B.
5 Possession of graffiti implement
(1) A person must not have any graffiti implement in the person's
possession with the intention that it be used to damage or deface
premises or other property.
Maximum penalty: 10 penalty units or imprisonment for 3 months.
(2) 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 (or under
the corresponding provisions 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.
(3) 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.
6 Posting bills and other marking offences
A person must not:
(a) affix a placard or paper on any premises, or
(b) intentionally mark, by means of chalk, paint or other material,
any premises,
so that the placard, paper or marking is within view from a public place,
unless the person first obtained the consent, if the premises are
Page 3
Clause 6 Graffiti Control Bill 2008
Part 2 Graffiti related offences
occupied, of the occupier or person in charge of the premises or if the
premises are unoccupied, of the owner or person in charge of the
premises.
Maximum penalty: 4 penalty units.
Page 4
Graffiti Control Bill 2008 Clause 7
Sale and confiscation of spray paint cans Part 3
Part 3 Sale and confiscation of spray paint cans
7 Sale of spray paint cans to persons under 18
(1) 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.
(2) 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.
(3) 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.
(4) It is a defence to a prosecution against an employer for such a
contravention if it is proved:
(a) that the employer had no knowledge of the contravention, and
(b) that the employer could not, by the exercise of due diligence,
have prevented the contravention.
(5) 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).
(6) The regulations may provide that this section does not apply to or in
relation to any specified class or description of spray paint can.
8 Unsecured display by retailers of spray paint cans
(1) 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.
(2) A spray paint can is properly secured if it is displayed:
(a) in a locked cabinet, or
(b) 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
(c) in any other manner prescribed by the regulations.
Page 5
Clause 9 Graffiti Control Bill 2008
Part 3 Sale and confiscation of spray paint cans
(3) The regulations may provide that this section does not apply to or in
relation to any specified class or description of spray paint can.
(4) 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.
(5) In this section:
display includes store or keep.
occupier, in relation to a shop, means:
(a) a person who has the right to occupy the shop to the exclusion of
the owner, or
(b) 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.
9 Confiscation of spray paint cans from minors
(1) 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 has the spray paint can in his or her possession
for a purpose that is not unlawful.
(2) 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.
(3) A spray paint can seized under this section is forfeited to the Crown.
(4) The regulations may make provision for or with respect to:
(a) 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
(b) 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.
(5) In this section:
public place means:
(a) a place (whether or not covered by water), or
Page 6
Graffiti Control Bill 2008 Clause 9
Sale and confiscation of spray paint cans Part 3
(b) 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.
Page 7
Clause 10 Graffiti Control Bill 2008
Part 4 Graffiti removal work by local councils
Part 4 Graffiti removal work by local councils
10 Interpretation
In this Part, occupier, owner, private land and public place have the
same meanings as in the Local Government Act 1993.
11 Graffiti removal work--by agreement with owner or occupier
A local council may, by agreement with the owner or occupier of any
private land, carry out graffiti removal work on the land.
12 Graffiti removal work--without agreement of owner or occupier
(1) A local council may, without the agreement of the owner or occupier of
any land, carry out graffiti removal work to property on that land if the
graffiti concerned is visible from a public place.
(2) The graffiti removal work referred to in subsection (1) may only be
carried out from a public place.
(3) The local council concerned is to bear the cost of graffiti removal work
referred to in subsection (1).
(4) If a local council carries out graffiti removal work in accordance with
this section, the council must, within a reasonable period, give the
owner or occupier of the land concerned written notice that the work has
occurred.
(5) A local council must pay compensation for any damage caused by the
council in carrying out graffiti removal work in accordance with this
section.
Note. Section 730 of the Local Government Act 1993 provides for the resolution
of claims for compensation relating to damage under this section in cases of
dispute between the person claiming the compensation and the council.
13 Register of graffiti removal work
(1) A local council must keep a register of graffiti removal work carried out
in accordance with this Part.
(2) The register is to specify in respect of each incidence of graffiti removal
work carried out:
(a) the owner or occupier of the premises on which the graffiti was
situated, and
(b) the nature of the work carried out, and
(c) the actual cost, or an estimate of the cost at current market rates,
of carrying out the work, and
Page 8
Graffiti Control Bill 2008 Clause 13
Graffiti removal work by local councils Part 4
(d) in the case of graffiti removal work carried out in accordance
with section 11--the actual amount charged by the local council
for carrying out the work.
Page 9
Clause 14 Graffiti Control Bill 2008
Part 5 Miscellaneous
Part 5 Miscellaneous
14 General defence
It is a sufficient defence to a prosecution for an offence under this Act
if the defendant satisfies the court that the act complained of in the
information for the offence was done with lawful authority.
15 Alternative action to imposing penalty for graffiti offences under
sections 4 and 5
A court may, instead of imposing a fine on a person or sentencing the
person to imprisonment for an offence under section 4 (Damaging or
defacing property by means of graffiti implement) or 5 (Possession of
graffiti implement):
(a) make an order under section 8 (1) of the Crimes (Sentencing
Procedure) Act 1999 directing the person to perform community
service work, being an order containing a recommendation of the
kind referred to in section 91 of that Act, or
(b) make an order under section 5 of the Children (Community
Service Orders) Act 1987 requiring the person to perform
community service work, being an order containing a
recommendation of the kind referred to in section 5 (1A) of that
Act,
as the case requires.
16 Penalty notices for offences relating to sale or display of spray paint
cans
(1) An authorised officer may serve a penalty notice on a person if it
appears to the officer that the person has committed an offence under
section 7 (Sale of spray paint cans to persons under 18) or 8 (Unsecured
display by retailers of spray paint cans).
(2) A penalty notice is a notice to the effect that, if the person served does
not wish to have the matter determined by a court, the person can pay,
within the time and to the person specified in the notice, the amount of
the penalty prescribed by the regulations for the offence if dealt with
under this section.
(3) A penalty notice may be served personally or by post.
(4) If the amount prescribed by the regulations for an alleged offence under
section 7 or 8 is paid under this section, no person is liable to any further
proceedings for the alleged offence.
(5) Any such amount prescribed by the regulations for an offence under
section 7 or 8 is not to exceed the maximum amount of penalty that
could be imposed for the offence by a court.
Page 10
Graffiti Control Bill 2008 Clause 17
Miscellaneous Part 5
(6) Payment under this section is not to be regarded as an admission of
liability for the purpose of, and does not in any way affect or prejudice,
any civil claim, action or proceeding arising out of the same occurrence.
(7) This section does not limit the operation of any other provision of, or
made under, this or any other Act relating to proceedings that may be
taken in respect of offences.
(8) In this section, authorised officer means:
(a) a police officer, or
(b) a person of a class prescribed by the regulations as a class of
person who may issue penalty notices under this section.
17 Particulars to be furnished
(1) If a defendant charged with an offence under this Act:
(a) has requested the informant to furnish to the defendant
reasonable particulars of the behaviour or conduct the subject of
the charge, and
(b) the informant, or some person on his or her behalf, has not so
furnished those particulars,
the court before which the defendant is charged is to adjourn the charge
pending the furnishing of those particulars or may dismiss the charge.
(2) If, at the hearing of a charge for an offence referred to in subsection (1):
(a) the evidence discloses behaviour or conduct that constitutes such
an offence, and
(b) that behaviour or conduct is different from the behaviour or
conduct of which particulars have been given to the defendant
under subsection (1),
the court may, on the application of the defendant and if it is of the
opinion that the defendant was deceived by those particulars, adjourn
the hearing on such terms as it thinks fit.
18 Payment towards cost of repairing damage
A person convicted of an offence under this Act is liable to pay such
amount not exceeding an amount equal to 20 penalty units as the court
may order as the cost of, or contribution to, the repair or restoration of
any damage caused by the action which resulted in the conviction.
Page 11
Clause 19 Graffiti Control Bill 2008
Part 5 Miscellaneous
19 Regulations
The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
20 Proceedings for offences
Proceedings for an offence under this Act may be dealt with summarily
before the Local Court.
21 Savings, transitional and other provisions
Schedule 1 has effect.
22 Amendment of other legislation
The Acts and statutory instruments specified in Schedule 2 are amended
as set out in that Schedule.
23 Review of Act
(1) The Minister is to review this Act to determine whether the policy
objectives of the Act remain valid and whether the terms of the Act
remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of
3 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of
Parliament within 12 months after the end of the period of 3 years.
Page 12
Graffiti Control Bill 2008
Savings, transitional and other provisions Schedule 1
Schedule 1 Savings, transitional and other
provisions
(Section 21)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect from
the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
Part 2 Provisions consequent on enactment of this
Act
2 Graffiti removal work by local councils
(1) Anything done by a local council under section 67A or 67B of the Local
Government Act 1993 is, to the extent that it had effect immediately
before the repeal of those sections by this Act, taken to have been done
and to have effect under Part 4 of this Act.
(2) A register of graffiti removal work kept in accordance with section 67C
of the Local Government Act 1993 (as in force immediately before its
repeal by this Act) is taken to be a register of graffiti removal work kept
in accordance with section 13 of this Act.
Page 13
Graffiti Control Bill 2008
Schedule 2 Amendment of other legislation
Schedule 2 Amendment of other legislation
(Section 22)
2.1 Crown Lands (General Reserves) By-law 2006
Clause 22 Conduct prohibited in reserve
Omit clause 22 (1) (f).
2.2 Fines Act 1996 No 99
Schedule 1 Statutory provisions under which penalty notices issued
Insert in alphabetical order of Acts:
Graffiti Control Act 2008, section 16
2.3 Local Government Act 1993 No 30
[1] Section 12 What information is publicly available?
Omit the last bullet point paragraph of section 12 (1). Insert instead:
· the register of graffiti removal work kept in accordance
with section 13 of the Graffiti Control Act 2008.
[2] Section 67 Private works
Omit "section 67A or 67B" from section 67 (6).
Insert instead "Part 4 of the Graffiti Control Act 2008".
[3] Chapter 6, Part 3, Division 4 Graffiti removal work
Omit the Division.
[4] Section 356 Can a council financially assist others?
Omit the note to section 356 (4). Insert instead:
Note. Part 4 of the Graffiti Control Act 2008 deals with graffiti removal
work.
[5] Section 610A Application of Division
Omit "section 67A" from section 610A (1) (e).
Insert instead "section 11 of the Graffiti Control Act 2008".
Page 14
Graffiti Control Bill 2008
Amendment of other legislation Schedule 2
[6] Section 730 Compensation
Omit "section 67B (5), 128 or 198" from section 730 (1).
Insert instead "section 12 (5) of the Graffiti Control Act 2008 or section 128
or 198 of this Act".
2.4 Rail Safety (General) Regulation 2003
[1] Clause 36
Omit the clause. Insert instead:
36 Vandalism and fixing posters
(1) A person must not:
(a) affix any poster to, or
(b) destroy or damage,
any train, any part of the infrastructure of a railway or any
property on railway land or monorail works.
Maximum penalty: 20 penalty units.
Note. Offences relating to graffiti are contained in Part 2 of the Graffiti
Control Act 2008.
(2) A person must not, without reasonable excuse, have in his or her
possession on any train, any part of a railway, on any railway land
or on any part of monorail works any thing intended for use in
damaging property.
Maximum penalty: 10 penalty units.
(3) This clause does not apply to an authorised officer in the
execution of his or her duty.
[2] Clause 39 Direction to leave train or premises
Omit clause 39 (1). Insert instead:
(1) If, in the opinion of an authorised officer, a person is committing:
(a) an offence under this Part, or
(b) an offence under section 4 of the Graffiti Control Act 2008
in relation to a train, any part of the infrastructure of a
railway or any property on railway land or monorail works,
the authorised officer may direct the person to leave the train,
railway land or part of the monorail works concerned.
Page 15
Graffiti Control Bill 2008
Schedule 2 Amendment of other legislation
2.5 Summary Offences Act 1988 No 25
[1] Section 3 Definitions
Omit the definitions of spray can, spray paint and spray paint can from
section 3 (1).
[2] Section 9 Defacing walls
Omit the section.
[3] Section 10A Damaging and defacing property by means of spray paint
Omit the section.
[4] Section 10B Possession of spray paint
Omit the section.
[5] Section 10C Sale of spray paint cans to persons under 18
Omit the section.
[6] Section 10D Unsecured display by retailers of spray paint cans
Omit the section.
[7] Section 10E Confiscation of spray paint cans from minors
Omit the section.
[8] Section 29A Penalty notices: custody of knives in public place or school
Omit "10C or" from section 29A (1) and (3) wherever occurring.
2.6 Summary Offences Regulation 2005
[1] Part 2A Seized spray paint cans
Omit the Part.
[2] Clause 11
Omit the clause. Insert instead:
11 Penalty notices: custody of knives in public place or school
For the purposes of section 29A (1) of the Act, the amount
prescribed in respect of an offence under section 11C of the Act
is $550.
Page 16
Graffiti Control Bill 2008
Amendment of other legislation Schedule 2
[3] Clause 13A Display by retailers of spray paint cans
Omit the clause.
Page 17
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