Graffiti and the Law
The Act specially states the following offences:
- Creates a new graffiti offence of damaging property by graffiti
- Established a requirement of graffiti offenders whom are found guilty of this new offence to be sentenced to a minimum of a community based order or youth community based order involving, where practicable, graffiti clean-up activities
- Provides the capacity, upon conviction, for the forfeiture of anything used in, or in connection with, the offence. The Act expressly states that this forfeiture can include the graffiti implement or anything used by the offender to record, store or transmit images of graffiti.
- Replicates the general powers and protections of Local Government in the Local Government Act 1995 to deal with graffiti
- Allows for the cost of cleaning graffiti to be awarded against the offender
- Allows local governments to issue notices requiring the removal of graffiti and to enter properties under warrant to remove themselves
Public Transport Authority
Amends the Public Transport Authority Act 2003 to:
- Expand the powers of arrest of the Public Transport Authority (PTA) security officers to including apprehending persons suspected of committing on PTA property the Criminal Code offence of disorderly behaviour, trespass and criminal damage and the Graffiti Vandalism Act 2016 offence of damaging property by graffiti; and
- Expand the offences for which the Chief Executive Officer of the PTA may prohibit a person from being on or in a PTA conveyance or facility to include the Criminal Code offence of damaging property and the new GV Act offence of damaging property by graffiti.
The current law relating to graffiti vandalism states the following offences and penalties.
Graffiti Vandalism Act 2016
Section 5. Damaging property by graffiti
A person must not destroy, damage or deface the property of another person by graffiti without that other person's consent.
Penalty: a fine of $24,000 and imprisonment for 2 years, but the minimum penalty:
- for an adult offender is a community based order.
- for a child offender is a youth community based order.
Section 6. Possessing thing with intent to apply graffiti
(1) 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.
Penalty: a fine of $6,000
A person is presumed to have an intention referred to in this 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.
Section 7. Selling graffiti implement to child
(1) A person must not sell a graffiti implement to a child.
Penalty: (a) for a first offence, a fine of $6,000;
(b) for a subsequent offence, a fine of $12,000.
(2) It is a defense to a charge of an offence under subsection (1) to prove the accused, or a person acting of the accused, believed on reasonable grounds that the person to whom the implement was sold was an adult.
For the purposes of the Graffiti Vandalism Act, graffiti implement means any of these:
- a can of spray paint
- a pen or marker, 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
Section 8: Cost of cleaning graffiti
(1) This section applies whether the graffiti:
- is visible to the public or not; or
- is applied to public property or private property
(2) 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 the 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 that order.
Voluntary Codes of Practice
A voluntary Code of Practice for retailers selling potential graffiti materials (namely spray paint and wide tip markers) has been considered to encourage retailers to take responsible steps to limit the likelihood of theft and possible sales to potential graffiti vandals.