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This is a Bill, not an Act. For current law, see the Acts databases.


GRAFFITI CONTROL (MISCELLANEOUS) AMENDMENT BILL 2009

South Australia

Graffiti Control (Miscellaneous) Amendment Bill 2009

A BILL FOR

An Act to amend the Graffiti Control Act 2001.


Contents

Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions

Part 2—Amendment of Graffiti Control Act 2001
4 Amendment of section 3—Interpretation
5 Insertion of section 4AA
4AA License to sell spray cans
6 Insertion of sections 4A and 4B
5A Purchaser must produce identification
5B Records of transactions
7 Amendment of section 6—Notice to be displayed
8 Amendment of section 7—Appointment and powers of authorised persons
9 Amendment of section 9—Marking graffiti
10 Amendment of section 10—Carrying graffiti implement
11 Insertion of section 8A
8A Power to search for graffiti implement in prescribed area at prescribed time
12 Insertion of section 13AA
13AA Register of offenders

Schedule 1—Related Amendments

Part 1—Preliminary
1 Amendment provisions

Part 2—Amendment of Criminal Law Consolidation Act 1935
2 Insertion of section 85AA
85AA Special provisions relating to graffiti


The Parliament of South Australia enacts as follows:

Part 1—Preliminary

1—Short title

This Act may be cited as the Graffiti Control (Miscellaneous) Amendment Act 2009.

2—Commencement

This Act will come into operation on a day to be fixed by proclamation.

3—Amendment provisions

In this Act, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Graffiti Control Act 2001

4—Amendment of section 3—Interpretation

(1) Section 3—after the definition of authorised person insert:

can of spray paint includes cans containing a paint substance (commonly referred to as tyre black) for the purpose of coating the outside surface of any kind of tyre;

(2) Section 3—after the definition of minor insert:

personal details, in relation to a person, means—

(a) the person’s full name; and

(b) the person’s date of birth; and

(c) the address of where the person is living; and

(d) the address of where the person usually lives; and

(e) the person’s business address;

prescribed area means—

(a) an area within 20 metres of any railway tracks; or

(b) the grounds of a primary or secondary school and the area within 20 metres of the boundary of the school; or

(c) an area, or area of a kind, prescribed by regulation,

but does not include any privately occupied area;

prescribed period means the period commencing at 10 pm on any day and ending at 6 am on the following day;

(3) Section 3—after the definition of private property insert:

privately occupied area means an area occupied by a person other than—

(a) the Crown in right of the State or the Commonwealth or an agency or instrumentality of the Crown in right of the State or the Commonwealth; or

(b) a council;

5—Insertion of section 4AA

Before section 4 insert:

4AA—License to sell spray cans

(1) A person must not sell a can of spray paint by retail unless licensed by the Commissioner.

Maximum penalty: $10 000.

(2) An employee is not required to hold a licence under this Part in respect of anything done in the course of employment by a person who holds a licence under this Part.

(3) A licence may be granted under this section on such conditions as the Commissioner thinks fit.

(4) An application for a licence must—

(a) be made in the prescribed manner in a form approved by the Commissioner; and

(b) contain the prescribed information; and

(c) be accompanied by the prescribed application fee.

(5) Where the holder of a licence—

(a) has been found guilty of an offence against this Act; or

(b) has obtained the licence improperly; or

(c) has failed to comply with a condition of the licence,

the Commissioner may, by notice in writing addressed to the holder of the licence, revoke the licence, or suspend the licence for a period specified in the notice.

(6) In this section Commissioner means the Commissioner for Consumer Affairs.

6—Insertion of sections 4A and 4B

After section 5 insert:

5A—Purchaser must produce identification

A person must not sell a can of spray paint by retail to another person (the purchaser) unless—

(a) the purchaser first produces evidence of identification that complies with any requirements set out in the regulations; and

(b) the purchaser describes the use to which the can of spray paint will be put.

Maximum penalty: $1 250.

5B—Records of transactions

(1) A person who sells by retail a can of spray paint to another person must keep the following information in relation to that transaction:

(a) the details of any evidence of age produced under section 5;

(b) the details of the identification produced under section 5A(a);

(c) the description given by the purchaser under section 5A(b) of the use to which the can of spray paint will be put.

Maximum penalty: $1 250.

Expiation fee: $160.

(2) The information required to be kept under subsection (1) must be kept in accordance with any requirements set out in the regulations.

(3) A person required to keep information under this section must transfer to the Commissioner of Police, in accordance with any requirements set out in the regulations, the information required to be kept in respect of each transaction under subsection (1).

Maximum penalty: $1 250.

Expiation fee: $160.

(4) Without limiting subsection (3), the regulations may require that the information be transferred electronically.

(5) The Commissioner of Police must establish and maintain a register of information provided under this section.

7—Amendment of section 6—Notice to be displayed

Section 6(1)—Before "IT IS UNLAWFUL" insert:

IT IS UNLAWFUL TO SELL CANS OF SPRAY PAINT WITHOUT THE PRODUCTION OF SUITABLE IDENTIFICATION AND A STATEMENT AS TO THE INTENDED USE OF THE SPRAY PAINT.

8—Amendment of section 7—Appointment and powers of authorised persons

Section 7—after subsection (3) insert:

(3a) An authorised person may, for the purposes of enforcing a provision under this Part, be assisted by such persons as he or she considers necessary in the circumstances.

9—Amendment of section 9—Marking graffiti

(1) Section 9(3)—delete subsection (3) and substitute:

(3) Where a court finds a person guilty of an offence against this section—

(a) the court must order that the person pay to the owner or occupier of the property in relation to which the offence was committed such compensation as the court thinks fit; and

(b) if the court is satisfied that a suitable program exists for the removal or obliteration, under the supervision of an appropriate authority, of graffiti on any property and that it will be reasonably practicable for the person to participate in that program the court must order that the person participate in that program (and, in doing so, comply with all reasonable directions of the appropriate authority); and

(c) the court must order that the person be disqualified from holding or obtaining a driver's licence for a period being no less than 1 month but not exceeding 6 months.

(4) In relation to the disqualification prescribed by subsection (3)(c)—

(a) the disqualification cannot be reduced or mitigated in any way or be substituted by any other penalty or sentence unless, in the case of a first offence, the court is satisfied, by evidence given on oath, that the offence is trifling, in which case it may order a period of disqualification that is less than the prescribed minimum period but not less than 1 month; and

(b) if the person is the holder of a driver's licence—the disqualification operates to cancel the licence as from the commencement of the period of disqualification.

(2) Section 9(4)—delete "subsection (3)(a)" and substitute:

subsection (3)(b)

10—Amendment of section 10—Carrying graffiti implement

Section 10—after subsection (1) insert:

(1a) A person who, without reasonable excuse and during the prescribed period, carries a graffiti implement of a prescribed class in a prescribed area is guilty of an offence.

Maximum penalty: $1 250.

Expiation fee: $160

11—Insertion of section 8A

After section 8 insert:

8A—Power to search for graffiti implement in prescribed area at prescribed time

(1) A police officer may ask a person who is located in a prescribed area within the prescribed time questions to determine the person's—

(a) personal details; and

(b) reason for being in the prescribed area within the prescribed time.

(2) A police officer may stop, search and detain a person and that person's vehicle if that person—

(a) refuses or fails, without reasonable excuse, to answer a question under subsection (1); or

(b) gives an answer to a question under subsection (1) that —

(i) the police officer reasonably suspects is false; or

(ii) in the opinion of the police officer shows that the person does not have reasonable excuse for being in the prescribed area within the prescribed time.

(3) A person who—

(a) refuses or fails, without reasonable excuse, to answer a question under subsection (1); or

(b) in response to a question under subsection (1) gives an answer that is false or misleading in a material particular,

is guilty of an offence.

Maximum penalty: $1 250 or imprisonment for 3 months.

(4) A police officer who has asked a person a question under this section is required to comply with a request to identify himself or herself, by—

(a) producing his or her police identification; or

(b) stating orally or in writing his or her surname, rank and identification number.

12—Insertion of section 13AA

Before section 13 insert:

13AA—Register of offenders

(1) The Commissioner of Police may establish and maintain a register of registrable offenders.

(2) The register is to contain the following information in respect of each registrable offender:

(a) the registrable offender's name and other identifying particulars;

(b) details of each offence under Part 3 of which the registrable offender has been found guilty;

(c) the date on which the registrable offender was sentenced for any offence under Part 3;

(d) any other information that the Commissioner of Police considers appropriate to include in the register.

(3) The register is to be made available for inspection only to those persons that are prescribed by regulation.

(4) For the purposes of this section a person convicted of an offence under Part 3 is a registrable offender.

Schedule 1—Related Amendments

Part 1—Preliminary

1—Amendment provisions

In this Schedule, a provision under a heading referring to the amendment of a specified Act amends the Act so specified.

Part 2—Amendment of Criminal Law Consolidation Act 1935

2—Insertion of section 85AA

After section 85 insert:

85AA—Special provisions relating to graffiti

(1) If a person is dealt with by a court for an offence under section 85 and the conduct alleged to constitute the offence consists of, or includes, the marking of graffiti, the following provisions apply:

(a) the court must, for statistical purposes, record the fact that the conduct alleged consisted of, or included, the marking of graffiti;

(b) if the court finds the person guilty of the offence—

(i) the court must order that the person pay to the owner or occupier of the property in relation to which the offence was committed such compensation as the court thinks fit; and

(ii) if the court is satisfied that a suitable program exists for the removal or obliteration, under the supervision of an appropriate authority, of graffiti on any property and that it will be reasonably practicable for the person to participate in that program the court must order that the person participate in that program (and, in doing so, comply with all reasonable directions of the appropriate authority).

(2) An order under subsection (1)(b)(ii) may be enforced as if it were an order requiring the performance of community service (and in any enforcement proceedings the court may exercise any power that it could exercise in relation to an order requiring the performance of community service).

(3) In this section—

appropriate authority means a State or local government authority.

 


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