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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Graffiti Control (Miscellaneous) Amendment
Bill 2011
A BILL FOR
An Act to amend the Graffiti
Control Act 2001.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of Graffiti Control
Act 2001
4Amendment of section
3—Interpretation
5Insertion of section
4AA
4AALicence to sell spray
cans
6Substitution of section
5
5Sale or supply of cans of
spray paint to minors
5APurchaser must produce
identification
5BRecords of
transactions
7Amendment of section 6—Notice to be
displayed
8Amendment of section 7—Appointment
and powers of authorised persons
9Insertion of section
8A
8APower to search for
graffiti implement in prescribed area at prescribed time
10Amendment of section 9—Marking
graffiti
11Amendment of section 10—Carrying
graffiti implement
12Insertion of section
13AA
13AARegister of
offenders
Schedule 1—Related amendments to the
Criminal Law Consolidation Act 1935
1Insertion of
section 85AA
85AASpecial provisions relating to
graffiti
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Graffiti Control (Miscellaneous) Amendment
Act 2011.
This Act will come into operation on a day to be fixed by
proclamation.
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 a can containing a substance
commonly referred to as tyre black and used for the purpose of
coating the outside surface of tyres;
(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 at which the person is living; and
(d) the address at which 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;
Before section 4 insert:
4AA—Licence 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.
Section 5—delete the section and substitute:
5—Sale or supply of cans of spray paint to
minors
(1) A person must
not sell or supply a can of spray paint to a minor.
Maximum penalty: $1 250.
(2) It is a defence to a charge of an offence against
subsection (1)
to prove that—
(a) in the case of the sale of a can of spray paint to a
minor—
(i) the defendant, or a person acting on behalf of the defendant, required
the minor to produce evidence of age; and
(ii) the minor made a false statement, or produced false evidence, in
response to that requirement; and
(iii) in consequence the defendant reasonably assumed that, at the time of
the sale, the minor was of or over the age of 18 years;
(b) in the case of the supply of a can of spray paint to a
minor—
(i) the defendant had reasonable cause to believe that, at the time of the
supply, the minor was of or above the age of 18 years; or
(ii) the supply of the can of spray paint was made in prescribed
circumstances and for a lawful purpose.
(3) In this section—
prescribed circumstances, in relation to supply of a can of
spray paint to a minor, means—
(a) supply by a parent or guardian of the minor;
(b) supply for the purposes of the minor's employment, education or
training;
(c) supply in any other circumstance prescribed by regulation.
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.
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.
10—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.
(3a) 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; 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)
11—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.
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 convicted;
(c) the date on which the registrable offender was sentenced for each
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 to the Criminal Law Consolidation
Act 1935
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); and
(iii) 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.
(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 relation to the disqualification prescribed by
subsection (1)(b)(iii)—
(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; 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.
(4) In this section—
appropriate authority means a State or local government
authority.