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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 2012
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
3A
3AExtra-territorial
operation
6Substitution of heading to Part 2
7Amendment of section 4—Graffiti
implements to be secured
8Substitution of section
5
5Sale or supply of
graffiti implements to minors
9Amendment of section
6—Notice to be displayed
10Insertion of section
6A
6AAdvertising graffiti
implements for sale
11Amendment of section 9—Marking
graffiti
12Amendment of section 10—Carrying
graffiti implement
13Insertion of sections 10A to
10C
10ACourt may make orders in
relation to driver's licences
10BDuty to produce driver's licence at
court
10CSeizure of
prescribed graffiti implement
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Graffiti Control (Miscellaneous) Amendment
Act 2012.
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 council
insert:
driver's licence means a licence under the Motor
Vehicles Act 1959 and includes a learner's permit;
(2) Section 3, definition of graffiti
implement—delete the definition and substitute:
graffiti implement means an implement of a kind prescribed by
regulation;
After section 3 insert:
3A—Extra-territorial operation
It is the intention of the Parliament that this Act apply within the State
and outside the State to the full extent of the extra-territorial legislative
capacity of the Parliament.
6—Substitution
of heading to Part 2
Heading to Part 2—delete the heading and substitute:
Part 2—Sale and supply of graffiti
implements
7—Amendment
of section 4—Graffiti implements to be secured
(1) Section 4(1)—delete "cans of spray paint" and
substitute:
graffiti implements
(2) Section 4(1)—delete "such cans" and substitute:
such implements
(3) Section 4(1)—delete "the cans" and substitute:
the implements
(4) Section 4(1), penalty provision—delete the penalty
provision and substitute:
Maximum Penalty: $2 500.
Expiation fee: $210.
(5) Section 4(2)—delete "cans of spray paint" and
substitute:
graffiti implements
Section 5—delete the section and substitute:
5—Sale or supply of graffiti implements to
minors
(1) A person must not
sell a graffiti implement to a minor.
Maximum penalty: $5 000.
(2) A person must not
supply to a minor a graffiti implement of a class prescribed for the purposes of
this subsection.
Maximum penalty: $2 500.
(3) It is a defence to a charge of an offence against
subsection (1) or
(2) to prove
that—
(a) the defendant, or a person acting on behalf of the defendant, required
the minor to produce evidence of age; and
(b) the minor made a false statement, or produced false evidence, in
response to that requirement; and
(c) in consequence the defendant reasonably assumed that, at the time of
the sale, the minor was of or over the age of 18 years.
(4) It is a defence to a charge of an offence against
subsection (2) to
prove that the defendant believed on reasonable grounds that the minor intended
to use the graffiti implement for a lawful purpose.
(5) In this section—
lawful purpose means—
(a) the lawful pursuit of an occupation, education or training;
or
(b) any artistic activity that does not constitute an offence against this
or any other Act; or
(c) any construction, renovation, restoration or maintenance activity that
does not constitute an offence against this or any other Act; or
(d) any other purpose prescribed by regulation.
9—Amendment
of section 6—Notice to be displayed
(1) Section 6(1) and (2)—delete subsections (1)
and (2) and substitute:
(1) A notice that
complies with the requirements prescribed by the regulations must be displayed
in a prominent position in premises from which graffiti implements are
sold.
(2) Section 6(3)—delete "cans of spray paint" and
substitute:
graffiti implements
After section 6 insert:
6A—Advertising graffiti implements for
sale
A person who advertises a graffiti implement for sale in a way that is
likely to encourage or promote unlawful graffiti is guilty of an
offence.
Maximum penalty: $5 000.
11—Amendment
of section 9—Marking graffiti
(1) Section 9(1), penalty provision—delete the penalty
provision and substitute:
Maximum Penalty: $5 000 or imprisonment for 12 months.
(2) Section 9—after subsection (1) insert:
(1a) A person who marks graffiti—
(a) within a cemetery; or
(b) on or within a public memorial; or
(c) on or within a place of public worship or religious
practice,
is guilty of an offence.
Maximum penalty: $7 500 or 18 months imprisonment.
(3) Section 9(3)—delete subsection (3) and
substitute:
(3) A court finding a
person guilty of a prescribed graffiti offence must—
(a) 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—order that the person participate in
that program (and, in doing so, comply with all reasonable directions of the
appropriate authority); or
(b) in any other case—order that the person pay such compensation as
the court thinks fit to the owner or occupier of the property in relation to
which the offence was committed.
(3a) A court finding a person guilty of a prescribed graffiti offence may,
in addition to making an order under
subsection (3),
in relation to an offence where the damage consists of—
(a) graffiti that is visible from a public place; or
(b) graffiti on public property,
order that the person pay to any person who has removed or obliterated the
graffiti, or caused the graffiti to be removed or obliterated, a reasonable
amount for the removal or obliteration.
(4) Section 9(5)—after the definition of appropriate
authority insert:
prescribed graffiti offence means—
(a) an offence against this section; or
(b) an offence against section 85 of the Criminal
Law Consolidation Act 1935 where the conduct constituting the
offence consists of, or includes, the marking of graffiti;
public memorial means a statue, structure or other property
which is situated in a public place in honour, or in the memory, of a person or
class of persons (whether alive or deceased);
public property means property owned by, vested in, or under
the control or management of—
(a) the Crown, or an agent or instrumentality of the Crown; or
(b) a body corporate established by an Act; or
(c) a council within the meaning of the Local
Government Act 1999.
12—Amendment
of section 10—Carrying graffiti implement
(1) Section 10(1)(a)—delete "a graffiti implement" and
substitute:
an implement
(2) Section 10(1)(b)—delete "prescribed class" and
substitute:
class prescribed for the purposes of this paragraph
(3) Section 10(1), penalty provision—delete the penalty
provision and substitute:
Maximum Penalty: $5 000 or imprisonment for 12 months.
(4) Section 10(2)—delete subsection (2)
13—Insertion
of sections 10A to 10C
After section 10 insert:
10A—Court may make orders in relation to driver's
licences
(1) A court finding a
person guilty of a prescribed graffiti offence that is not a first offence may,
in addition to making any other order under this Part, order that the person be
disqualified from holding or obtaining a driver's licence for a period (of whole
months only) being not less than 1 month but not exceeding
6 months.
(2) The disqualification prescribed by
subsection (1)
cannot be reduced or mitigated in any way or be substituted by any other penalty
or sentence.
(3) In determining whether an offence is a first offence for the purposes
of
subsection (1), any
previous offence against—
(a) this Part; or
(b) section 85 of the Criminal
Law Consolidation Act 1935 where the conduct constituting the
offence consists of, or includes, the marking of graffiti,
for which the defendant has been convicted will be taken into account
whether or not the offence is committed before or after the commencement of this
section.
(4) In this section—
prescribed graffiti offence means—
(a) any offence against this Part; or
(b) an offence against section 85 of the Criminal
Law Consolidation Act 1935 where the conduct constituting the
offence consists of, or includes, the marking of graffiti.
10B—Duty to produce driver's licence at
court
(1) A person who holds
a driver's licence and is charged with a prescribed graffiti offence that is not
a first offence, must, if so required by the court, a police officer or the
Registrar, produce his or her driver's licence to the court at the time of the
hearing of the charge.
Maximum penalty: $1 250.
(2) It is a defence to a charge under this section to prove that the
defendant had a reasonable excuse for not producing the driver's
licence.
(3) In determining whether an offence is a first offence for the purposes
of
subsection (1), any
previous offence against—
(a) this Part; or
(b) section 85 of the Criminal
Law Consolidation Act 1935 where the conduct constituting the
offence consists of, or includes, the marking of graffiti,
for which the defendant has been convicted will be taken into account
whether or not the offence is committed before or after the commencement of this
section.
(4) In this section—
prescribed graffiti offence means—
(a) any offence against this Part; or
(b) an offence against section 85 of the Criminal
Law Consolidation Act 1935 where the conduct constituting the
offence consists of, or includes, the marking of graffiti.
10C—Seizure of prescribed graffiti
implement
(1) A police officer may seize a graffiti implement of a class prescribed
for the purposes of this section that is in the possession of a person in a
public place, if the police officer reasonably suspects that the implement has
been or may be used in contravention of this Act.
(2) A graffiti implement may be seized from a person under this section
whether or not the person has been or is to be charged with an offence under
this Act.
(3) The regulations may
set out procedures relating to—
(a) the seizure of a graffiti implement; and
(b) the circumstances in which such a graffiti implement may
be—
(i) returned to any person; or
(ii) forfeited to the Crown.