Legislation pertaining to graffiti

The Graffiti Control Act 2008 (the Act) received Royal Assent on 3 December 2008. It consolidates past graffiti legislation into a specific Act that deals solely with graffiti vandalism. This fact sheet outlines the majority of the clauses contained in the Act however more information is contained in the Act itself and associated Graffiti Control Regulation 2009.

Grafitti related offences

Damaging or defacing property by means of a graffiti implement may attract a penalty of up to 20 penalty units (the offender is liable to a maximum fine of $2,200*) or 6 months imprisonment under Section 4 of the Act. This replaces section 10A of the Summary Offences Act 1988. There are also stringent penalties in the Crimes Act 1900 to deal with graffiti crime. Section 195 of the Crimes Act 1900 provides for up to 5 years imprisonment for maliciously damaging property.

Possessing a graffiti implement with the intention to damage or deface property may attract a fine of up to 10 penalty units (the offender is liable to a maximum fine of $1,100*) or 3 months imprisonment under Section 5 of the Act. The Act also expands the definition of graffiti implements so that it includes spray paint, any marker pen and other implements designed or modified to produce a mark.

Bill posting and other marking offences may attract a fine of up to 4 penalty units (the offender is liable to a maximum fine of $440*) under Section 6 of the Act.

Sale and confiscation of spray paint cans

The Act enables penalty notices to be issued for the offence of selling spray paint cans to minors and for the offence relating to the unsecured display by retailers of spray paint cans.

Section 7 provides for fines up to 10 penalty units (the offender is liable to a maximum fine of $1,100*) for the sale of spray paint cans to persons under the age of 18 years. This provision was previously contained in section 10D of the Summary Offences Act.

Section 8 requires retailers to properly secure spray paint displays to prevent customer access without assistance and provides for fines up to 10 penalty units (the offender is liable to a maximum fine of $1,100*) for non-compliance. This provision was previously contained in section 10D of the Summary Offences Act.

Section 16 provides for authorised officers to issue penalty notices for breaches of Section 7 and Section 8. The Regulations specify that authorised officers may issue a penalty notice for $550. Retailers may pay this amount within the date specified by the penalty notice to avoid court proceedings.

Section 9 gives police officers power to remove spray paint cans from a person under the age of 18 years in a public place unless the person satisfies the officer that the can is for a purpose that is not unlawful. This provision was previously contained in section 10E of the Summary Offences Act.

Graffiti removal work by councils

Section 12 empowers local councils to remove graffiti on private property without the owner or occupier’s consent if the graffiti is visible from a public place. Removal without consent must be carried out from public land at the council’s own expense. This replicates and replaces the scheme previously set out under sections 67A-67C of the Local Government Act 1993 for the carrying out of graffiti removal work by local councils.

Under the scheme a local council may remove graffiti from a property by agreement with the property owner or occupier.

If graffiti is visible from a public place, a local council may remove graffiti from the property without the agreement of the property owner or occupier. Such graffiti removal is at the cost of the local council and may only be carried out from a public place. The local council removing the graffiti must, within a reasonable period, give the property owner or occupier written notice of the removal work.

When carrying out graffiti removal a local council must keep a register of the work. The register must include specific details about who owns/occupies the property vandalised by graffiti, the nature of the work carried out, the actual cost (or an estimate) of the graffiti removal and, if any charge is levied, the actual amount charged by the council for removing the graffiti.

The Children (Community Services Orders) Act 1987

Where a young person commits an offence involving graffiti vandalism and that young person appears before the Children’s Court, the Court is able to make an Order under section 5 of the Children (Community Services Orders) Act 1987 requiring the young person to perform community service work. The Order may also require the young person to:

• remove graffiti vandalism from buildings, vehicles, vessels and places and
• restore the appearance of buildings, vehicles, vessels and places after removal of the graffiti vandalism.