Summary Offences (Tagging and Graffiti Vandalism) Amendment Bill

Transcription

1 Summary Offences (Tagging and Graffiti Vandalism) Amendment Bill Government Bill 2008 No Explanatory note General policy statement The Government's anti-tagging strategy, known as Stop Tagging Our Place (STOP) provides a nation-wide approach to addressing graffiti vandalism and tagging. The strategy includes a range of legislative, strategic and operational responses. Graffiti vandalism is a serious problem that affects the entire country, and has a considerable impact on our public spaces. Research suggests that graffiti vandalism can create the perception in the public that "tagged" areas are unsafe, and can contribute to the deterioration of the quality of life in certain neighbourhoods. The Bill amends the Summary Offences Act The policy objectives of the Bill are to reduce graffiti vandalism and tagging by: Creating a specific offence for graffiti vandalism, tagging and defacing; Limiting the sale of spraycans to those 18 years or over; Requiring that spraycans must be kept securely so that members of the public cannot gain access to them without the help of an employee; and 199-1

2 2 Vandalism) Amendment Bill Explanatory note Giving judges the option in sentencing of a community sentence to provide an opportunity for offenders to "right their wrong" and clean graffiti vandalism and tagging from their local community. Clause by clause analysis Clause 1 states the Bill's title. Clause 2 provides that clause 6 (which inserts the new section 14B) comes into force 3 months after assent: the rest of the Bill comes into force on assent. Clause 3 provides that the Bill amends the Summary Offences Act Part 1 Graffiti vandalism Clause 4 inserts into the principal Act a new section 11A, which makes it an offence to write, draw, paint, spray, or etch on, or otherwise mark, any building, structure, road, tree, property, or other thing without lawful authority or the consent of the occupier or owner or other person in lawful control. The penalty is a community-based sentence, a fine of up to $2,000, or both. Section 33 of the principal Act, which at present creates offences in relation to both billsticking and graffiti, is consequentially amended so that it applies to billsticking only. Part 2 Spraycans Clause 5 inserts into the principal Act a new heading, and new section 14A, which prohibits the sale of spraycans to people under 18. A person who sells a spraycan to a person under 18 commits an offence, the penalty for which is a fine of up to $1,500. There are 2 defences.

3 Explanatory note Vandalism) Amendment Bill 3 It is a defence if the defendant is a school Board, the governing body of a tertiary education provider, or an employee of a Board or provider; and the buyer was enrolled at a school or institution managed by the Board or provider; and the spraycan was sold to the buyer to enable him or her to undertake the work of his or her course at the school or institution, or to complete an assignment or project for the school or institution. It is also a defence if the defendant proves that the buyer showed the defendant a document seeming to be an evidence of age document; and the defendant believed on reasonable grounds that the document was in fact an evidence of age document, related to the buyer, and indicated that the buyer was 18 or older. An evidence of age document is a New Zealand passport, an overseas passport, a New Zealand driver licence, or a document of the kind described in section 2A(2)(d) of the Sale of Liquor Act 1989, that contains a photograph of the person it is issued to and information enabling the person's age to be determined. Section 2(1) of the principal Act is consequentially amended by inserting a definition of spraycan. For the purposes of the principal Act, a spraycan is a container that contains paint, dye, ink, or some other pigment; and is so designed that the pigment can be propelled from it. Clause 6 (which comes into force 3 months after assent) inserts into the principal Act a new section 14B, which requires the occupiers of shops to keep spraycans secured so that members of the public cannot obtain possession of them without the help of the occupier, or an agent or employee of the occupier. An occupier who fails to do so commits an offence, and is liable to a fine of up to $1,500. Section 2(1) of the principal Act is consequentially amended by inserting a definition of shop.

4 4 Vandalism) Amendment Bill Explanatory note Regulatory impact statement Adequacy statement This regulatory impact statement has been reviewed within the Ministry of Justice. Status quo and problem Graffiti is a serious problem that affects the entire country, and has a considerable impact on our public spaces. Research suggests that graffiti can create the perception in the public that "tagged" areas are unsafe and can contribute to the deterioration of the quality of life in certain neighbourhoods. Although there are no provisions in the current law that specifically refer to "marking graffiti" as an offence, acts of this kind are covered by sections 11 (wilful damage) and 33 (bill sticking and defacing) of the Summary Offences Act 1981, and section 269(2)(a) (intentional damage) of the Crimes Act As a response to the belief that the current legislation is ineffective in preventing graffiti the Manukau City Council (Control of Graffiti) Bill, a local Bill developed in response to the growing graffiti problem in Manukau, was introduced. It is acknowledged that graffiti vandalism is a nation-wide problem and as such the Government believes that a national strategy is required to tackle this issue, and as such, a local Bill would not address this. Thus there is a need for appropriate central Government action on the issue. Objectives The Ministry of Justice has developed the core content of an antitagging strategy, known as Stop Tagging Our Place (STOP) which provides a nation-wide approach to addressing graffiti vandalism and tagging. The strategy includes a range of legislative, strategic and operational responses. The policy objectives of the legislation are to reduce graffiti by: Creating a specific offence for graffiti vandalism, in which the punishment can involve offenders cleaning up their graffiti; Limiting the sale of spraycans to those over 18 and having suitable identification;

5 Explanatory note Vandalism) Amendment Bill 5 To specify that spraycans must be kept securely so that members of the public cannot gain access to them without the help of an employee; and Give judges the option in sentencing of a community sentence to provide an opportunity for offenders to 'right their wrong' and clean graffiti from their local community. Alternative options Status quo The first option is to maintain the status quo, in that, graffiti vandalism would be covered by sections 11 and 33 of the Summary Offences Act and section 269 of the Crimes Act. The sale of spraycans would remain open to people of all ages. The status quo is not preferred because, while it makes graffiti an offence, the legislation is seen as out of date and ineffective for preventing graffiti. In addition, an option of a community sentence is not available for offences under section 33 of the Summary Offences Act. Manukau City Council (Control of Graffiti) Bill This local Bill proposes that: Sales of spraycans to those under 18 be prohibited; Spraycans must be secured from the public; Shops are required to display a notice that they will not sell spraycans to minors, and failure to display the notice carries a maximum fine of $500; An offence of "marking graffiti" be created with a penalty of a fine up to $2,500; An offence of carrying a graffiti implement be created with a penalty of a fine up to $1,500; and The council has the power to remove graffiti and can enter private property to do so, without requiring permission. This option is not preferred for a number of reasons, firstly, because it is geographically limited to Manukau City which prompts issues of enforcement and effectiveness. Second, it does not have the option of a community sentence to provide an opportunity for offenders to "right their wrong" and clean graffiti from their local community.

6 6 Vandalism) Amendment Bill Explanatory note Preferred option The STOP strategy proposes amendments to national legislation including: the establishment of a specific graffiti vandalism and tagging offence in the Summary Offences Act, with increased sentences (from the current $200 fine to a $2000 fine or a community-based sentence, or both). The new sentence option will allow offenders to take part in graffiti cleaning work groups as part of their punishment. In addition, the proposed amendments will restrict the sale of spray paints to minors below the ages of 18 and will require retailers to display spraycans where they remain in the control of the shop keeper, thus limiting unauthorised access and theft. A fine of up to $1,500 will be imposed for the sale of spraycans to a minor and failing to securely store spraycans. Benefits The benefit of a specific offence for graffiti and a national standard for the restriction of sale to persons under 18 year of age will be to address the availability of the current primary implement for graffiti vandalism and to reduce the numbers of young persons entering the graffiti culture. Graffiti vandalism currently costs local government bodies, such as Manukau City Council, in excess of 1 million dollars per year per region. Costs The Department of Corrections has received $105,000 to fund three graffiti work parties, one in each of the Department of Corrections' regions (POL Min (07) 12/13 Refers). Any expansion of this initiative would require that: Local authorities meet all costs associated with graffiti removal (training of offenders, equipment, materials etc): Any additional supervision costs (due to the smaller work party size required for this initiative) will have to be funded. There is not expected to be significant compliance costs for retailers who sell spray paint. However, there will be an initial compliance cost for retailers who currently store spraycans in publicly assessable areas for their premises.

7 Explanatory note Vandalism) Amendment Bill 7 Consultation The Ministry of Justice has consulted with the Department of Corrections, Police and the Department of Labour.

8 Hon Annette King Summary Offences (Tagging and Graffiti Vandalism) Amendment Bill Government Bill Contents Page 1 Title 2 2 Commencement 2 3 Principal Act amended 2 Part 1 Graffiti vandalism 4 New section 11A inserted 2 11A Graffiti vandalism, tagging, defacing, etc 2 Part 2 Spraycans 5 New heading and section 14A inserted 2 Spraycans 14A Sale of spraycans to people under 18 prohibited 3 6 New section 14B inserted 4 14B Spraycans in shops to be secured

9 cl 1 Summary Offences (Tagging and Graffiti Vandalism) Amendment Bill The Parliament of New Zealand enacts as follows: 1 Title This Act is the Summary Offences (Tagging and Graffiti Vandalism) Amendment Act Commencement (1) Section 6 comes into force on the day 3 months after the date on which this Act receives the Royal assent. (2) The rest of this Act comes into force on the day after the date on which it receives the Royal assent. 3 Principal Act amended This Act amends the Summary Offences Act Part 1 Graffiti vandalism 4 New section 11A inserted (1) The following section is inserted after section 11: 15 "11A Graffiti vandalism, tagging, defacing, etc Every person is liable to a community-based sentence (within the meaning of section 4(1) of the Sentencing Act 2002) or a fine not exceeding $2,000, or to both, who writes, draws, paints, sprays, or etches on, or otherwise marks, any building, 20 structure, road, tree, property, or other thing "(a) without lawful authority; and "(b) without the consent of the occupier or owner or other person in lawful control." (2) Section 33 is consequentially amended by 25 (a) omitting ", defacing, etc." from the heading; and (b) repealing paragraph (b). Part 2 Spraycans 5 New heading and section 14A inserted 30 (1) The following heading and section are inserted after section 14: 2

10 Vandalism) Amendment Bill Part 2 cl 5 "Spraycans "14A Sale of spraycans to people under 18 prohibited "(1) Every person commits an offence who sells a spraycan to a person under the age of 18 years. "(2) A person who commits an offence against subsection (1) is 5 liable on summary conviction to a fine not exceeding $1,500. "(3) In any proceedings for an offence against subsection (1) in respect of selling a spraycan to a person (the buyer), it is a defence if the defendant proves that "(a) the defendant is 10 "(i) a Board (within the meaning of section 2(1) of the Education Act 1989), or an employee of a Board; "(ii) or the governing body of a tertiary education provider (within the meaning of section 159(1) 15 of the Education Act 1989), or an employee of a tertiary education provider; and "(b) when the spraycan was sold, the buyer was enrolled at a school or institution managed by the Board or tertiary education provider; and 20 "(c) the spraycan was sold to the buyer to enable him or her to undertake the work of his or her course at the school or institution, or to complete an assignment or project for the school or institution. "(4) In any proceedings for an offence against subsection (1) in 25 respect of selling a spraycan to a person (the buyer), it is a defence if the defendant proves that, "(a) before or at the time of the sale of the spraycan, there was produced to the defendant a document purporting to be an evidence of age document; and 30 "(b) the defendant believed on reasonable grounds that the document- "(i) was in fact an evidence of age document; and "(ii) related to the buyer; and "(iii) indicated that the buyer was of or over the age of years. "(5) For the purposes of subsection (4), evidence of age document means a document that- 3

11 Part 2 c16 Summary Offences (Tagging and Graffiti Vandalism) Amendment Bill "(a) contains "O) a photograph of the person to whom it is issued; and "(ii) information enabling the person's age to be determined; and 5 "(b) is- "(i) a New Zealand passport; or "(ii) an overseas passport; or "(iii) a driver licence issued under the Land Transport Act 1998; or 10 "(iv) a document of the kind described in section 2A(2)(d) of the Sale of Liquor Act 1989." (2) Section 2(1) is amended by inserting the following definition after the definition of serious drug offence: "spraycan means a container (made of any material or mater- 15 ials) that "(a) "(b) contains paint, dye, ink, or some other pigment; and is so designed that the pigment it contains can be propelled from it (whether by a compressed or liquefied gas, or by mechanical means)" New section 14B inserted (1) The following section is inserted after section 14A (as inserted by section 6): "14B Spraycans in shops to be secured "(1) This subsection applies to a spraycan if 25 "(a) it is kept for sale in a part of a shop to which members of the public have access; and "(b) it is not- "(i) under the physical control of the occupier of the "(ii) shop, or an agent or employee of the occupier; or 30 under the physical control of a potential buyer who is being directly supervised by the occupier of the shop, or an agent or employee of the occupier; and "(c) the shop is open to the public. 35 "(2) The occupier of a shop must ensure that every spraycan in the shop to which subsection (1) applies is kept secured so that members of the public cannot obtain possession of it without 4

12 Vandalism) Amendment Bill Part 2 cl 6 the help of the occupier, or an agent or employee of the occupier. "(3) The occupier of a shop who fails or refuses to comply with subsection (2) commits an offence, and is liable on summary conviction to a fine not exceeding $1,500." 5 (2) Section 2(1) is amended by inserting the following definition after the definition of serious drug offence: "shop means a building, place, or part of a building or place, where goods are sold 'by retail, or kept or offered for sale by retail; and 10 "(a) includes- "(i) "(ii) an auction mart; and a barrow, stall, or other subdivision of a market; but "(b) does not include a building, place, or part of a building 15 or place, where the only business carried on is that of selling goods to people who are dealers, and buy the goods to sell them again". Wellington, New Zealand: Published under the authority of the New Zealand Government