Recommendation

The Law and Order Committee has examined the Summary Offences (Tagging and Graffiti Vandalism) Amendment Bill and recommends that it be passed with the amendments shown.

Introduction

This bill seeks to amend the Summary Offences Act 1981. It creates a specific offence for graffiti vandalism, makes it illegal to sell spraycans to people under 18 years of age, and compels shops that sell spraycans to restrict access to them. We do not expect this bill alone to solve the problem of tagging and graffiti, and consider that this legislation would be successful if it were used in conjunction with strategic and operational responses from a variety of agencies. We do not consider that any of the recommended new clauses in this bill would prevent the prosecution of graffiti vandals under other provisions of the Summary Offences Act or under any other legislation.

This commentary focuses on recommendations for significant changes, and does not cover minor changes of a technical nature.

Charges

We recommend the amendment of new clause 4 to ensure that the availability of charges under the proposed offence of graffiti vandalism would not limit or diminish the Police’s ability to charge offenders under other provisions of the Summary Offences Act or other legislation for more serious damage by tagging and graffiti. This bill amends section 33 (bill sticking and defacing) of the Summary Offences Act and establishes a new graffiti vandalism offence. At present, in addition to section 33, an offender can be charged under section 11 (wilful damage) of the Summary Offences Act and section 269 (intentional damage) of the Crimes Act 1961. The penalties for these offences are stronger than those proposed in this bill. We consider the provisions in this bill address minor offending, leaving persistent offending and serious offending to be dealt with by other provisions in legislation.

Possession of graffiti implements

As introduced this bill does not include any offences for the possession of implements that could be used for creating graffiti. We consider that including possession as an offence would provide police with another tool for preventing this type of vandalism.

In clause 4, we propose the insertion of a new section 11B which would make it an offence to possess implements that could be used for graffiti vandalism. If a person did not have a reasonable excuse for having these implements and if it could be inferred that the intention was to illegally inscribe graffiti, it would be possible to charge him or her with a possesory offence. We also recommend that judges have discretion as to whether the offender should pay a fine of up to $500 or complete a community work sentence or both.

Supply of graffiti implements

We considered recommending that a new section be included to deal with the supply of graffiti implements. Some submitters were concerned that a person over 18 years old may irresponsibly supply a person under 18 with spraycans or other means to commit graffiti vandalism. However, we did not want to criminalise unintentionally people supplying spraycans to people who then used them for legal purposes. We are satisfied that a person could be charged as a party to defacing or wilful damage if they supplied graffiti implements under the Summary Offences Act 1981 in certain circumstances.

Restricted access to spraycans in shops

We understand that clause 6 of the bill, which inserts new section 14B into the Act to control the way spraycans are stored in shops, has caused some confusion. As introduced, the bill provides that spraycans must be “secured”, which has been interpreted by some as a requirement that spraycans be kept in locked cabinets in shops. To avoid this interpretation we recommend an amendment to indicate that access to spraycans in shops should be restricted. We consider this amendment will be sufficient to make it clear that the occupier of a shop would be required to keep spraycans where the public could not access them without help from a staff member.

New Zealand National remains concerned about the practicalities of the implementation of this new section.

Enforcement

The bill as drafted does not assign the enforcement of retailers’ compliance with the bill to any particular agency. Whilst we realise this is consistent with the rest of the Summary Offences Act, we are concerned that this could mean that no agency would take responsibility for enforcement. We expect that the Police and territorial local authorities will undertake different but complementary roles to enforce these provisions. We anticipate that territorial local authorities would do most of the checking of retailers for compliance. We expect that the Police would be involved in enforcement if particular retailers repeatedly offended. We consider it very important that both the Police and territorial local authorities should work together and take responsibility for ensuring that retailers comply with the bill.