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This is a Bill, not an Act. For current law, see the Acts databases.
Graffiti Legislation Amendment
Bill 2011
No , 2011
A Bill for
An Act to amend the Graffiti Control Act 2008 and other Acts to make further
provision with respect to the punishment of graffiti offences and removal or
obliteration of graffiti; and for other purposes.
Clause 1 Graffiti Legislation Amendment Bill 2011
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Graffiti Legislation Amendment Act 2011. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
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Graffiti Legislation Amendment Bill 2011
Amendment of Acts and Regulation Schedule 1
Schedule 1 Amendment of Acts and Regulation 1
1.1 Children (Community Service Orders) Act 1987 No 56 2
[1] Section 3 Definitions 3
Insert in alphabetical order in section 3 (1): 4
graffiti offence means an offence under the Graffiti Control Act 5
2008. 6
[2] Section 5 Making of children's community service orders 7
Insert "in respect of a person who has pleaded guilty to, or been found guilty 8
or convicted of, an offence other than a graffiti offence" after "section" in 9
section 5 (1A). 10
[3] Section 5 (1A), note 11
Insert at the end of section 5 (1A): 12
Note. See section 11 (3) in relation to community service orders in 13
relation to graffiti offences. 14
[4] Section 11 Conditions of children's community service order 15
Insert after section 11 (2): 16
(3) Except as provided by subsection (4), a community service order 17
in respect of a person who has pleaded guilty to, or been found 18
guilty or convicted of, a graffiti offence must impose a graffiti 19
clean up condition. 20
Note. See also section 79 of the Fines Act 1996 for imposition of graffiti 21
clean up conditions on fine defaulters in respect of graffiti offences. 22
(4) Without limiting section 9, the court is not required to impose a 23
graffiti clean up condition if the court considers that it is not in 24
the circumstances of the case reasonably practicable for work of 25
that kind to be performed by the person. 26
(5) The court must make a record of its reasons for deciding not to 27
impose a graffiti clean up condition. 28
(6) In this section: 29
graffiti clean up condition means a condition requiring the 30
offender to perform the following kind of community service 31
work: 32
(a) the removal of graffiti from buildings, vehicles, vessels 33
and places, 34
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Graffiti Legislation Amendment Bill 2011
Schedule 1 Amendment of Acts and Regulation
(b) the restoration of the appearance of buildings, vehicles, 1
vessels and places consequent on the removal of graffiti 2
from them. 3
[5] Schedule 1 Savings and transitional provisions 4
Insert at the end of clause 1 (1): 5
Graffiti Legislation Amendment Act 2011, to the extent that it 6
amends this Act 7
[6] Schedule 1, clause 5 8
Insert after clause 4: 9
5 Provision consequent on enactment of Graffiti Legislation 10
Amendment Act 2011 11
The amendments made by the Graffiti Legislation Amendment 12
Act 2011 apply to community service orders made in relation to 13
offences committed after the commencement of the amendments. 14
1.2 Crimes (Sentencing Procedure) Act 1999 No 92 15
[1] Section 3 Interpretation 16
Insert in alphabetical order in section 3 (1): 17
graffiti offence means an offence under the Graffiti Control Act 18
2008. 19
[2] Section 90 Conditions of community service orders 20
Insert after section 90 (4): 21
(5) Except as provided by subsection (6), a community service order 22
in relation to an offender who has been found guilty of a graffiti 23
offence must impose a graffiti clean up condition. 24
(6) The court is not required to impose a graffiti clean up condition 25
if the court considers that it is not in the circumstances of the case 26
reasonably practicable for work of that kind to be performed by 27
the offender. 28
(7) The court must make a record of its reasons for deciding not to 29
impose a graffiti clean up condition. 30
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Graffiti Legislation Amendment Bill 2011
Amendment of Acts and Regulation Schedule 1
(8) In this section: 1
graffiti clean up condition means a condition requiring the 2
offender to perform community service work of the following 3
kind: 4
(a) the removal or obliteration of graffiti from buildings, 5
vehicles, vessels and places, 6
(b) the restoration of the appearance of buildings, vehicles, 7
vessels and places consequent on the removal or 8
obliteration of graffiti from them. 9
[3] Section 91 Removal of graffiti 10
Insert "in relation to an offence other than a graffiti offence" after "order". 11
[4] Schedule 2 Savings, transitional and other provisions 12
Insert at the end of clause 1 (1): 13
Graffiti Legislation Amendment Act 2011 (but only to the extent 14
that it amends this Act) 15
[5] Schedule 2, Part 22 16
Insert after Part 21: 17
Part 22 Provision consequent on enactment of 18
Graffiti Legislation Amendment Act 2011 19
63 Conditions of community service orders 20
The amendments made by the Graffiti Legislation Amendment 21
Act 2011 apply to community service orders made in relation to 22
offences committed after the commencement of the amendments. 23
1.3 Fines Act 1996 No 99 24
[1] Section 79 Making of community service order against fine defaulter 25
Insert after section 79 (6): 26
(6A) Subject to this Division, section 11 of the Children (Community 27
Service Orders) Act 1987 applies to a community service order 28
under this Act requiring a fine defaulter to perform community 29
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Graffiti Legislation Amendment Bill 2011
Schedule 1 Amendment of Acts and Regulation
service work in relation to a graffiti offence within the meaning 1
of that Act in the same way as it applies to a community service 2
order under that Act. 3
Note. Section 11 of the Children (Community Service Orders) Act 1987 4
requires a community service order to require the offender to perform 5
graffiti clean up. 6
[2] Section 79 (7) 7
Omit "subsection (6)". Insert instead "subsections (6) and (6A)". 8
1.4 Graffiti Control Act 2008 No 100 9
[1] Part 4A 10
Insert after Part 4: 11
Part 4A Alternative and additional actions to 12
imposing penalties for certain graffiti 13
offences 14
13A Definitions 15
In this Part: 16
Authority means the Roads and Traffic Authority. 17
demerit points register has the same meaning as it has in the 18
Driver Licensing Act. 19
driver licence means a driver licence within the meaning of the 20
Driver Licensing Act other than a driver licence issued under a 21
law of another State or a Territory. 22
driver licence order--see section 13C. 23
Driver Licensing Act means the Road Transport (Driver 24
Licensing) Act 1998. 25
graffiti licence order means an order under section 13C (1) (c). 26
graffiti licence order period--see section 13C (1) (c). 27
learner licence means a learner licence within the meaning of the 28
Driver Licensing Act. 29
learner licence period, in relation to a learner licence held by a 30
person, means the minimum period for which the person is 31
required by a condition imposed by the regulations under the 32
Driver Licensing Act to hold the learner licence before a 33
provisional licence may be issued. 34
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Graffiti Legislation Amendment Bill 2011
Amendment of Acts and Regulation Schedule 1
provisional licence means a provisional licence within the 1
meaning of the Driver Licensing Act other than a provisional 2
licence issued under a law of another State or a Territory. 3
provisional licence period, in relation to a provisional licence 4
held by a person, means the minimum period for which the 5
person is required, pursuant to the regulations under the Driver 6
Licensing Act, to hold the provisional licence before being 7
eligible to apply for a provisional P2 licence or an unrestricted 8
licence (as the case requires). 9
Note. The scheme under Subdivisions 1 and 2 of Division 2 of Part 3 of 10
the Road Transport (Driver Licensing) Regulation 2008 requires a 11
person to hold a provisional licence (that is, a P1 licence followed by a 12
P2 licence) for a total period of 36 months before the person can be 13
issued with an unrestricted licence. If a court takes action under this Part, 14
the total period will in effect be extended to up to 42 months. 15
unrestricted licence means a driver licence or driver licence 16
receipt issued under the Driver Licensing Act that is not a learner 17
licence or a provisional licence. 18
13B Alternative and additional actions to imposing penalty for graffiti 19
offences under sections 4 and 5 20
(1) A court may, instead of imposing a fine on a person for an offence 21
under section 4 (Damaging or defacing property by means of 22
graffiti implement) or 5 (Possession of graffiti implement), make 23
a community service order under the Crimes (Sentencing 24
Procedure) Act 1999 or the Children (Community Service 25
Orders) Act 1987 directing the person to perform community 26
service work, as the case requires. 27
Note. Community service orders made under the Acts referred to in this 28
subsection may also be made instead of imposing sentences of 29
imprisonment. Community service orders under those Acts in relation to 30
graffiti offences are generally required to be made subject to graffiti clean 31
up conditions. 32
(2) A court may, in addition to or instead of imposing a fine on a 33
person, sentencing the person to imprisonment or imposing any 34
other penalty on the person for an offence under section 4 or 5, 35
make a driver licence order. 36
Note. For example, a driver licence order might be imposed in addition 37
to graffiti clean up conditions in relation to community service orders 38
imposed instead of imprisonment for graffiti offences under the Crimes 39
(Sentencing Procedure) Act 1999 or the Children (Community Service 40
Orders) Act 1987. 41
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Graffiti Legislation Amendment Bill 2011
Schedule 1 Amendment of Acts and Regulation
13C Driver licence orders 1
(1) A court may make any of the following orders (driver licence 2
orders) under section 13B (2): 3
(a) if the person is the holder of a learner licence or 4
provisional licence--an order extending the person's 5
learner licence period or provisional licence period, 6
respectively, for a period of 6 months, or a lesser period 7
specified in the order, with effect from the day on which 8
the learner licence period or provisional licence period 9
would otherwise end, 10
(b) if the person is the holder of a driver licence of any class-- 11
an order suspending the person's licence for a period of 12
6 months, or a lesser period specified in the order, 13
commencing on the day on which the order is made, 14
(c) as an alternative to suspending an unrestricted licence for 15
a period under paragraph (b)--an order requiring the 16
person not to incur the same or more than the threshold 17
number of demerit points applying to the person under 18
section 13F for a period that is equivalent to the period for 19
which the court would have suspended the licence (the 20
graffiti licence order period). 21
(2) A court must not make an order under subsection (1) (c) if 10 or 22
more demerit points have been recorded against the person in the 23
demerit points register during the 3 year period immediately 24
before the order is made. 25
13D Orders extending learner and provisional licence periods 26
(1) The extension of a person's learner or provisional licence period 27
by an order under section 13C, in the case of a person who holds 28
more than one class of driver licence, applies only to those 29
classes of licence specified by the court. 30
(2) If, in the case of a learner licence or provisional licence that is 31
subject to an extension under section 13C, the licence is cancelled 32
at any time by operation of section 189 of the Road Transport 33
(General) Act 2005, the learner licence period or provisional 34
licence period in respect of any subsequent learner licence or 35
provisional licence that is issued to the person is extended by 36
operation of this subsection for a period that is equivalent to so 37
much of the period by which the licence was extended as 38
remained on the day the licence was cancelled. 39
(3) The period for which a person's learner licence or provisional 40
licence period may be extended by an order under section 13C 41
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Graffiti Legislation Amendment Bill 2011
Amendment of Acts and Regulation Schedule 1
does not include any period during which the person's learner 1
licence or provisional licence is suspended by the Authority 2
otherwise than on medical grounds. 3
13E Orders suspending licences 4
The suspension of a person's driver licence by an order under 5
section 13C, in the case of a person who holds more than one 6
class of driver licence, applies only to those classes of licence 7
specified by the court. 8
13F Graffiti licence orders 9
(1) A graffiti licence order made in relation to a person who is the 10
holder of an unrestricted licence must specify the threshold 11
number of demerit points to apply to the holder for the purposes 12
of the Driver Licensing Act during the graffiti licence order 13
period. 14
Note. See section 16AB of the Road Transport (Driver Licensing) Act 15
1998 with respect to licence suspension when the threshold number of 16
demerit points is incurred. 17
(2) In subsection (1), threshold number of demerit points means 18
4 demerit points or such other number of demerit points as may 19
be prescribed by the regulations. 20
13G Explanation of nature and effect of driver licence order 21
(1) A court that makes a driver licence order in respect of a person 22
must explain, or cause to be explained, to the offender (in 23
language likely to be readily understood by the person): 24
(a) the requirements to be complied with by the person under 25
the order, and 26
(b) the consequences that may follow if the person fails to 27
comply with those requirements. 28
(2) A driver licence order is not invalidated by a failure to comply 29
with this section. 30
13H Provisions relating to imposition of penalties for offences under 31
sections 4 and 5 32
(1) A court is to take into account a statement of the driving record 33
of a person in making a driver licence order in relation to a 34
licence held by the person. 35
(2) A court is to notify the Authority of the making, and terms, of any 36
driver licence order it makes under this Part as soon as practicable 37
after the order is made. 38
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Graffiti Legislation Amendment Bill 2011
Schedule 1 Amendment of Acts and Regulation
(3) If a finding of guilt, conviction or sentence in respect of an 1
offence under section 4 or 5 is quashed, annulled or set aside, any 2
driver licence order made in respect of the offence is revoked. 3
(4) A driver licence order is not invalidated by a failure to comply 4
with this section. 5
[2] Section 15 Alternative action to imposing penalty for graffiti offences 6
under sections 4 and 5 7
Omit the section. 8
[3] Schedule 1 Savings, transitional and other provisions 9
Insert at the end of clause 1 (1): 10
Graffiti Legislation Amendment Act 2011, to the extent that it 11
amends this Act 12
[4] Schedule 1, Part 4 13
Insert after Part 3: 14
Part 4 Provision consequent on enactment of 15
Graffiti Legislation Amendment Act 2011 16
4 Application of amendments 17
An amendment made to this Act by the Graffiti Legislation 18
Amendment Act 2011 that provides for the making of a driver 19
licence order in respect of an offence under this Act applies in 20
respect of an offence committed after the commencement of the 21
amendment. 22
1.5 Road Transport (Driver Licensing) Act 1998 No 99 23
[1] Section 16AB 24
Insert after section 16AA: 25
16AB Suspension of licence--graffiti licence orders 26
(1) If a person who is subject to a graffiti licence order made under 27
section 13C (1) (c) of the Graffiti Control Act 2008 incurs the 28
same or more than the threshold number of demerit points 29
applying to the person during the graffiti licence order period 30
under the order, the Authority must give the person a notice 31
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Graffiti Legislation Amendment Bill 2011
Amendment of Acts and Regulation Schedule 1
suspending all driver licences held by the person, commencing 1
on a day specified in the notice, for a period that is equivalent to 2
the graffiti licence order period. 3
Note. At the commencement of this section, section 13F (2) of the 4
Graffiti Control Act 2008 required a graffiti licence order to specify the 5
threshold number of demerit points as 4 demerit points. 6
(2) On the commencement of the period of suspension referred to in 7
subsection (1), all demerit points recorded in the demerit points 8
register against the person during the graffiti licence order period 9
at the date of the notice, and taken into account for the purpose of 10
the notice, are taken to be deleted. 11
(3) Nothing in subsection (2) affects any demerit points incurred by 12
the person before the beginning of the graffiti licence order 13
period and any such points are to be taken into account for the 14
purposes of section 16 (2) or 16A (1) from the end of the 15
suspension period. 16
(4) Nothing in subsection (2) prevents the Authority from retaining 17
records of deleted demerit points incurred by any person. 18
[2] Section 20 Driver licensing system 19
Insert after section 20 (2) (m1): 20
(m2) make provision for or with respect to driver licences the 21
subject of graffiti licence orders under the Graffiti Control 22
Act 2008, and 23
[3] Section 33A Effect of expiry of driver licence during suspension period 24
Insert "or section 13C of the Graffiti Control Act 2008" after "1999". 25
1.6 Road Transport (Driver Licensing) Regulation 2008 26
Clause 31C Authority may extend provisional licence period 27
Insert "under this clause" after "extended" in clause 31C (7). 28
1.7 Young Offenders Act 1997 No 54 29
[1] Section 4 Definitions 30
Insert in alphabetical order: 31
graffiti offence means an offence committed under the Graffiti 32
Control Act 2008. 33
[2] Section 13 Offences for which warnings may be given 34
Omit "other than an". Insert instead "other than a graffiti offence or any other". 35
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Graffiti Legislation Amendment Bill 2011
Schedule 1 Amendment of Acts and Regulation
[3] Section 18 1
Omit the section. Insert instead: 2
Division 1 Cautions by persons other than courts 3
18 Offences for which cautions may be given 4
A caution may be given for an offence covered by this Act, other 5
than a graffiti offence or any other offence prescribed by the 6
regulations for the purposes of this section. 7
Note. Section 8 sets out offences covered by this Act. Under section 31, 8
a court may give a caution for a graffiti offence. 9
[4] Part 4, Division 2, heading 10
Insert after section 30: 11
Division 2 Cautions by courts 12
[5] Section 31 Cautions by courts 13
Omit "this Part" from section 31 (1) (a). 14
Insert instead "Division 1 or is a graffiti offence". 15
[6] Part 4, Division 3, heading 16
Insert after section 31: 17
Division 3 Cautions generally 18
[7] Section 37 Entitlement to be dealt with by conference 19
Insert "(other than a graffiti offence)" after "offence" in section 37 (1). 20
[8] Section 38 Determinations by specialist youth officers 21
Insert "(other than a graffiti offence)" after "alleged offence" in section 38 (1). 22
[9] Section 38 (2) 23
Omit "should". Insert instead "can and should". 24
[10] Section 38 (2), note 25
Insert at the end of section 38 (2): 26
Note. Graffiti offences cannot be dealt with by caution except by a 27
court--see section 18. 28
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Graffiti Legislation Amendment Bill 2011
Amendment of Acts and Regulation Schedule 1
[11] Section 40 Referrals for conferences by DPP and courts 1
Omit section 40 (1). Insert instead: 2
(1) The Director of Public Prosecutions may refer a matter involving 3
a child who is alleged to have committed an offence to a 4
conference administrator for a conference if: 5
(a) the offence is one (other than a graffiti offence) for which 6
a conference may be held, and 7
(b) the child admits the offence, and 8
(c) the child consents to the holding of the conference, and 9
(d) the Director is of the opinion that a conference should be 10
held under this Part. 11
(1A) A court may refer a matter involving a child who is alleged to 12
have committed an offence to a conference administrator for a 13
conference if: 14
(a) the offence is one for which a conference may be held, and 15
(b) the child admits the offence, and 16
(c) the court is of the opinion that a conference should be held 17
under this Part. 18
[12] Schedule 3 Savings and transitional provisions 19
Insert at the end of clause 1 (1): 20
Graffiti Legislation Amendment Act 2011, to the extent that it 21
amends this Act 22
[13] Schedule 3, Part 4 23
Insert after Part 3: 24
Part 4 Provisions consequent on enactment of 25
Graffiti Legislation Amendment Act 2011 26
7 Application of amendments 27
(1) In this Part: 28
amending Act means the Graffiti Legislation Amendment Act 29
2011. 30
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Graffiti Legislation Amendment Bill 2011
Schedule 1 Amendment of Acts and Regulation
(2) An amendment made to this Act by the amending Act relating to 1
the giving of cautions or warnings with respect to an offence 2
committed under the Graffiti Control Act 2008 applies in respect 3
of an offence committed after the commencement of the 4
amendment. 5
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