Under the Graffiti Control Act 2001 (SA) and the Graffiti Control Regulations 2013 (SA) ‘graffiti implements’ include cans of coloured (non transparent) spray paint and permanent (indelible) markers or pens with a tip of 8mm or more [s 3; reg 4].
Sale to a minor
A person must not sell a graffiti implement to a minor [Graffiti Control Act 2001 (SA) ss 5(1), 5(2)].
Maximum penalty: $5000 ($2500 for spray paint cans).
A defence to this charge is that the defendant, or someone acting on their behalf, required the minor to produce identification; and they provided false evidence to that requirement; and as a consequence the defendant reasonably believed that the person was 18 years or older [s 5(3)].
It is also a defence to the charge of sale of a spray paint can to a minor [s 5(2)], that the defendant believed on reasonable grounds that the minor intended to use the spray paint lawfully as part of their occupation, education or training; or artistic activity; or in construction, renovation, restoration or maintenance (providing that these activities are not offences against and Act).
A notice stating that it is unlawful to sell graffiti implements to minors, in the form proscribed by legislation [s 6], must be on display where graffiti implements are sold. A copy of the proscribed notice on the South Australian Attorney General’s website: ‘Note of warning.’
A person selling graffiti implements from retail premises must ensure that such implements are kept in a securely locked cabinet, such that members of the public are not able to gain access to the implements without assistance [Graffiti Control Act 2001 (SA) s 4(1)].
Maximum penalty: $2 500 (Expiation fee: $210)
It is an offence to advertise graffiti implements for sale in a way that is likely to encourage or promote unlawful graffiti [s 6A].
Maximum penalty: $5000
Under the Graffiti Control Act 2001 (SA) ‘marking graffiti’ includes defacing property in anyway [s 3]. A person who marks graffiti is guilty of an offence [Graffiti Control Act 2001 (SA) s 9(1)].
Maximum penalty: $5000 or imprisonment for 12 months
A person who marks graffiti within a cemetery, or within a public memorial, or on or within a place of public worship or religious practice, is guilty of an offence [Graffiti Control Act 2001 (SA) s 9(1a)].
Maximum penalty: $7500 or imprisonment for 18 months
A person who aids, abets, counsels or procures the commission of the offence of marking graffiti is liable to be prosecuted and punished as a principal offender.
A court finding a person guilty of an offence against this section must if a suitable program exists for the removal or obliteration of graffiti, and if reasonably practicable, order the person to remove or obliterate the graffiti under supervision; or, in any other case order the person to pay compensation to the owner or occupier of the property [s 9(3)]. Additionally, if the graffiti is in a public place or on public property a court can order that the person pay a reasonable amount to any person who has removed or obliterated the graffiti [s 9(3a)].
Carrying graffiti implements
A person who carries an implement with the intention of using it to mark graffiti, or carries a graffiti implements (that are capable of spraying paint or similar or implements designed or modified to produce a mark that is more than 15mm wide and not readily removable by wiping or by use of water or detergent ) without lawful excuse in a public place or a place on which the person is trespassing or has entered without invitation, is guilty of an offence [Graffiti Control Act 2001 (SA) s 10].
Maximum penalty: $5000 or imprisonment for 12 months.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.