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Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
Summary Offences (Graffiti Removal
Powers) Amendment Bill 2008
Explanatory Notes
General Outline
Objective of the Legislation
The Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
(the Amendment Bill) aims to provide a legislative scheme to allow State
government and local council officer appointment to remove public graffiti
from any place. The Amendment Bill seeks to support the swift removal of
publicly visible graffiti. It is well-documented that the rapid removal of
graffiti increases the perception of community safety. This Bill responds to
the requests from both local and State authorities, and the community who
seek positive legislation changes to protect property-owners from damage
caused by graffiti-related activities.
In providing this authority, the Amendment Bill imposes obligations upon
such officers prior to exercising graffiti removal powers.
Means of Achieving Policy Objectives
The legislation will enable the appointment of graffiti removal officers and
authorise those officers to remove graffiti.
Alternative Means of Achieving Policy Objectives
Government policy objectives may have been met through the introduction
of a process of entering into arrangements with the owners or occupiers of
premises, allowing the State or local authorities to remove graffiti.
However, this alternative would not guarantee a consistent approach across
Queensland to addressing the problems associated with graffiti. It is also
extremely cumbersome and time consuming, thus defeating the objective
of rapid removal.
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Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
Estimated Cost of Implementation
There are no mandatory costs associated with the implementation of the
Amendment Bill as graffiti removal is voluntary on the part of the State
government and local government entities.
Consistency with Fundamental Legislative Principles
The proposed entry power for graffiti removal officers breaches
fundamental legislative principles by allowing entry without warrant onto
private land. The entry power is restricted to allowing an officer to only
enter those parts of the land which are readily accessible from a public
place. This means an officer will be able to lean across the property line to
remove publicly visible graffiti on the wall of a building just inside the
property line.
Where it is necessary to enter further onto land, graffiti officers will need
the express or implied consent of the owner or occupier. If the land
surrounds premises other than a dwelling, and the officer is unable to
contact the owner/occupier, the officer will be able to leave a notice in the
approved form advising the owner of the officer's intention to enter and
remove graffiti.
The owner will have 14 days to lodge an objection. Where an objection is
lodged, the officers will not be able to enter onto the land. Otherwise, the
owner will be taken to have given implied consent to the entry. Where
consent is implied, the officer will only be able to enter to the extent
reasonably necessary to remove the publicly visible graffiti.
An officer will only be able to enter further onto land around a dwelling to
remove graffiti, where the owner has expressly consented to such entry.
At no time will an officer be permitted to enter any structure or dwelling on
the land.
The Amendment Bill makes provision for the imposition of conditions to
limit the powers available to a graffiti removal officer. Any condition
imposed has the ability to restrict the exercise of powers by graffiti removal
officers.
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Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
Consultation
There has been no general community consultation on the contents of the
Amendment Bill. Consultation was undertaken with relevant government
departments.
Notes On Provisions
Preliminary
Short title
Clause 1 specifies the short title of the Amendment Bill.
Commencement
Clause 2 provides that the Amendment Bill is to commence on a day to be
fixed by proclamation.
Act amended
Clause 3 indicates that the Amendment Bill amends the Summary Offences
Act 2005.
Amendment of pts 3, 3A and 4
Clause 4 indicates that the Amendment Bill causes parts 3, 3a and 4 to be
renumbered.
Renumbering of ss 26-29
Clause 5 indicates that sections 26 to 29 are renumbered to sections 46 to
50.
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Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
Specific Provisions
Insertion of new pt 3
Clause 6 inserts a new Part 3 (Removal of public graffiti) into the Act.
27 Definitions for pt 3
This new provision provides definitions for this part.
"Appointing authority" means the definition adopted in section 37(1) of
this Act.
"Approved form" means the definition adopted in section 44 of this Act.
"Consent" is defined to be explicit that when consent is revoked or
withdrawn, consent is removed.
"Graffiti removal notice" means a notice under section 30(2) of this Act.
"Graffiti removal officer" means a person appointed under section 37(1) of
this Act.
"Helper" means a person under section 29(10).
"Local graffiti removal officer" means a graffiti removal officer appointed
by the chief executive of a local government.
"Owner" includes the owner, caretaker or occupier of the place.
"Public graffiti" is meant to limit graffiti to which this section applies to
graffiti on a public place or that is readily seen from a public place. Where
part of the graffiti is visible from a public place and part is not visible from
a public place, only the part visible is public graffiti.
"Remove" is inclusive and not limited to concealing, covering or
attempting to remove. Other methods may be utilised in the removal.
"State graffiti removal officer" means a graffiti removal officer appointed
by the Minister for Police.
28 Graffiti removal power
This provision gives authority for a graffiti removal officer to remove
graffiti from any place authorised under this part.
The provision makes it clear a graffiti removal officer must take reasonable
steps and care to restore the thing from which the graffiti was removed to it
`pre-graffiti' condition or if not possible, to a condition that is amenable to
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Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
its surrounds. Graffiti removal officers are limited by what is reasonable in
the circumstances. For example where a graffiti removal officer paints over
graffiti located on a wall, there is no obligation to paint the whole wall or
use the same shade of colour, though it is necessary to use a similar colour
which is readily available to the officer.
29 Powers of entry
This provision allows a graffiti removal officer to enter any public place,
vacant land or land around a non-residential premises to leave a notice for
the owner or seek the owners consent to remove graffiti.
A graffiti removal officer may only enter land surrounding a dwelling to
seek consent to remove the graffiti. This power is consistent with the
existing common law right of entry available to all members of the public.
However, consent is not required where a graffiti removal officer is
removing graffiti while remaining in a public place and entry to the private
place, regardless of the nature of the place, is by leaning or reaching into
the property or working on property bordering the public place, such as a
fence. The graffiti removal officer may utilise any necessary equipment or
assistance to exercise the removal power. However, the graffiti removal
officer may not take vehicles or equipment on a place that does not
accommodate the movement of the vehicles or equipment.
The graffiti removal officer may only use minimal force to access the
public graffiti, and is not authorised to cause any damage to the property in
gaining entry. Upon entry the graffiti removal officer may leave and
re-enter to complete the removal. Should the officer remove the public
graffiti described in the notice and observe additional graffiti, not described
in the notice, the officer is not authorised to enter to remove that graffiti
until consent has been obtained or notice of removal obligations completed.
A graffiti removal power may only be exercises at a reasonable time having
regard to the circumstances. For example it may be reasonable for
Queensland Rail to remove graffiti at 2 am to ensure minimal disruption to
the rail services, but it is not reasonable for a local government officer to
remove graffiti from a fence at the same time..
Where a graffiti removal officer is removing graffiti with the consent of the
owner, the owner is able to impose conditions on how and when the entry is
made.
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Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
30 Notice about removal
The provision requires that before exercising powers under this part at
non-government owned private places, a graffiti removal officer must leave
a signed notice for the owner of the place. The provision does not apply to
dwellings.
The provision makes requirements for the notice to be in the approved
form. However the notice as a minimum will identify the graffiti removal
officer's relevant department or organisation, contact details for the
department or organisation and a description of the graffiti to be removed.
It will also identify the means of lodging an objection to the proposed entry
and the consequences of failing to lodge an objection.
It is not necessary to hand the notice to the owner. The officer may leave it
in a location where the owner will see or find the notice. The notice need
only be given to one owner of the place.
The provision allows for the different authorities to make varying
requirements about the way an owner must raise an objection. Should an
objection not be raised within 14 days, the owner is taken to have given
consent and a graffiti removal officer may exercise powers under this part.
Where objection is raised outside the 14 days and before the graffiti is
removed, the graffiti must not be removed without the owner's consent.
If consent is gained from the owner, there is no necessity to also give a
graffiti removal notice to the owner.
31 Protection of graffiti removal officers and helpers from civil
liability
The provision indicates that unless an act or omission is done with
negligence, a graffiti removal officer, or a person helping a graffiti removal
officer, is not civilly liable. The liability instead attaches to the State or the
local government.
32 Protection of owners a place for entry of graffiti removal
officers and others
Civil liability for death or injury of the officer is transferred from the owner
of a place to the State or the authority employing the officer.
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Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
However, where there is gross negligence on the part of the owner, the State
or local authority may recover any compensation, damages or costs paid by
the State or local authority from the owner.
33 Prohibition on charging for removal of public graffiti
The provision requires that graffiti removal under this part is undertaken
without the owner incurring any fee. However, should an agreement be
made between the owner and the appointing authority a fee may be charged
in accordance with the agreement.
An agreement could include the use of a particular type of paint to cover
the graffiti. The owner and the appointing authority may include that the
owner pays the cost of the paint in the agreement.
An agreement could also involve the authority undertaking to paint an
entire fence, rather than just the section needed to remove the graffiti. In
such circumstances, the owner would be liable to the costs of painting the
additional parts of the fence.
34 Compensation
The provision allows a person to make a claim for compensation against
the appointing authority where damage or loss is caused by a graffiti
removal officer in the exercise of removal power. A claim for
compensation may not be made based on the removal of graffiti if an
objection is not raised under section 30.
35 Graffiti removal officer to give notice of damage
The provision requires a graffiti removal officer to give the owner of the
place written notification describing any damage caused. Where is it not
possible to give the notification to the owner, written notification may left
at the place and must include information about the damage and the
appointing authority. The removal of graffiti is not damage.
36 Obstructing graffiti removal officer or helper
The provision creates an offence to obstruct a graffiti removal officer in the
exercise of powers under this part, unless the person has a reasonable
excuse. A reasonable excuse includes where an owner withdraws consent
for the removal of the graffiti. For example, if an owner asked a graffiti
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Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
removal officer to stop removing graffiti on the owner's property or asked
the officer to leave the owner's land, the officer must do so. In such a case
no offence of obstruction would have occurred.
Prior to taking action against the person, the graffiti removal officer must
identify himself or herself as a graffiti removal officer and explain the
officer's powers under this part; warn the person that it is an offence to
obstruct the officer and give the person an opportunity to desist from
obstructing the officer. The failure of an officer to fulfil obligations under
this section may also be a reasonable excuse.
37 Appointment and qualifications
The provision allows the Minister for Police and the chief executive officer
of a local government to appoint graffiti removal officers.
Prior to appointment, the appointing authority must ensure the officer is
qualified for the appointment. Appointment of a graffiti removal officer
may extend to private contractors and subcontractors.
38 Appointment conditions and limit on powers
An appointing authority may place restricting conditions on the powers a
graffiti removal officer may utilise. The graffiti removal officer is not
required to carry a written record of these restrictions, but an owner may
make enquiry with the appointing authority to verify officer powers.
39 Issue of identity
Upon appointment, a graffiti removal officer must be issued with an
identity card. If the officer has been previously issued with an identity card
with the information required under this section, the issue of a new card is
not required. The identity card must state that the person is a graffiti
removal officer, appointed under this Act and contain information about the
officer and the officer's employer or the issuing authority.
40 Production or display of identity card
The provision requires that prior to or while exercising a power under these
provisions, the graffiti removal officer upon the request of a person, must
produce the issued identity card or wear the issued identity card.
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Summary Offences (Graffiti Removal Powers) Amendment Bill 2008
41 When graffiti removal officer ceases to hold office
The provision addresses situations where a graffiti removal officer ceases
to hold office.
42 Resignation
The provision allows for the resignation of a graffiti removal officer.
43 Return of identity card
The provision requires a person who ceases to be a graffiti removal officer
to return the identity card to the appointing authority within 7 days of
cessation. An offence is committed if the person does not fulfil these
obligations.
44 Approval of form
This provision allows the Minister for Police to approve a form to
constitute the graffiti removal notice.
45 Delegation by Minister
The provision allows the Minister for Police to delegate any function under
these provisions to the chief executive of a department. Further delegation
is authorised within a department to another appropriately qualified officer
within that department.
Amendment of sch 2 (Dictionary)
Clause 6 inserts the definitions for the part in the Dictionary provisions of
the Act.
The definition of "public place" is expanded to include busway land and
rail corridor land as defined in the Transport Infrastructure Act 1994.
The definition of "place" clarifies that a place includes a dwelling, other
premises and vacant land. This inclusive definition is not a change but a
clarification of the definition to ensure consistency with other standard
legislative definitions.
The definition of "graffiti' is modified to ensure its applicability is limited
to section 17 of the Summary Offences Act. The definition of "graffiti' for
Part 3 is to adopt its usual meaning.
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© State of Queensland 2008