SUBMISSIONS TO THE LAW AND ORDER COMMITTEE ON THE SUMMARY OFFENCES (TAGGING AND GRAFFITI VANDALISM) AMENDMENT BILL
ATTN:
STEVEN MITCHELL Secretariat
BY EMAIL:
steven.mitchell@parliament .govt.nz
Introduction
1. YouthLaw Tino Rangatiratanga Taitamariki is a community law centre vested under the Legal Services Act 2000. We provide a free, national legal service for children and young people aged below 25 years. Our service includes the provision of free legal advice and advocacy, law-related education and outreach work, development and publication of legal resources (including books, flick-cards and a website), law reform and policy work, and media commentary.
2. In our view, there are fundamental problems with the Summary Offences (Tagging and Graffiti Vandalism) Amendment Bill (“the Bill”), namely:
(a)
It unnecessarily duplicates existing offences under the Summary Offences Act 1981 (“SOA”), and the Crimes Act 1961 (“Crimes Act”), and sentencing options available under the Children, Young Persons and Their Families Act 1989 (“CYPF Act”) and Sentencing Act 2002 (“Sentencing Act”).
(b)
Specific clauses in the Bill contravene and are unjustifiably inconsistent with the Human Rights Act 1993 (“HRA”) and New Zealand Bill of Rights act 1990 (“NZBORA”).
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New Summary Offence: ‘Graffiti Vandalism’
3. Clause 4 of the Bill creates a new section 11A and repeals s33(b) of the SOA.
4. Clause 4 of the Bill states: 4 New section 11A inserted (1) 11A The following section is inserted after section 11: 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, structure, road, tree, property, or other thing – (a) (b) without lawful authority; and without the consent of the occupier or owner or other person in lawful control. Section 33 is consequentially amended by – (a) (b) omitting “, defacing, etc.” from the heading; and repealing paragraph (b).
(2)
5. Currently, the SOA and the Crimes Act contain the following offences and penalties with regards to damage to property: (a) (b) (c) s 33 SOA s 11 SOA s 269 Crimes Act Billsticking and defacing: $200 fine. Wilful damage: 3 months’ imprisonment or a $2,000 fine. Intentional Damage: 7 years’ imprisonment.
6. We consider the above sections are sufficiently broad to enable prosecution of offenders who engage in the type of graffiti vandalism defined under Clause 4 of the Bill. For this reason, it is our view that clause 4 is an unnecessary addition and amendment to existing legislation.
7. Clause 4 specifies a community-based sentence is available upon conviction for graffiti vandalism. However, the requirement to undertake community work exists under current
Youth Justice processes, both as a recommendation under Family Group Conference settlement plans (s 260(3)(d) CYFS Act) and as a sentencing option in the Youth Court (s 298 CYFS Act). In the adult jurisdiction, a community work sentence is available upon conviction
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for an offence punishable by imprisonment (s 55 Sentencing Act). We note that a community work sentence is, therefore, unavailable for convictions under s 33 SOA, and we would support an amendment to legislation to provide that convictions for billsticking or defacing property may be dealt with by way of a community work sentence. Beyond this, however, we consider that the option of community-based sentences proposed under clause 4 of the Bill adds little to the array of sentencing options available under current legislation.
8. In our view, legislative reform as proposed under Clause 4 will be no more or less effective than current legislation in deterring those who engage in unlawful tagging and graffiti.
Freedom from Discrimination
9. Clause 5 of the Bill makes it an offence to sell spraycans to a person under the age of 18 years.
10. Section 19(1) of the NZBORA and s 21(1)(i) of the HRA provide that everyone has the right to freedom from discrimination on the grounds of age, commencing at 16 years of age.
11. Clause 5 directly discriminates on the grounds of age and is therefore inconsistent with the NZBORA and HRA. In our view, clause 5 unnecessarily restricts those aged under 18 years from pursuing legitimate activities involving spray cans, as all purchase of this product must occur through a person over 18 years. 12. We refer to the Attorney-General’s report on the Bill1 (“the report”) and its conclusion that the age restriction under clause 5 is justifiable in terms of s 5 NZBORA. Under paragraph 9.1 – 9.4, the report gives four broad rationales in support of the age restriction. For the reasons discussed below, we disagree with the report’s findings. 13. Under paragraph 9.1, the restriction is justified on the basis that “many of those currently involved in tagging are aged 17 or under”, and that the age restriction will “inhibit access to needed materials” and “act to reduce the occurrence of tagging”. We consider this reasoning to be problematic. Firstly, while young people may engage in tagging, the same report at paragraph 8 notes that “tagging appears to be carried out by only a very small proportion of young people”. There is little statistical evidence in New Zealand to support the view that the
1 http://www.justice.govt.nz/bill-of-rights/bill-list-2008/s-bill/summary-offences-graffiti-amend-bill.html ; last accessed 10 March 2008.
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majority of taggers and graffiti artists are aged under 18 years. This is noted in the KnowHow Beat Graffiti Guide 06,2 jointly published by the Ministry of Justice and Local Government New Zealand. The Guide cites Australian research that indicates graffiti may be written by those aged 10 – 45 years, males and females, employed and unemployed, those in schools and truants, children of stable and unstable families, students, artists, and political activists, and then finds that: “There has been little New Zealand-specific sociological research conducted on the graffiti culture.” 3
14. We also refer to a Ministry of Justice report entitled Youth Justice Statistics in New Zealand 1992 - 2006, which discusses police apprehension rates for different offence types and age groups.4 Table 3.25 reveals that 9.83% of the 14 – 16 years age group in New Zealand engaged in property offending, marginally higher than the 8.35% for the 17 – 20 years age group. Significantly, table 3.46 provides a breakdown of property offences, and shows that only 2.16% of the 14 – 16 years age group were apprehended for wilful damage; the majority of apprehensions were on theft and burglary charges. A similar breakdown was not available for the 17 – 20 years age group.
15. We consider the statistics give doubt to the claim that the majority of those involved in tagging and graffiti are under 17 years. In our view, the age restriction has been set at 18 years to enable ease of monitoring, rather than through any considered research and analysis of those engaged in tagging and graffiti. 16. We further disagree with the report’s finding that the age restriction will reduce the incidence of tagging. A similar report from the Attorney-General’s office in relation to the Manukau City Council (Control of Graffiti) Bill 20067 (“the Manukau report”) finds at paragraph 14 that
2 http://www.lgnz.co.nz/projects/BeatGrafiti/KnowHow_Beat_Graffiti_Guide_06.pdf ; last accessed 10 March 2008. 3 Ibid, at page 3. 4 http://www.justice.govt.nz/pubs/reports/2007/nz-youth-justice-statistics-1992-2006/report.html , last accessed 10 March 2008. 5 Ibid, at page 40. 6 Ibid, at page 44. 7 http://www.justice.govt.nz/bill-of-rights/bill-list-2005/m-bill/manukau-city-control-graffiti.html, last accessed 10 March 2008
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“…there is insufficient empirical evidence available to conclude that there is a rational and proportionate connection between the sale of spray paint to minors and the graffiti problem.”
Moreover, the report also finds at paragraph 10 that: “A similar age limit provision in the Graffiti Control Act 2001 (South Australia) was apparently not effective in addressing graffiti problems.”
17. We consider that, for the proposed limitation on freedom from discrimination to be justified, satisfactory evidence must be provided to show that the limitation targets the group of society most involved in unlawful graffiti and tagging, and that the limitation will be effective in reducing the incidence of such offending. Even if the perception that the majority of people who engage in unlawful graffiti and tagging are under 18 years can be statistically substantiated, we fail to see how the proposed limitation on the ability of young persons under 18 years to purchase spray cans can be justified in terms of s 5 NZBORA, given the above conclusions on the ineffectiveness of age restrictions in tackling graffiti and tagging problems.
Conclusion
We acknowledge that unlawful graffiti and tagging is a significant problem in many areas of New Zealand. However, there are existing laws that provide effective sanctions for such activity, and we do not consider further legislation is necessary, especially when the proposed amendments infringe on fundamental NZBORA principles on anti-discrimination. In our view, the provision of resources to support education and community-based programmes would be more effective in addressing graffiti and tagging problems. We note that the STOP anti-tagging strategy pledges funding to community groups and restorative justice providers who work to address unlawful graffiti and tagging, and we are supportive of this initiative.
Thank you for your consideration of these submissions.
Neha Patel YouthLaw Tino Rangatiratanga Taitamariki DD: Email: 09 306 7593 neha@youthlaw.co.nz
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