graffiti commentary final version by decree


									Manukau City Council (Control
of Graffiti) Bill

Report of the Local Government and
Environment Committee

Introduction                                        2
Definition of graffiti                              2
Limitations of local legislation                    3
Bill of Rights issues                               3
Existing statutory provisions to address graffiti   4
Anti-graffiti initiatives                           5
National developments                               6
Conclusion                                          6
Minority views                                      7

Manukau City Council (Control of Graffiti) Bill

The Local Government and Environment Committee has examined the Manukau City
Council (Control of Graffiti) Bill and recommends that it not be passed.

The Manukau City Council (Control of Graffiti) Bill is a local bill developed in response to
the growing graffiti problem in Manukau City. The bill targets both individuals responsible
for graffiti offences, who would become liable to a range of penalties, and the retailers who
supply spray paint cans. The bill requires retailers to store and display spray paint securely,
and creates offences should spray paint be sold to a person under the age of 18. It provides
further powers to the police to gain information from or arrest a person suspected of
committing an offence under the bill. It also empowers the local authority to enter private
property to remove graffiti that is visible from a public place.

The bill seeks to address an activity which has increasingly damaging effects on
communities, residents, and businesses in the area (and indeed in other areas around the
country), and we recognise Manukau City Council’s effort and achievement in proactively
developing a proposed solution. However, we do not believe that this bill will achieve its
objective of controlling graffiti for the reasons explained in this report. The report also
discusses possible initiatives that may assist in the control of graffiti.

Definition of graffiti
The bill describes the act of marking graffiti as including defacing property in any way. This
broad and inclusive description is considerably wider than, but not inconsistent with, the
existing description of bill sticking and defacing in section 33 of the Summary Offences
Act 1981.

We think that any statutory measures designed to address the marking of property should
clearly specify the range of activities that are considered to constitute creating “graffiti”. An
inclusive definition, such as the one contained in the bill, is too broad and may incidentally
include some legitimate activities. In seeking ways to control graffiti, we do not wish to
restrict the legitimate street art that is made in designated places in urban areas throughout
New Zealand. However, where graffiti occurs without consent, we believe that it is an
attack on property which should be dealt with accordingly.

Evidence from people in Manukau indicates that “tagging” is the main problem in this
area. Tagging, the indiscriminate and unlawful defacing of public and private property with
stylised signatures or tags, is commonly used by groups or individuals to mark territory. We
recognise that tagging, a form of graffiti, has various negative effects on the local
community, including a reduction in people’s sense of safety, as well as on property prices
and trade. Tagging can be viewed as the forerunner to street-gang conflict in the

                                           MANUKAU CITY COUNCIL (CONTROL OF GRAFFITI) BILL

community. Local authorities, residents, and property owners have to repeatedly meet the
costs of cleaning up tagging, and protecting property from further damage.

Limitations of local legislation
The promoter of this bill has sought a local solution for what it perceives to be a local
problem. We support this intention, but have reservations about the ability of local
legislation to curb graffiti offences in Manukau City effectively. Local legislation tends to
deal with matters that are unique to a particular locality. It does not usually involve itself
directly with the criminal law or matters of national application.

We do not wish to see the criminal law amended on a piecemeal basis, and we are
concerned that the bill, if enacted, would set a precedent for other local authorities. But we
do see a need for appropriate central government action on this issue.

The Manukau City Council (Control of Graffiti) Bill closely follows the form of the South
Australia Graffiti Control Act 2001. While countries with a federal structure, such as
Australia, have developed complex legal codes and sets of rules to allow for the
enforcement of criminal offences on a regional or local basis, New Zealand as a unitary
state has no such legal framework. The limited geographical jurisdiction of this bill may
therefore act as a significant impediment to its enforcement.

The limited jurisdiction of the bill also means that certain provisions in the bill could be
easily circumvented. If enacted, the bill’s provisions would apply to Manukau City only.
Minors (those under 18 years of age) could continue to buy spray paints in adjoining areas
for use in Manukau, and would be able to purchase paints in the city itself through older

We believe there is a possibility that introducing punitive measures against graffiti in one
area could result in the displacement of offending to neighbouring areas. Similarly, by
concentrating its restrictions on spray paints, the bill may inadvertently encourage the use
of alternative graffiti implements.

We were advised that the South Australia Graffiti Control Act, the provisions of which are
similar to those proposed in this bill, does not appear to have succeeded in addressing the
area’s graffiti problem. Without a dedicated body to monitor and enforce it, and educate
people about its provisions, the legislation has had minimal effect, and many retailers
remain unaware of the law. Random checks by the state’s Crime Prevention Unit indicate
that retailers are not enforcing the requirement to store spray cans securely, nor are they
restricting sale to minors. Furthermore, no prosecutions have been taken under the Act.

We note that the bill would require retailers to bear significant compliance costs. We
believe that it is unfair to expect retailers to assume these costs, when there is little
evidence that the measures proposed would actually reduce the incidence of graffiti in the
Manukau district.

Bill of Rights issues
We were advised that the Manukau City Council (Control of Graffiti) Bill is inconsistent
with the New Zealand Bill of Rights Act 1990 in two areas. Firstly, clause 7, which
prohibits the sale of spray paint to minors, appears to be inconsistent with section 19(1) of


the Act. Under this section, all persons have the right to freedom from discrimination on
the grounds of age from the age of 16. As there is insufficient evidence to assume that
restricting the supply of spray paint to minors will minimise graffiti, certain measures in the
bill seem disproportionately severe, and may penalise people purchasing spray paint for
lawful purposes.

Secondly, under section 23(4) of the New Zealand Bill of Rights Act, any person detained
for an offence, or suspected offence, has the right to refrain from making a statement.
Clause 15 of the bill, which empowers police or authorised persons to require any person
suspected of committing an offence to supply their name and address, and the name and
address of anyone else suspected of involvement in the alleged offence, appears to infringe
this right.

Existing statutory provisions to address graffiti
Although there are no provisions in law that specifically refer to “marking graffiti” as an
offence, acts of this kind are covered by sections 11 (wilful damage) and 33 (bill sticking
and defacing) of the Summary Offences Act 1981, and section 269(2)(a) (intentional
damage) of the Crimes Act 1961.

Local authorities can introduce bylaws under the Local Government Act 1974 to regulate,
control, or prohibit the display of various visual devices, including writing or pictures, on
public spaces or where visible from a road or public place. Under the Local Government
Act 2002, they can make by-laws to protect the public from nuisance; protect, promote,
and maintain public health and safety; and minimise the potential for offensive behaviour
in public places. Therefore the offence of marking graffiti contained in the bill may be
within the scope of the local authority’s by-law-making powers, and appears to be covered
by offences which already exist under other legislation.

A number of provisions in the bill, such as the creation of an offence of carrying a graffiti
implement, or restrictions on the supply of materials to mark graffiti, are not currently dealt
with in legislation, and appear to fall outside a local authority’s by-law-making powers.
While these measures could in theory be related to “nuisance” or “offensive behaviour”
issues under the Local Government Act 2002, activities such as selling or carrying spray
paint are not inherently unlawful. Furthermore, the Local Government Act 2002 states that
no by-law can be made that is inconsistent with the New Zealand Bill of Rights Act.

There is no evidence that local legislation introduced to control general behaviour is
successfully and consistently enforced. The difficulties involved in policing and prosecuting
such legislation mean that enforcement tends to be sporadic at best. The introduction of
further offences in an area already criminalised under the national law is unlikely to change
these priorities.

The promoters of the bill believe that weakness in the current legislation impedes attempts
to control graffiti. We believe that applicable legislation is out of date in respect of the
growing problem of graffiti and that a new offence category of graffiti would assist those
responsible for prosecuting offenders.

                                           MANUKAU CITY COUNCIL (CONTROL OF GRAFFITI) BILL

Anti-graffiti initiatives
A number of measures to address graffiti have been successful in New Zealand, including
some taken by Manukau City Council. The council’s graffiti strategy included the
establishment of the Manukau Beautification Charitable Trust. We applaud the work of the
Trust, which has been instrumental in promoting positive youth and community initiatives,
such as annual awards for best-maintained streets, schools, and gardens, and education
programmes in local schools. We encourage local authorities with graffiti problems to
pursue and invest in such schemes, ensuring that they are directed at the appropriate

We note the work done in recent years by Christchurch City Council, which has a two-
strand strategy to reduce graffiti vandalism. Reactive initiatives include a free telephone
number, staffed 24 hours and seven days a week, to report graffiti. Once an incident is
reported, a graffiti removal team is despatched to clean it up. The council removes graffiti
from its own property, and also from street boundaries such as private fences, and
commercial buildings. Offensive graffiti is painted over promptly. Where graffiti appears
on private property, the council contacts the owner, who is expected to remove the graffiti.

Through the Legal Art Programme, Christchurch City Council engages with young people
who have tagged or been involved in other graffiti vandalism. People are usually referred to
the programme by Police Youth Aid Officers, or diverted from the Court, and provided
with mentors who encourage them to use their artistic abilities to gain recognition in an
acceptable and legal way. In the programme’s first stage, groups of taggers must remove
graffiti from various sites. Then, after honouring a verbal agreement to refrain from tagging
for three to four weeks, the young person is rewarded by being allowed to paint under
supervision a power box, or similar utility. The Legal Art Programme proved successful,
and has now been contracted to a private organisation and renamed Project Legit.

We also believe Manukau City Council could develop and expand its urban design
initiatives to minimise opportunities for graffiti. Anti-graffiti research indicates that certain
community responses can discourage tagging. Specific actions to encourage people to take
responsibility include installing automatic sensor security lighting, using dark paint colours
or anti-graffiti coatings on walls and fences, and the rapid removal of graffiti on private
property by the owners.

We believe that one way of addressing the promoter’s concerns about the supply of graffiti
implements would be to promote a voluntary memorandum of understanding between the
Council and retailers regarding the display and storage of spray paints, and possibly
restrictions on the sale of these items to persons under 16. The possible advantage of the
responsible retailing method over a mandatory lock-up approach is that it provides more
flexibility to act appropriately to the particular circumstances of the retailer. This is more
likely to give the retailer a sense of ownership of the project, and increase the probability of
the project being enforced effectively. Partnership initiatives have been undertaken
between local authorities, retailers, and the spray paint industry in the United States, New
South Wales, and Waitakere City.


National developments
The Minister of Justice advised us that the Government has adopted and is implementing a
six-point plan to address graffiti issues. The plan acknowledges the matter cannot be
managed by a single approach and covers the rapid removal of graffiti; detection and
physical deterrence; increased enforcement; legislative support; effective sentencing; and
changing attitudes. Specific initiatives in the plan include:
·     setting up 0800 graffiti-removal hotlines
·     promoting environmental design to make it less practical for graffiti to be written
·     requiring offenders to participate in supervised graffiti clean-up crews
·     education programmes and the use of relevant role models in schools.

We are also pleased to note that officials from the Crime Prevention Unit of the Ministry
of Justice have been working with Local Government New Zealand to develop best-
practice guidelines for local authorities on the removal and control of graffiti. The How to
Beat Graffiti guide has been completed and is being promoted nationally.

The issues of increased enforcement and legislative support are particularly relevant to our
consideration of this bill. Through the plan the Government has been committed to
increasing community police capacity. Enforcement will be further supported by the
establishment of tag databases which are intended to aid prosecution of taggers. At present
the Government’s position is that there is no need for legislative change, but the Crime
Prevention Unit will provide ongoing advice on whether legislation is adequate to deal with
graffiti. We are concerned that the law as it stands does not offer appropriate deterrents,
and believe that its strengthening and consistent enforcement are fundamental to the
success of the plan.

The first year of the graffiti strategy ends on 30 June 2007 and is intended to establish an
effective basis for future projects. Work in the first year includes a stock-take of anti-graffiti
initiatives around the country, a review of current sentences and the feasibility of restricting
the sale of graffiti implements, and direct engagement with territorial authorities. We
understand that the whole strategy will be rolled out over four years and will receive further
funding as the initiatives gain momentum.

Our major concern is that four years for full implementation of the plan is too long.
Graffiti is one of many aspects of youth behaviour that needs addressing urgently. While
we support much of the six-point plan, we recommend that it proceed with greater speed.
We strongly urge the development of national legislation to address this issue with
appropriate resourcing.

We acknowledge the efforts of Manukau City in bringing this matter to Parliament’s
attention through this Bill. The committee was assured by the Minister that Manukau
would be involved in the ongoing development of future Government initiatives. We are
concerned by the spread of unlawful graffiti in New Zealand, and believe that it is an issue
that needs addressing in and beyond Manukau City. Although we do not believe that this

                                                        MANUKAU CITY COUNCIL (CONTROL OF GRAFFITI) BILL

bill is the right solution, we hope it will be a catalyst to the implementation of a
multifaceted national approach to graffiti.

We note the findings of some Australian research into graffiti culture, which concluded
that reliance on a regulatory regime alone has minimal deterrent effect on offenders. This
study promoted the use of legal graffiti walls alongside other initiatives to reduce property
marking.1 Positive work to engage young people who undertake graffiti has already been
done in New Zealand, and we believe it is essential that any proposed solution shows an
understanding of and responds to the culture that produces the activity. In our view,
programmes to address graffiti should be evidence-based, targeted to the appropriate
audience, involve all affected sectors, and include non-governmental organisations.

We favour a national approach to graffiti and note that one is currently evolving. We
expect to see significant action to address this burgeoning problem in the near future.

Minority views
The National Party and New Zealand First recognise the problem experienced by and
support the Manukau City Council in its endeavours to control graffiti within its city limits.

The National Party has no confidence that the Labour Government’s anti-graffiti proposals
will achieve what is required and the suggested implementation timeline of four years is too

The National Party and New Zealand First do not support the suggestion that if this bill
were to be passed that addressing the issue of graffiti would then be on a piecemeal basis.
We recognise that this is an important matter and that if the Manukau City Council’s bill
encourages other local authorities to take similar steps to address the same problems then
that would be a positive outcome.

1     Halsey, Mark & Young, Alison, Graffiti Culture Research Project,, last accessed 5
      July 2006.



Committee process
The Manukau City Council (Control of Graffiti) Bill was referred to the committee on 7
December 2005. Submissions closed on 24 February 2006. We received 89 submissions
and heard 26. Hearings of evidence were held in Manukau City in April, and in Wellington
in May.

We received advice from the Department of Internal Affairs, the Ministry of Justice, and
the Parliamentary Counsel Office.

Committee membership
Steve Chadwick (Chairperson)
John Carter (Deputy Chairperson)
Georgina Beyer
Mark Blumsky
Martin Gallagher
Hon Marian Hobbs
Pita Paraone (non-voting member)
Eric Roy
Hon Dr Nick Smith
Mētīria Turei


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