Graffiti – new law

Date created: 22 April 2008

Applies from 17 April 2008

It is an offence to mark graffiti on property that can be seen by the public unless the owner has given you permission. 

It is a more serious offence if the graffiti would offend a reasonable person. Political comments are an exception to this, if they are reasonable.

What is graffiti?

Graffiti is given a wide definition and includes writing, scratching, drawing or defacing property so that the marks can’t be removed easily with a dry cloth. This includes stencil art and engraving. 

Possessing graffiti tools in some places is against the law

It is also an offence to carry tools that could be used to mark graffiti in particular areas without a good reason. This includes spray paint, gouging tool or even a texta.

The places where carrying graffiti tools is an offence are:

• property that belongs to a transport company (for example bus shelters, buses and trains)
• an adjacent place (near to or able to be seen from public transport property)
• if you are trespassing (on private property without permission from the owner).

It is an excuse if you need to carry these tools because of your work.

Power to search

Police can search you if they suspect that you are carrying something that can be used to make graffiti. They can only do this if they reasonably suspect you are 14 years or older. Police may also search your car or anything you are carrying.

The police do not need a search warrant if they suspect that evidence may be lost while they apply for the warrant.
The suspicion that police form must be reasonable. If you are near an area with a lot of graffiti or recently marked graffiti the police can use this to justify their search.

Police will have to prove that you possessed a graffiti tool and that you intended to use it to make graffiti.

Confiscating graffiti tools

Police may take anything that they believe may be used to make graffiti. These tools may be returned if police decide not to take you to court or if you are found not guilty.

Removal of graffiti on private property

The Act also allows people who have been authorised by a local council to enter private property so that they can remove any graffiti.

Advertising bans

It is an offence to advertise graffiti tools (like spray paint) in a way that is likely to encourage the tools to be used to make unlawful graffiti. 

Penalties

Marking graffiti – two years jail
Marking offensive graffiti – two years jail
Possessing a prescribed graffiti tools in a banned place – 25 penalty units
Attempting to make graffiti – 25 penalty units
Advertising graffiti tools in a way that encourages unlawful graffiti – 50 penalty units

See ‘Penalty & fee units’ (link below) for the current value of penalty units.

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