Graffiti Vandalism Act 2016

The Act organises around a small set of legal concepts. Each has operational significance for enforcement, liability, and compliance.

• Graffiti (definition). The Act defines graffiti expansively in s 3 to mean any drawing, writing, painting, symbol or mark applied to property by spraying, writing, drawing, marking or otherwise applying paint or another marking substance, and also by scratching or etching. That definition is the central trigger for the whole Act: it determines what conduct can found a criminal offence (Part 2), what property is subject to removal notices (Part 3), and what implements may be seized under forfeiture provisions (s 13).

• Graffiti implement (definition). Section 4 specifies what implements are regulated. It includes cans of spray paint and pens or marker pens that have a tip wider than 6 mm and contain non-water-soluble fluid. The definition matters for the possession offence (s 6), the sale-to-child offence (s 7), and forfeiture (s 13(2)(a)). The width and fluid characteristics are concrete, administrable thresholds for retailers and enforcement.

• Offender (definition). The Act uses “offender” to mean a person who has committed the offence in s 5 (s 4). That focalises enforcement on the person who applied the graffiti but other provisions capture possession, supply and third-party costs.

• Owner and occupier. The Act uses the Local Government Act 1995 definitions of owner and occupier (s 3 and s 14). These definitions determine who receives notices under s 18 and who may be held liable under the cost recovery and court-apportionment regime in s 19.

• Public place and public property. The Act distinguishes public place (s 14) and public property (s 4). “Public place” is a functional access concept relevant to local government notice powers: a notice requiring removal can be given where graffiti is visible from a public place (s 18(1)(b)). “Public property” appears in the definitions that expand local government and Public Transport Authority powers.

• Remedial orders and community work. The Act creates remedial obligations as sentencing tools (s 8) and forces a minimum unpaid community work condition on any community order (s 10(1)). The content of the unpaid work is specified to be graffiti removal where practicable and performed at the direction of the relevant CEO (s 10(2)).

• Presumption of intent in possession cases. Section 6(2) establishes a statutory evidential presumption: possession in circumstances giving rise to a reasonable suspicion of intent to use it to apply graffiti is taken to be proof of that intention unless the contrary is shown. The presumption shifts evidential burdens in possession prosecutions.

• Local government notice and enforcement machinery. Part 3 builds an administrative enforcement architecture: s 18 permits notices where graffiti is visible from a public place and considered by the local government to be unsightly or offensive; s 19 allows local government to undertake removal and recover costs; s 22-24 provide objection and review routes, and ss 26-30 provide entry powers with notice or warrant. Delegation rules for local governments and CEOs are set out in ss 16-17.

• Immunities and State substitution. Sections 11-12 grant tort immunity to people involved in graffiti removal for acts done in good faith and not negligently, and limit owner liability for injuries to participants unless there is gross negligence, with the State becoming liable in lieu and able to recover from owners if gross negligence is found (s 12).

• Forfeiture tied to The Criminal Code. Section 13 imports forfeiture machinery from The Criminal Code s 731 contextually, and specifies what counts as “used in or in connection with the commission of the offence” for graffiti offences, including intended items and recording devices.

These concepts interact , for example, the possession presumption (s 6(2)) interacts with the definition of graffiti implement (s 4) and the scope of permitted sales (s 7), while local government notice powers (s 18) and cost recovery (s 19) affect owners and occupiers differently depending on who is given the notice and how the court apportions costs (s 19(6)-(7)).

The Act assigns costs, duties and powers across multiple actors. The central parties are offenders, retailers, property owners and occupiers, local governments, courts and enforcement agencies.

• Offenders. Individuals who apply graffiti to another person’s property are criminally liable under s 5. The offence applies to adults and children, but the minimum sentencing form differs: adults must receive at least a community based order; children must receive at least a youth community based order (s 5(1)). Conviction exposes an offender to the maximum fine and imprisonment specified, remedial orders under s 8, community work under s 10, and potential forfeiture of implements or devices under s 13.

• Persons in possession of implements. People found in possession of regulated implements may be prosecuted under s 6 if the circumstances give rise to reasonable suspicion of intent. The statutory presumption in s 6(2) places an evidential burden on such persons to rebut inference of intent.

• Retailers and sellers. Sellers of graffiti implements face criminal liability if they sell a regulated implement to a child (s 7). The seller’s reasonable belief that the purchaser was an adult is a statutory defence (s 7(2)), which places a compliance burden on sellers to implement ID and age-verification practices.

• Property owners and occupiers. Owners and occupiers may receive local government notices requiring obliteration of graffiti visible from a public place, even where the graffiti was applied with the owner’s consent (s 18(1)(a)-(c)). Failure to comply without reasonable excuse attracts fines and daily penalties (s 18(5)). If a notice recipient fails to comply, the local government may remove the graffiti and recover costs as a debt (s 19(3)-(4)). The Act also specifies how courts may allocate the cost burden fairly between owner and occupier where one pays to comply (s 19(5)-(7)). Owners are also affected by s 12 which limits their tort liability for injuries to volunteers removing graffiti unless gross negligence is found; if gross negligence is found the State may seek recovery from the owner (s 12(3)-(4)).

• Local governments. The Act grants local governments the power to give removal notices (s 18), to remove graffiti and recover costs (s 19), and to enter property for enforcement with statutory notice or warrant (ss 26-29). Local governments must provide reasons and review information when giving a notice (s 21). Delegation rules require absolute majority for delegation to a CEO (s 16(3)). Local governments also bear administrative costs and must manage objections and potential litigation under the review routes (ss 22-24).

• CEOs (of local governments and the CEO named in Part 2). The local government CEO has delegation powers under s 16-17 and directs community work under s 10(2). The Act defines a separate “CEO” in Part 2 as the chief executive officer of the agency chiefly assisting the Minister administering the Sentence Administration Act 2003 Part 8 (s 4); that CEO directs community work that forms part of community orders (s 10(2)).

• Courts and tribunals. Magistrates and other courts impose penalties, remedial orders under s 8 and address enforcement of remedial obligations under the Sentencing Act equivalence set out in s 9. The State Administrative Tribunal (SAT) has a statutory role for review of notices given under Part 3 (s 23). Courts determine fair apportionment of costs between owner and occupier under s 19(6)-(7).

• Public Transport Authority (PTA) and security officers. The Act amends the Public Transport Authority Act 2003 to extend existing powers to cover the Act’s s 5 graffiti offence on Authority property, conveyances or facilities (Part 5, ss 34-35). That places PTA security officers and police in an enforcement role on Authority property.

• The State. The State may become liable in tort in place of property owners under s 12(3). The State also prosecutes and must expressly apply for forfeiture orders under s 13(4).

Who pays and who decides. Financially, convicted offenders can be ordered to pay for remediation (s 8). Local governments may incur upfront costs to remove graffiti under s 19(3) but may recover reasonable costs as debt against the non-complying person (s 19(4)). Owners and occupiers may pay fines and incur daily fines if they fail to comply with a notice (s 18(5)). The local government decides whether graffiti is “unsightly or offensive” for the notice power (s 18(1)(c)), but that decision is subject to objection and review mechanisms (ss 21-24). Courts decide cost apportionment and impose remedial sentences (ss 8, 9, 19(5)-(7)).

The Act creates specific duties, compliance steps, and procedural rights. The practical legal duties and rights are as follows.

Duties

• Duty not to deface another’s property by graffiti. Section 5(1) creates the core criminal duty: do not destroy, damage or deface the property of another by graffiti without consent. This includes vegetation (s 5(2)).

• Duty not to possess things with intent to apply graffiti. Section 6(1) criminalises possession of a thing with the intention of using it to apply graffiti.

• Duty on sellers. Section 7(1) prohibits selling a graffiti implement to a child.

• Duty to comply with local government notice. If a local government issues a notice under s 18(2), the recipient must ensure the graffiti is obliterated in a manner acceptable to the local government within the time set in the notice; non-compliance without reasonable excuse is an offence with fines and daily penalties (s 18(5)).

• Duty for community order participants. Where an offender receives a community order, the court must impose a condition requiring a minimum of 10 hours of unpaid community work, directed by the CEO and comprising graffiti removal work where practicable (s 10(1)-(2)).

Rights and procedural safeguards

• Right to reasonable-belief defence for sellers. A person charged under s 7 for selling to a child may rely on the defence that they reasonably believed the purchaser was an adult (s 7(2)). That places an evidential onus on the accused to prove reasonable belief.

• Presumption and rebuttal in possession cases. The presumption in s 6(2) simplifies prosecution proof of intent where circumstances give rise to reasonable suspicion. The accused may rebut the presumption by proving the contrary.

• Right to reasons and review for notice recipients. Local governments must promptly provide written reasons for giving a notice and inform affected persons of their rights under Part 3 (s 21). An affected person may object (s 22), have the objection dealt with under the Local Government Act 1995 Part 9 processes (s 22(3)), and may apply to the State Administrative Tribunal for review in specified circumstances (s 23).

• Suspension of notice effect during review. Lodging an objection or applying for review generally suspends the operation of the notice or decision until the matter is finally disposed of, unless the local government or decision-maker revokes suspension for urgent public safety, property safety, or serious public nuisance reasons (s 24).

• Entry procedural rights. Entry without consent requires at least 24 hours notice that specifies the purpose (s 28(1)-(3)). Entry under warrant must be justified to a justice of the peace and the warrant limited in time and purpose (s 29).

• Immunities for removal participants. Individuals engaged in graffiti removal in good faith and without negligence have immunity from tort actions for anything done or omitted in that role (s 11(1)). This is not a blanket immunity; it is limited by negligence and good faith standards.

• Owner protections. Owners who owe a duty of care to entrants are protected from tort claims for death or injury resulting from participation in graffiti removal unless their breach amounts to gross negligence (s 12(2)). If reduced to gross negligence, the State may sue the owner for damages paid (s 12(4)).

• Forfeiture only on prosecutor application. A court must not make a forfeiture order under s 13(1) unless the prosecutor applies for it (s 13(4)). That procedural requirement prevents automatic forfeiture purely by conviction.

Delegations and administrative accountability

• Local governments may delegate powers to their CEO (s 16(1)-(3)), and CEOs may delegate to employees (s 17). Delegations must be in writing and are subject to conditions that the local government imposes (s 17(2)-(4)).

Sentencing structure integration

• The Act integrates remedial and enforcement orders with the Sentencing Act 1995. Orders under s 8(2) are to be dealt with under Part 16 of the Sentencing Act as if those orders were reparation, restitution or compensation orders (s 9(1)-(3)). This translates remedial directions into established enforcement and compliance mechanisms available under the Sentencing Act.

The Act provides a mixed enforcement architecture combining criminal penalties, administrative notices, cost recovery, entry and search powers, forfeiture, and sentencing measures. Below is a breakdown of sanctions and enforcement paths.

Criminal penalties

• Section 5: Destroying, damaging or defacing property by graffiti. Maximum penalty is a fine of $24 000 and imprisonment for 2 years. The section also prescribes minimum sentencing forms: a community based order for adults and a youth community based order for children (s 5(1)). The section operates despite the Young Offenders Act 1994 s 46(5a) (s 5(3)).

• Section 6: Possession with intent. Penalty is a fine of $6 000 (s 6(1)). Section 6(2) creates an evidential presumption of intent in defined circumstances, facilitating prosecutions.

• Section 7: Selling graffiti implement to child. Penalty for first offence $6 000, subsequent offence $12 000 (s 7(1)). Defences are available if seller reasonably believed purchaser was an adult (s 7(2)).

Administrative enforcement and fines

• Section 18: Notice to remove graffiti. Local government may require obliteration of graffiti that is visible from a public place and considered unsightly or offensive (s 18(1)-(2)). Non-compliance without reasonable excuse is an offence punishable by a fine of $5 000 and a further fine of $500 for each day the offence continues (s 18(5)(a)-(b)). The Act thus creates an administrative penalty and daily accruing fine.

Cost recovery and civil enforcement

• Section 19: If notice recipient fails to comply, local government may remove the graffiti and recover reasonable costs as a debt (s 19(3)-(4)). The local government may then seek recovery through court action for a debt; the Act defines “court” for these purposes as one that would have jurisdiction to recover the amount (s 19(2)). The Act also allows notice recipients to apply to court for orders forcing occupiers or owners to pay a fair share of costs, with the court to have regard to land type and terms of occupation (s 19(5)-(7)).

Sentencing and remedial orders

• Section 8: On conviction under s 5, a court may order the offender to take remedial action to restore property (s 8(2)(a)) or to pay another person to do so (s 8(2)(b)). Section 9 then imports sentencing enforcement regimes from the Sentencing Act 1995 to treat such orders as reparation, restitution or compensation orders, and to apply enforcement provisions for non-compliance (s 9(1)-(3)).

Community-based sanctions

• Section 10: Where an offender receives a community order, the court must impose a condition of at least 10 hours unpaid community work (s 10(1)). The unpaid work is to be performed at the direction of the relevant CEO and should comprise graffiti removal where practicable (s 10(2)). This produces a non-custodial remedial enforcement mechanism attached to community orders.

Entry, notice and warrants

• Sections 26-30: Local governments may enter land to perform functions under Part 3 if consent is obtained or notice given (s 27). Notice of intended entry must be given not less than 24 hours before entry and must specify purpose (s 28). If entry is refused, opposed or cannot be obtained or notice cannot be given without unreasonable delay, a justice may issue a warrant authorising entry using necessary force (s 29). The entry powers enable local government to enforce notice requirements and undertake removal.

Forfeiture and seizure

• Section 13: Forfeiture. The Criminal Code s 731 applies where a court convicts a person of an offence under this Act, as if the conviction were a penalty under The Criminal Code (s 13(1)). The Act clarifies that “used in or in connection with the commission of the offence” includes things intended to be used and expressly lists graffiti implements and devices used to record, store or transmit images of graffiti (s 13(2)). Orders may provide for seizure or other enforcement action (s 13(3)). A court must not order forfeiture unless the prosecutor applies for it (s 13(4)).

Protections and immunities affecting enforcement

• Sections 11-12: Provide immunities that limit civil claims against individuals and owners involved in removal activities undertaken in good faith and not negligently. Those immunities may reduce the risk of defensive litigation against local governments or volunteers engaged in removal work, but the immunities are conditional and do not affect State liability (s 11(2)).

Interaction with other enforcement regimes

• Section 9 ties remedial and compensation directions into the Sentencing Act 1995 enforcement mechanisms (ss 119, 119A, 122 and Part 16 references). This gives courts established enforcement tools for remedial non-compliance.

• Part 5 (ss 34-35) amends the Public Transport Authority Act 2003 to classify the s 5 graffiti offence as an offence that security officers or police may be authorised to apprehend or detain for on Authority property (s 34(2)(b) and s 35). That increases enforcement capability on public transport property.

Process and safeguards

• Local governments must provide written reasons and inform affected persons of objection and review rights when giving notices (s 21). Affected persons may lodge objections to be dealt with under Local Government Act review processes or apply to the State Administrative Tribunal where time limits are met (ss 22-23). Lodging an objection or review application generally suspends the notice’s effect unless safety or urgent public interest exceptions apply (s 24). These procedures establish statutory review and administrative law safeguards.

The Act explicitly cross-references, amends and imports parts of other legislation. The main interactions are with The Criminal Code, the Sentencing Act 1995, the Local Government Act 1995, the Young Offenders Act 1994 and the Public Transport Authority Act 2003.

Sentencing Act 1995

• Section 9(1)-(3) directs that remedial orders made under s 8(2) be treated as reparation, restitution or compensation orders under the Sentencing Act 1995 Part 16, and that non-compliance be treated as if it were non-compliance with restitution or compensation orders under that Act (s 9(2)-(3)). The Act therefore uses the Sentencing Act enforcement mechanisms for judicially ordered remediation and creates formal cross-enforcement between criminal sentencing and covered remedial obligations.

Local Government Act 1995

• Definitions of owner and occupier explicitly cross-link with the Local Government Act 1995 (s 3 and s 14). Section 15 declares that for the purposes of the Local Government Act 1995 Part 9 Divisions 1 and 2, a function under that Part is a function that a person may be authorised to perform under Part 3 of this Act. Section 31 incorporates Local Government Act 1995 section 9.56 protections for “protected persons” acting in good faith under this Part. Section 22(3) requires objections to be dealt with as if they were objections under Local Government Act Part 9, and provides that section 9.6 of that Act applies. The Act therefore integrates local government administrative law processes with its own notice and objection framework.

The Criminal Code

• Section 13 brings The Criminal Code s 731 forfeiture machinery into play for convictions under this Act and expands the meaning of “used in or in connection with the commission of the offence” to include intended implements and devices that record or transmit images of the graffiti (s 13(2)). Part 6 of the Act (ss 36-39) makes consequential deletions in The Criminal Code by deleting Part IV Chapter XXIV and sections 446 and 557G (ss 36-39). The compilation indicates these deletions were part of the Act’s drafting choices.

Young Offenders Act 1994

• Section 5(3) and s 10(3) state that those provisions operate despite Young Offenders Act 1994 section 46(5a). The Act amends the Young Offenders Act in s 44, inserting a cross-reference to sections 5 and 10 of this Act into s 46(5a) of the Young Offenders Act (s 44). The effect is to avoid inconsistency by making the graffiti sentencing provisions applicable to young offenders in the form the Act prescribes.

Public Transport Authority Act 2003

• Part 5 (ss 33-35) amends the PTA Act: in s 58 the grounds for apprehension/detention by security officers or police are adjusted to permit action where they witness an offender committing the specified offence or reasonably suspect an offence has been committed; s 58(2) is expanded to include an offence under this Act s 5 committed in relation to Authority property, a conveyance or a facility (s 34(2)). Section 64A is also amended to insert cross-reference to s 5 (s 35). This integrates graffiti enforcement into PTA operational powers.

Other Local Government Act amendments

• Part 6 Division 2 amends the Local Government Act 1995 Schedules by deleting particular items in Schedules 3.1 and 3.2 (ss 41-42). Those deletions adjust earlier fee and enforcement taxonomies, aligning the Local Government Act with the new graffiti-specific provisions.

Administrative law and review

• The Act provides that objections are to follow Local Government Act Part 9 processes (s 22(3)), and creates a right of review to the State Administrative Tribunal under specified timeframes (s 23). Suspension of notices during review is permitted with clear statutory exceptions (s 24).

Practical result of these interactions

• Remedial and enforcement orders sit within the existing sentencing framework (Sentencing Act), local government enforcement utilises Local Government Act delegation and objection processes, PTA operational enforcement is specifically authorised to include graffiti offences on Authority property, and forfeiture is conducted within Criminal Code processes. The Act therefore does not create a wholly independent enforcement sphere but inserts graffiti-specific duties and powers into existing legal infrastructures while amending them to remove or replace older provisions.

The Act provides its own compilation and shows a small number of legislative instruments affecting its text. The key dates and amendment notes from the source are:

• Assent and commencement. The Graffiti Vandalism Act 2016 received assent on 11 July 2016 (Compilation table). Part 1 (preliminary provisions) commenced the day of assent (11 July 2016) (s 2(a)). The remainder of the Act commenced by proclamation on 12 October 2016 (s 2(b) and Gazette 11 Oct 2016 p. 4531).

• Local Government Legislation Amendment Act 2016 (No. 26 of 2016). Part 3 Division 14 of that Act is recorded in the compilation table as amending the Graffiti Vandalism Act. It received assent on 21 September 2016 and its relevant provisions commenced 21 January 2017 (Compilation table). The Act’s text contains an internal note that section 4 was amended by No. 26 of 2016 s 54 [Section 4 amended: No. 26 of 2016 s. 54.].

• Consequential amendments within the Act. Part 6 contains consequential amendments to other Acts, including The Criminal Code (ss 36-39 deleting Part IV Chapter XXIV and sections 446 and 557G), the Local Government Act 1995 (ss 40-42 deleting entries in Schedule 3.1 and 3.2), and the Young Offenders Act 1994 (ss 43-44 amending s 46(5a)). These are parts of the original Act’s structure: they are consequential to the consolidation and replacement of earlier graffiti-related provisions.

• Publication of commencement details. The compilation table in the Act sets out the formal commencement of the Act (Part 1 on 11 July 2016; remainder 12 October 2016) and notes the later commencement of the Local Government Legislation Amendment Act provisions on 21 January 2017.

• Statutory review. Section 32 mandates a formal statutory review: the Minister must carry out a review as soon as practicable after the end of the 5 year period beginning on the day s 32 commences, prepare a report, and cause the report to be laid before each House of Parliament (s 32(1)-(2)). That creates a legislated trigger for evaluation and possible amendment.

The Act’s internal amendment note and the compilation table therefore show two distinct enactment stages and one identified post-enactment amendment vehicle (the Local Government Legislation Amendment Act 2016) affecting s 4 and related delegation matters. Any further changes after the compilation table would be found in subsequent amending instruments, which are not included in the provided text.

The provided source text does not include or reference any judicial decisions, cases or litigation outcomes under the Graffiti Vandalism Act 2016. The Act itself names no reported cases and the compilation table lists enactment and commencement entries only.

What the Act does show that is relevant to potential litigation:

• Administrative review routes have been built into the statute (ss 21-24), including objection mechanisms and a specific right of review to the State Administrative Tribunal (s 23). The Act contemplates litigation or tribunal review of local government decisions to give notices and provides time limits for applications (s 23(3)).

• Forfeiture is contingent upon prosecutorial application (s 13(4)), which means forfeiture applications will be routed through the criminal courts and may produce litigation on property rights, reasonable use, and evidential issues about items “used in or in connection with the commission of the offence” (s 13(2)).

• The evidential presumption in possession cases (s 6(2)) is likely to generate contested evidentiary litigation about what circumstances give rise to a reasonable suspicion and how evidential burdens shift at trial.

• Immunities in ss 11-12 will be the focal point of civil litigation where injury or property damage occurs during removal activities and where issues of good faith, negligence and gross negligence are disputed.

Because the source contains no reported case law, readers should not assume precedential interpretations exist in the text. For current litigation history and judicial interpretation, practitioners should consult databases of Western Australian courts and the State Administrative Tribunal for decisions applying or construing the Act, including on the scope of “unsightly or offensive”, the application of the possession presumption, the meaning of “reasonable suspicion”, and the boundaries of immunities and State substitution.

The Act contains several provisions that raise compliance, proof, and liability traps if overlooked. These are practical points where staff, owners, local governments or retailers often misread the statutory mechanics.

• Presumption of intent on possession is evidential not conclusive, but potent. Section 6(2) provides that possession in circumstances giving rise to a reasonable suspicion of intent to use the thing to apply graffiti is taken to be proof of that intention unless the contrary is proved. Practically this means prosecutors need only show possession plus circumstances that would cause a reasonable suspicion. The accused then bears the task of producing evidence to rebut the presumption. That shifts evidential burdens in many possession cases and means mere possession of a regulated implement in certain settings (for example late at night in an area with graffiti) may be risky for individuals.

• “Graffiti implement” is narrower than many assume, but still covers a common retail item. The definition in s 4 targets pens or marker pens with tips over 6 mm and containing non-water-soluble fluid, and cans of spray paint. Retailers selling such items should note the statutory age-sale prohibition in s 7. Items with tips of 6 mm or less or water-soluble inks fall outside the statutory definition and so do not trigger the sale-to-child offence, though other civil or criminal laws might still apply.

• Seller’s reasonable belief defence requires procedures. Section 7(2) permits a defence where defendant reasonably believed the purchaser was an adult. Practically sellers should adopt ID-check procedures and staff training to create a documentary or procedural record supporting “reasonable belief”.

• Minimum sentencing form constrains judicial discretion. Section 5 requires minimum sentencing by form: community based order for adults and youth community based order for children. Courts therefore cannot impose purely monetary penalties or custodial sentences below that minimum form requirement without attaching the mandated community order. This constrains sentencing options for judges and practitioners negotiating pleas or arguing mitigation.

• Local government discretion on “unsightly or offensive” is subjective but reviewable. Section 18 applies where the local government considers graffiti applied with owner consent and visible from a public place to be “unsightly or offensive”. The statutory discretion rests with the local government but must be accompanied by written reasons and review rights (s 21). A notice’s effect is generally suspended during objection or review unless urgent public safety or nuisance reasons exist (s 24). Practitioners should look to the written reasons for grounds of the decision and to the Local Government Act procedural framework referenced in s 22(3).

• Notices can be issued even where graffiti was applied with owner consent. Section 18(1)(a) explicitly applies to graffiti applied with the consent of the owner or occupier, provided it is visible from a public place and considered unsightly or offensive. Property owners who license mural art or authorised markings visible from the public realm are not insulated from notices.

• Local governments can remove graffiti on non-local-government land in certain circumstances. Section 25(1) allows local governments to obliterate graffiti visible from a public place that was applied without the owner’s consent even if the land is not local government property. That empowers local governments to enter privately owned or Crown-leased pastoral lands (s 25(2)) to remove unsolicited graffiti.

• Entry requires notice and gives rights to object; warrants are available if entry is refused. Entry without consent is possible after 24 hours notice (s 28) unless the owner or occupier objects. If entry is refused, opposed or cannot be obtained, a justice may issue a warrant authorising entry using necessary force (s 29). Local governments must follow the notice and warrant procedures precisely to ensure lawful entry.

• Immunity is conditional. Section 11 immunises individuals involved in removal from tort claims for damage or injury if done in good faith and not negligently. Omissions are also covered (s 11(3)). Section 12 shields owners unless gross negligence is established. These immunities do not eliminate all civil exposure , negligent conduct or gross negligence carries liability consequences, and the State remains potentially liable and able to recover from owners (s 12(3)-(4)).

• Forfeiture is not automatic. Although s 13 authorises forfeiture mechanisms, the court may not order forfeiture unless the prosecutor applies (s 13(4)). That procedural step is important: absence of prosecutorial application means property will not be forfeited automatically on conviction.

• Remedial orders are integrated with Sentencing Act enforcement. Courts may require offenders to do remedial work or pay for remediation under s 8; s 9 imports Sentencing Act enforcement and remedies. Non-compliance can therefore be enforced through sentencing enforcement regimes, which practitioners must understand in practice.

• Multiple enforcement tracks can run in parallel. Criminal prosecution, local government notices and costs recovery, and civil claims (subject to immunities) can potentially all arise from a single graffiti incident. Parties should note that local governments can act administratively under Part 3 even where criminal proceedings are pending.

• Time limits and suspension mechanics matter. Objections must be lodged with the local government within 28 days after notice or such extended time as allowed (s 22(2)). The right to apply to SAT is circumscribed by timeframes in s 23. During objections and reviews notices are typically suspended (s 24), but local governments may lawfully revoke suspension by demonstrating urgent reasons. Missing procedural timeframes may foreclose remedies or suspensions.

These “gotchas” are procedural and substantive friction points that determine enforcement outcomes, evidential burdens, and civil liability exposure. Each is anchored to particular sections and will be focal points for compliance advice, prosecution strategy and defence work.

Compliance under the Act requires distinct actions depending on the actor. Below are practical, source-grounded steps for the principal affected parties: retailers, property owners and occupiers, local governments, courts/service agencies, and individuals engaged in removal.

Retailers (selling potential graffiti implements)

• Identify regulated products. Review inventory against the statutory definition in s 4. Items that are spray paint cans or marker pens with tips over 6 mm containing non-water-soluble fluid are regulated as “graffiti implements”.

• Implement age-verification procedures. Given the sale-to-child offence in s 7 and the available defence under s 7(2) of reasonable belief as to age, adopt ID checks for purchasers appearing under a reasonable age threshold, staff training on verifying documentation, and a written policy on refusal to sell.

• Maintain records. Keep till receipts, CCTV footage where available, and incident logs for attempted under-age sales to support the reasonable belief defence.

• Communicate restrictions. Use signage and staff notices explaining that certain items are not to be sold to minors; ensure staff understand the statutory test (tip width and fluid solubility).

Property owners and occupiers

• Monitor visibility from public places. The local government notice power in s 18 applies if graffiti is visible from a public place. Owners of buildings, fencing or vegetation visible to the public should monitor and be prepared for local government notices.

• Respond promptly to notices. If a local government gives a notice under s 18(2), comply within the specified timeframe or prepare an objection in the approved form (s 22(2)). Non-compliance without reasonable excuse attracts fines (s 18(5)). If you undertake remediation, keep invoices and proof of works for potential disputes over who should bear costs (s 19(5)-(7)).

• Use review and objection rights strategically. If you consider the local government’s decision unjustified, object within 28 days (s 22(2)), and understand that objecting or applying for review generally suspends the notice’s effect unless the local government revokes suspension on specified grounds (s 24). Obtain and preserve written reasons for the notice (s 21) to support review applications.

• Insure and manage volunteers. Owners allowing volunteers or community-order participants onto their property for removal should be aware of the limited immunity in s 12 and manage safety risks. The Act limits owner liability to gross negligence (s 12(2)) but does not remove the duty of care. Consider waivers, induction processes, supervision and insurance cover.

Local governments and CEOs

• Ensure delegation instruments are in writing and satisfy s 16-17 requirements. Delegations by local government to CEOs must be by absolute majority and documented (s 16(2)-(3)). CEOs must document any further delegations to staff and ensure they fall within conditions imposed by the local government (s 17(2)-(4)).

• Follow notice procedures exactly. Notices under s 18 must meet the criteria in s 18(1) and must be accompanied promptly by written reasons and information about rights under Part 3 (s 21). Notices of intended entry must be given not less than 24 hours beforehand, specify purpose, and remain in effect while the need continues (s 28).

• Recovery procedures and cost accounting. When removing graffiti under s 19(3), local governments should document reasonable costs carefully because recovery is against the person who failed to comply (s 19(4)) and may be subject to court apportionment claims (s 19(5)-(7)). Use formal procurement and accounting practices to validate cost claims.

• Manage objection and review processes. Objections lodged under s 22 must be dealt with according to Local Government Act Part 9 processes (s 22(3)). Give timely decisions on objections to contain exposure to SAT review and to avoid prolonged suspensions where urgent public safety reasons apply (s 24).

• Use entry powers lawfully. When consent cannot be obtained, ensure notices and warrants (s 28-29) are sought and executed according to statute, and keep records of the legal basis for entry and particulars of persons involved (s 30).

• Protect volunteers and staff. Understand immunities in s 11 and Local Government Act s 9.56 applied by s 31; maintain training and safety procedures to minimise negligence risks and consider insurance for activities involving volunteers or community-order participants.

Judiciary, prosecutors and enforcement agencies

• Consider the evidential presumption in possession prosecutions. Under s 6(2) prosecutors should assemble evidence of the possession circumstances that give rise to reasonable suspicion; defence counsel should plan to rebut the presumption with evidence of innocent use or lack of intent.

• Use Sentencing Act enforcement tools for remedial orders. When imposing remedial orders under s 8(2), ensure the orders are framed to integrate with Sentencing Act Part 16 enforcement regimes as required by s 9.

• Forfeiture practice. Prosecutors must make an affirmative application for forfeiture under s 13(4) to obtain a forfeiture order; when seeking forfeiture, assemble evidence that items were used or intended to be used in connection with the offence (s 13(2)).

Individuals participating in removal (volunteers or community order participants)

• Act in good faith and avoid negligence. Immunities in s 11 apply only to acts or omissions done in good faith and not negligently. Participants should follow safety procedures, use appropriate training, and keep supervisors and owners informed.

• Understand limits of tort immunity. Owners are protected from civil claims unless their breach rises to gross negligence (s 12(2)), and the State may be liable in place of the owner (s 12(3)). But that does not immunise participants from statutory offences or from personal liability where negligence is present.

Organisations offering community work placements

• Coordinate with the CEO and local government. Section 10(2) requires unpaid community work to be performed at the direction of the relevant CEO and to comprise graffiti removal where practicable. Organisations should ensure they have formal arrangements with the CEO or local government to accept participants and to document direction and supervision.

Record-keeping and policies for all parties

• Maintain clear documentary evidence. Notices, invoices for remedial work, delegation instruments, age-verification records, witness statements and photographs before/after removal are all relevant to enforcement or dispute resolution under the Act.

In sum, compliance is primarily about (1) understanding the specific statutory definitions and thresholds (s 3-4), (2) following procedural requirements for notices and entry (ss 18, 21, 28-29), (3) designing operational policies to support criminal defences (s 7(2)) or to rebut presumptions (s 6(2)), and (4) recording actions and costs carefully where local governments or owners take removal or recovery action (s 19).