Original blog post can be found at Images to Live By
You could be forgiven for thinking that the Australian state of Victoria just can’t make up its mind as to what it thinks about graffiti and street art. On the one hand, it uses images of graffiti and street art to promote tourism, showing images of Melbourne’s laneways (well, Hosier Lane, usually) on television and in its information guides (have a look here). On the other hand - well, it has recently passed a new statute called the Graffiti Prevention Act 2007, which creates a bundle of new criminal offences and gives the police new powers of search, which hardly seems to fit with its marketing of Melbourne as the city of cool street art.
So, what are the new offences? Well, there’s one of ‘marking graffiti’ - creating graffiti that is visible from a public place and done without the property owner’s consent. Another one is ‘possessing a graffiti implement on transport company property or an adjacent public place, or a place where you are trespassing’. What’s meant by ‘graffiti implement’? It’s pretty broad - it means any tool or object or implement or substance that you can use to mark graffiti. So… what does ‘mark graffiti’ mean? Spray, write, draw, mark, scratch or ‘deface’ property by any means so that the result cannot be cleaned off with a dry cloth.
So one thing that’s clear from this is how legal language likes to bind one definition up in another, so that interpretation of what this statute will actually mean is the product of a chain of associations, definitions and meanings (making it hard, sometimes, for non-lawyers to realise that they might be actually breaking the law in what they are doing).
But what else is clear is that this Act has really broad scope. The title of the Act and its fixation on public transport property make it sound as though it might be restricted to tagging and so on. It isn’t. It includes stencils. It includes paste-ups. It includes all kinds of street art as well as conventional graffiti. It applies to everyone who puts up on a wall on or near public transport property, if the image they make can’t be rubbed off with a dry cloth (and since walls aren’t really anything like whiteboards, I’m a bit at a loss to think of what you can put on and rub off a wall with a dry cloth and leave no mark).
These new offences come with new penalties, as you might expect. Marking graffiti - up to 2 years’ imprisonment, and a fine of up to $26,428. Possessing a graffiti implement on or near public transport property, or while trespassing - a fine of up to $2,753, or an on-the-spot fine of $550. Pretty serious penalties, and remember that the police may well be looking to charge people with a number of counts, which would increase the total fines. (It’s through non-payment of fines that many people end up in prison, so imprisonment is a real possibility under this Act.)
And in order to assist the police, the Act creates some new powers of search for them. A police officer can search any person, vehicle or thing if they have ‘reasonable grounds’ for suspecting that person is in possession of a graffiti implement on or near public transport property or while trespassing. What does ‘reasonable grounds’ mean? It means that if you are at or near a place that has recently had graffiti put up on it, the police officer is entitled to take that into account in deciding if it’s reasonable to search you. If they search you and find an ‘implement’ (like a spray can), they must ask you why you have one.
So, suppose you are stopped and searched by the police? You’re at a train station, or on a tram, or waiting at a tram stop, or walking down a laneway near a train station. The police find a spray can in your bag and ask you why you have one. It’s up to you to convince the police that you have the spray can for a ‘legitimate’ purpose - like a school art project, or that you are on your way to your studio where you are working on your next big gallery show.
The thing is, this means that the ‘burden of proof’ has been reversed. What SHOULD happen is for the police to prove there’s reasonable grounds to suspect that you don’t have a spray can for a legitimate purpose - this is part of the work of policing and it’s what the police have to do for most offences. The burden of proof has previously been reversed in relation to drug offences - does that mean that a spray can is being equated with heroin in terms of the amount of social harm caused?
So what will be the consequences of this new legislation? Well, one of its stated aims was to make it easier for the police to arrest graffiti writers and artists, and it seems very likely that we’ll see an increase in arrests once the police get into the swing of using it (at the moment they are still being trained in its implementation). Another consequence is the erosion of legal principles: the burden of proof is supposed to be one of the cornerstones of criminal justice, a basic safeguard against the abuse of power by the state and its agents. If the State Government can create an Act which reverses the burden of proof in the context of graffiti, simply in order supposedly to address ‘community concerns’ about graffiti and to facilitate the arrest of graffiti writers by the police, then that seems to indicate that legal rights are not taken as seriously in this State as they should be.
What the Act won’t do is deter people from tagging, of course, no matter what the Department of Justice and the public transport companies are hoping. What the Act will do is create the risk that many more people - and especially many more young people - will be brought into the criminal justice system, acquiring fines and a criminal record as a result.
And on top of this, the Act is about criminalising artists. It’s all very well for the Department of Justice to make claims about graffiti being a social problem (which they do on their website, here), one major consequence of the Act will be that artists are subjected to the criminal law for putting up work on the streets. The result could well be be a kind of ‘chilling effect’ on many of the great artists who live in Melbourne or who visit the city, so that it could seem too risky to do work on the street.
It makes me sad and frustrated that a city so well known around the world for its urban art should be the site where laws like this get implemented.