Tanczos Nandor: Manukau City Council (Control of Graffiti) Bill — First Reading 
Tanczos Nandor: Manukau City Council (Control of Graffiti) Bill — First Reading 
[Volume:628;Page:644] 
NANDOR TANCZOS (Green) 
: 
 I rise to point out the numerous reasons why the Green Party will not support this bill going to a select committee. It does have a couple of provisions in it that are worth this House considering—and I will mention those as I talk my way through the bill—but the areas of the bill that are repugnant to basic principles of justice are so overwhelming that on balance we cannot support it. 
Mr Paraone said that if enacted this bill would mean that Manukau would have the first strict anti-graffiti laws in the country. Well actually what it will mean is that Manukau will be the only place in this country where the basic right to silence guaranteed in the New Zealand Bill of Rights Act will no longer apply for certain offences. It will be the only place in the country where that has been enacted. Members of this House before they get too carried away about the fact that they do not like tagging on their garages and their walls need to think about what the bill actually does not just what they think it does. 
Let us go through the bill. Clause 6 is “Cans of spray paint to be secured”. I found that clause quite interesting. Normally we require shops to lock away guns and things that are dangerous to other people—things that can kill people and the like. Presumably the only reason behind the idea of requiring by law that cans of paint be locked away is to stop them from being stolen. I cannot see any other basis. That is pretty weird. I find it quite strange that this House is requiring businesses to lock away products in a locked cupboard so that they do not get stolen. 
Ron Mark 
: Pharmaceuticals. 
NANDOR TANCZOS 
: Pharmaceuticals are a different thing because there is the possibility of overdose death and serious harm. This is about people not liking their fences being tagged. The other interesting thing in terms of locking cans away is that the legislation will not apply to all cans because the council can agree in writing that some kinds of cans can be stored openly. The council because it likes these cans but not those ones can suddenly decide that those cans have to be locked away and these ones do not. Will that apply in respect of shops? Will the council be able to send a letter to certain shops to say that some do not need to lock their cans away but others do? This bill opens a very interesting door to all kinds of weird and arbitrary powers that will now become available to the Manukau City Council. 
The bill introduces an age restriction. Both George Hawkins and Judith Collins talked about the fact that an age restriction cannot be enacted by a by-law and I accept that. I think there are arguments for introducing an age-limit but the point is that we do not need to enact this extraordinary legislation in order to put in an age limit. We can do that without bringing with it all these other breaches of basic rights that are guaranteed to us in the New Zealand Bill of Rights Act. 
Clause 9 states that an authorised person who is given a warrant by the council can enter premises and investigate whether the provisions are being complied with and can take photographs or make films or other recordings. It does not in any way indicate what “investigate” might mean. Does it mean that people could go in and start searching through computer files check customer databases and do those kinds of things? Again that is a pretty broad scope to give to people just because they have a letter from a council saying that they can investigate whether businesses are selling spray cans to 16-year-olds. 
Clause 10(1) “Marking of graffiti” states: “Every person commits an offence who without lawful authority marks graffiti.” which the interpretation defines as “to deface property in any way”. The really interesting stuff comes in clause 11 “Carrying graffiti implement”: “(1) Every person commits an offence who—(a) carries a graffiti implement with the intention of using it to mark graffiti without lawful authority;”. Mr Paraone raised the very important question of how we decide whether someone has an intention to mark graffiti. That is already covered because clause 11(1)(b) states that every person commits an offence who “carries a graffiti implement of a prescribed class without lawful excuse …”. So there does not even need to be an intention to mark graffiti; all a person needs to do is carry a spray can to commit an offence under this bill. Of course we know that not everyone will be done for carrying a spray can. Only the young and the poor—probably young Maori poor—will be stung by this. We know that that is how these things get enforced on the street. 
What is meant by a “prescribed class” of graffiti implement? Let us have a look at that. What does the bill say? Well one would think the bill would be quite specific. One would think it would lay out quite clearly the kinds of prescribed implements that a person can be found guilty of simply possessing never mind whether he or she has an intention to use them to mark graffiti. One would think it would be specific. But no graffiti implements are: “capable of spraying paint or a similar substance:”. Clearly this is aimed at spray cans but it can include spray guns and all kinds of things like that. As I said people do not have to have an intention to mark graffiti with the implement; they just have to have it on their person. “Prescribed class” includes “graffiti implements designed or modified to produce a mark that—(i) is not readily removable by wiping or by use of water or detergent; and (iii) is more than 15 millimetres wide. So if a person has a marker pen with a tip that is more than 1½ centimetres wide:” that person would be committing an offence under this Act. People do not have to have an intention to tag to graffiti or to do anything; they just have to have such implements in their pockets and under this Act they would be committing an offence. I find that absolutely extraordinary. I notice that members of the National Party have suddenly buried their heads under their desks very quickly now. 
The other concern is paragraph (c) of clause 11(3): “graffiti implements capable of etching glass.” That means that if a person is wearing a diamond ring he or she is committing an offence under this bill because the ring is capable of etching glass. The person does not need to have an intention to mark graffiti; he or she just needs to be carrying something “capable of etching glass.” [ 
Interruption 
] I invite the honourable member to read the bill before he starts scoffing. He should read the bill and see what it says. Those are exactly its words. But we know that if a rich lawyer with a diamond ring is walking down the road in Manukau he or she is unlikely to have any police officer try to take it and charge him or her. The provision is clearly aimed at one section of our society and at one age demographic and I think that is repugnant. 
Part 4 details “Council powers in relation to graffiti” and clause 12 provides that a council may remove or obliterate graffiti on private property. It is a very good part and that is a very good provision. It makes absolute sense. Some people do not have the time money or inclination to clean up the graffiti on their property but they are quite happy for the council to come and do it. If the council thinks it can afford it and if the council is so inclined we should let it do that—absolutely. We have no problem with that. There is an interesting little subclause though—clause 12(5): “No civil liability attaches to the Council an employee of the Council or a person acting under the authority of the Council for anything done by the Council employee or person under this section.” So if the council says it will clean up the graffiti on someone’s garage door but accidentally drives a truck through the garage demolishes it and writes off the car there is no civil liability attached. Well that is a nice little out for Manukau City Council is it not? 
Part 5 talks about infringement notices. It allows for infringement notices to be given and that is something we support. Currently sanctions already apply in relation to graffiti under wilful damage bill sticking defacing and such provisions in the Summary Proceedings Act and in section 269 of the Crimes Act under “Intentional damage”. But those are all criminal sanctions so I think it is very good that the bill might introduce infringement notices instead. That is a good thing; it is a part the Greens support. 
I am a little bit concerned that the serving of a notice will simply include posting it to the person’s last known place of residence or business and that it is treated as having been served when it is posted. A lot of the people this bill is specifically designed to target are young people and highly mobile and the last place the council knows of for where they live could have been three four or five addresses ago. So I am a little bit concerned that we will end up with people having increased costs because their cases will go to court as they never got their infringement notices in the first place. 
The last thing I would like to touch on in the brief moment I have left is Part 6 which is the really serious part. If a police officer or authorised person—that is a person authorised by the council—believes on reasonable grounds that a person is committing or has committed an offence under this Act the authorised person can direct that person to give his or her name and address. Well that is pretty standard. But that authorised person can also direct him or her to give to the extent known the name address and whereabouts of any other person connected in any way with the alleged offence. If he or she refuses to do so he or she is committing an offence under this part. Well that goes far beyond the normal rights of questioning that the police have. It is a breach of the New Zealand Bill of Rights Act and a breach of the basic right to silence. It is interesting that the Local Government Act requires by-laws to be consistent with the New Zealand Bill of Rights Act but of course that does not apply to this Parliament—so is that why Manukau has brought legislation to this House?