Graffiti

Graffiti can have serious possible penalties. The maximum penalty for graffiti is $5,000, although this penalty would very rarely be given to anyone. Carrying something you intend to use to make graffiti that cannot easily be washed off with water and detergent has the same penalty as actually using it.

Chalk and spray chalk are covered by anti-graffiti laws. However, as they come off, people using them may be less likely to be prosecuted, and may be likely to get a lower penalty than if the same graffiti had been done with paint. See below for further information.

It is unlikely that reverse graffiti could be illegal. Reverse graffiti is made by cleaning dust or grime from a dirty surface to write a message or depict an image by contrast with the remaining dust, grime or dirt. However, it is a good idea to prepare how you will respond if approached by police or by people who want to argue or think you are doing something bad.

If you are on private land without permission, you could also be trespassing, which is a separate offence. See Trespass for more information.

Marking graffiti

Under the Graffiti Control Act 2001 (GC Act), a person who "marks graffiti" is guilty of an offence with a maximum penalty of $5,000 or imprisonment for 12 months. “Mark graffiti” includes “deface property in any way”. “Graffiti” is not defined, but is defined by the online Cambridge Dictionary as “words or drawings, especially humorous, rude, or political, on walls, doors etc in public places”. “Deface” is defined as “to damage and spoil the appearance of something by writing or drawing on it”.

The penalty is greater if the place is a cemetery, a public memorial, or a place of public worship or religious practice.

A person who aids, abets, counsels or procures the commission of a graffiti offence may be prosecuted and punished as a principal offender.

Marking graffiti may also be an offence of property damage under the Criminal Law Consolidation Act 1935 (CLCA).

Under the GC Act, a court finding a person guilty of a graffiti offence under the GC Act or the CLCA must, where appropriate, order that the person participate in a graffiti removal program or that the person pay compensation to the owner or occupier of the property and the court may order that the person pay a reasonable amount for the removal or obliteration of the graffiti.

A person found guilty of a graffiti offence that is not a first offence may also be disqualified from holding or obtaining a driver's licence for a period of 1 to 6 months.

A person found guilty of a graffiti offence that is not a first offence may also be required to produce his or her driver's licence to the court at the time of the hearing of the charge. Failure to do so can result in a maximum penalty of $1,250.

Carrying a graffiti implement

A person who carries an implement with the intention of using it to mark graffiti, or carries a graffiti implement such as a can of spray paint (other than a can containing paint that does not contain a pigment and is transparent when sprayed onto a surface), or graffiti implements capable of spraying paint or a similar substance, or graffiti implements designed or modified to produce a mark that is not readily removable by wiping or by use of water or detergent and is more than 15 millimetres wide without lawful excuse in a public place or a place on which the person is trespassing, or has entered without invitation, is guilty of an offence. The maximum penalty is $5,000 or imprisonment for 12 months.

Seizure of graffiti implements

A police officer may seize certain graffiti implements in the possession of a person in a public place, if the police officer suspects on reasonable grounds that the implement has been or may be used in contravention of the GC Act, whether or not the person has been or is to be charged with an offence under the GC Act.

If the police officer seizing the implement determines that the implement is of no apparent marketable value, the police officer may advise the person of that and the implement is forfeited to the Crown. However, if the seized graffiti implement is not dealt with in that way, the police officer must advise the person that it will be held at a specified police station for the next 7 days and that he or she may make a claim for its return at that police station during that period (at a time during which that police station is open to the public) and issue the person with a receipt for the implement.

A person may only make a claim for the return of a seized graffiti implement if the person satisfies a police officer that he or she had a lawful excuse for the possession of the implement. If, on the expiration of the holding period, the implement has not been claimed, the implement is forfeited to the Crown (and may be dealt with in any manner a police officer thinks fit).

chalking vs paint

It is unclear whether marking with chalk would amount to the offence of marking graffiti, as both paint and chalk “deface the appearance of something”, however, it is only temporary in the case of chalk. Police officers and courts may be less interested in prosecuting, convicting, or penalising activists in the case of temporary marks. In terms of seizure of graffiti implements, authorities may be less interested in pursuing someone carrying chalk which would produce only a temporary mark.

It seems likely that graffiti marking with chalk may attract lesser penalties than marking with paint. However, this theory has not been tested in court to our knowledge. There may also be differences in the consequences for marking with stick chalk and spray chalk.

Carrying graffiti implements attracts the same penalties as actually using them. Whether or not a court would consider a chalk spray can to be a "graffiti implement" is yet to be tested, but there is considerable risk in carrying these cans.

COUNCIL By-laws

Check your local council area for any specific by-laws that apply to posters or graffiti.

In summary, marking graffiti with chalk or other substances carries significant potential risks. The use of banners, placards, flags, sandwich boards or stencils/signs etc pinned to clothing is much less likely to result in criminal convictions or penalties.

Last revised: March 2023