n Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 384 McHugh, Gummow, Kirby and Hayne JJ said: ‘the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.’
Section 4 of the Graffiti Control Act 2008 (NSW) provides:
(1) A person must not, without reasonable excuse (proof of which lies on the person), intentionally mark any premises or other property, unless the person has first obtained the consent of the following:
(a) in relation to premises that are occupied—the occupier or person in charge of the premises,
(b) in relation to premises that are unoccupied or other property—the owner or person in charge of the premises or property.
Maximum penalty: 4 penalty units.
(2) A person is guilty of an offence under this subsection if the person commits an offence under subsection (1) in circumstances of aggravation.
Maximum penalty: 20 penalty units or imprisonment for 12 months.
(3) For the purposes of this section, a person commits an offence in “circumstances of aggravation” if the person intentionally marks the premises or other property:
(a) by means of any graffiti implement, or
(b) in such a manner that the mark is not readily removable by wiping or by the use of water or detergent.
(5) Subsection (1) does not apply to the marking of any public footpath or public pavement with chalk, including, but not limited to, marking out a hopscotch or handball court with chalk.
Andy, concerned about the number of people looking at their phones when crossing the road at pedestrian crossings in his locality of Sydney decided to mark the roadway at the entry to the crossings with the phrase ‘look up before crossing’ without gaining any permission from the local council or roads authority to do so. He used a form of ‘liquid chalk’ that could be erased but only with a special chemical that required a considerable amount of wiping with a cloth to remove the writing.
He was charged with an offence under s 4(3) of the above Act with having marked the public pavement in circumstances of aggravation as the mark was not ‘readily removable.’
Has Andy committed the offence? In answering you
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