The Victorian graffiti prevention act 2007 has a range of offenses that are graffiti-related. The Act gives the police some power to investigate offenses, which are graffiti suspected. It also gives the police power to remove graffiti from any private property.
The aim of the act is to reduce the costs in terms of finance and the social costs from the Victorian community. It is also meant to reduce the incidences of graffiti in victoria. Lastly, is it aims at providing a strong deterrent to the perpetrators of graffiti and at the same time promote the perpetrators responsible for any of their actions.
Once a person is found violating this act, he or she must face offences and penalties. One of the offences is marking the offensive graffiti on someones property without the knowledge of the owner. This has a penalty of two years imprisonment and $36 400.80. Secondly is possessing, while to any public transport property unlawfully. The fine of this is instant fine of $758.35. It is also an offence for one to be in possession of a graffiti implement with an aim of making graffiti. Any individual who is below the age of eighteen years should have a letter from the employee showing that the paint is required for work. It is an offence for the paint to be sold to anyone under the age of eighteen years unless it is in circumstances where the person can show that the paint is needed for work. It is also an offense to advertise spray paint if the advertisement is likely to promote unlawful graffiti (Victorian Equal Opportunity & Human Rights Commission, 2008).
The act also gives some powers to the search police. If the police suspect that a person may be in possession of the graffiti and the person is close to any public transport network, the police can search the person even without a warrant and they can do the same when the person is close to any private property (Fitzroy Legal Service, Harbour, & Carmen, 2007). . The police can also go ahead and search any other thing that the person has. For people aged between 14 to 17 years some search procedures should be applied. The procedure includes a search on the outer clothing, the outer clothing headgear, gloves, and shoes and lastly the next layer of clothing, which is under the outer clothing. People under the age of 14 cannot be reached for the spray cans.
Before the local councils can remove graffiti from any private property, the act demands that they follow some procedure. First, they must ask permission from the person who owns the property or the occupier. Before the council enters the private property to do away with the graffiti, it should give the property owner a notice of 2 days. A 10 days notice is given in cases where entry is not required in both cases if the private owner does not agree to the removal of the graffiti then the council cannot remove the graffiti. When the owner has accepted that the council can remove the graffiti, the council can then remove the graffiti within 12months without issuing out any other notice. For a person to remove the graffiti, this person must have skills and experience to remove the graffiti from the private sector. The person must be authorized and therefore should carry an identification card, which should be produced whenever there is request. Lastly is to ensure that all the work done to remove the graffiti from the private property is done with a lot of care to a good standard and unnecessary inconveniences should not be caused to the property owner (Bradfield, 2011).
According to the case of Belinda and Kathy, Belinda has committed an offence. According to the graffiti act, it is an offence to make publicly visible graffiti. It is also an offence to possess a spray paint can while one is closer to any public transport property. Belinda had packed her car next to the railway station. It was an offense for her to start marking the graffiti on the security cameras. Kathy had a right from the act to go ahead and search anything that Belinda had such as the backpack. This is because she was near a public property, which is the railway station.
The graffiti act is a breach of some of the human rights such as expression. Belinda is right on this. This is because. Section 15 of the charter may operate to breach the right of expression. It is wrong to display graffiti in public yet this is one way in which an artist can express herself to the public. The local council is in opposition of this. It may be considered unlawful for any local authority to refuse a grant to a fine artist for a failure to obtain the planning permit without taking into consideration of the artists right to freedom of expression. Assuming therefore that Belinda was an artist, the graffiti act breach her freedom of expression.
According to section 25 of the human rights and responsibilities act 2006, the rights to the criminal proceedings are well stipulated. First, any person who is charged with any criminal offence has all the rights to be presumed as innocent until he or she is proved guilty by the law. Secondly, any person who has been charged with a criminal offence is entitled to some privilege without any discrimination (Vukoja, Dreyfus, & Australian National Internship Program (Australian National University).2009).
A criminal is to be informed in detail and promptly about the reason and the nature in a language or a form of communication that he or she understands without difficulty. The criminal should also be given enough time and enough facilities to prepare his defense and to communicate with any advisor or lawyer chosen by her or him. The trial should be without any reasonable delay.
According to the charter, the criminal should also defend him or herself personally or through any legal assistance that he or he chooses through the aid that is provided by the victoria legal aid under the legal aid act 1978. Other rights of the criminal include being told about the right incase he or she does not have any legal assistance. If the interest of justice require that there should be a legal aid, the legal aid should be provided without any costs incurred by the person if he or she meets the conditions that are set out in the legal aid act 1978 (Roszkowski, 2008). There should be witnesses also against the criminal unless it has been provided by law that there are no witnesses. The criminal should also have witness on his or her behalf under the same condition of the prosecuting party. The criminal should not also be compelled to give information against himself or herself or to confess guilty. In cases of disabilities such as barrier of language, an interpreter should be provided and incase of communication disabilities tools should be provided to ensure that communication is taking place. (Megret, & Hoffmann, 2003).
The legal aid Act of 1978gives some criteria for the criminals who qualify for the legal aid. However this leaves the VLA with a guided discretion of whether to give aid with some particular exception. One of the exceptions is the one provided under section 197 of the criminal procedure act 2009. The court may give an order to VLA to give assistance in a criminal trial if it is not in a position of ensuring that the accused will receive fair trial unless there is legal representation (Kelly, 2011).
Despite the fact that according to the charter any criminal has a right to legal representation, Belinda had lawyers who they differed with. Belinda could not take in the legal advice that she was given by her lawyers, which led to their withdrawal. It is because of this that she remained without any legal representation. The court had therefore done its part by providing legal representation that Belinda refused to accept their advice the prison is therefore not in breach of the charter of human rights and responsibilities act 2006 (vic).
A person who has been charged with any criminal offence has the right to have proceedings that are decided by a competent, impartial, and independent court after a public and fair hearing.
According to the charter, Belinda has the right to have a legal representation; just the same way all the criminals have a right to representation so doe she has a right to be represented in the court of law. Not having a representation makes her case to be unfair. Belinda therefore requires a legal representation as the court demands so that the trial can be fair as stipulated in the charter of human rights and responsibilities.
According to the charter, legal aid should be provided if the court grants that there should be legal aid for the case to be fair. After Belinda appealing, she was granted a legal aid in order to facilitate the appeal. This means that it was important for Belinda to have a legal representation for her case to be said to be fair according to the charter.
However according to VLA, Belinda had refused to follow the instructions of the lawyers. She therefore did not qualify for any legal representation because VLA revoked her legal aid. VLA was therefore not going to provide for her any further legal aid.
The charter has its weaknesses and its strengths. Offenders rights being undermined because of application of the charter. However the strengths of the charter exist too. The charter should therefore be applied appropriately depending on the situation and the rule that is stipulated in the charter should be followed by the citizens and the administrators. It is also important that some sections of the charter be amended so as not to undermine peoples rights.
Victoria. (2008). The Victorian Charter of Human Rights and Responsibilities: Civil and political rights explained. Melbourne, Vic: Victorian Equal Opportunity & Human Rights Commission..
The writers of this book aim at giving a tart point to those who relate with the charter. The book also provides some inspirational for the research work. The book clearly shows well supported case laws, which have been drawn from different jurisdictions within the legislation of the human rights. The act, which was led, by the human right act in 2004 was closely followed by the victorias charter in 2006. The federal attorney general more recently has said that he intends to consult the community concerning the charter.
This book basically outlines the main features of the charters framework. The book also provides a succinct commentary on each of the provisions. The book annotates the various political and civil rights, which should be protected. The book goes further to outline the principles used in interpretation that should be considered. Victoria charter is a very important law and this book is a guide to the interpretation of the law.
Kelly, J. B. (2011). A Difficult Dialogue: Statements of Compatibility and the Victorian Charter of Human Rights and Responsibilities Act. Australian Journal of Political Science. doi:10.1080/10361146.2010.517181
This journal is perfect for any scholar who is doing research on human rights and responsibilities. The book focuses on the objectives of the charter. The first objective being on advanced policy within the bureaucracy. A number of factor shave been discussed in this journal that account for the modest parliament dialogue. This article majorly explores the contemporary difficulties faced by parliament dialogue emerging in victoria, which has brought about tension in the charter. The article also looks at the weaknesses of the charter.
Bradfield, O. M. (2011). Navigating the Unchartered Waters of Victorian Mental Health Law Reform. Psychiatry, Psychology and Law. doi:10.1080/13218719.2011.619644
Fitzroy Legal Service, Harbour, & Carmen. (2007). The Law handbook 2008: Your practical guide to the law in Victoria. Melbourne,...
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