SUMMARY OFFENCES (TATTOOING, BODY PIERCING AND BODY MODIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 6 April 2011.)

Ms CHAPMAN (Bragg) (12:14): I join with the Speaker in welcoming the Waldorf School representatives here today to listen to this debate. It is particularly important, as the Summary Offences (Tattooing, Body Piercing and Body Modification) Amendment Bill 2011 is a bill that affects them and the generation they represent. There is no question that every piece of legislation that we pass in this house, and ultimately through the parliament, has an effect on someone's life. That may be to restrict a power, enhance a power, restrict a privilege or a benefit, or to impose an obligation.

There are three fundamental things that we need to consider when we are passing legislation, whomever it affects, positively or adversely. One is that there must clearly be some benefit in our doing so. Sometimes that is assessed against there being some public good and, as a Liberal, that is a matter which needs to be consistent, in my judgement. If there is any restriction on an individual in any way, there must be some public benefit consistent with the principle that people should be entitled to do as they wish freely unless, of course, it causes detriment to others.

The second thing we must consider is that there is some justification that action by legislation is warranted, that there is some genuine mischief to be remedied or protected against. The third consideration really is a question of making sure that whatever we do introduce is valid and enforceable and does not, by its nature, produce a worse outcome or an alternative practice or procedure which is more detrimental to those whom the legislation attempts to protect.

It is with those points in mind that the opposition takes the view that, whilst there are some admirable aspects of this bill, the intent of the government, through the Attorney-General, to protect particularly minors and most specifically children under the age of 16 years against practices or procedures undertaken on them which are detrimental (and with which we may fully agree), the model that is introduced by the government, particularly relating to police powers and their extent under the definitions, is a matter of concern to the opposition and I will outline those in the contribution that I make.

The second aspect that I highlight in opening is that there are a number of other concerns that we have, particularly arising out of not this time the consultation by the government (because that has had a gestation period of about seven or eight years) but the fact that they will not tell us what has been said. It is one thing to have a consultation and to be informed and enlightened by the submissions that one receives under a consultation: it is another thing entirely to keep secret a number of those consultations and not allow them to be made available prior to the full debate on such an important issue, and I will address that again shortly.

In discussing any piece of legislation, I think one must identify any vested interest or potential conflict of interest that one has in contributing to the debate on a new piece of legislation, in this case, legislation to amend the Summary Offences Act. The Summary Offences (Tattooing, Body Piercing and Body Modification) Amendment Bill 2011 is intended to amend the Summary Offences Act.

First, I disclose that I have no body modifications that I know of. I am not sure what might have been done to me at the time of birth or prior to a stage of knowing but, as I am not a male child, I cannot think that there is anything (circumcision, or anything else) that I can disclose. There are no other body modifications that I can think of that come within this, except for ears being pierced. In that regard, for fear that I might be removed from my parents' will, I made sure that I was well into my twenties before I had that procedure undertaken. You will be pleased to know that this bill is not one that proposes to cover me as an adult or a child in respect of earlobe piercing.

I have one son who has a tattoo on his arm. I want to disclose that because I suppose it highlights one of the very different reasons that people have tattoos, and I think that is going to be important in this debate. My son has my late husband's signature tattooed on his underarm, and he did it within the first couple of years of my husband's passing. It was to be a permanent reminder to him of his father. It was his decision as an adult and one that I respect.

I think it illustrates that in the debate on this matter we need to understand that people have tattoos, or even body modifications or piercings, for lots of different reasons, and we must remove ourselves from the concept that these types of practices are only done by drunken sailors who wake up the next morning and find they have a tattoo of a mermaid on their arm.

We also have to move away from the concept that all this is done purely for adornment primarily by prepubescent girls. We need to understand that there is a very broad spectrum in the community of people who undertake these types of procedures willingly, in the full knowledge of potential health issues that may arise from them, safely and after some consideration.

If I can start with the history of this matter, the bill itself was introduced on 6 April 2011. I think it is fair to say that the tattooing and body piercing aspects have been of longstanding interest to the Attorney-General, who participated in some earlier debates on the regulation of these practices. In 2002, he tabled a private member's bill, and in 2004 he moved for and chaired the House of Assembly Select Committee on the Tattooing and Piercing Industry.

I am not sure, because I have not read his report from that committee in full, whether it did develop any significant recommendations or call for submissions in respect of body modifications. Nevertheless, that latter subject is now, of course, a very significant part of the bill before us. It is, therefore, puzzling, I suppose, why it took until January 2011 before this bill was presented to a number of stakeholders, including myself.

At the time, I recall that the minister forwarded to me a letter, dated 12 January 2011, inviting me to comment on the draft bill to regulate the tattooing and body piercing industry. Interestingly, whilst the explanatory notes did refer to body modification, the letter did not. The letter suggested that the comments on the draft bill be sent to the tattooing and piercing consultation; there was no mention of body modifications. I am not saying that to reflect any criticism on the Attorney-General, but it is interesting that now what we have melted down in the final draft actually has a very significant role when it comes to body modifications.

It is puzzling to the extent that, ultimately, when the bill was presented in the parliament last month, we only did so after a report from late 2005—so, six years later we actually have this bill before the parliament. I have previously made comment adversely against the Attorney-General for his lack of consultation on a number of bills. I do not recant from that at all in any way, but what I do say in this one is that he made a significant effort personally as a backbencher to bring some of these concerns to the parliament. He acted on them and he chaired the committee, as I have indicated, yet, for six years we do not hear a thing out of this inquiry.

I find that rather concerning, particularly when, as Attorney-General (and previously as a matter of cabinet), he had an opportunity to present this material for consideration of the parliament. It just raises the question about what the Attorney or any predecessor was doing in that time, because there were clear recommendations out of the committee's report about what should be done, and some reform was clearly recognised requiring legislative amendment.

Nevertheless, all it does is to confirm to me that this was not an issue of high importance to the cabinet of the day, and, perhaps, it took the current minister six months or so to convince his new colleagues in his new position as Attorney-General that this bill did require some attention and that it was meritorious of progress; and therefore ultimately he was granted permission to issue it for consultation in January and then to progress the bill in April.

May I also say that, during that time (we are not sure when, although some information that has come to us suggests that an earlier draft had been submitted for consultation and submissions received), a number of areas of the proposed draft bill of the Attorney-General were abandoned. On 6 April this year, when the minister announced that he was going to introduce this legislation (finally), he did say that the consultation resulted in some changes.

In fact, there was a pulling back, I suppose, from a number of areas of proposed imposition after that consultation, one of which was the removal of the proposed ban on the tattoo or body-piercing studios accepting deposits. I can only assume that the intent of the government to try to ban the taking of deposits was in some way to cause the proposed purchaser of the service from committing to proceeding with the procedure at some later time, and that in some way this would help to diminish their commitment to proceed and would make it easier for them to pull out of the proposed procedure.

What is also interesting, I think, is that, apart from the prohibition on deposits, another interesting aspect was abandoned, and that was the mandating of the cooling-off period—the concept being, as I understood it, that the government was proposing to introduce the requirement (a bit like when you buy a house) that you are entitled to a cooling-off period.

The acquisition of a home is such an important purchase, often for the benefit of providing a residence for a family and often the only piece of real estate that many people acquire. It is a big purchase. It is often the biggest purchase in a household. It is so significant that we have, by law, a requirement that someone has the opportunity to go home and reflect on whether they can borrow the funds, whether it is, in fact, a financially secure move for them to make, whether it is affordable, or whether, in fact, they have consulted other members of the family who may decide that it was not such a smart idea. We afford them a cooling-off period for good reason.

I am aware that there has been some debate over the years—before I came into the parliament, and there may have been since—about cooling-off periods for motor vehicles, because they are also seen to be of significant value. Therefore, after looking at motor vehicles on a Sunday afternoon and being seduced into the purchase of one that you could not afford, when you get home and realise that it really was not a smart move, you should be able to withdraw from that. By having a cooling-off period, you would be afforded that opportunity. That, of course, has fallen by the wayside.

The cost of motor vehicles can range from $10,000, $20,000, $50,000, $100,000, or even more. I recently saw that Top Gear program where vehicles seem to be around the half a million dollars or more mark, and they race around in them in great fury. I am in no way an expert on fast cars, nevertheless, they come at a very high price, many of which seem to be of even higher value than housing. That is an issue I do keep a close eye on. So, there may be some argument for having a cooling-off period on cars. The industry of the day certainly made supportive, cogent and persuasive arguments to the effect that that would be unreasonable because, come Monday morning, after everybody had gone out and signed up for their lovely new car, there would be a massive amount of paperwork in order to undo these contracts for the purchase of a motor vehicle; therefore, that was never imposed.

Apart from a home—a property—that you are about to buy, I do not actually know of any other area where a cooling-off period is expected. However, through some flash of enlightenment of the Attorney-General, or someone in his cabinet perhaps, it seems that he felt it was necessary to propose that we have mandatory cooling-off periods for tattooing. If I went in to have the top of my ear pierced, that would mean I would be able to contract to have that piercing done—or my navel, nose or some other place of adornment—

The Hon. J.R. Rau: It is only for tattoos.

Ms CHAPMAN: Just for tattooing. So, a little tattoo above the eyebrow or on the ankle—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: Yes, any kind of tattooing. I could tattoo 'I voted Liberal' on me somewhere. I would be entitled to a cooling-off period. Presumably I would receive notices and forms stating that I would be entitled to do this, and I could contact the prospective tattooer at a later time (within the time period) and say, 'That's it; I've changed my mind. I'm not actually going to have that tattoo done,' or, if I am, I am going to have it done by somebody else. But I can cool off on the contract.

I do not know what sparked this genius on the part of the government relating to tattoos. They are illegal for anyone under 18 already, so we are only talking about adults being entitled to have a cooling-off period for tattoos. The only other thing that I know of that has a cooling-off period is a house purchase. There may be something else. I would be very interested to hear from the Attorney why this would ultimately be of benefit and whether all of the form filling and everything else would be justified. Why should this industry be plucked out of obscurity as the only other industry which would be required to give all these notices and then cancel all of these contracts with a cooling-off period. In any event, no doubt some spark of brilliance was ignited by someone. Fortunately, smarter, greater, better minds were persuaded, with the opportunity of consultation, to convince the government that this was absurd—absolutely absurd—and that they should withdraw it from their proposal.

Fortunately, for once the government listened. I think they would have been made a laughing stock if they had actually come into the house with that proposal in it. If they had come in here and suggested that an adult getting a tattoo was entitled to a three-day or whatever cooling off period, the same as if you were purchasing your family home, they would have been laughed out of this parliament. Perhaps it was the wisdom of the Attorney-General convincing other colleagues that it was a ridiculous idea in the first place; if it was his own idea, perhaps some fortunate recognition of the error of his own judgement weighed upon him to ensure that it was remedied.

Nevertheless, another aspect was that it was proposed that there be a ban on under 18s from all piercings except nose, navel, eyebrow, and other ear piercings, with parental consent. That aspect has also been substantially modified in the bill that is now before us. I will not repeat what I said about cooling-off periods, but it does seem to me that, fortunately, there was some lightning bolt of realisation of the absurdity of what was being presented and therefore there was some modification before introducing the final bill to the parliament.

This is what consultation is all about. It is very important to have consultation and to listen. I will be canvassing a long list of other things we know about that the government did not listen to as a result of the consultation period. I will be canvassing those, but what I want to bring to the attention of the parliament at the moment is what has actually happened in respect of the consultation submissions. Before I do, let me just outline, as some summary for the purposes of the following our side of the debate on this matter, what is going to happen with this bill in the sense of what is lawful, what is unlawful and what circumstances and conditions are imposed for it to be lawful for certain age groups.

Firstly, on tattooing, it is important to remember, that part 4 of the Summary Offences Act already contains a very brief provision that restricts people under the age of 18 in South Australia from having any tattooing. That has been around since about 1980, so this has been the law for some 30 years.

Interestingly, with all of the radio coverage that the minister got on this issue—first, his announcement, his inquiry and other things—it was surprising often to hear people in the general public saying, 'I thought tattooing for under 18 year olds was already illegal. What's he on about?' Well, it clearly is—it has been for 30 years. That just shows the capacity, perhaps, of the Attorney-General to present some kind of fear to the community of something that was actually already well and truly protected.

No doubt, as we look through his media releases, and even the second reading to this parliament, there was an attempt, I think, by the government to exaggerate the fear in the community by leaving them with the impression that, without the Attorney-General championing this amendment, in some way the children of South Australia were going to be exposed, including exposure to tattooing. That is a complete nonsense because it is already unlawful to undertake tattooing.

Mr Piccolo interjecting:

Ms CHAPMAN: I can get a lot pricklier. So, the bill does not do anything about that at all. What is also interesting is that industry sources that we have received, and I will come to what the government has told us at a later date, is that they believe there are only three known cases of underage tattooing reported to police since 2004, and none of them had been by professional operators; that is, they were in some way done by a backyard operator, as it is commonly described, and not by a professional outlet.

As to the piercing situation, for body piercing the current law is completely silent in relation to any kind of regulatory practice. I should also say that there is no licensing of the industry in this regard and it is fair to say that body piercing, as distinct from tattooing, is something which, I think the Attorney would agree, is undertaken by a very wide spectrum of providers. These are people who are professional in beauty therapy and hairdressing, in outlets which provide for amenity enhancement for young women in particular, but increasingly young men—

Mr Piccolo interjecting:

Ms CHAPMAN: I am not getting into that. I am not talking about your interests, or what you are bragging about. I am talking about outlets being a much broader level of service providers in the community. Whereas, and again I am no expert on tattooing but I understand that those who are tattooists are either individual operators or operate from a facility and they have a special skill of which they undertake their treatment. You do not find them sitting next to the nail polish girl in the hairdresser and you do not find them sitting next to the leg waxing provider (male or female) in the beauty therapist parlour, you find them in discrete facilities, and, as best I know, there is no regulation of the industry in that regard.

Essentially, the bill proposes three levels of piercing. One is the intimate, which is, obviously, the genitalia and anal region, a number of areas, including the nipples, which are specific areas of the body which, I think it is fair enough to say that we would all agree, are areas of some privacy and sensitivity and the exposure of them is frequently, in our own law, prohibited. We have special rules about the access to or exposure of these areas, even during procedures.

We have guidelines, even for medical practitioners, to ensure that when these parts of the body are exposed, even in the presence of a medical practitioner, that a nurse be present, and other things. So, we actually have an area which, I think, across the board we acknowledge is an area of sensitivity and of which, therefore, the bill proposes that anybody piercing in this area for 0 to 17 year olds, and that is 17 years 11 months and 29 days (or whatever), is absolutely prohibited.

The Hon. J.R. Rau: That's not a problem, is it?

Ms CHAPMAN: I am just identifying at this point what the bill states. The second thing is that if you are 18 or over and you find some merit in this area of your body being pierced you can do it with consent.

The Hon. J.R. Rau: No; you can do it, full stop.

Ms CHAPMAN: Yes, with your own consent. So, all you have to do is to be of sane mind and sober, walk into the place and say, 'I want 10 pins put in my nipples,' if you want to. I am at a complete loss as to how these piercings in these areas add to attractiveness, stimulation, benefit or whatever, to be honest, but there may be people who will come into the house to explain to us why these are something that is attractive to some people to do, or that there is some benefit to enhance some value of that area of the body. I do not know.

Members interjecting:

The DEPUTY SPEAKER: Order! Excuse me, member for Bragg. I know that the small boys sniggering in the room are very excited because you are talking about body parts. However, it should be pointed out that the member for Bragg is making a serious speech and we should be able to listen to her in silence, without the sniggering.

Ms CHAPMAN: Thank you, Madam Deputy Speaker. I am sure that your experience as a former school teacher, trying to manage children dealing with sex education lessons, was exactly the same. People just do not appreciate the significance of what we are discussing. I simply place on the record that I will not be discussing this at any length, because I have no expertise in it. I have no idea what the benefit is. I will be listening with interest to other members who might identify what the benefit is.

One of the reasons it is important that we understand it is because we are suggesting that this is a practice that is of some detriment to people up to the age of 18 years. We are going to pass a law that says that it is prohibited, so there must be some detriment to it. I am yet to hear the advantage of it so that we can consider, as we need to do with any legislation, why we are continuing an 18 or over own consent. I would be interested to hear that.

When we get to the non-intimate piercings—and more particularly the earlobe, which is now to be excluded in this bill, of there being any age restriction on having that done—it seems to me that wherever there is a body piercing, if it is not done safely, hygienically and in a circumstance where it is competently done, then we can have problems. It does not matter whether it is in an earlobe or in a nipple, we are going to have health problems, as is already evident with those who turn up to seek medical treatment, particularly in circumstances where there has been a backyard job done.

I want to get through the three levels of piercing. We have the intimate and the age differentiation as to where it is prohibited and where it is able to be done of their own volition. Victoria, Queensland and Western Australia all have this approach. Then we get to the non-intimate piercings—that is the tongue, cheek, nose, navel, eyebrow, neck and so on. I presume it means everywhere else on the body, except where it is defined as intimate, and except an earlobe.

The Hon. J.R. Rau: Correct.

Ms CHAPMAN: I am not quite sure why the definition is drafted that way for non-intimate. Nevertheless, I think that is where we are at. As I understand it, it is predominantly used by proponents of piercing in facial areas. It is not common, necessarily, for piercings to be on hands or feet, but they can be on ankles, belly buttons, faces and the like.

There was an article written this year in The Advertiser by Mr Daniel Wills. He was talking about the government's announcement to introduce new piercing laws and a display photograph was published of what I assume to be a male, because he has a pretty hefty beard for a female, where there was something like 60-odd studs pierced into this person's face, for whatever reason—I do not know. Apart from the studs, there were some spikes, nose rings, lip rings and earrings.

Assuming the person displayed is over the age of 18 years, he can continue to do all of this after this legislation is passed, except for one thing. There is a body modification for a massive earlobe ring to be inserted inside the earlobe, which modifies the body to the extent that it provides a massive hole in the earlobe. I am sure other members have seen this, as I have, in other cultures where there is a massive hole produced in an earlobe, in lips or in tongues, predominantly headwear in some African cultures. Again, I am not entirely cognisant with why that is a practice undertaken in those cultures, but nevertheless it is something that is seen as some considerable adornment.

I make the point, though, that whilst there is a restriction on under 18 year olds having piercing in intimate parts (that being prohibited) if you are over 18 you can still have it done wherever you like, provided that you obviously want to do it and that you are of sound mind and competent to make that decision. So, this situation can continue to be repeated.

The new rules provide that if you are under 16 (that is, 0 to 15) you will need your parents' or guardian's consent. I think the 16, not 18, needs to be explained. The government suggests that it is because that is the age of consent that is consistent with the medical treatment provisions we have currently (I think it is the Consent to Medical Treatment and Palliative Care Act), where a 16 year old has the power to go to their doctor and seek and receive medical treatment and provide consent to an examination, the provision of a prescription or a procedure being undertaken.

I can remember the very controversial discussion, pre my time in parliament, of girls wanting to have access to the contraceptive pill. They did not want to tell their mother, and they wanted to go off and get some kind of medical advice on these matters, and sometimes a prescription for the contraceptive pill, in a time when that was quite controversial. I think there had been a couple of meetings of the papal bodies in the Vatican to suggest that it was not allowed, and all sorts of things—these were all very controversial issues of the day.

We had, coming up against each other international rights of children and conventions, some friction against domestic laws about how we might best safely keep children open and available for medical treatment if their parents or guardian were unwilling or unable to provide them with advice or medical treatment access or consent and, secondly, balance that against the parental responsibility they otherwise had.

Contraception might have been the pointy end of the issue, but it was also important that if a child, for example, at 15 or 16 started to develop issues that needed medical attention or medical advice, and for whatever reason their parent or garden were not taking them to get that advice, that could have very significant detriment.

I can only think of young girls in a situation where they might have contracted some contagious disease that might later affect fertility. There are aspects like that that do need to be monitored, and that legislation, that is, the consent to medical treatment and palliative care, gives access to 16 year olds to be able to access that. It protects the medical profession, particularly, against any claim or prosecution for executing their obligation as a medical practitioner to provide advice and safe procedure to keep them healthy.

Finally, the earlobe—which, as I say, is completely within its own category—is not the top of the ear, the back of the ear, or the inside of the ear, but the earlobe itself. Anyone can do it any time, it seems, and that is a matter which I flag and one which has attached to it a number of aspects we are still not entirely happy with. We do not discount the assertion by the government that this is a common practice. We do not reject or discount that it is something which is seen as acceptable across a broad spectrum in the community.

In fact, I think it is fair to say that we live in a multicultural community where ear piercing at a very young age for children has been quite a common practice. It is not uncommon, of course, to see these little children with studs in their ears while they are still in nappies. I have not noticed it so much in boy babies, for some of those cultures, but certainly for female children it is common and is something that is pursued by that culture. I am sure the Deputy Speaker would have people in her own electorate who advocate that practice.

It is also one which the Attorney-General asserted in his second reading, I think—it may have just been in his press releases—that we do not challenge. The part of the body through which the earring, stud, spike or whatever is inserted—the post, yes, the post of the actual earring—is one which has no bone, no cartilage and limited blood vessel supply. Again, I do not know the anatomy of the ear lobe, but I have no reason to doubt that that is the case. I am not sure what other parts of the body that also applies to. If that is going to be a basis upon which to allow anyone at any age to have their ears pierced, then perhaps we should be looking at other parts of the body that have the same features.

Perhaps the Attorney-General can enlighten us in due course as to whether there are any other parts of the body that do provide that. Not that I think for a moment that even if we find some spots like that that we should be suggesting that five year olds should be able to leave their primary school and go off and have whatever portion of the body is—

The Hon. J.R. Rau: I think toenails—

Ms CHAPMAN: Toenails, the Attorney interjects. That is possible; fingernails or toenails. I am not quite sure how much blood supply is actually in the nail itself, but I have no doubt he will enlighten us in due course.

The other aspect is the body modification. Although this is markedly absent from the initial consultation, it is one which it seems that somebody on the other side of the house has stumbled across as being important. There is no question that it is now frequently brought to our attention as an activity that is I would not say prevalent out in the community, but which is undertaken by a good number in the community. Body modification is defined as incorporating the tattooing that we referred to, body branding, body implantation, ear lobe stretching, body scarification and other prescribed procedures. Any of these actions are now going to be prohibited on anyone under the age of 18 years. All these categories are now the same as what it has been for tattoos, that is there will be a ban on those as any permanent alteration of the body. I seek leave to continue my remarks.

Leave granted; debate adjourned.

[Sitting suspended from 12:59 to 14:00]