Tattooing Industry Control Bill

Second Reading

Adjourned debate on second reading.

(Continued from 10 September 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:18): I rise to speak on the Tattooing Industry Control Bill 2015 and indicate that I will be the lead speaker for the opposition. As I understand it there are a number of our members in the parliament who wish to make a contribution in this regard. In speaking on this bill, introduced by the Attorney-General on 10 September, I will say in opening that I was little surprised to see this bill. The Australian Labor Party made an election commitment to ban organised crime gangs through their association with the owning or controlling of tattoo parlours and pawn shops, and there was considerable discussion during a recent raft of legislation—bills that were colloquially known as the 'bikie legislation'—during July of this year.

As members would recall, that related to the extension of control in respect of the consorting of those involved in serious and organised crime and the strict prohibition of certain groups of outlaw motorcycle gangs culminating, in the end, in some 17 groups, or it may have been 10—I cannot remember, it was whittled down a bit—together with a strict prohibition on there being any attendance at certain properties. That was also reduced from the original list.

In the course of the passage and debate of that legislation, the question was raised as to whether the government would be proceeding with two other areas of management of serious and organised crime. One was whether the government intended to follow the Queensland legislation, in particular the Vicious Lawless Association Disestablishment Act 2013, otherwise known as the VLAD laws. The Attorney-General made it absolutely clear that that was not going to be progressed, and I was pleased to hear it.

Essentially, that meant that under Queensland law if someone was a member of a prohibited organisation and they were convicted of a minor offence they would automatically attract a very much greater penalty as a result of being a member of one of these organisations. The classic example would be that if someone who was in a prohibited organisation was picked up for shoplifting—whilst there might be a small fine attributed to anyone else in the community—because they were in that category, they might suddenly find themselves in gaol for 15 years because of that association. It was made absolutely clear that that would not be progressed.

At the time, I inquired as to whether the government had any intention of banning this association between outlaw motorcycle gangs and the tattoo industry, which similarly had been the basis of legislation, namely, the Tattoo Parlours Act 2013 in Queensland. Again, the Attorney made it clear that that was not going to be progressed. I just make that point because I am not sure why we did not deal with this matter when we dealt with the other bikie legislation, especially in the environment in which it was expressed that it was not going to progressed.

Of course, the reason I inquired about it was because at the time of the election the government made a commitment they were going to do it. Erroneously, I thought that perhaps the government had looked at what was happening in Queensland and thought, 'Well, it might not be a good idea; it might not be effective,' or, 'They're conducting an inquiry which is due to report at the end of the year under the new Labor Premier and, therefore, they were not going to progress it at that stage.' That seemed to be a logical explanation. I was a little surprised that within weeks we had this bill tabled with the expectation that it be progressed independent of the other measures and, I suppose, right on the tail of the conclusion of the other legislation. I think it is fair to say that the ink was hardly dry to be able to identify if, in fact, they were going to be the effective measures that one would all hope they would be to minimise serious and organised crime in the state.

Nevertheless, it is before us and unsurprisingly the first response to this legislation when the government announced that they were progressing with the bill was one of concern that it would affect, potentially, innocent parties; that is, that the definition of who it might capture, or who might be prohibited, ultimately, from operating in the tattoo industry or to own or to work as a tattooist or, indeed, selling tattoo equipment was so broad that it might even inadvertently capture the extended family or associates of someone who was a member of an outlaw motorcycle gang or prohibited organisation or, indeed, had formerly been a member in the preceding five years.

It was unsurprising to me that the president of the South Australian Law Society, Mr Rocco Perrotta, raised this very point and expressed the importance of ensuring that there is a careful advance of prohibition in respect of owning a business, whether it is a tattoo parlour or anything else, because of the effect it would have on the earning capacity of someone in their chosen field.

As if our state does not have a big enough problem with jobs, or lack thereof, as it is and the unemployment rate rising, we certainly did not want to have a bill that would cast a net so wide that it would deprive innocent people of their right to earn a living in their chosen field or in their area of expertise. The answer to how potentially dangerous that would be, that is, to capture the innocent, obviously comes in the drafting. Quite possibly we will need to see how the legislation progresses if it passes both houses of parliament, which I expect it to, as to whether there is a need for any reform to ensure that we do not inadvertently capture the innocent.

I just want to refer to some further information that has been provided in due course that persuades the opposition to support the government's initiative in this regard, to support the passage of this bill, and, as I say, to monitor it and give it an opportunity to identify if it is going to be successful. The fundamental test for us in respect of legislation of this type, especially when it has the potential to exclude people from the opportunity to pursue employment, is that it has to be identified as necessary to deal with a problem, in this case to identify that the tattoo industry has in some way been infiltrated by persons whose activity we need to curtail, in particular, obviously, former members of outlaw motorcycle gangs and prohibited organisations.

Secondly, the proposed remedy to deal with it, which I appreciate is on a spectrum of different proposals to deal with the problem of interrupting, intercepting, disturbing the activity of these persons, has to be effective for us and its implementation needs to be enforceable. That is the threshold for us. On the face of it, when we received this bill, together with the concerns raised publicly to capturing the innocent, those who felt they may already fall foul of the proposed legislation coming out to speak strongly against legislation, we considered this legislation. Unsurprisingly, as I say, we also saw members of the tattoo industry protest here on the steps of Parliament House. They were concerned that their legitimate activity and their opportunity for employment was going to be interfered with.

Let us then look at what it does and whether it qualifies at that threshold level for us. The tattoo parlour industry is currently unregulated in South Australia. We know that in the pawn shop area there is a regulation under the Second-hand Dealers and Pawnbrokers Act. The government in providing a briefing on the application of this bill indicated that it would provide what it calls a 'negative licensing scheme', and accordingly there would also be some consequential amendments to the Second-hand Dealers and Pawnbrokers Act.

We have a licensing or registration scheme for a number of businesses. We effectively have it for people who operate in hotels; we have very prescriptive regulatory processes for people who operate chemists shops, even; we have restrictions on persons who can be responsible for or dealing with all sorts of things, such as firearms, drugs (legitimate drugs, I am talking about, prescription drugs), gunpowder, dynamite. There are lots of areas, including obviously alcohol and spirits in premises at the Adelaide Oval across to hotels.

The community indicated and the parliaments have responded to the understanding that the community expects some level of control, restriction, to make sure that the young and vulnerable are not exposed to potential danger or the sort of predatory introduction of people to do that, and so we have laws surrounding it. Unsurprisingly, we have a number of these licensing schemes or registration procedures which people need to qualify for to be able to trade.

This was described to us as a negative licensing scheme which basically says that you can, like anyone else, open a tattoo shop, just as you would a delicatessen or any other business, and you would only be prohibited from actually operating it if you were in certain categories, and the prohibition to operate is regulated by there being very significant fines and consequences—including imprisonment—if you trade when you are within a certain category; as many would know, that relates to whether you are a member of a prescribed organisation or have an association with one.

In short, it was presented to us that this would mean that, of all the tattoo industry operators at present, there may only be a relatively small percentage who would be affected by this legislation, and they would be the ones who would be the subject and the target of the government to shut down because they are in the category which, obviously, we are trying to rid the industry of.

It was presented as a reduced red tape option. So instead of making everyone register and going along and establishing that you are a fit and proper person to do it, in this way only the people who were in the category under the definition of the act would have to close down and therefore be under some obligation. In fact, on careful reading that is not the case.

The situation is that every year the people who operate these businesses will need to record and provide updates when appropriate of the places that they operate, the personal particulars of the owners or directors and the personal particulars of employees. So, be under no illusion: everyone who is in the business is going to have fill out forms. Do not be fooled by the government's pretence that this is in some way some sort of reduced red tape option. The government can call it whatever it likes, the fact is that everyone will have to comply.

Hopefully, for those who are operating and who are innocent of any association with the prohibited organisation world that has some association with serious and organised crime that that will be minimal but, be under no illusion: they will have some obligations.

Essentially, the bill also provides two categories where someone will be automatically and permanently disqualified if he or she is a member of a prescribed organisation, a close associate of a person who is a member of a prescribed organisation, the subject of a control order under the Serious and Organised Crime (Control) Act 2008 or disqualified from providing tattooing services under a law of the commonwealth or any state or territory, or is a person of a class prescribed by the regulations. That is one group. It is automatic and it is instant. In that regard, we are told that, if this legislation passes, the existing operators in the tattooing industry will have a grace period once it comes into operation. Six months was considered as a reasonable period, but that will be a matter for the government.

As I understand it, if the bill passes, the intention is that each of those operations in the industry at present would receive a notice of the passage of the law and, should they qualify or be under the umbrella of the legislation, they would have a clear understanding of what their obligations may be, and it may be that they need to shut down their business or have the opportunity to onsell it and allow someone who is not within the restricted category or otherwise automatically and permanently disqualified from holding it. Let's hope that works well, but I think the government is on clear notice that there will need to be some period in which there is an opportunity for those who may fall foul of the provisions to onsell their interests.

The second area is where the commissioner for consumer affairs will have the power to disqualify a person under certain circumstances, including if they have at any time in the previous five years been a member of a prescribed organisation. From our side of politics, we see this as an important component of this regime because it does introduce a separate entity for the purposes of implementing this regime.

In the time I have been in the parliament we have dealt with some firearms registration reform (and that is about to have some more significant reform), and we have dealt with the hydroponics industry, and I think, from memory, at the time something like 50 or so were operating in South Australia. It was felt that there was a close alliance between some of those in the industry and the manufacture of drugs and that it was important to regulate the industry to enable an attempt to exclude from access to moneys the people in that industry who were in the drug-making business.

My recollection is that when that legislation passed, which was to be under the supervision of the police, we discussed the alternative of having the registration and regulation of any business like this under the department of consumer affairs and for it to be independent of the police department, which had a very important investigative role. I suppose to some degree wasting police officers on the regulatory arrangements of a business seemed to me a gross waste of their expertise. It also adds some level of independence and separation of responsibility if we allow the administrative people in the Consumer and Business Services region to be separate from the enforcement responsibility of SAPOL; however, the government took the view that it needed to have responsibility for it.

To go back to firearms, for example, at the moment, on our side of politics we have always accepted firearms as an important area of responsibility. It needed to have strict regulation. It is under a registration system and has been for a number of years (decades now). Whilst it is under review I am not commenting on its operation, but it has been under the responsibility of the South Australian police department and given the nature of the product, handguns and firearms generally, that is quite appropriate.

When we come to this industry, or the regulation of this industry under this model of being a negative licensing scheme, I am pleased to see that in the implementation there is an important role for the Commissioner for Consumer Affairs to be able to deal with the discretionary determinations of disqualification. I should say that the provision under the bill is that if a person within a certain category in fact undertakes tattooing services then they will be doing so facing the risk of a maximum penalty of four years imprisonment for an actual person and/or $250,000 for the body corporate.

The bill also allows the police to enter a tattooing premises without a warrant and carry out general drug detection, using drug detection dogs or an electronic drug detection system. That has also attracted some interest, but I think it is fair to say that if this were any other normal licensing scheme then inspectors, or authorised officers as we frequently call them now, whether they are inspecting water purity or health conditions in a restaurant or whether there has been some breach of the environment act, and this is outside the South Australian police force, have rights of entry and inspection and even confiscation of documents and records to carry out their regulatory role.

So, whilst at first blush the concept of entering a business premises without a warrant seems a little heavy handed it is not inconsistent with the role of a number of our public servants and the powers they have to enter premises for the purposes of inspection and the like. If, of course, during that inspection there was the exposure of some illegal activity, the same as it would be in a restaurant, the back room of a hospital, or in a tea room at a chemist shop, if there was some sort of operation going on that should not be then they would be, no doubt, exposed and follow the prosecution line.

The government briefing was followed by a briefing by senior personnel from the South Australian police force. I thank the government for making that arrangement for us to discuss with them the position as they see it. It is particularly important because, firstly, they confirmed that it was at their request that the tattooing industry prohibitions which have been presented to us today, and which formed the basis of the Australian Labor Party proposal as an election commitment, came from them and they, of course, support the position of the government that it is to ostensibly assist in the disruption of serious and organised crime. That works on the premise that there is an identified problem in the existing industry.

Can I say that obviously the information that is provided by the police which falls within the category of what I would describe as criminal intelligence will not be repeated by me and I do not expect by any of my colleagues who were present. For obvious reasons, we do not want to be interrupting ordinary police activity. Suffice to say, we are satisfied that, of what we thought was about 80 or 90 operations mostly in the metropolitan area of Adelaide but which they confirm was probably closer to the low 70s, there was a significant minority that did have a direct link with an outlaw motorcycle gang.

The information that we received has not been presented as criminal intelligence to the Crime and Public Integrity Policy Committee of the parliament. I am not sure why, because that is exactly what it is for if there is a problem, and it has been asserted that there is and there has been an infiltration into this industry which is significant, which is concerning legitimate owners of tattoo parlours in this space who are also looking to ensure that their industry is not tainted by the bad eggs. Nevertheless, it has not been and there has been no representation to the Crime and Public Integrity Policy Committee to seek their support.

Perhaps they felt that, because they had the government's ear and commitment in the election, they did not need it, but I just want to remind members that we have an important role in dealing with criminal intelligence in South Australia. It has just been enhanced significantly through the Crime and Public Integrity Policy Committee's new role in the recent tranche of serious and organised crime legislation, and it ought not be forgotten and it ought to be utilised. If the objective is to rid the tattoo industry of the bad eggs, because those who are in it have a close association with a prohibited organisation and in particular have used it for the making or laundering of money or to undertake drug trafficking activity, then we need to look at it.

My understanding is, and I think it is fairly common knowledge, that obviously it has provided a place for those who operate with associations with bikie gangs to be a place of meeting and where, as we read in the paper all too often, there have been shootings and activity nearby which have resulted in people seeking respite into a tattoo parlour. The recent tranche of legislation in respect of consorting and the effective prohibition of outlaw motorcycle gangs congregating in a public place probably have removed that in any event. As I would expect, if the organisations that have now been prohibited still have any membership or presence in South Australia, they are no doubt meeting in each other's lounge rooms, given the last lot of legislation that has been passed.

Can I say that we are satisfied that, in respect of the negative licensing model that is proposed, it is an industry that has been infiltrated. It does harbour activities that we are satisfied we do want to eradicate, and not just for the broader community but for those who are legitimately operating tattoo businesses, and therefore that threshold of having a proposed remedy that will be effective has been met by us.

The final aspect is going to be the enforceability of it. If the government are responsible, if the police are sensible, and I have no reason to think that either will not do this, then the implementation of this should progress in an orderly manner and we will not be causing unnecessary interruption to business or harm to others, either personally or financially. If it does not, though, we could have a very messy situation. As I said, the government is on notice to ensure that there is sufficient lead-up time, that there is a notification procedure, and that there will be sufficient time for the transfer of businesses out of the industry.

There are two other things I want to mention. One is that we can deal with this question of shutting down the access to finance, or a position of laundering money, or a room to conduct illegal activity from this industry to the next industry on this sort of piecemeal basis. It is not beyond the wit of people who are in this industry that we want to get rid of to start up other cash businesses; there are plenty of them.

But we do notice that the pawnbroking industry (which has a registration process, and for which there were fears there was organised crime involved), and the security industry (where people went into the business of providing bouncers and services, and which was already ostensibly tainted with this group), have been demonstrably cleaned up as a result of having this process.

We are satisfied, on this side of the house, that it is worth a go. But, be under no illusion: these people did not come down in the last shower. In many ways, they might not be the sharpest pencils in the pack, but they are not fools, and it will not be beyond their wit to think that they can go into the next business. So we might be back here in another six months dealing with another business. It might be beauty parlours, it might be delicatessens—who knows. I just make the point that this sort of piecemeal approach is pretty messy, but we are satisfied, at least for the moment, that there is sufficient desire to have it cleaned up.

The second aspect I want to comment on is that Queensland's new Labor Premier has announced that she has appointed a task force into organised crime legislation. It was, I think, to replace a previous review regime that was being undertaken by the previous Liberal National government that was due to report now.

This new task force will report to the Queensland government on 18 December. It has very comprehensive terms of reference, but it does include a review of the Tattoo Parlours Act 2013 in the two years that it has been operating in Queensland. It is not unreasonable that that be looked at. Suffice to say, it also has to cover all their other anti-organised crime legislation, including the VLAD laws that I referred to before. It appears this was a very significant issue during the last state election in Queensland because the task force instructions start with:

The Taskforce will note the Queensland Government's intention to repeal, and replace the 2013 legislation, whether by substantial amendment and/or new legislation, and will advise—

and then, etc. This is not just to tinker around the edges, or strengthen, or fix up any aspects that do not work. There was a very significant public groundswell of discontent about the effectiveness and the application of all of this passage of laws in Queensland.

It has been the subject of academic comment. It has been the subject of court proceedings that have been aborted or abandoned, which has been a very costly exercise. Sadly, at least in one case I referred to in the last tranche of bikie legislation debates, it captured a young woman who, ultimately, had charges in this area against her dropped. She was a young mother who had all sorts of awards for community service, for goodness' sake, and had been caught up in this because of having a cup of tea or coffee, or something, with a person who was a member of a prohibited organisation.

There is a lot of concern and, unsurprisingly, when things do not go according to expectation or people are innocently caught up in things, the public get angry. They expect us as legislators to do these things properly so that we do not destroy people's lives or that it be very costly to them because we have not carefully looked through the implications of what we are about to dish out and impose on the public.

I make the point, as I did in the last lot of legislation, that sometimes it does not hurt to keep an open mind about what other jurisdictions have done, especially if they have done it before, especially if they are going to appoint a high level review of something, and especially if they are going to appoint a task force. It will be chaired by Mr Alan Muir Wilson and include representatives from the Department of the Premier and Cabinet, the Attorney-General's office, the Queensland Police Service, the Queensland Police Union and various other bodies, as you would expect—the Law Society, Bar Association, Public Interest Monitor and the like. These are very significant players in the law enforcement world and any consideration and investigation by them into this whole area should not be dismissed lightly.

It seems to me that, having passed a tranche of legislation—which, of course, we all hope will be effective, and this being due in the next two or three months—we would have some indication of whether things are working alright. It does beggar belief that we are actually here dealing with this right now. In any event, we will see. We are not going to hold up the legislation, as we said in the last lot of legislation, but we do say that, really, there ought to be at least some consideration of what is happening up there.

One of the options for the government is that they could, as we had asked them to do, provide us with at least a copy of the submission the Queensland police force had put to the task force. Quite frankly, they may be saying to their Attorney-General, as their equivalents in South Australia are saying, 'It is necessary to have this type of legislation, but here are a few of the defects, and we think these other things need to be fixed up.'

But, when I make the inquiry, nobody even has a copy of that or any information from the Queensland police force as to how many cases they had actually had an effective operation on, what the consequences were and whether there needed to be some other strengthening or amendment of the legislation, which I just find bizarre. I still call on the government to get that information from Queensland and provide it between the houses because I think the parliament needs to know about this and fix it up if we need to. With that, I support the passage of the bill and trust that it will have an effective impact, as it is intended to.

Debate adjourned on motion of Mr Gardner.

At 17:59 the house adjourned until Thursday 15 October 2015 at 10:30.