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

Committee Stage

In committee.

(Continued from 15 September 2011.)

Clause 4.

The CHAIR: I think the Hon. Mr Wade has moved his amendment.

The Hon. S.G. WADE: Yes. In the context of the discussion we had on 15 September, if I can confirm my understanding, I think the minister indicated that the government preferred the Franks amendment to the Wade amendment. If that is the case, I am happy to withdraw the amendment because the same effect will be achieved by the Franks amendment.

The Hon. G.E. GAGO: We do prefer the Hon. Tammy Franks' amendment.

The Hon. S.G. WADE: By leave, I formally withdraw my amendment.

Amendment withdrawn.

The Hon. T.A. FRANKS: I move:

Page 4, lines 28 to 33 (inclusive) [clause 4, inserted section 21C(2)(b)]—Delete paragraph (b) and substitute:

(b) any body piercing on a minor without the consent of the minor's guardian given in accordance with section 21D.

The effect of this amendment is to ensure that earlobe piercing is also within the rubric of having to get the consent of a parent or guardian if a minor is under 16.

The Hon. G.E. GAGO: We will not be opposing this amendment.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Page 4, after line 34 [clause 4, inserted section 21C]—After subsection (2) insert:

(2a) Subsection (2)(b) does not apply if the minor on whom the body piercing is to be performed is at least 16 years old.

The committee should note that this amendment is consequential on the previous amendment.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 5, lines 15 and 16 [clause 4, inserted section 21D(1)]—Delete '(other than an earlobe piercing)'

This amendment builds on the earlier amendments proposed by the opposition and when we deferred to the Hon. Tommy Franks' amendment. It would require the provision of information and a written agreement to be undertaken for piercings on earlobes for minors under the age of 16. As we indicated previously, we see no reason as to why minors should not require the consent of a parent simply because they choose an earlobe piercing over another non-intimate piercing. I will briefly flag at this point that we do not think that this information or agreement is necessary for persons 16 years old and above and will be moving a subsequent amendment to reflect that fact.

The Hon. G.E. GAGO: The government will not be opposing this amendment. New section 21D requires service providers to enter into a written agreement with customers about the nature of the procedure and the manner in which it is to be carried out and give customers a free-of-charge copy of prescribed information. However, these requirements do not apply to earlobe piercing.

The effect of this amendment and Mr Wade's third amendment would mean that service providers would have to enter into a written agreement to give out prescribed information for earlobe piercings but only if the person is under the age of 16 years. This will have an impact on those businesses that only offer earlobe piercing and are not currently captured by section 21D, as they will be required to enter into a written agreement with every customer who wishes to have their earlobes pierced.

Although it seems onerous to require service providers to enter into a written agreement for such a simple procedure, there is merit in service providers being required to give all customers appropriate health information regardless of the procedure they are seeking. Therefore, the government will not be opposing this amendment.

The Hon. T.A. FRANKS: I indicate the Greens support this amendment.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 5, after line 35 [clause 4, inserted section 21D]—After line 35 insert:

(1a) Subsection (1) does not apply to an earlobe piercing performed on a person who is at least 16 years old.

This amendment seeks to remove the requirement for a written agreement and the provision of information for earlobe piercing procedures on persons aged 16 years and above. The opposition does not think there is a demonstrated need for a departure from the current requirements in relation to this procedure. It is our view that those that are of consenting age generally know what they are engaging in when they ask for an earlobe piercing. It is a relatively straightforward procedure and we do not believe it is justified for businesses to have additional requirements placed on them in this instance.

The Hon. G.E. GAGO: The government will not be opposing this amendment. It is linked to the Hon. Mr Wade's second amendment that was not opposed.

Amendment carried.

The Hon. T.A. FRANKS: I move:

Page 5, after line 38 [clause 4, inserted section 21D]—After subsection (2) insert:

(3) In this section—

prescribed information means—

(a) information about how to care for the health and recovery of the area of the body affected by the body piercing or body modification procedure; and

(b) any other information prescribed by the regulations.

This deals with provision of after-care health and recovery information to be prescribed. I understand the Liberal Party will be amending this amendment, and I will be supportive of that.

The Hon. S.G. WADE: I move to amend the amendment as follows:

Inserted subsection (3)—Delete 'this section' and substitute: 'subsection (1)(b)(i)'

The Hon. G.E. GAGO: The government will not be opposing this amendment. For the record, at present the bill requires service providers to provide customers with a copy of prescribed information as the bill does not define 'prescribed information'. The government intends to set out what is prescribed information in the regulations. At this stage it is envisaged that service providers will need to provide customers with the information about any health risks associated with the procedure being sought, as well as information about how to care for the site after the procedure has been performed.

The effect of this amendment is to put into the act a requirement to provide after-care information and to allow other information to be prescribed in regulation. Although the government obviously would prefer that these requirements be prescribed in the regulations so that they can easily be updated if necessary, we will not be opposing it.

Amendment to amendment carried; amendment as amended carried.

The Hon. S.G. WADE: I move:

Page 5, after line 38—After inserted section 21D insert:

21DA—Offence to body pierce etc using unsterilised equipment

A person must not perform a body piercing or body modification procedure on another person using an instrument that has previously been used to pierce or modify a person's body unless that instrument has first been sterilised in accordance with the regulations.

Maximum penalty: $5,000.

For the reasons outlined previously, we believe that sterilisation procedures should be universal and applied to all multi-use devices. One of the major health risks raised by stakeholders was poor practice in regards to hygiene of procedures both while they are undertaken and in after-care arrangements. This amendment seeks to address the first part of this concern as raised by the Hon. Tammy Franks previously.

The Hon. G.E. GAGO: The government opposes this amendment. This amendment inserts a new section 21DA into the bill. The proposed new section makes it an offence to re-use a piercing or body modification instrument unless that instrument has been sterilised in accordance with the regulations. The government has no objection to that in principle in relation to the amendment. However, the use of unsterilised equipment by tattooing and piercing studios is a public health issue and should not be included in the Summary Offences Act.

The Department of Health publishes guidelines on the safe and hygienic practice of skin penetration which are enforced by local government environmental health officers. These officers are trained to carry out inspections of these premises in relation to sterilisation and infection control. Issues relating to sterilisation should be referred to the health minister who looks after the Public Health Act. They should not be put in the Summary Offences Act and enforced by SA Police officers who do not have the same training in relation to public health matters. It is for those reasons that we oppose this amendment.

The Hon. T.A. FRANKS: I rise on behalf of the Greens to say that we certainly support the intent of this amendment, and obviously we had moved a similar amendment ourselves. We are most concerned that the use of non-sterilisable piercing guns has been linked to serious infections and complications from their use. This was detailed in evidence before the 2005 select committee. This alone should be grounds to reconsider their use, and the additional risks provided of blood to blood transmission of serious and potentially fatal diseases subsequently leaves this issue as something that should have been much more urgently addressed.

I indicate that the government raises some quite salient points and certainly while the Greens would like to see addressed the use of these particular piercing guns and any non-sterilisable machinery with regards to piercing or tattooing, perhaps while saying that we support the intent of that and accept the government concerns, the government could suggest a way forward, which may be of use.

The Hon. A. BRESSINGTON: I will support the government's stand on this issue. There are a lot of pieces of equipment used for tattooing and piercing that do not necessarily have to be sterilised because they do not come into direct contact. It is a health issue. I have had tattoos and piercings. I just do not know what all the fuss is about, but I am with the government on this.

The Hon. J.A. DARLEY: I will support the government's position on this.

The Hon. G.E. GAGO: I put on the record that we will be happy to refer this matter to the Minister for Health in another place and ask him to consider this particular issue and provide a response to that.

Amendment negatived.

The Hon. S.G. WADE: I move:

Page 7, line 24, page 8, line 9 (inclusive) [clause 4, inserted section 21I]—Delete section 21I

The bill would enable South Australia Police to enter premises providing tattooing, piercing or modification services and inspect, copy or retain copies of documents. The police officer would also be empowered to require a person who they reasonably believed to be a minor to give the person's name and address, proof of age and information about the procedure they are seeking. Such investigations by police would already be justified in the context of criminal investigations.

The industry is concerned that no other service industry has laws that allow the inspection and removal of private client data without justifiable cause. Indeed section 21I of the bill only requires that it is at a reasonable time for an officer to inspect and retain documents proscribed by regulation. Only if the police propose to retain copies of documents will it be necessary for them to suspect an offence. As the minister has indicated in her immediate past contribution, significant powers already exist for local government in relation to health and public safety standards compliance through the Public and Environmental Health Act.

A recurring concern of public health experts is that over-regulation will encourage consumers to access amateur providers or to self-administer. Minors may also have difficulty providing proof of age for procedures. Apart from a driver's licence, there are few other reasons why a 16-year old would require identification. This requirement may also encourage minors seeking piercings to choose amateur rather than professional services. It is our view that it is perfectly reasonable to expect that the police should be able to justify any intrusion or confiscation of property before it occurs, something this provision would not require.

The remedy to this concern is best found in the removal rather than amendment of the provision. The opposition believes that such expended powers are unnecessary and likely to do more harm than good. As such we move to delete this section of the bill. I note that the Hon. Tammy Franks has an identical amendment filed under her name, cited as [Franks-2] amendment No.8, and I trust that this amendment will be agreeable to her.

The Hon. G.E. GAGO: The government opposes this amendment, which would remove new section 21I which deals with police powers. This section gives police the power to enter premises at which tattooing, body piercing or body modification procedures are advertised, offered or performed, and to require the production and inspection of records that are required to be kept. A police officer may also require any person present at such premises whom the officer reasonably believes to be a minor to provide his or her name, age and address and the details of the procedure the person is seeking at the premises.

As it will be an offence for any person to perform intimate body piercings or body modification procedures on a minor, or to perform these procedures on any person without first entering into a written agreement with the customer, police need to be able to inspect records retained by service providers for the purposes of the act to ensure that businesses are acting lawfully. The ability to enter premises and ask a person to produce proof of age will also assist police in determining whether a service provider—and this includes backyarders—is complying with the legislation.

Unlike other industries such as hairdressing, waxing and the like, this bill imposes restrictions on the type of procedures that can be legally performed on a minor. The expanded police powers are an important part of the bill as they allow police to be proactive in ensuring that service providers are complying with the legislation. Without these expanded powers police would have to rely on someone making a complaint before they could investigate whether an offence had occurred. In many cases this is unlikely to happen, as a minor who has obviously sought out a prohibited procedure is highly unlikely to then turn around and lodge a complaint against themselves to the police. The new police powers enable the legislation to be properly enforced, and their deletion is opposed.

The Hon. A. BRESSINGTON: I support this amendment. It does not sit well with me to allow police to walk into a business and be able to demand records without reasonable suspicion, for a start. I believe that if a minor has gone to a tattoo shop or a piercing shop and come home with a ball in their earlobe or a tattoo that covers their back, perhaps the minor may not complain but their parents probably will. We are doing away with the whole reasonable suspicion basis here, and I think that is probably treading quite dangerous ground.

The Hon. T.A. FRANKS: The Greens support this amendment, and I note that we also have an identical amendment. We believe that giving police powers to go into piercing and tattooing studios to randomly check records is, in fact, an invasion of the privacy of the clients. It also gives unnecessary powers to SAPOL without any justifiable cause.

It is interesting that on the previous amendment, while the government was very keen that the machinery used was to be treated as a public health issue, here it is treated as a police issue. I find that an unusual jump in logic. In no other service industry in Australia do police have this power, yet the government has just argued that it is unacceptable that in this industry we would have to rely on someone making a complaint before police could enter and investigate. That seems to me to be quite a fair state of affairs, that someone would make a complaint before police would enter the premises and undertake such a search.

I also note the report of the select committee on tattooing and body piercing, which I have previously mentioned. Page 16, paragraph 3 states that there has actually only been three breaches of law prohibiting the tattoos of minors and that these breaches were, in fact, not linked to the tattoo industry but were persons known to the underage individual being tattooed and were private backyard amateur operators. This sort of introduction that is enclosed in this bill would, in fact, encourage just those sorts of operators and defeat the government's so-called campaign for better law and order. I think it would actually drive underage people underground and put their health at risk, and that is why we support this.

The Hon. J.A. DARLEY: I will be supporting the opposition's amendment.

Amendment carried; clause as amended passed.

Schedule 1.

The Hon. S.G. WADE: I move:

Page 8, lines 10 to 14—Delete Schedule 1

Section 144F of the Criminal Law Consolidation Act 1935 exempts minors from offences relating to the use of a false identity, the misuse of another person's identity and information, and producing or possessing prohibited material if it is for the purposes of obtaining alcohol, tobacco or any other product not lawfully available to persons under the age of 18 or to gain access to premises which restrict access to under 18s.

The opposition, on principle, opposes section 144F of the Criminal Law Consolidation Act 1935 altogether and, as such, would not support an expansion of the exemption to include services. Essentially, the government is saying that if a minor uses or produces a fake ID to get a tattoo, an intimate piercing or, for that matter, services beyond the scope of this bill—for example, attend a striptease, hire an R-rated video, fraudulently apply to go on the electoral roll, or any range of adult services—no penalty should be applied. The government is sending a strong message to under 18s wanting to get any range of items restricted to adults that that is okay as long as you use fake ID.

For all the protections introduced for minors in the bill, the government is saying that it should all come to nothing if a minor misrepresents themselves. In fact, in relation to the previous clause, what is the point of the police being able to go in and seize records if they are all fakes?

It is worth noting that retailers who hold a reasonable belief that a person is of age as a result of the use of a false ID are provided with a defence under section 21C. So, there will be no penalty for the minor or retailer, provided the minor did a good enough job of breaking the law by faking their adulthood. This is an unacceptable and irresponsible position and one which the opposition cannot support, and we will be seeking to have a schedule 1 deleted.

The Hon. G.E. GAGO: The government opposes this amendment. Schedule 1 of the bill makes a consequential amendment to section 144F in part 5A of the Criminal Law Consolidation Act 1934. Part 5A deals with offences relating to identity theft. Section 144F provides that part 5A does not apply to misrepresentation by a person under the age of 18 years for the purpose of obtaining alcohol, tobacco or any other product not lawfully available to persons under the age of 18, or for gaining entry to a premises to which access is not ordinarily allowed to persons under the age of 18, or to anything done by a person under that age to facilitate such misrepresentation.

This provision was included to make it clear that the serious offences of part 5A of the Criminal Law Consolidation Act did not apply to the conduct of a minor attempting to be admitted to age-restricted venues or attempting to purchase age-restricted goods, such as alcohol or cigarettes. It was pointed out in the other place that similar issues would arise here if a minor attempted to use a fake ID to obtain a body modification procedure or body piercing.

However, the current wording of section 144F would only appear to cover products or goods, not services. Schedule 1 of the bill addresses this by amending section 144F to include services. The government is therefore opposed to the deletion of the schedule. Honourable members should note, however, that this does not mean that minors who use false IDs will get off scot-free. Pursuant to the new section 21H of the bill, a minor who makes a false statement or produces false evidence is liable to a maximum penalty of $2,500.

The Hon. S.G. WADE: If I could make a brief response to the minister's last comments, it is interesting to notice 21H, but I would stress the point that I made in my contribution that the inclusion of the services is much broader than this bill. It does not specifically say services in relation to tattooing.

The Hon. T.A. FRANKS: I rise on behalf of the Greens to indicate that we will not be supporting this amendment. We think that the use of a fake ID by an underage teenager to get a piercing, or even possibly a tattoo, is not to be equated with the indictable offence of identity theft. While it is not to be encouraged, it certainly should not be copping such a heavy penalty.

The Hon. A. BRESSINGTON: Yes, same as the Hon. Tammy Franks. Now that we have had some clarification on the ramifications of that, I will be supporting the government.

The Hon. G.E. GAGO: For honourable members who were not privy to the conversation in terms of answering the question that the Hon. Tammy Franks asked, the effect, if this amendment was not supported, would mean that a minor who used a fake ID for a piercing could be accused of identity theft, which is a very serious offence—it is an indictable offence—and, depending on the circumstances, could face up to three years' imprisonment.

We believe that that is obviously an inappropriate response to a minor who might use a fake ID for these purposes—even though, clearly, we do not want minors doing this—and it is obviously overkill to end up with a minor with, in effect, a criminal record.

The Hon. S.G. WADE: Could I ask the minister where she can identify that there is a three-year penalty for a breach of identity theft?

The Hon. G.E. GAGO: I have been advised that the matter is dealt with in the Criminal Law Consolidation Act 1935, section 144D—Prohibited material, which states:

(1) A person who—

(a) produces prohibited material; or

(b) has possession of prohibited material,

intending to use the material, or to enable another person to use the material, for a criminal purpose is guilty of an offence.

Maximum penalty: Imprisonment for 3 years.

(2) A person who sells (or offers for sale) or gives (or offers to give) prohibited material to another person, knowing that the other person is likely to use the material for a criminal purpose is guilty of an offence.

Maximum penalty: Imprisonment for 3 years.

The Hon. S.G. WADE: I would suggest that this is not what we are discussing; we are discussing the use of false identity, and I am advised that section 144B(3) is the relevant section, which states:

(3) A person who makes a false pretence to which this section applies intending, by doing so, to commit, or facilitate the commission of, a serious criminal offence is guilty of an offence and liable to the penalty appropriate to an attempt to commit the serious criminal offence.

I would ask the minister to clarify what, in fact, the legal position is.

The Hon. G.E. GAGO: I have been advised that section 144 is part of a complete scheme. Section 144B, which talks about false identity, does not specify a specific penalty because it would depend on the offence for which you have assumed the false ID. Therefore, section 144D, which I provided as the answer, provides for the offence of producing false ID material, which is up to three years.

The Hon. S.G. WADE: Are there any serious criminal offences under the bill?

The Hon. G.E. GAGO: I have been advised no.

The Hon. S.G. WADE: Can the minister advise whether the government anticipates that the inclusion of the word 'services' would exempt minors in services beyond the context of this bill?

The Hon. G.E. GAGO: I have been advised that it might be possible.

The Hon. S.G. WADE: I would put it to members that, even if members are concerned about the potential for an overly harsh response in relation to the tattoo bill, I think that to support this schedule opens up a can of worms for a whole range of other pieces of legislation and would be reckless legislating. I would urge the committee either to vote this schedule down or to report progress.

The Hon. G.E. GAGO: I urge honourable members to consider that, even though, as I responded as advised, some might be captured more broadly, if you consider the impact of a minor being captured by an indictable offence, that is obviously something most serious and something we should seek to avoid. I do not believe that we should expose minors to that risk and to all of the implications of indicting minors, which would have a lifelong impact. I do not believe that risk is warranted in this particular case.

The Hon. S.G. WADE: I remind the committee that criminal law prosecutions are launched by the state; the DPP and the police can have policy on these matters.

The committee divided on the amendment:

Majority of 1 for the ayes.

Amendment thus negatived; schedule passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Regional Development, Minister for Public Sector Management, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister for Gambling) (17:24): I move:

That this bill be now read a third time.

Bill read a third time and passed.