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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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SUMMARY OFFENCES (TATTOOING, BODY PIERCING AND BODY MODIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading (resumed on motion).

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice, Minister for Urban Development, Planning and the City of Adelaide, Minister for Tourism, Minister for Food Marketing) (16:50): As I was saying earlier, this stuff is about artefacts of popular culture which are here today and gone tomorrow, like ripple-soled desert boots, the Bobbsey Twins, bootscooting—I am delving into the past here. There is—

Mrs Vlahos: Wang Chung.

The Hon. J.R. RAU: Wang Chung—the Bay City Rollers, for goodness sake.

Ms Chapman interjecting:

The Hon. J.R. RAU: The honourable member for Bragg might recall that on Countdown on one occasion they had the Bay City Rollers, and there was a chap there called Woody, I believe. This chap Woody had apparently given an undertaking that if he were ever to turn 21 he would kill himself, because he just could not imagine being that old. It was then revealed to a shattered audience of 14-year-old girls that he was, in fact, a 26 year old masquerading as a 19 year old. His credibility, of course, was in tatters after that, but not before fans dressed up in tartan skirts had climbed up the drainpipes of hotels all around Australia trying to catch a glimpse of Woody and his friends.

If you asked any one of those women today, 'Would you climb a drainpipe dressed in a tartan skirt so that you could catch a glimpse of Woody?', I am sure most of them would say, 'No way; I'm not that interested in Woody—seen it all before.' They would not be that interested. I am just trying to emphasise the point, because the ephemeral nature of popular culture does not appear to be quite as squarely in the frame in our discussion about this matter as it should be. Anyway, having reinforced the ephemeral nature, I am going to move on at some point later to the future as envisioned by Stanley Kubrick and talk a bit about A Clockwork Orange, but that is for later.

Tattooing a minor, as the honourable member has said, is illegal and continues to be illegal. We are just toughening up the penalty for a breach and making it a bit more onerous so that people cannot just say, 'Oh, I didn't know.' They have to actually go through some process whereby they have made a reasonable effort and demonstrate in the case of a complaint being made against them that they have made a reasonable effort.

The subject of intimate body piercings was perhaps—if you will excuse the terminology—the most stimulating aspect of yesterday's debate, because we got to the business about speaking with a forked tongue, and all that sort of stuff. I am indebted to the honourable member for his contribution on that topic. This is an example of the ecumenical approach that the government has to the making of law. We are impressed with the honourable member's contribution and the passion with which he addressed that matter. One of the reasons that I wish to take this into—

Mr Whetstone interjecting:

The Hon. J.R. RAU: Member for Chaffey. One of the reasons I will ask that we move the matter into committee and then adjourn at the end of this process is that some matters were raised by the member for Bragg, the member for Chaffey in particular, and, of course, the member for Adelaide. Everyone said very good things that we may address over the course of the week or two that we are up, and we will consider and discuss with the honourable member for Bragg about exactly how we do this. The first issue I want to mention is tongue splitting. Why somebody would want to do that, I do not know.

The honourable member said it was something to do with a pop artist, which again underlines my point about the artefacts of popular culture etc. Apparently, this is to show that this person is somehow related to the serpent king or something. Before he explained that, I thought he was going to take us down a Harry Potter track. I thought he might have been talking about the Dark Lord but no, it was something else.

Anyway, his point was well made, but I must say to him, as I indicated to the honourable member for Bragg yesterday, that we envisaged that the minds of those who wish to defile their own temples are very fertile places and that over time they will discover new ways of mutilating themselves. We as legislators cannot be expected, every time someone conceives of a peculiar way to mutilate their body in the name of art, to have the whole parliament sit down, consider this new form of mutilation and then pass an act to include the latest thing, which might be chopping off ones toes, or some other thing, because there is a popular rap artist whose name is Nine Toe or something.

That is why we put in here the idea of a regulation-making power, so that as each bizarre cult manifests itself—

Ms Chapman interjecting:

The Hon. J.R. RAU: I am here today, in the spirit of compromise that always accompanies these matters, to say to the honourable member for Bragg and the honourable member for Chaffey, indebted as we are to your contribution yesterday, that the regulations will include tongue splitting.

Ms Chapman: Tongue forking.

The Hon. J.R. RAU: Tongue forking, I beg your pardon. That will be in the regulations but, just to show what decent folks we are, if it would make you happier to include tongue forking in the bill as another form—and, by the way, over the break if anyone else can think of anything else particularly weird that we can add in as a statutorily prohibited thing, I am up for it, but let me know so we can tell parliamentary counsel—

Ms Chapman interjecting:

The Hon. J.R. RAU: No, I won't necessarily accept everything, obviously, but the purpose of our having the regulation-making power there is so that we can relatively simply catch up with these bizarre circumstances as they evolve. I am in the hands of the opposition about that one. I can give you an undertaking: I will do it by reg, which will be just as effective. I do not know how many matters the honourable member has been able to get enshrined in the law in his period here in the parliament, and if I can assist him by having one in there it would be my pleasure.

Mr Gardner: That's what you came here to do.

The Hon. J.R. RAU: You will be able to go back to your constituents and say, 'See that piece of legislation? I got that in there.' That is not an insignificant matter. That is what this parliament is all about. That is what we are all about here. The next one was an interesting issue.

Mr Gardner: What about the educational documents?

The Hon. J.R. RAU: We will come to that. We are not up to that yet. We have dealt with the intimate body piercings, and we have talked about the things that might be included in that.

An honourable member: Yes, we've done that.

The Hon. J.R. RAU: We have done that well enough. It is just that that was the point in which the honourable member for Bragg—

An honourable member: Excelled herself.

The Hon. J.R. RAU: She did excel herself in that particular milieu. We have moved off the other topic and onto non-intimate piercings, parental consent and so forth. An important question was raised about what amounts to cosmetic surgery or elective surgery. I can indicate to honourable members opposite that it was never the intention of the government in any way to interfere with the legitimate practice of a legally qualified medical practitioner acting in the course of their practice as a doctor, dentist, or whatever it is.

We may have a personal view one way or the other about breast augmentation, having artificial teeth embedded in our heads, or whatever else, but clearly we do not wish to stop that when performed by legally qualified medical practitioners. Therefore, if it is necessary to include some reference in that definition that appears in the legislation to say that we exclude elective surgery, or whatever, from the potential scope of this legislation, then, again, because that was always our intention, we are happy to do that, and we will have something looked at in that regard over the break.

The honourable member raised some issues about section 144F of the Criminal Law Consolidation Act, in particular offences relating to identity theft. I am advised that section 144F(a) provides that part 5A does not apply to misrepresentation by a person under the age of 18 for the purpose of obtaining alcohol, tobacco or any other product not lawfully available to persons under 18; or gaining entry to premises to which access is not ordinarily allowed to persons under the age of 18, and so on. That was intended to make it clear that these serious offences did not apply to the conduct of the under-aged person attempting to be admitted or gain access to those things, but I agree that similar issues are thrown up in this instance.

That is something that, again, I would like to look at between now and the time that we return and, again, I would like to, either directly or in conjunction with officers of the Attorney-General's Department, have discussions with the member for Bragg to see if we can adequately address that matter. However, it does enable us to imagine the hypothetical family the member painted a picture of for us yesterday whose parents had given them consent to marry at the age of 16, they had a child and could drive a car with L plates, but they could not yet smoke, drink at a hotel, vote or, if we pass this, be scarified. I would have thought not being able to drink, smoke or vote is enough for a person to work their way through. Perhaps they do not need the burden of these other things to worry about during those two years as they prepare for adulthood.

I turn to police powers. This is an area in which there is a genuine difference of opinion between the government—and I say this completely openly—many of the people who made representations to us in the course of this consultation and, indeed, the member for Bragg. I have gone to some lengths to explain the fact that in my opinion and in the government's opinion these restrictions that we are trying to impose are not being imposed for a trivial or capricious reason. They are being imposed because of the Circulon lady. They are being imposed because this is not simply an ephemeral artefact of popular culture: it is an irreversible artefact of popular culture and, therefore, it deserves to be taken seriously. That is point 1.

Point 2 is that we are concerned here not only with the tattoo parlour, the hairdressing salon or the beauty place that might offer one or other of these services, but we are actually (member for Bragg and others) also very concerned about the backyarders. We are concerned about the backyarders. I am not one of these people who generally gets too caught up in this debate of the perennial philosophical political tension between harm minimisation and law enforcement. It is a perennial argument.

Depending on what particular issue you are talking about, people tend to drop on one or other side of that ledger. Generally—not always—I find that the apologists for everything that people might do tend to fall in the harm minimisation category, and the people who actually think that there are some norms which deserve to have some substance placed behind them usually fit on the other side. You can guess which side I am on.

Anyway, for that reason, I am not persuaded that this bogeyman of backyarders, which I accept exist—I accept that they exist, but they always have and they always will, and there is not going to be a mushrooming of backyarders just because we pass the bill as it is. That is just a nonsense, a complete nonsense; and, if you were going to follow that argument through, what you would be doing is actually saying to anyone who wants heroin, 'Go to your doctor and he'll prescribe it for you, because then you'll be under a managed treatment regime and there will be a harm minimisation thing going on because you'll be having your heroin and you won't be breaking into people's houses,' etc., etc.

These are legitimate arguments in favour of that. I understand the arguments, but, in that particular instance, society has said, 'No, no, we don't want to do that.' We all know that has had limited success. We have not stamped out heroin completely, but nor do we give any encouragement to people who wish to get involved in it.

It is a matter for others, but my view about the thing is simply this: the backyarders, to the extent that they exist, have existed, will exist and will always exist. Doing this will not make their position worse, but the police powers that we are putting in here will apply to the backyarders every bit as much as they apply to the people who have got the recognised shop somewhere.

Let me give members a hypothetical, and this one is not quite so bizarre as it might sound originally. I went to present some Premier's reading awards at one of the primary schools in my electorate.

The DEPUTY SPEAKER: An excellent program.

The Hon. J.R. RAU: It is an excellent program, actually; a fantastic program and one of which we should all be very proud. I went to present some of these awards in one of the schools in my electorate; and these children were between eight and 11, maybe, something like that.

One of these girls who was there, who would have been, obviously, no more than 11, was sitting there in a summer frock. It was not a school uniform. It was one of the schools where uniforms appear to be sort of optional. I am not identifying anyone or any place, I am just trying to set the scene a little bit. Okay?

Ms Bedford interjecting:

The Hon. J.R. RAU: Are you getting it, yes? This girl who was actually—

Ms Chapman interjecting:

The Hon. J.R. RAU: —yes—a lovely looking young girl, had a beautiful smile and was proud as punch to get her award, when she came up to get it, I noticed that on her left shoulder, left arm, she had a fairly crude heart with an arrow through it, tattooed, and on the right-hand side she had a lightening bolt. Now, to me these did not look like they had been done by Gauguin, Monet, or whatever these people call themselves.

Ms Bedford: Cézanne.

The Hon. J.R. RAU: Cézanne, yes; or 50 Cent, or whatever you call yourself when you are an artist in this genre. It was transparently obvious to anyone looking at this person that, No. 1, a minor had been tattooed, clearly; and, No. 2, that the tattooing had occurred in circumstances of probably a backyard.

Ms Chapman: They could have been transfers.

The Hon. J.R. RAU: No, these were the real thing. I have seen a tattoo or two, and these were the real thing. You forget; I was on the committee with one of the table officers here I cannot name because he is a table officer. Like a dentist, you cannot name them.

We explored this thoroughly. In fact, I remember the table officer concerned getting us very, very important research material which the committee would have to look at. I remember the member for Stuart holding the material up sometimes, rotating the book, trying to understand exactly what it was that he was looking at. Once he had worked out what he was looking at he made remarks to the effect, 'My God, look at that,' and, 'This is disgusting,' or, 'This is outrageous.'

Mr Pederick: As he would.

The Hon. J.R. RAU: As he would. The place is not the same really, is it? No disrespect to his successor, who is a fine young man.

Ms Chapman interjecting:

The Hon. J.R. RAU: Right. If this legislation were in place, a teacher, the parents—although, obviously, the parents—well, not obviously, but presumably—had noticed the tattoos and had done nothing about it. Somebody could make a complaint to the police and they could have investigated that. They did not, but the point is that this would give them the power, for example, to go into the house where they believed that this might have occurred, or make inquiries.

This is not limited just to the parlour in Hindley Street or some other place. Those people who are on this harm minimisation trip, particularly some of the people in the industry, need to realise that this is actually not so much a worry for them, it is a worry for the people who are the illegals operating out there. That is who it is a big worry for. So, we do have a difference of opinion about that matter.

As to the business about the provision of health information, I actually agree with that. I agree that there needs to be health information provided, and of course the bill does provide for the prescribed material to be made available. It would be my intention that, in conjunction with the people from the health department, appropriate material would be mandated and provided. That is the case.

In fact, another aspect that came up through the consultation process in this matter was the question about using guns instead of a needle for the piercing of ears. The majority of submissions made to us indicated that the needle was a much better option than the gun, but unfortunately the gun appears to have almost total dominance of the marketplace at the present time.

I guess a judgement was made that, given the magnitude of the harm caused by the gun versus the needle, and the interference with what appears to be the otherwise legitimate business of these people now by banning guns, it would be a little bit heavy-handed and prescriptive; however, I recognise, and the submission has advised me, that really the gun is not the way to go, and I accept that. In a perfect world you would get rid of them, but how much perfect world stuff do we want to impose on people? That is the sort of John Stuart Mill stuff that you were on about yesterday. I accept that.

I think I have probably covered the question about contraception and people who keep losing their keys and need to have a microchip put in their hand. As long as it is done by a doctor, that is intended to be okay, and if we need to make amendments to fix that up so be it. There is more good news, though. For those of you who are worried that after this legislation comes in you will not be able to have your hair removed by laser, relax.

Members interjecting:

The Hon. J.R. RAU: Yes, that is the good news—lasers, or wax for that matter, and, I suspect, by means of the passage of electronic current. The honourable member did ask whether problems would be caused by this, and there is no intention to in any way interfere with a person's desire (perhaps at considerable discomfort to themselves) to go through one of these procedures. Again, I am pretty confident that the legislation does not permit of that interpretation, but if in the interval the honourable member can assure me that it does permit of it, then I will undertake to do whatever is necessary to make clear it does not mean that.

An honourable member interjecting:

The Hon. J.R. RAU: Yes. Then we have circumcision, which was painful—I mean that the honourable member dealt with it as delicately as one can, but it was still obviously a moment of reflection. In relation to that, I think our first port of call is the doctor because, if this is done by a doctor, having regard to what we have already said about medical procedures, then we do not have a problem. As to the particular matter that was raised, I think it gets back down to the definition of scarification.

Mrs Geraghty interjecting:

The Hon. J.R. RAU: No, I realise we all have an idea, and I will tread as delicately around this terrain as possible. Scarification means the cutting of a person's skin to encourage the production of scar tissue. If the court pleases, in my submission, that connotes a purpose, namely, the purpose of the creation of scar tissue as opposed to an incident or to remove skin. In this particular case, I am reliably informed that the sole purpose of the exercise is the removal of skin and that it is therefore not contemplated to be within the scope of scarification.

That said, I do understand the honourable member's concerns about this whole process and particularly the circumstances that the honourable member described, but I do not really think this bill is the place where we are going to deal with that fairly interesting and hot potato because this bill does not need to traverse that problem.

I suspect that, if we try to use this bill as a mechanism to make some prescription about those particular practices, we will not only start to find difficulties with all of the particular variations of initiation that might apply in various Aboriginal communities, but there are also other communities, as the honourable member knows, such as the Jewish community and the Muslim community who may be engaging in similar things and they may not be using what we would call doctors, although the people doing it apparently have a pretty good idea of what they are doing.

I think we would be best to leave that alone for those reasons. However, as I said, I do not think it is covered anyway, and, if that is a problem for the honourable member, I think she will be opening up a fairly big topic and will make this much more complicated than it presently is or needs to be.

I think in general terms I have probably covered most of the points that the honourable member was raising. As I said, we will undertake to deal with those matters during the break, and it would be my intention, if we can resolve them by discussion over the break, that I would at the committee stage be moving some amendments to give effect to those matters so that the points of doubt that have been raised by members opposite can be resolved.

As I said before to the honourable member about tongue splitting, it is entirely in his hands whether he prefers to have a regulation or he would like to have his own bit in the act. If he wants it in the act, then that is fine by me. It is a matter for him. If he lets me know whether he wants to be in a regulation or in the act, we will do our best to accommodate his wishes in that regard.

Everyone will be relieved to know that that really concludes my remarks on this topic, and I would indicate that it is our intention to go into committee but then immediately adjourn so that the matters that we have discussed can be worked through. I am happy for the honourable member for Bragg to put on record any other questions that she might wish to give us notice of. She can do that either on the record or off the record, it does not matter; whatever suits.

The ACTING SPEAKER (Ms Thompson): Procedurally, it would be appropriate, if there is a generous chair of committees acting, to allow that to happen in conjunction with the first clause. The member for Bragg cannot speak now.

The Hon. J.R. RAU: We can go to the stage of the first clause if that would help.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: I indicate that on a number of the matters that we propose to raise in committee, the Attorney has attempted to answer a number of the questions we have raised, already foreshadowed in the second reading of this matter, but I will identify a couple of other matters.

One is the question of the submissions themselves. The question I ask the Attorney to consider is whether he will agree to make those submissions available, irrespective of the fact that there is an FOI process proceeding. I think I have made it clear but, if I haven't, it seems that it remains an issue that we ought not be expected to progress a matter such as this in the absence of that information or, in the alternative, that the matter be adjourned until the completion of the FOI process. I don't mind which way, but I think it is a matter that needs to be resolved.

The other aspect relates to the traditional customary body modification procedures for Aboriginal South Australians and, as the Attorney said, there are some other cultural practices of others in our community who undertake processes which are clearly a permanent modification, usually of a male child. Whilst some reassurance is given as to the applicability under the definition relating to scarification, it is of concern that in the absence of having any clarity on this we may expose people to the risk of prosecution.

As I outlined in some detail in the second reading, this is an area that needs to be looked at to the extent of ensuring that we have practices that respect cultural norms, but also that that is balanced against safe practices that are administered on children, the very basis which underpins the legislation that we are discussing. The reason I raise this is that I have to hand a letter from Mr Neil Gillespie of the Aboriginal Legal Rights Movement who—

The Hon. J.R. RAU: Look, I understood that this wasn't an opportunity to continue, in effect, the second reading debate. So if we could just have the questions, please—because we will have a chance to debate these.

Ms CHAPMAN: I think I made it clear in the second reading that there had been material sent to the Aboriginal Legal Rights Movement, but there had not been a response. The question that was asked in the response that I have is:

It is submitted that the Attorney-General should enter into specific consultations with Anangu Pitjantjatjara Yankunytjatjara and Maralinga Tjarutja in order to make it clear that ceremonial conduct by traditional Aboriginal people does not contravene the proposed legislation.

I simply ask the question whether anyone in your office has actually consulted these people about this aspect, or has there just been silence on that? It seems to me that we were given the impression, in the consultation, that Aboriginal Legal Rights had not indicated any problem themselves. If that information is correct then we would like to know whether these people have been consulted or not and, if so, whether they are seeking any clarity on this issue.

Regarding hair removal, cosmetic collagen, Botox, and so on, I think we can probably work something out in the interim. There were one or two areas left unattended to. One is the question of implants for contraception. I don't know what they call them these days, but it used to be an IUD device, for the purpose of contraception, which is the implanting of a particular mechanism inside the female body. The second one I am advised on—and I have not heard of it before this debate—is where a slow hormonal release is actually implanted in the skin by a doctor. As long as that is not caught, then we will not have an issue with that. The other one was earlobe stretching.

The Hon. J.R. RAU: That is caught.

Ms CHAPMAN: Right. So, if there is a circular disc placed in the earlobe, which is pretty much carte blanche under this legislation, and it stretches it out to a larger hole, even though that is not permanent to the extent that it may cause some damage if you remove the ring or whatever, then that is covered.

The Hon. J.R. RAU: That is a prohibited behaviour under this.

Ms CHAPMAN: That is prohibited; right. I think we have dealt with the provision of health effects and I think that you are going to ensure that is in the prescribed material that has to be made available to the recipient. I will discuss tongue forking with the member for Chaffey and we will have an amendment drawn up to cover that.

The final matter will be in relation to the deletion of section 21I. I will say to the Attorney that, while we got onto the topic of backyarding not being able to be avoided under this legislation—and I accept that—that the explanation for why we have a different regime of police search powers here without reasonable cause I do not think was validated by that.

Of course, it is reasonable that, if the 11-year-old girl in the transparent dress who has the two tattoos, has clearly had that committed on her under age, then of course the police would investigate but they would use the same search powers that they have under the act and they would use the same investigation that they would have under the act, irrespective of whether it is a backyarder or some professional tattooing establishment. I am still at a loss to understand why that is justified but I am happy during the course of the adjournment to be convinced if there is some other justifiable reason for it. Otherwise, I indicate that I will be progressing with the moving of that amendment in due course.

Progress reported; committee to sit again.

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