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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-09-15 Daily Xml
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SUMMARY OFFENCES (TATTOOING, BODY PIERCING AND BODY MODIFICATION) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 28 July 2011.)

The Hon. S.G. WADE (16:33): I apologise to the house that because of the distraction of the committee stage of the last bill I have not been able to edit this speech, so I will read it slowly so you do not miss the benefit of it.

Members interjecting:

The PRESIDENT: Order! The Hon. Mr Wade is going to read his speech slowly for us. The Hon. Mr Wade.

The Hon. S.G. WADE: I rise to speak on the Summary Offences (Tattooing, Body Piercing and Body Modification) Amendment Bill 2011. There are many ways a person can express themselves—

Members interjecting:

The Hon. S.G. WADE: But only one of us has the call.

The PRESIDENT: Who is that?

The Hon. S.G. WADE: Me.

The PRESIDENT: The Hon. Mr Wade has the call.

The Hon. S.G. WADE: —through speech, movement, association and creative pursuits. All are important for a healthy and vibrant democracy. The issues contemplated by this bill are also forms of individual or collective expression. It is about choices individuals make to form, even to define, their identity. Piercings, tattoos and body modifications are all legitimate ways an individual may choose to express themselves. While they are not forms of expression I have ever been attracted to, it is not for me to say that others should not be able to express themselves in that way.

While considering this bill, I took the time to visit a tattoo parlour on Rundle Street. I wanted to see firsthand how these procedures were performed and to hear more about the industry's views on the legislation. I was struck by the variety of people receiving a tattoo. An enormous variety of people from all walks of life seek tattoos for one reason or another. In the parlour that day, I spoke to a person receiving a tattoo who was a serving police officer.

Whether to remember a special occasion, to promote a sense of community through associating themselves with a football team or a Defence Force unit, or to highlight something about a person's individuality, a tattoo after all is a picture; it can say a thousand words. In almost all cases, a great deal of consideration goes into choosing what tattoo a person will receive. After all, people know that it is an indelible mark.

I was recently sent the story of the Flowerdale community, who suffered tremendously as a result of the 2009 Black Saturday fires in Victoria. To serve as a reminder of the loss and regeneration, the Flowerdale community chose a design by Jessica Mason that depicted a bare skeleton of a tree with one green leaf protruding from the trunk. Initially, the design was used on badges and T-shirts as a defiant expression of community solidarity as the community regrouped and rebuilt.

Soon after the logo began to be used, a resident named Odette visited a parlour to have the design tattooed on her forearm. Having heard the story of Flowerdale's loss and the meaning of the image, tattooist Olivia Brumen refused to charge for the work. It did not take long before 120 members of the community had followed suit. As time passed, community members added to the design to express the living story that the image meant to them. After two years, Odette added 13 green leaves to the design, symbolising the 13 friends she had lost to the fire.

Stories such as these serve to demonstrate the way forms of self-expression like tattoos can also be an expression not just of individuality but also of community. They can be a positive affirmation of group identity and are gradually becoming more and more part of mainstream culture in Australia. In fact, given the situation this afternoon, I might digress to mention that in terms of developing mainstream culture I was fascinated to hear of the fact that tattoos are not emerging in South Africa, whereas they are actively emerging in Canada and North America.

So, we are finding within Western democracies of a similar cultural origin quite a different development within mainstream culture. I am sure members of the house will recall that Winston Churchill's mother was a bearer of a tattoo. In previous generations, there has been quite a different cultural attitude to tattoos than the negative attitude that has been more prevalent in recent years. I think there are a number of sociological indicators that our community's attitude to tattoos is changing, and not just among the younger generation but also in the older generation.

There is research on this, and in fact South Australia is fortunate to have one of the world's leading experts on body image as a member of one of our faculties. Professor Marika Tiggemann is a member of the faculty of the Flinders School of Psychology. She noted in her research on body image that studies abroad found the most common reasons for getting a tattoo were: first, self-expression; secondly, 'just wanted one'; thirdly, to remember an event; and, fourthly, to feel unique.

The most popular reasons were to do with self-expression and identity, not out of commitment to being a rebel or as a sign of social alienation. I think we would be extremely poorly served if we were to look negatively on tattooing and body modifications as some sort of antisocial statement. The evidence is quite the contrary. Freedom of expression is a fundamental right and it is crucial for democracy, but from time to time governments must intervene to regulate the expression of these rights for the sake of the protection of individuals or the community. The bill before us is an example of such a case.

The opposition has sought to address this issue from an informed and considered perspective. As Liberals we consider any restriction of freedom cautiously; that is why we are suspicious of proposals that have undertones of enforced personal morality or paternalism—what I must admit our party room often sums up as the nanny state mentality. That is why we are suspicious of expanded powers for government that are introduced without justification, and that is why we look to this bill for justifications for any restrictions on personal or business freedoms.

Given the Attorney-General's focus on this issue, you could be forgiven for thinking that these reforms were introduced to contain some sort of pandemic crisis sweeping Adelaide's suburbs. However, the facts from the government itself paint a very different picture. Under section 71A of the Summary Offences Act there has been just over one conviction per year in relation to under-age tattooing since 1992. A total of 21 convictions were recorded between 1992 and 2009; only six of these convictions were recorded since the year 2000.

I want to reiterate that, because in itself that is quite striking. We are talking about a period since 1992. The number for the full period is 21 convictions, and only six since 2000. That suggests there were almost three times as many convictions in the period 1992 to 2000 than in the period since. Now, if one were to notice that the Olsen-Brown-Kerin government was in power for most of the period 1992 to 2000, and that period bore 15 convictions, and the period since 2000 has only borne six convictions, one wonders whether there has been a change of prosecutorial practice under this government.

Data provided by the government says that most of these cases listed the offender's occupation as being unemployed. That might seem insignificant in itself, but what it does suggest is that those offences were not in relation to mainstream tattoo parlours. If they were mainstream tattoo parlours they would be listed as being employed in a tattoo parlour. The fact that most of those cases listed the offender's occupation as unemployed suggests to me that in those cases the tattoos were performed by backyard operators. Nothing contained in this bill will address the heart of where the problems actually occur; for the additional regulation of business, convictions in these premises would occur at most once every two years on average.

This is not the first time we have seen this kind of legislation in this place and the other place. The Hon. Bob Such, the member for Fisher, introduced legislation in 2001 to make it an offence to pierce a child under the age of 16 without their being accompanied by consenting guardians or parents. The member for Fisher's bill was passed by the House of Assembly but fell just short of passing the Legislative Council before prorogation.

Following the resumption of parliament in 2002, the now Hon. John Rau took up the Hon. Bob Such's proposal. The now Attorney-General took up the cause, but the bill took on a slightly different shape. At first it did not include earlobes in the definition of piercing; secondly, it required retailers to obtain and retain the particulars of the minor being pierced, as prescribed by regulation. It also required the business to retain this information for two years. Thirdly, there was a requirement for a written agreement before a tattoo was given, including a mandatory three-day cooling-off period. A ban on deposits and exit conditions was also proposed.

That bill was subsequently sent to the Select Committee on the Tattooing and Body Piercing Industries in 2005 for further examination. The 15 recommendations from that committee form the basis of the bill before us today. However, no legislation was passed by that parliament on the matter prior to the 2006 election.

The Hon. Dennis Hood introduced legislation in this area in 2007. That legislation would have made access to scarification just as restrictive as tattooing. Like the bill introduced by the Hon. Bob Such (the member for Fisher in another place), all piercings for minors would have to be accompanied by a consenting guardian or parent under that bill. That bill did receive the support of the Legislative Council. It then passed into the purgatory—that is, the space between the houses—for a short time before suffering the same fate of its predecessor twin; that is, it lapsed through prorogation.

About nine years after his first attempt, having emerged from the political wilderness, the newly appointed Attorney-General resumed his quest to regulate the tattooing and piercing industries. In January 2011, a discussion paper was circulated seeking community views on the reform of industry practice. A few changes resulted, such as the dropping of the ban on deposits and the reduction in age requirements for minors receiving non-intimate piercings.

A bill was introduced in the other place on 6 April 2011 which sought to implement many of the select committee recommendations, such as, requiring clients to be provided with information about the procedure and the restrictions of access to piercing for minors. The bill passed through the House of Assembly on 5 May. The bill adopts the Hon. Bob Such's amendments to require a guardian or parent to be present or to consent to a piercing on a minor under the age of 16. However, the bill before us creates a second tier of piercing regulations for intimate piercings, restricting those procedures to persons 16 years or below.

Unlike the Attorney-General's 2002 bill, it does not include a cooling-off period or a ban on deposits. Consistent with the 2002 bill, it does exempt earlobe piercings from regulation. Like the Hon. Dennis Hood's 2007 bill, it now includes reference to scarification, but goes further to include body modifications more generally, as we will hear more about in a moment. In that sense, this bill represents the combined efforts of the three previous bills.

The opposition obtained most of the submissions to the public consultation conducted by the Attorney-General's Department through a freedom of information request. The Attorney-General, unfortunately, does himself and the people of South Australia a great disservice each time he refuses to provide us with copies of submissions on public consultation. It costs the parliament time, the taxpayer money and the resources of the public sector. The Attorney-General also damages his own credibility when he forces the parliament to use FOI processes when documents could be easily provided in the public interest.

The opposition undertook its own consultation. In the context of comments by a colleague in the other place, I should clarify that the opposition did not receive a submission from Mr Steve Parker. We are certainly aware of the work that Mr Parker does as a respected health practitioner in this area and we acknowledge that he was the recipient of the Minister's Innovation Award in November 2010 for the Healthy Body Art—Primary School Education Program. I find it noteworthy that, on the one hand, the government is keen to regulate this industry with undertones of controlling feral elements and, on the other hand, provides a Minister's Innovation Award to a key practitioner for his work on the Healthy Body Art—Primary School Education Program.

In the context of consultation, I would particularly like to acknowledge the assistance that I have received from Morag Draper. Ms Draper has been extremely helpful in helping myself and other members of the opposition to understand the history of the industry, to negotiate the range of issues the bill raises and to understand the realities of the industry today. I understand that Ms Draper has been in contact with a number of members of the council regarding the provisions of this bill, and I look forward to discussing with honourable members to what extent we believe those views should be reflected in the bill.

Another of the stakeholders from whom the opposition received feedback was the Youth Affairs Council of South Australia. It would be fair to say that the council is not supportive of the bill's provisions, and I quote, 'Such measures seek to impose social control on a particular group.' YACSA also suggests that the complications arising from such procedures have more to do with unsafe practices by body modification practitioners and poor after-care by individuals.

The Professional Tattooing Association of Australia also expressed a range of concerns, including the additional impost on businesses, the difficulty of assessing intoxication and the risk of enhancing the business of unregulated backyard operations.

The AMA also provided input and indicated broad support for the bill whilst raising concerns about aspects of it. In particular, they raised concern in relation to the:

sterility of equipment and surrounding, infection control standards, procedural training of staff and indemnity and compensation mechanisms to afford the protection of the public's right to financial recovery in the event of suffering any consequential loss.

In that context I acknowledge that the Hon. Tammy Franks has recently filed, or is about to file, amendments in relation to enhancing infection control. We have not sought to address all of the concerns raised by the AMA through this bill but we look forward to considering the Hon. Tammy Franks' amendments. Among other issues, the Australian Lawyers Alliance expressed concern that police powers were unnecessarily broad, and we seek to address that matter through opposition amendments.

I turn now to look at the detail of the bill. The bill before us would clarify that it is an offence for a person to perform a body modification or body piercing procedure on a person who is intoxicated. This would normally be an offence under the common law as it would be an assault to perform such a procedure on a person who cannot consent. Intoxication, of course, impairs the capacity to consent. This is a grey area of law and it continues to exist for minors, and some academics suggest that some minors may not be able to give consent despite being of the prescribed age. This is not an area easily remedied by statute law but the opposition acknowledges that the bill goes some way to providing some clarity.

In relation to piercing and body modification, the definition of body modification in the bill includes tattooing, body branding, body implantation, earlobe stretching, body scarification and other prescribed procedures. Tongue-splitting was added in the House of Assembly following a Liberal amendment in the other place.

Members interjecting:

The Hon. S.G. WADE: Perhaps we need to have one of those content warnings as at the beginning of the ABC news. In relation to police search powers, as I have already indicated, the Australian Lawyers Alliance has expressed concern and the opposition will be opposing the introduction of expanded police search powers because we do not believe they are justified. The proposed changes in the bill would unreasonably single out the tattooed and piercing industries for special treatment by police as compared with other businesses. The government has simply failed to make out a case as to why current laws are not sufficient to allow police to do their job, so we will be opposing proposed section 21I outright.

These amendments have undertones of the government's public relations campaign against bikies, but we are also concerned that these provisions will become the thin end of the wedge for similar police powers against other businesses and will impact on the vast majority of participants in the tattooing, piercing and body modification industry who are not associated with criminal groups.

It does appear the government is targeting the industry because of perceived criminal associations and there is no doubt that there are links between the industry and other groups. Vince Focarelli, the owner of the Central Ink Tattoo Parlour on Hindley Street, was formerly of the New Boys and now heads the South Australian chapter of the Comancheros. While the police are rightfully keeping a close eye on people such as Mr Focarelli, we are yet to see evidence that existing legislation does not meet their needs for that enforcement.

The level of regulation proposed in the bill may also lead to further displacement of minors towards unregulated backyard operations in the future. Young people who cannot meet the identification requirements for intimate piercings and body modifications may look elsewhere for that service. Alternatively, persons concerned with supplying a business with personal information may also be discouraged from seeking the procedures through mainstream services.

If you accept the government's argument that tattoos and body piercing businesses are rife with crime, why would a law-abiding citizen who wants a tattoo provide such a business with their personal information? As we have already heard, alternative backyard operations are where young people are most at risk. Few young people have a need for formal identification cards at the age of 16 unless they are driving or seeking other licences. It is a matter that we believe needs to be given careful consideration.

This bill is also unusual in that the House of Assembly actually contributed to the legislative process. The government did listen to a number of the concerns raised by Ms Vickie Chapman in the other place on behalf of the opposition and moved amendments there to address those concerns. These included inserting tongue splitting (and I am sorry to mention that again, the Hon. Mark Parnell) into the definition of body modification and, remarkably, this procedure would not have been included in the original definition.

The opposition also raised the prospect of unintended consequences resulting from the undefined phrases 'medical practitioner' and 'medical treatment' in the original bill. The government has clarified these definitions so that legitimate medical procedures by surgeons, dentists and other medical practitioners will not be affected.

The government moved an amendment in the House of Assembly to include a provision in the bill that would insert 'or service' in section 144F of the Criminal Law Consolidation Act 1935. The aim of this amendment is to exempt minors from being prosecuted for identity fraud and, consistent with the opposition's position on a range of other matters, we do not believe that minors should be encouraged to engage in identity fraud. We will be opposing those changes.

Research by Southern Primary Health Noarlunga highlights that the most common source of complications are piercings of the ear and the need for infection control. For these reasons the Liberal opposition will be moving an amendment to treat earlobe piercings in the same way as other non-intimate piercings, except for the requirement of a written procedure. As noted earlier, we will also be opposing some other matters.

The Liberal Party is committed to ensuring public safety and consumer protection and we will be supporting the bill with amendments and hope that the commonsense changes that we have proposed receive the support of the council. This bill should be seen as supporting freedom of expression and recognises the fact that adults cannot have real freedom without informed and free consent.

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) (16:57): I understand that there are no further second reading contributions to this bill and, in light of that, I will make a few concluding remarks. I thank honourable members who have contributed to the debate on this bill. As noted by members, this bill is the result of extensive public consultation and the government believes that it strikes an appropriate balance between protecting young people from harm and recognising the autonomy and individuality of that person.

The Hon. Ms Franks asked whether Indigenous communities had been considered or consulted in regard to traditional ceremonial activities and whether they might be intentionally or unintentionally caught up by the provisions of this bill. The bill restricts young people's access to body modification procedures and intimate body piercings on the basis of age in order to protect the health and wellbeing of young people. That these provisions may limit some cultural practices among Indigenous communities and other culturally and ethnically diverse groups was considered by the government during the drafting of the bill.

For those cultural practices that involve non-intimate piercings, the impact will be minimal as a minor can still obtain non-intimate body piercings with parental or guardian consent. For other cultural practices such as ritual scarification, the government considers that, given the invasive and permanent nature of the scarification, the age restrictions are justifiable in order to protect young people.

The Hon. Ms Franks also referred to calls for a ban on the use of ear piercing guns by some members of the industry and foreshadowed an amendment to ban the use of these devices. Ear piercing guns are manufactured specifically for the purpose of piercing a person's earlobes. If the gun is used in accordance with the manufacturer's instructions and in accordance with the Department of Health's 'Guidelines on the Safe and Hygienic Practice of Skin Penetration' then there is little chance of any major complications arising.

It is when the gun is used inappropriately that issues can arise. Advice from the Department of Health is that complaints occur when ear piercing guns are used to pierce the ear cartilage or the nose and not when the gun is used to pierce the person's earlobes. That some people use these devices inappropriately does not, in the government's opinion, warrant a total ban on their use. Many businesses that only use ear-piercing guns, and do so appropriately and without any complaints, would be significantly impacted were such a ban to be put in place.

Finally, I note that some members will be opposing the police powers. The government believes that these powers are necessary for the effective enforcement of the bill and we will be resisting any attempt to remove them again. I thank members for their contributions and the support that was given, and I look forward to dealing with this matter expeditiously through committee.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. T.A. FRANKS: What implications does this bill have for body implantations performed on those under 16? In particular, does it have any implications for someone who is a minor seeking contraception in the form of Implanon without guardian or parental permission?

The Hon. G.E. GAGO: I have been advised that hormonal implantations, such as the example the honourable member gave, would not be captured by this bill as they would be captured by the exemptions because they are, in effect, a medical procedure.

The Hon. T.A. FRANKS: Following from that, I also have a question in regard to the body scarification component, which is defined here as meaning the cutting of a person's skin to encourage the production of scar tissue. The minister would be aware that many young people self-harm. Will they be captured by this bill and will there been any penalties for self-harming?

The Hon. G.E. GAGO: I have been advised no, because the bill is directed at service providers who are actually providing scarification to another person.

Clause passed.

The Hon. S.G. WADE: It was not the expectation of the opposition that we would move into committee this afternoon.

Members interjecting:

The CHAIR: Order! The government runs the business of the day.

Members interjecting:

The Hon. S.G. WADE: I can assure the minister that I do have two more speeches and I am more than happy to deliver them, but the issue is that, whilst the chairman suggests the government runs the place, my understanding is that the council has custody of its own business.

The CHAIR: And the President is in charge.

The Hon. S.G. WADE: I was not anticipating going into committee. The minister says it is on the paper. Well, I would like to see her paper because mine does not show it.

The CHAIR: Let's get on with it.

The Hon. S.G. WADE: I ask the government to report progress.

The CHAIR: The minister has made a determination that she will not report progress.

Clauses 2 and 3 passed.

Clause 4.

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

Page 4, line 28 [clause 4, inserted section 21C(2)(b)]—Delete '(other than an earlobe piercing)'

This amendment seeks to remove 'other than an earlobe piercing'. It is the view of the opposition that earlobe piercing should be treated similarly with other matters. After all, earlobe piercing is the area of greatest risk for infection, and one of the key needs of this legislation is to contain infection control. We believe it is important to treat all non-intimate piercing in the same way.

The Hon. G.E. GAGO: Earlobe piercing is a simple procedure that appears to be widely socially acceptable for children, therefore the current approach taken in the bill is to leave earlobe piercing unrestricted. However, honourable members and some members of the industry have expressed concerns about this approach as there are still health risks associated with earlobe piercing, such as infection of the pierced area.

The effect of this amendment and similar amendments proposed by the Hon. Ms Franks is to apply the same age restrictions to earlobe piercing as apply for non-intimate piercing. Thus a person under the age of 16 who wishes to have their ears pierced will require the consent of their parent or guardian before they can do so.

Although we do not believe it is necessary, the government is not opposed to the inclusion of earlobe piercing in the age restriction for non-intimate piercing, the approach taken in the amendment to be moved by the Hon. Tammy Franks is, in fact, the preferred amendment currently under consideration. So that people know where we are coming from, I indicate that we will be supporting the Hon. Tammy Franks' amendment if it is put to the committee. We are therefore opposing the Hon. Stephen Wade's amendment.

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

That progress be reported.

The committee divided on the motion:

AYES (12)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Franks, T.A. Hood, D.G.E. Lee, J.S.
Lensink, J.M.A. Lucas, R.I. Parnell, M.
Ridgway, D.W. Stephens, T.J. Wade, S.G. (teller)
NOES (6)
Gago, G.E. (teller) Gazzola, J.M. Hunter, I.K.
Kandelaars, G.A. Wortley, R.P. Zollo, C.
PAIRS (2)
Dawkins, J.S.L. Finnigan, B.V.

Majority of 6 for the ayes.

Progress thus reported; committee to sit again.

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