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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-06-07 Daily Xml
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SUMMARY OFFENCES (TATTOOING, BODY PIERCING AND BODY MODIFICATION) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second 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) (18:00): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

This Bill will amend the Summary Offences Act 1953 to set out what is and is not lawful when it comes to tattooing, body piercing and other body modification procedures.

Over the years, alternative forms of body piercing, other than traditional ear piercing, have become more popular and more widely accepted by mainstream society. The practice of permanently altering your body through body modification procedures such as branding, scarification or implantation have also become more popular.

The Bill does not seek to limit the choices of informed adults. However, given the increasing popularity of these procedures, and the inherent health risks associated with them, the government believes that the present state of the law is unsatisfactory. It does not go far enough to ensure that minors do not receive seriously invasive piercings or other body-modification procedures. The current law is difficult to apply, so that service providers, parents and police may find it hard to know when the law is broken. It does nothing to protect intoxicated or impulsive adults from undergoing procedures they may later regret.

Accordingly, the Bill proposes to:

set out clearly what procedures can be performed on minors,

stipulate what records must be kept,

impose a ban on the sale of body modification equipment to minors and

prevent the tattooing or piercing of intoxicated persons.

The Government believes that these measures strike an appropriate balance between protecting young people from harm and recognising the autonomy and individuality of that young person.

Consultation

This Bill is the culmination of work undertaken by the 2005 Select Committee on the Tattooing and Piercing Industries, subsequent consultation by the Government on the recommendations of the Select Committee, and recent public consultation on a draft Bill.

During consultation on the draft Bill comment was received from over 40 interested parties, including industry workers, government agencies, the Law Society, the Australian Medical Association, the Professional Tattooing Association of Australia, YACSA, the Hepatitis C Council, Environmental Health Australia and the Member for Adelaide.

Although there was broad support for better regulation of the industry, there were objections to some areas of the draft Bill, particularly the proposed age restrictions. All of the submissions received were considered by the Government and a number of the concerns raised have been taken into account in the drafting of the final Bill.

Details of the Bill

The Bill contains a number of measures to better regulate the tattooing and piercing industries, and to better protect the health and well-being of our children.

A major feature of the Bill is the new restrictions on the types of procedures that can lawfully be performed on minors.

The draft Bill that was released for public consultation restricted the piercings that could be lawfully given to minors to earlobe piercing and, with the consent of the minor's parent or guardian, piercing of the eyebrow, nose, navel or other part of the ear. All other body piercings and body modification procedures were prohibited to minors.

What emerged from the public consultation was that, while respondents generally supported a ban on intimate body piercings and body modification procedures for minors, there was broad opposition to the proposed age restrictions for non-intimate piercings.

Piercing of the genitalia, anal region, perineum, nipples or uvula are examples of intimate body piercing. Non-intimate piercings are any other body piercing (other than earlobe piercing), such as piercings of the tongue, cheek, nose, navel, eyebrow and neck.

The majority of respondents felt that 16 and 17 year olds were mature and responsible enough to make their own decisions about obtaining non-intimate body piercings without having to first obtain parental consent. Particularly when a 16 or 17 year old can lawfully drive a car or consent to medical treatment, and could, possibly, be living independently and may, therefore, be unable to obtain the necessary parental consent.

A number of respondents also suggested that minors under the age of 16 should be allowed to get non-intimate piercings if they have the consent of their parent of guardian.

As a result of these concerns, and the clear opposition to the proposed ban on many non-intimate body piercings, the draft Bill was revised. The Bill now before the House imposes clear rules about the performance of body modification procedures or body piercing on minors.

Firstly, the Bill prohibits the performance of body modification procedures, such as branding, scarification, implantation and ear stretching, on minors. This is by analogy with the current law which prohibits the tattooing of any minor under the age of 18 years unless the tattoo is performed for medical reasons by a legally qualified medical practitioner. In both cases, the body is permanently altered.

Secondly, the Bill prohibits the performance of intimate body piercings on minors.

An intimate body piercing is defined in the Bill as the piercing of a person's genitalia, anal region, perineum, uvula or nipples.

The piercing of an intimate area of the body is a seriously invasive procedure that places a minor in a very vulnerable position. Minors should not be subject to inappropriate or indecent contact and the law protects them by prohibiting these procedures, regardless of whether the minor or a guardian purports to consent. This is consistent with the approach taken in Western Australia, Victoria and Queensland.

Thirdly, the Bill introduces a requirement of parental consent for all other body piercings (other than earlobe piercing) if the minor is under 16 years of age. These non-intimate piercings are still an invasive procedure and the Government believes that the minor's parent or guardian should be involved in the decision making process if the minor is under the age of 16 years.

However, 16 and 17 year olds will be able to make their own decisions about getting a non-intimate piercing, such as a tongue, lip, nose, navel or eyebrow piercing. This is consistent with the current age of consent for medical treatment.

The Bill does not propose to restrict earlobe piercing which appears to be widely socially acceptable for children. Although it would be usual for parents to attend with, and consent to the earlobe piercing of a young child, formal evidence of consent and records will not be required.

The Bill provides two ways in which a parent or guardian can give consent for their child to have other non-intimate piercings. They can give consent in person or they can give written consent.

To prevent minors from faking the consent of their parent or guardian there is a requirement that the written consent be in the prescribed form and be verified by statutory declaration, i.e. witnessed by a Justice of the Peace. It will also be an offence to make a false statement or produce false evidence to a person who offers body piercing or body modification procedures.

If, for some reason, a parent or guardian is not comfortable filling in a consent form and getting it witnessed, they still have the option of attending the studio with their child and giving their consent in person.

The Bill also provides that a parent or guardian cannot give consent to a minor undergoing a procedure if they are intoxicated (whether by alcohol or by any other substance or combination of substances). Non-intimate piercings are still an invasive procedure and require fully informed consent. If the parent or guardian is intoxicated, their ability to make an informed and rational decision on behalf of their child may be impaired. The Government does not believe that parental consent given in these circumstances is a valid consent.

Another feature of the Bill, which was supported by a number of respondents, is that it will be an offence for a person to perform a body piercing (other than an earlobe piercing) or a body modification procedure on any person unless the service provider has:

1. entered into a written agreement with the customer setting out the nature of the procedure and the manner in which it is to be carried out;

2. given to the customer free of charge a copy of the written agreement and prescribed information; and

3. if the customer is less than 16 years of age and the procedure is a non-intimate body piercing, received the consent of the minors' parent or guardian either in person or in the prescribed form and verified by statutory declaration.

The prescribed information that will be required to be provided to a customer with the written agreement will be information about the possible health risks associated with body piercing and body modifications procedures.

Just as informed consent to a medical procedure requires information of potential risks etc., the Government believes that it is important that a person's decision to get a body modification procedure or body piercing performed is based on fully informed consent.

Requiring a service provider to enter into a written agreement with a customer ensures both parties are clear about what procedure is to be performed and how that procedure will be carried out. Requiring a service provider to also provide the customer with information about the possible health risks arising from a procedure, ensures the customer can make a fully informed decision.

To further support fully informed decision-making, the Bill makes it an offence for a person to perform a body piercing or body modification procedures on a person who appears to be intoxicated. A defence exists where the service provider can establish that he or she believed on reasonable grounds that the person on whom the procedure was performed was not intoxicated.

When a person is intoxicated (either by alcohol or some other substance) it can impair their ability to clearly look at the consequences of a proposed act and make an informed decision. In many instances, once the person has sobered up, they regret getting the procedure done.

The Government has also taken heed of the concerns raised during the consultation process about the proposed ban on taking deposits and the impact that this would have on businesses. This provision has been removed from the Bill.

In addition, the Bill makes it an offence to sell body modification equipment to a minor or supply body modification equipment to a minor in connection with the sale, or possible sale, of goods.

This offence has been included in the Bill because there will be some minors who will purchase body modification equipment and attempt to perform one of these procedures on themselves or on their peers. Ear stretching is a perfect example of this.

Ear stretching is the process of gradually stretching an ear piercing to accommodate larger size jewellery and can permanently modify the body. There are a number of methods for achieving this such as using a scalpel or dermal punching to create a larger hole at the outset or using a taper to gradually stretch the original piercing.

Tapers are a commonly used method for stretching ear piercings and are widely available for purchase. A ban on the sale of this equipment, or any other equipment designed to be used for the purposes of body modification, to minors prevents unscrupulous operators from selling this equipment to minors so that they can perform the procedure at home.

To support these provisions, the Bill entitles service providers, and the police to require proof of age so as to verify whether a person seeking a service is a minor. It also requires service providers to keep the records prescribed by regulation. It is intended to prescribe a requirement that the service provider keep details of evidence of proof of age produced on request and of evidence of a parent or guardian's consent where that is required. Police will be entitled to enter the premises and inspect these records, as well as make copies of these records.

It is necessary to give police broad powers to ensure that the legislation is properly enforced. The power for police to enter premises and inspect and take copies of records is separate from the powers exercised by environmental health officers to enable the investigation of public health concerns.

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 businesses for the purposes of the Act to ensure that businesses are acting lawfully.

The ability to enter premises at any time and ask a person to produce proof of age also assists police in determining whether a service provider is complying with the legislation.

Because of the risk that some minors will produce false evidence of age, a service provider will have a defence if he or she reasonably relied on proof of age produced by a person who turns out to be a minor.

The Bill does not alter or add to the law about health inspections, which are provided for under the Public and Environmental Health Act and are the responsibility of local councils. If a business poses a health hazard, then the council can take action under that Act to require rectification of the hazard and can, if necessary, close the business down until this occurs.

Concerned members of the public should report any suspected hazards to the relevant council for investigation. The Bill does not provide for mandatory codes of practice for these businesses. Instead, guidelines can be published by public-health authorities. For example, the Department of Health publishes hygiene guidelines for skin-puncturing businesses. If these guidelines are ignored and hazards arise, the law already provides a remedy.

Concerns were expressed during the public consultation that over-regulation of the industry, particularly in relation to the performance of non-intimate piercings on minors, would result in an increase in minors performing these procedures on themselves or their peers, or going to backyarders.

The Government believes that the measures contained in the Bill, and existing public health legislation, addresses the majority of the concerns raised in the public consultation process.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Summary Offences Act 1953

4—Substitution of Part 4

This clause proposes to delete the current Part 4 that deals with offences related to tattooing and substitute a new Part 4 that deals with offences in relation to body piercing, tattooing, body modification and related activities.

Part 4—Tattooing, body piercing and body modification

21A—Interpretation and application

This section defines a number of terms for the purposes of the measure and provides that the Part does not apply to body piercing or a body modification procedure performed on a person if the procedure is performed by a medical practitioner for a genuine medical or therapeutic purpose.

21B—Performance of body modification procedures on intoxicated persons prohibited

This section prohibits the performance of a body piercing or body modification procedure on an intoxicated person. The section provides a defence of a belief on reasonable grounds that the person on whom the procedure was performed was not intoxicated. The penalty for an offence against this section is a fine of $5,000 or imprisonment for 12 months.

21C—Performance of certain procedures on minors prohibited

This section prohibits the performance of any body modification procedure, and any intimate body piercing procedure, on a minor. The section also prohibits the performance of any other body piercing (other than an earlobe piercing) on a minor who is aged under 16 years without the consent of the minor's parent or guardian.

The section provides for a defence against a charge where evidence of age or parental consent was required to be produced which, despite being false, produced a belief of the defendant that the performance of the procedure was not prohibited. In order to rely on the defence, a person must retain copies of the evidence offered at the time of the alleged offence as proof of age or consent.

The penalty for an offence against this section is a fine of $5,000 or imprisonment for 12 months.

21D—Pre-conditions to performing certain procedures

This section provides for certain matters to be completed before any body modification or body piercing procedure may be carried out. In relation to all such procedures, the service provider and the customer must enter into a written agreement that contains the prescribed information as to the nature of the procedure and the manner in which it is to be carried out, and the service provider must give to the customer a copy of the agreement and the prescribed information.

In addition, in relation to minors under the age of 16 years proposing to have a piercing other than an intimate body piercing or earlobe piercing, the consent of the parent or guardian must be obtained prior to the procedure being performed by their attendance in person or by provision of the prescribed form verified by statutory declaration.

21E—Sale of body modification equipment to minors prohibited

This section prohibits the sale (including supply linked to a sale) of body modification equipment to minors. Body modification equipment is defined in the section to be equipment designed to be used for the purposes of body modification. The section provides for a defence against a charge where evidence of age was required to be produced which, despite being false, produced a belief of the defendant that person was not a minor. In order to rely on the defence a person must retain copies of the evidence offered at the time of the sale as proof of age. The penalty for an offence against this section is a fine of $2,500.

21F—Display of information

This section provides that a person who offers, for fee or reward, to perform body piercing or body modification procedures must display prescribed information at the premises where the procedures are offered. The penalty for an offence against this section is a fine of $1,250.

21G—Record keeping

This section requires a person to retain copies of records of relevant documents under the Part for a period of two years. The penalty for an offence against this section is a fine of $1,250.

21H—Offence to make false statement or produce false evidence

This section creates an offence to make a false statement or produce false evidence to a person who offers body piercing or body modification procedures in respect of the age of a minor or the consent of a minor's guardian to the performance of a body piercing or body modification procedure. The penalty for an offence against this section is a fine of $2,500.

21I—Police powers

This section provides for police powers to enter premises at which tattooing, body piercing or body modification procedures are advertised, offered or performed, and 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 to provide his or her name, age and address and the details of the procedure the person is seeking at the premises. It will be an offence (attracting a penalty of $1,250) to hinder a police officer in the exercise of these powers or to fail, without reasonable excuse, to comply with a requirement of a police officer under this section.

Debate adjourned on motion of Hon. S.G. Wade.


At 18:01 the council adjourned until Wednesday 8 June 2011 at 11:00.


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