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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-07-26 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 6 July 2011.)

The Hon. D.G.E. HOOD (20:16): I rise to indicate Family First support for this bill. Family First believes that children need to be protected from decisions that they may regret in the future. They are, after all, young, and they have a different filter of what is in their long-term interest and what is not. Things such as tongue splitting, branding, scarification and risky piercings that may lead to infection can obviously be harmful to children and may have long-term consequences that they can, in some cases, be too young to fully appreciate.

This bill introduces several important measures that are welcomed by Family First. First, the bill prohibits a person from performing a body piercing or body modification procedure on a person who is intoxicated, whether by alcohol or any other substance or combination of substances. This is a good move. Secondly, this bill prohibits a person from performing a body modification procedure on a minor, which includes such things as branding, implantation and scarification. Further, a person must not perform an intimate body piercing on a minor. These two provisions seem to be completely sensible from a child protection standpoint and are provisions that we support.

As inserted, new section 21C requires a child under 16 wanting to have any body piercing other than an earlobe piercing to have the consent of a guardian. The later section 21D provides that a piercing cannot be performed unless the minor is accompanied by a parent or guardian who consents to the procedure or who otherwise has a statutory declaration to that effect. There are also enhanced police powers to enter premises in which tattooing, body piercing or body modification procedures are advertised, offered or performed, and to require a person who has possession of records produced under the act to produce those records for inspection.

Family First warmly supports the general principles contained in this bill. For far too long, in many areas of law parents have been kept out of the loop, so to speak, with respect to what their children are doing. I raised in the media some time ago—and, indeed, as recently as last week—that Facebook, for example, had a policy of not communicating with parents of children who had pages on its site. According to Facebook, if you are 13 years old then you are a registered account holder and the wishes of any parents are irrelevant.

The same principle has applied for some time now with respect to piercing and scarification. If you are at an appropriate age to consent to such procedures being performed on you—and, mind you, age is not defined—you can have your tongue split, be branded and have all sorts of other procedures performed on you. There was little that parents could do about that until this bill.

Certainly, when some of these people grow up they may regret the decisions they made as a very young person. Many of the procedures addressed in this bill are irreversible and the results will be lifelong, and a young person who today may not welcome these restrictions may thank this parliament for them in the future. Family First certainly agrees with the complete banning of some of the more permanent procedures, such as the branding or scarification of children, as well as intimate piercings of children. We would also like to see parents being involved in more ordinary piercings, for example nasal piercings, as this bill will allow.

Certainly, Family First is a strong proponent of family rights. Indeed, my colleague the Hon. Robert Brokenshire has a bill before this place that would ensure that parents are kept aware of medical procedures being performed on their children. In our view the same principle applies in this bill, as it is unacceptable that two doctors can approve medical procedures to be performed on children without that child's parent or guardian having knowledge—except in emergency situations, of course. If members are, therefore, willing to accept the principle in this bill I would encourage them to accept a similar proposition with respect to non-emergency medical procedures as outlined in my colleague the Hon. Robert Brokenshire's bill.

Many in this and the other place have attempted to improve the law in this area over the years. The first proposal I am aware of dates back to 2001 when the member for Fisher introduced a similar measure to the one we are debating at the moment. This proposal has consistently met with strong support, only to get bogged down in detail or delay time and time again. The member for Enfield introduced a private member's bill in 2002 and again in 2004, on this very issue. Both measures were met with strong support from other members as well as from Family First.

I understand from my previous notes that the member for Enfield's bill in 2002 actually passed through the other place unanimously. Where no consensus could be reached on the bill between the houses, a select committee was formed which reported on the practice on 19 October 2005. I also introduced a very similar bill back in 2008. Indeed, my bill passed this place with strong support from the opposition but, again, lapsed in the other place. As part of that process I ran a forum in the old chamber of Parliament House on this very issue, and I am grateful for the many valuable recommendations that members of parliament were given from industry leaders such as Morag Draper.

It is clear that action is needed; indeed, it seems that there is widespread agreement across this parliament that action needs to be taken. The debate is about precisely what that action should be; that is, not if but how. The select committee confirmed that there are currently no laws to prohibit the piercing of minors. Indeed, David Peake QC confirms in the report that so long as they are aware of the nature of the act (that is, the minor) being performed on them, they can consent to any of these procedures. The report strongly called for action, and the only disappointment that we have is that it has been some six years in waiting for a legislative response to this particular issue.

Nevertheless, this bill implements many of the recommendations of that select committee to protect children from the risk of permanent damage, and it is strongly welcomed by Family First. My closing comment is that this is something that has been before this parliament in one form or another since way back in 2002, and here we are nearly 10 years later. It is good to see the Attorney-General taking on a bill like this, because it makes it more likely that it will actually receive passage through both houses. It will certainly receive our support.

The ACTING PRESIDENT (Hon. J.S.L. Dawkins): The Hon. Tammy Franks, on her birthday.

The Hon. T.A. FRANKS (20:22): Thank you, Mr Acting President. I am not quite young enough to be affected by this bill. I rise on behalf of the Greens to address this bill, which we have, in general, support for. This bill had its origins in the 2005 Select Committee on the Tattooing and Body Piercing Industries. Subsequently, a government-initiated discussion paper and draft bill generated over 40 responses. Comments were received from stakeholders working in the industry: the Professional Tattooing Association of Australia, the Australian Professional Piercing Association, the Youth Affairs Council of South Australia, the Law Society, the Australian Medical Association, the Hepatitis C Council, Environmental Health Australia and government agencies.

The government's summary noted that there was widespread support for the objectives of the bill, that is, to ensure that there is clarity around what procedures can and cannot be performed on minors. I note that this bill does not impact on adults at all other than to prevent them from receiving a tattoo or body modification procedure whilst they are intoxicated or under the influence—which is certainly not a bad thing. It also precludes them from giving consent for such procedures for minors in their care if they are similarly intoxicated.

I also note that the government has taken some of the feedback received from its consultations into account in the drafting of this final proposal in the bill that we have before us here tonight, and I commend it for this, particularly for dropping or modifying some of the more inappropriate and contentious provisions. However, there are still some small areas of concern that the Greens would like to see addressed, and we will be putting forward amendments to this end.

The consultation and feedback process found that, although there was broad support for better regulation of these industries, there were objections to some areas of the draft bill, particularly the proposed age restrictions, the proposal to ban the taking of deposits and the police powers that were being proposed. I am pleased to note that in response to this the government has amended its draft bill before it presented it in its response to these well-founded and constructive criticisms on some, but not all, of the contentious provisions.

I note, as the discussion paper acknowledged, that alternative forms of body piercing, other than traditional (and I say that in the so-called western context) ear lobe piercing, have become more popular and more widely accepted through many subcultures of western culture in the world today and have, in fact, crossed over into what would be mainstream Australian culture. I say that traditional ear lobe piercing as we see it in our society is not necessarily the tradition of many of the peoples who make up our society. They may have traditions—particularly in Indian cultures, and so on—where other parts of the body are the areas that are 'traditional'.

As Australia has become, I believe (and it is very much to be welcomed), a more multicultural society, other types of piercing such as nose and navel piercings common to either other cultures or other subcultures are now more typically seen—or not seen, depending where they are on the body—and are more widely and increasingly accepted. More recently, other body modification procedures such as branding, scarification or implantation common in some cultures have also risen in popularity and acceptance amongst young people in particular. Whether members present agree with such practices or would themselves submit to such practices is immaterial. These practices are often age-old and, in many cases, follow the trends and the fashions in popularity.

As an aside, in regard to this one concern, we raise whether sufficient consideration has been given to indigenous concerns and whether traditional initiation ceremonial activities may also be captured under this legislation. I put that to the minister for a response. I do not think that it is the intention of this bill, but I would appreciate hearing whether or not indigenous communities have been considered or consulted in this regard and whether they might be, intentionally or unintentionally, caught up by its provisions.

Returning to the main thrust of the bill, the Greens share the concerns raised by the government that any such activity should be conducted in a safe and professional manner and should not unduly risk the health or wellbeing of those people engaging in the practices. It is therefore a concern to realise that the government has failed to recognise and address a major potential harm that was raised by the industry itself. I would also be interested to know what the health department itself thinks of this submission.

I refer here to the failure of the government to act upon the industry's call to ban reusable ear piercing guns. If you were to walk into a hairdressing salon and ask for your ears to be pierced today—I must say, as I did when I was 11 years old, because I begged my mother for some years to have my ears pierced, and did so under this particular method in the hairdresser's: I also got a haircut and a KFC dinner that night—it is very likely that the hairdresser would pierce your ears, as they did to me when I was 11 years old, with an ear piercing gun. These are the very guns that, over six years ago, concerns were raised about to the select committee by doctors, including a plastic surgeon, who highlighted the trauma that these could do to the very soft tissue of ear lobes and cases that they had to deal with.

In this day and age of sensitivity to, and awareness of, blood-borne viruses such as hepatitis C, other hepatitis variants and, of course, HIV, it beggars belief that the government would not act to ensure that an old-fashioned device like this, which cannot be sterilised easily or effectively and that the industry representatives themselves have actually called to be banned, is still permitted to be used. The Greens will be introducing amendments to the bill to rectify this omission and we will look forward to ensuring that the potential for serious and permanent harm that viruses like Hep C and HIV present are not further spread through ear piercing using these old-fashioned devices.

I am advised by the industry representatives who do this sort of thing for a living that the alternative—using a single-use cannula, a metal tube used for inserting into the body attached to an IV drip, for instance—is a safer, more hygienic method and reduces the potential for damage to tissues and/or infection. They are commonly available from surgical supply stores. It would not be onerous to expect practitioners to switch to this method immediately.

The government has clearly missed the point on this aspect of the bill, which calls into question its motivation for some other aspects of the bill. Is the government really wanting to ensure the best health outcomes for youth, or is this is a backdoor way of harassing the Premier's favourite whipping boys, the so-called outlaw motorcycle gangs, which the drafter of this speech has referred to as the OMGs?

I am referring here to section 21(1), which relates to police powers. Here the Greens and the government will part ways. The Greens do not believe that such a draconian and over-the-top power in this bill is necessary to ensure the public good. Indeed, in no other industry which I am aware of do powers similar to this apply. We know that solariums, for example, are potentially deadly. The outcome in the tragic case of 26-year-old skin cancer victim, Clare Oliver from Melbourne, is far more significant than a slightly enlarged earlobe, for instance, yet no-one has suggested that police would be able to wander into solariums without due cause on fishing expeditions just on the off-chance that there might be some under-aged kids present.

The historical record does not support this provision, either. Of the three cases of under-age tattooing of which I have been made aware, all occurred from amateur backyarders, which is a cause for concern in itself. No reputable tattooing or piercing operation would want to sully its reputation, through exposure in the media and the court of public opinion, for tattooing children. I understand that the industry itself is happy to comply with recording and verifying identification and, indeed, already does so in order to satisfy public health requirements. However, the government's proposed section 21(1) has the potential to be counterproductive and to drive people away from reputable licensed providers into the arms of the backyarders, where hygiene and quality control standards are more likely to be seriously lacking.

The government has not demonstrated convincingly why the police, as opposed to public health officials, should be able to waltz into a legitimate business operation and immediately interrogate all customers as to their name, address and details of the procedures they are going to have or have had. This sort of heavy-handed interference in the legitimate business operations of providers is unwarranted, unnecessary and counterproductive and an infringement on the personal privacy of consumers.

We do not give police powers to gatecrash triple-X waxing studios, barbers, hairdressers or dentists, nor solariums, chiropractors, go-cart racers, ice-skating rinks, skirmish and paintball grounds or shooting ranges, despite the potential for all of these to be risky and potentially hazardous to the participants. Nor can they enter any individual's home or business without due cause; even then a warrant is necessary.

I note that the government itself acknowledges that 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 which are the responsibility of local councils. If a business poses a health hazard, the council can take action under that act to require rectification of the hazard and can, if necessary, close down the business until this occurs. The Greens will be moving an amendment to remove these police powers in the provisions in their entirety, and I look forward to working with other members who share the same concerns in relation to this bill.

The bill further requires that service providers who perform a body piercing or body modification procedure to enter 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. They are required to give a copy of the agreement to the customer, free of charge, along with certain 'prescribed information'. The Greens support this provision, but we note that, at present, this requirement exempts providers from any obligation to provide similar information for earlobe piercing.

The Greens believe that it would not be particularly onerous, time consuming or even expensive to extend this requirement to include the provision of prescribed information for earlobe piercing as well, in the interests of patient health outcomes. This could be as simple as a photocopied sheet of paper detailing after-care techniques to keep the piercing site clean and hygienic and therefore reduce the chance of infection. This requirement is supported by the evidence, specifically the Healthy Body Art: Body Piercing Infection and Injury Research Report, which was compiled in October 2006 by Southern Primary Health, Noarlunga.

The report highlighted that earlobes were the second most commonly infected body part after navels and that the main contributing factor resulting in these infections or injuries was, in fact, 'poor after-care, including lack of, or inaccurate, after-care advice'. Accordingly, if the government is really serious about health outcomes, it will accept an amendment to include the provision of this information to all consumers of piercing services.

The prescribed information that will be required to be provided should include information about the possible health risks associated with body piercing and body modification procedures. This would also include, especially, after-care techniques and cover the health risks associated with any skin puncturing practice, such as the risk of blood-borne viruses such as hep B and C and HIV.

Another Green amendment will be to remove earlobe piercings as an exemption from parental consent for under 16 year olds. Whilst it is true that earlobe piercing is more socially acceptable and more commonly practised in our country than other piercings, this does not actually mean that it is any less hazardous than the other less common forms of piercing. Any form of piercing carries risks, especially so when conducted by poorly-trained service providers or, worse, by amateurs, often children themselves with no training or awareness of safe skin puncturing protocols.

The government itself notes that 16 years is the age for an individual to give informed consent to medical procedures. Industry representatives have made submissions calling for consistency here and indicated that they would support an across-the-board approach, requiring parental consent or other adult guardian consent for all non-intimate piercings for those children under 16. Having a consistent age of consent for all intimate piercings 18 and above and all non-intimate piercings 16 and above will, in our view, provide improved health outcomes for young people in South Australia. With that, we look forward to the committee stage of the bill and further debate.

Debate adjourned on motion of Hon. Carmel Zollo.

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