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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2015-12-02 Daily Xml
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Tattooing Industry Control Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 December 2015.)

The Hon. K.L. VINCENT (12:45): I am pleased to speak at the second reading stage to put Dignity for Disability's position and some concerns on this bill on the record. Under this bill, as members would be aware, a person would, automatically and permanently, be disqualified from providing tattooing services if he or she or one of their close associates is a member of a prescribed organisation or subject to a control order under the Serious and Organised Crime (Control) Act 2008.

The bill also seeks to give the Commissioner for Consumer Affairs the power to disqualify a person from providing tattoo services based on certain criteria, including the person being a member of a prescribed organisation within the preceding five years, or having been found guilty of a prescribed offence within the preceding 10 years.

My office has received expressions of concern about the bill by participants in, and employees of, the tattoo industry in particular. We are also aware of the concerns raised by the Law Society of South Australia and by some members of the opposition in the other place and some members in this place also. Together, these concerns raise fears that the effect of this bill may be to unfairly penalise innocent people who are pursuing a legitimate business and career, earning their livelihoods and expressing their artistic skills in the tattooing industry.

Participants in the tattooing industry, including trainees, employees and business owners, have advised my office that they believe that they are captured in the current incarnation of the bill under the definition of 'close associate' of a member of a prescribed organisation. Some thought that the bill labels them as criminals, simply because they work as tattooists. The Law Society expresses opposition to the bill because, in summary, its powers would be too sweeping. The Law Society feels its scope is too wide and its potential consequences are grave and unfair.

The society also expressed concerns that the bill does not strike the right balance between preventing or reducing crime and placing restrictions on rights and freedoms of individuals, and that the bill does not address health risks inherent in tattooing, notably the use of contaminated ink or needles. In light of the concerns about the bill raised by the Law Society, some of the tattooing industry participants and some members in both this place and the other place, there appears to be some risk that this legislation in its current form could be susceptible to a legal challenge.

Given this, Dignity for Disability shares the concerns expressed that the government is asking members of this chamber to support this bill without the evidence that it will actually assist in fighting crime. We also share the concern that the bill is likely to increase unemployment and force skilled young workers in particular to seek employment interstate. Certainly, given the state of unemployment in this state currently and the outlook into the future, that is something we cannot afford to have happen.

We agree that to facilitate an informed debate on this bill the government needs to answer some questions about the links between tattoo parlours and organised crime in this state in particular, and how many employees and owners of tattoo parlours would fall within the current definitions of the bill, the effects of similar legislation in New South Wales and Queensland, and which members of the tattooing industry were consulted in the drafting of this bill.

With those few words, Dignity for Disability expresses its opposition to the bill in its current form, and I hope we can quickly get some answers to those questions we have raised just now in order to assist us in forming a position in later stages.

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (12:49): I thank honourable members for their second reading contributions. A couple of questions were asked during those contributions for which I will now seek to put a response on the record. It has been pointed out that the bill seeks to prevent organised crime gangs and their associates from owning or controlling tattoo parlours and pawnshops, using them as a front for illegal activities. Legitimate businesses in these industries are threatened by acts of violence, arson and other property damage.

The bill introduces a negative licensing scheme to ensure that the regulatory impact upon legitimate businesses is minimal. A person will not be required to obtain a licence in order to provide tattooing services, as is the case in New South Wales and Queensland; however, it will be an offence for a person to provide tattooing services if they are disqualified from doing so. The person is automatically disqualified if he or she is a member of a prescribed organisation or a close associate of a person who is a member of a prescribed organisation, or is subject to a control order under the Serious and Organised Crime Control Act 2008.

This is similar to the situation in New South Wales and Queensland where a person cannot get a licence if the person is a controlled member of a declared organisation or an adverse security determination has been made by the commissioner about the applicant. Carrying on a body art tattooing business without a licence is an offence.

The Hon. Ms Franks asked a number of questions in her second reading contribution. In relation to her first question: could the government indicate how many tattoo parlours, etc., advice has been provided by SAPOL and there are currently around 70 or so tattooing businesses operating in Adelaide, mostly in the metropolitan area. Of those 70-plus businesses there are, as noted by the opposition in the other place, a number that have direct links to outlaw motorcycle gangs. I cannot provide the exact numbers for the honourable member because that information is in the nature of criminal intelligence, and I would not want to prejudice ongoing police operations by repeating that information here, but it definitely is a considerable number.

A person is only automatically disqualified if they are a member of a prescribed organisation or a close associate of a member, or if they have been disqualified from providing tattooing services in another jurisdiction. As noted by the Hon. Ms Franks, a 'close associate' includes a spouse. A person is a spouse if they are legally married. If a person ceases to be a member of a prescribed organisation, or ceases to be a close associate of a member, i.e. because they are divorced, then they are no longer automatically disqualified. It is true that they could still be disqualified under clause 8 by the Commissioner for Consumer Affairs but that power is discretionary and the exercise of that power which would include consideration of a person's circumstances can be appealed against.

The Hon. Ms Franks has also asked: can the government provide instances where powers and provisions in New South Wales and Queensland have led to a reduction in bikie-related organised crime? I have been advised that both jurisdictions have indicated to SAPOL that the implementation of legislation banning outlaw motorcycle gang involvement in tattoo parlours has resulted in a decline in violent offending, such as arson attacks and drive-by shootings, in and around tattoo parlours. The new legislation has also led to greater reporting confidence, for example, reporting 'standover' tactics and other blackmail-type offending, by legitimate operators who do not have links with outlaw motorcycle gangs.

The Hon. Ms Franks has asked that the government provide cases where individual members of the community, who were not engaged with an organised criminal gang in those states, have been taken in for questioning. I have been advised that we are not able to access that information.

The Hon. Ms Franks also asked to be provided with a list of tattoo parlours supporting this bill and which were consulted. I have already advised in the briefing that the government did not consult with the tattoo industry on the drafting of this bill. The bill represents an election commitment of this government to prevent organised crime gangs from owning or controlling tattoo parlours. It does this by making it an offence to provide tattooing services if you are disqualified from doing so under the act.

The Hon. Andrew McLachlan has sought further information on the implementation of this legislation. I am advised that it is the government's intention to delay commencement of the legislation for at least six months to enable tattooists and tattoo parlour owners to determine whether they will fall foul of the legislation and to give them time to sell or close their business and deal with any existing contractual arrangements.

For example, a person who is a member of a prescribed outlaw motorcycle gang or a close associate of a member will be automatically disqualified from providing tattoo services once the legislation comes into force, and liable to four years' imprisonment if they continue to provide tattooing services in contravention of this provision. SAPOL has advised that once the legislation comes into operation it will work with CBS to determine whether or not action will be initiated against proprietors.

The Hon. Andrew McLachlan has also stated that the Commissioner for Consumer Affairs does not need to provide reasons for his decision to ban someone from operating a tattoo parlour and has asked the government to provide greater clarity on the appeal provisions. Pursuant to clause 8 of the bill, the Commissioner of Consumer Affairs may, by notice in writing, disqualify a person from providing tattooing services. Subclause (5) provides that a disqualification notice must state the grounds on which the notice has been given and set out a person's right to appeal against the decision.

On appeal, the appellant may, if not satisfied with the grounds already set out in the disqualification notice, require the Commissioner for Consumer Affairs to state in writing the reasons for the decision or a direction appealed against them. The requirement to give reasons is subject to clause 5 of the bill. Where a decision to disqualify a person has been made because of information that is classified by the Commissioner of Police as criminal intelligence, the Commissioner for Consumer Affairs is not required to provide any grounds or reasons for the decision other than that it would be contrary to the public interest if the person were to provide tattooing services.

In relation to the Hon. Andrew McLachlan's questions in relation to section 74A of the Police Act, a retired judicial officer has been approached and has agreed to conduct the section 74A review for the 2013-14 and 2014-15 years. The Attorney-General's Department is liaising with SAPOL regarding the necessary arrangements, such as access to the relevant information. The Attorney-General will undertake to provide a response to the Hon. Andrew McLachlan detailing the arrangements shortly.

Again, I wish to take this opportunity to thank honourable members for their contributions and look forward to dealing with this expeditiously through the committee stage.

Bill read a second time.

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