SELECT COMMITTEE ON THE TATTOOING & BODY PIERCING INDUSTRIES

Transcription

1 PP 228 REPORT OF THE SELECT COMMITTEE ON THE TATTOOING & BODY PIERCING INDUSTRIES As laid on the table of the House of Assembly and ordered to be published 19 October 2005 Fourth Session, Fiftieth Parliament

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3 EXECUTIVE SUMMARY AND RECOMMENDATIONS 1 Tattooing 2 Body Piercing 3 Summary of Evidence as it relates to the Terms of Reference 4 Recommendations 5 1: BACKGROUND TO THE INQUIRY AND ISSUES CONCERNING BODY PIERCING AND TATTOOING 7 Appointment of Committee 7 Membership of the Committee 7 Committee Powers 7 Conduct of Inquiry 7 Background 8 Overview of tattooing and body piercing Issues 9 2: LEGAL OPINION 10 Summary of Evidence from David Peek QC 10 Crown Law Advice 13 3: POLICING THE TATTOOING AND BODY PIERCING INDUSTRIES; EVIDENCE FROM A REPRESENTATIVE FROM THE SOUTH AUSTRALIA POLICE 14 Published literature on legal and regulatory issues concerning tattooing and body piercing 14 Current policing approach to tattooing and body piercing 15 Tattooing minors: Investigation and prosecution of offenders 16 Discussion 17 4: EVIDENCE FROM REPRESENTATIVES FROM THE DEPARTMENT OF HEALTH IN SOUTH AUSTRALIA 18 Harm minimisation view 18 The Department of Health view on issues of age and consent 20 The Department of Health view on changes to the current legislation 20 i

4 5: ORAL PIERCINGS. EVIDENCE FROM REPRESENTATIVES FROM THE AUSTRALIAN DENTAL ASSOCIATION 21 Medical evidence on oral piercings 21 Characteristics of Patients who present with oral piercings 22 Problems with oral piercings 23 Recommendations from the Australian Dental Association 25 6: VIEW FROM A REPRESENTATIVE OF THE ROYAL AUSTRALIAN & NEW ZEALAND COLLEGE OF PSYCHIATRISTS 26 Social and cultural context of tattooing and body piercing 26 Issues in body piercing and tattooing 27 7: MEDICAL PRACTITIONERS. EVIDENCE FROM REPRESENTATIVES OF THE AUSTRALIAN MEDICAL ASSOCIATION SOUTH AUSTRALIA (AMA - SA) 28 The medical view on the medical or health impacts of tattooing and body piercing 28 The medical view on issues of informed consent 29 The medical view on issues of indemnity 30 Harm minimisation as adequate protection for the public 31 Medical practitioners: Summary and recommendations 32 8: MEDICAL EVIDENCE: VIEW OF THE PLASTIC SURGEONS. 33 Complications from tattoos 33 Complications from body piercings 33 Medical perspective on body piercing : View of the plastic surgeons 37 9: PERSONAL STORIES. EVIDENCE FROM MOTHERS AND DAUGHTERS WITH EXPERIENCES OF BODY PIERCING. 38 Parental consent 38 Informed consent 40 Medical problems after piercings 40 Health risks in businesses 41 10: TATTOOING AND BODY PIERCING EVIDENCE: VIEWS FROM THE INDUSTRY 42 ii

5 Tattoo industry representatives 42 Body piercing representatives 45 Essential Beauty 46 11: ISSUES CONCERNED WITH TATTOOING IN SOUTH AUSTRALIA 51 Age Issues 51 Industry regulations 51 Legal issues 52 12: ISSUES CONCERNED WITH BODY PIERCING IN SOUTH AUSTRALIA 53 Health issues 53 Regulation/licensing issues 53 iii

6 APPENDIX 1 Newspaper advertisements APPENDIX 2 List of submissions, responses and papers received into evidence APPENDIX 3 List of witnesses who appeared before the Committee APPENDIX 4 Summary Offences (Tattooing and Piercing) Amendment Bill 2002 (As passed by the House of Assembly) APPENDIX 5 Second Reading Speech of Mr John Rau on the Summary Offences (Tattooing and Piercing) Amendment Bill 2002 APPENDIX 6 Summary Offences (Tattooing and Piercing) Amendment Bill (As passed by the Legislative Council) APPENDIX 7 Submission of Mr David Peek QC, Murray Chambers APPENDIX 8 Crown Law advice Re: the current law as it relates to Tattooing and Body Piercing APPENDIX 9 Crown Law advice Re: Part 3, Division 8 Criminal Law Consolidation Act female genital mutilation APPENDIX 10 Submission by Dr Barbara Kelly, from the Royal Australian and New Zealand College of Psychiatrists (SA Branch) iv

7 EXECUTIVE SUMMARY AND RECOMMENDATIONS The Committee recognises that the law as it currently stands with respect to tattooing and body piercing has no provision for the concept of informed consent. The Committee acknowledges that the documented health risks and permanent consequences associated with these procedures requires prospective recipients to be provided with relevant information to assist them in making an informed decision. Through the course of the inquiry the Committee has learnt of the diverse range of body parts that are now being subjected to body modification. While the Committee has a number of concerns regarding the more invasive body piercing procedures, these concerns do not extend to the practice of traditional ear piercing. Evidence to the Committee suggests that tattooing and body piercing is increasing in popularity. Given the increased popularity and inherent health risks associated with this type of procedure the Committee is concerned about the lack of regulation and extent of monitoring of the premises and persons who provide these services. The Committee also expresses its concern about the qualifications and standard of training required of a person before they can provide tattooing and body piercing services to the public. There are clear differences in the current legal position which distinguish tattooing and body piercing. It is a breach of the Summary Offences Act to tattoo a minor. The penalties however are trivial, and there is no power for police to investigate short of a specific complaint. There is no statutory offence dealing with body piercing, with the possible exception of extreme cases which may breach the statutory prohibition against female genital mutilation. In general terms, the Common Law of assault, with all of its subtleties and nuances, is all that applies. In practice, this means that the law, in as much as it purports to regulate body piercing, is so complex as to be practically both unenforceable and incomprehensible. Aside from legal issues, there are many practical differences between these two forms of body modification. Tattooing is a procedure which involves a relatively low risk of medical complication, if performed by a competent operator. The effects however, are generally permanent. Tattoos may be substantially removed in some cases, by means of expensive and painful laser treatment. Body piercing, involves what amounts to minor surgery, and carries with it greater risk of medical complication. The extent of this risk and its nature vary according to the particular piercing in question. Tongue piercing for example, carries with it immediate risks associated with infection and swelling, as well as the longer term inevitability of damage to oral structures, usually the teeth. Body piercing involves an almost infinite range of possibilities from simple traditional ear piercing at one end of the spectrum, to elaborate genital piercing at the other. 1

8 It is clear therefore that these subjects need to be considered separately. What may be an appropriate regime for one, is not necessarily an appropriate regime for the other. Moreover, the public health implications of these practices vary considerably, suggesting that a different approach may need to be taken. TATTOOING A significant threshold question to be considered is whether the current statutory prohibition on tattooing minors should be left undisturbed. This question is significant both because it is a logical starting point and because nobody has suggested to the Committee that this should be changed. Given that the Committee believes that this threshold should continue to apply, it is logical that it should be a real threshold and not simply an unenforceable and largely ignored paragraph in the Summary Offences Act. There are three major failings with the current provisions in the Summary Offences Act. First of all, police have no power to be proactive in seeking out breaches. They do not for example, have the power to enter premises and request details of identity from individuals. This means that the present law is entirely complaint driven. Presumably, those minors who seek to be tattooed are unlikely to also make a complaint about it. In fact, the whole rationale for a law prohibiting the tattooing of minors is to protect children and young people. The police need additional powers to be able to effectively enforce this law. The second problem with the current law is the penalty. It is inadequate.. The penalty needs to be substantially increased for it to have any deterrent value and to reflect community expectations. The third problem with the current law is that the defence of honest belief about the age of a minor is far too easy to assert. This needs to be tightened so as to approximate the law applied to the sale of liquor to minors. A simple observation resulting in belief or suspicion that a person is over 18 is not enough. Proof of age must be sought, obtained and recorded. 2

9 An additional area for consideration is individuals who although aged over 18, lack the capacity to make an informed decision about tattooing. In particular, the Committee has been advised 1 that as many as 19% of young men are tattooed whilst under the influence of alcohol or drugs. Whilst this can never be entirely eliminated, steps can be taken to minimise the problem. The Committee has recommended a range of measures to address this problem. They include It be a requirement that any person or business providing tattooing and body piercing services provide appropriate information that is sufficient for the person receiving that service to make an informed decision. The parental consent required for a minor to receive a body piercing service be witnessed by an authorised signatory. Restricted trading hours be imposed on persons or business who provide a tattooing or body piercing service. In particular the Committee recommends a mandatory 10 pm closing time. The Committee believes that tattoo parlours should be licensed and the staff performing these procedures registered. The immediate practical benefit of this is to notify local health authorities that they are operating at a particular address and to alert inspectors to make routine inspections. The importance of licensing is that breaches of regulations should result in a cancellation of license and vigorous prosecution, with hefty penalties to apply to any unlicensed operators. A code of practice should be enforced. BODY PIERCING The problem of regulating body piercing is more complex than regulating tattooing because of the enormous range of piercing available and the lack of skills and qualifications held by those operators performing these procedures. The only relatively simple aspect of this subject is traditional ear piercing. This is so entrenched in sections of our society, and with some small risk of complication, that it should continue to be permitted to be performed on any minor with parental consent, provided that the equipment, the person performing the procedure and technique are approved by the licencing authorities. It seems clear that the comments about regulation and licensing in the context of tattooing should have similar application to body piercing establishments. 1 Makki T, McAllister I (2001), Prevalence of Tattooing and body piercing in the Australian Community, Communicable Diseases Intelligence, 25: 67 72, p 70. (This study was provided to the Committee as part of the submission from the SA Department of Health, dated 1 March 2005) 3

10 The Committee is of the view that genital, tongue, nipple, neck and other seriously invasive piercing should be prohibited for persons under 18 years of age with or without parental consent. Serious penalties should deter those contemplating a breach of this standard. Other piercing aside from simple single ear piercings, should be permissible under the age of 18 years, but only with express parental consent. Summary of Evidence as it relates to the Terms of Reference The Inquiry had five terms of reference. A brief summary of the evidence with respect to each term of reference is provided below. (a) the effectiveness of self regulation, including existing harm minimisation approaches; The Professional Tattooing Association of Australia is a proactive organisation and its members adhere strictly to their guidelines. Such guidelines rely significantly on self regulation with respect to both the tattooing of minors and for conventions about specific types of tattooing (most tattooists will not tattoo the face for example). This is in no way comprehensive. It is a voluntary association with no disciplinary powers. (b) any special measures to address the protection of minors and impulse tattooing of adults; The protection of minors in respect of body piercing is currently non-existent. In respect to tattooing it is inadequate. Impulse tattooing is not addressed under the current law. (c) the effectiveness of enforcement under the Summary Offences Act 1953 and other legislation; Currently there is no provision under the Summary Offences Act 1953 for prohibiting body piercing in minors. Given the lack of powers accorded to the police to investigate suspected incidents of under age tattooing, and the inability of the fine to function as an adequate deterrent, it is clear that penalties and police powers should be reviewed. (d) comparison with other national and international regulatory and management regimes; and South Australian law is similar to the national and international standard for tattooing minors. 4

11 (e) any implications of monitoring and enforcement of possible management options. Effective monitoring and enforcement of a licencing regime for both the premises and persons performing these procedures as a management option requires the Government to reverse its present hands off approach and to regulate and license these practices. Recommendations Recommendation 1 That the minimum age for tattooing remain at 18 years of age. Recommendation 2 Traditional ear piercing be exempt from any restriction based on age. Recommendation 3 That genital, tongue, nipple, neck and other seriously invasive piercing be prohibited on any person under 18 years of age Recommendation 4 That all other piercings may be obtained by a minor with valid parental consent. Recommendation 5 Police be given the powers to actively pursue breaches of the Summary Offences Act with respect to the provision of tattooing and body piercing services. Recommendation 6 The minimum penalty for a breach of the Summary Offences Act with respect to tattooing be substantially increased. The offence for breach of body piercing laws to be commensurate. Recommendation 7 It be a requirement that any person or business providing tattooing and body piercing services obtain and record proof of age details before that service is provided. Recommendation 8 It be a requirement that any person or business providing tattooing and body piercing services provide appropriate information that is sufficient for the person receiving that service to make an informed decision. Recommendation 9 The parental consent required for a minor to receive a body piercing service be witnessed by an authorised signatory. 5

12 Recommendation 10 Provision be made in the Summary Offences Act for an offence to be committed if a person or business providing tattooing and/ or body piercing services, at the time of providing those services knows or has reason to suspect that the person who is going to receive that service is under the influence of alcohol or drugs. Recommendation 11 Restricted trading hours be imposed on persons or businesses who provide a tattooing or body piercing service. In particular the Committee recommends a mandatory 10 pm closing time. Recommendation 12 All premises that provide tattooing and body piercing services be licensed. All persons performing tattooing and body piercing services be registered. Recommendation 13 That a code of conduct be imposed upon the premises and persons performing tattooing and body piercing services by regulation. It is recommended that this be based on the current Departmental Code of Practice. Recommendation 14 Health Inspectors be given the power to inspect premises that provide tattooing and body piercing services. Those premises and persons performing these procedures that breach the regulations suffer penalties which may include revocation of licence. Recommendation 15 That serious penalties be imposed for performing tattooing or body piercing services in the absence of an appropriate licence. John Rau Chairman 6

13 Chapter 1: Background to the inquiry and issues concerning body piercing and tattooing Appointment of Committee On 8 December 2004, the House of Assembly passed a resolution, on motion of Mr Rau, Member for Enfield, that a Select Committee be established to recommend options for managing and/or regulating the tattooing and body piercing industries and, in particular to examine (a) the effectiveness of self regulation, including existing harm minimisation approaches; (b) any special measures to address the protection of minors and impulse tattooing of adults; (c) the effectiveness of enforcement under the Summary Offences Act 1953 and other legislation; (d) a comparison with other national and international regulatory and management regimes; and (e) any implications of monitoring and enforcement of possible management options. Membership of the Committee Mr Rau MP (Member for Enfield) Chairman Hon G M Gunn MP (Member for Stuart) Mrs Hall MP (Member for Morialta) Mr O Brien MP (Member for Napier) Ms Rankine MP (Member for Wright) Mr Rick Crump (Parliamentary Officer) was assigned as Secretary to the Committee. At its first meeting held on 9 December 2004, Mr J Rau, was appointed Chairman. The Committee places on record its appreciation for the work of the Committee staff. Committee Powers Pursuant to Standing Orders 335 and 339, the House of Assembly ordered that the Committee have power to send for persons, papers and records; to adjourn from place to place and to authorise the disclosure or publication, as it thinks fit, of any evidence presented to the Committee prior to such evidence being reported to the House. Conduct of Inquiry Following its appointment, the Committee inserted advertisements, inviting submissions in several newspapers (as indicated in Appendix 1). 7

14 The Committee received 24 written submission from individuals and organisations. As part of its deliberations the Committee also considered information contained in a number of papers. A list of the submissions received, responses to queries by the Committee and papers received into evidence are attached as Appendix 2. Oral evidence was heard from 18 witnesses. A list of those who appeared before the Committee are attached in Appendix 3. The Committee met on 13 occasions for the taking of oral evidence, the consideration of written submissions and/or deliberation on the Committee s report. Background This report derives from a Parliamentary Inquiry in response to a legislative proposal put to the House of Assembly on 10 July 2002 by Mr John Rau MP. A copy of the Bill, the Summary Offences (Tattooing and Piercing) Amendment Bill 2002, as passed by the House of Assembly and second reading speech are attached as Appendices 4 and 5 respectively. The Bill which lapsed in the Legislative Council due to prorogation was subsequently restored, amended and returned to the House of Assembly on 10 November A copy of the Bill as amended by the Legislative Council is attached as appendix 6. Body art (body piercing and tattooing) is historically embedded in the rituals and practices of many cultures. In this context the designs and symbols tattooed on the body can hold great meaning while the jewellery used in body piercing and the parts of the body that are pierced also have great cultural significance. Tattooing and body piercing is undergoing an unprecedented explosion in popularity in western societies. Although these practices which were, until recently, largely limited to criminal and homosexual subcultures, they have, over the past couple of decades, been adopted by mainstream culture, particularly youth culture. Moreover, the practice has been adopted by a more affluent and better educated population. According to Gunter and McDowell, body piercing (defined as the penetration of jewellery into openings made in such body areas as eyebrows, lips, tongues, nares, navels, nipples, or genitals) is a rapidly rising trend because it is considered to be a symbol of style. 2 Other reasons for body piercing include rites of passage, religious purposes and sexual practices. There is also some evidence that body piercing and tattooing was practiced by adolescents that were more 2 Gunter and McDowell, Body Piercing: Issues in Adolescent Health. JSPN. 9: (2):

15 likely to have engaged in risk taking behaviours at greater degrees of involvement than those without either. 3 The Committee took the approach that body piercing and tattooing are quite separate activities. The Committee sought to assess the medical risks of both procedures and considered the proposal to provide for a cooling-off period prior to obtaining a tattoo. With respect to body piercing, the Committee considered whether a person who is under 18 should be able to undergo a body piercing (aside from simple ear piercing). Overview of tattooing and body piercing Issues There are several relevant issues that need to be examined separately with respect to tattooing and body piercing in South Australia. These are: range of, and access to services, consent issues, service quality and staff training and current regulations. While there are clear parallels between the two procedures the difference in the legislative frameworks in South Australia and the potential consequences of undergoing either a tattooing or body piercing procedure demand a different response in terms of protecting the public from undisclosed or misunderstood harm. 3 See Carroll ST, Riffenburgh RH, Roberts TA et al Tattoos and body piercing as indicators of adolescent risk taking behaviours. Paediatrics. 109: 6;

16 Chapter 2: Legal Opinion: Summary of Evidence from David Peek QC The evidence from Mr David Peek QC was predicated on the proposition that any touching which occurred without consent, apart from that which occurred in normal domestic intercourse is an assault at common law. He stated that there are a number of gradations of seriousness of assault in terms of the harm produced or the intent with which the assault is made. However, in some cases, the application of force to another person may be lawful, for example in the context of self defence, which would otherwise be an assault. Mr Peek also discussed the concept of consent. He noted a number of common occurring circumstances, for example in Australian rules football, in which one may consent to what would otherwise be an assault (if, for example, the same action occurred on the street). Moreover, in cases of medical procedures, consent is required to mitigate the assault. This raises the question of the extent to which you can consent to an assault. Clearly there is a limit, because, for example, if murder is the ultimate assault, one cannot consent to someone killing oneself. Mr Peek stated that the important issue is that there are certain inflictions of assault, particularly assaults occasioning some sort of discernible harm on oneself (that are a long way short of death) to which one cannot consent at the common law. The crux of the matter is the question of the middle ground. The question is raised of where does public policy differentiate between consent and assault. Moreover, a further question arises of how does this application differ between adults and minors. With respect to the law regarding minors, until recently (1970s or 1980s), the attitude has been reasonably inflexible: Up to the legal age of majority (18 years in South Australia) minors could in fact consent to very little. This meant that parents had a very great responsibility and, indeed, a range of rights, under which they could give consent or withhold consent on behalf of their children. For example, minors could not consent to operations by doctors to commit an assault at common law. The modern view of the consent of minors has been articulated by both the House of Lords and the Australian High Court. This view is predicated on the idea that a minor could, as he or she grows older, develop the required maturity to give a lawful consent somewhere before the age of majority of 18. As the child grows older (and becomes closer to 18 years of age), the range of activities to which he or she can lawfully consent become broader until they have the full adult ambit of consent. Mr Peek noted that one of the questions that arises is in relation to minors under this new approach is the extent to which they can give consent. As the majority of the High Court stated, research indicates that the capacity to make an intelligent decision generally appears in a child somewhere between the ages of 11 and 14. However, this is a generalisation. There is no guarantee that any particular child at 14 is capable of giving informed consent, nor that any particular 10-year old is not. This demonstrates that consent by minors is a 10

17 case by case situation. An important correlative to this view is that as the child's ability to consent grows, so commensurately does the parents' right dwindle. Mr Peek stated that the issue with respect to consent concerns the question of the consequences for the child in the long term. It further concerns the methods by which the consent is obtained in terms of how well the procedure and consequences are explained to the child and how well the child at his or her stage of maturity understand the position. Mr Peek referred to the topic of 'Medical procedures, therapeutic and non-therapeutic' in his paper. His point was that procedures undertaken for a therapeutic purpose by a legally qualified medical practitioner are supported by the law even though they may involve a gross invasion of the body and result in death. The understanding is medical procedures may be considered a lawful taking of risks because the opinion of the doctor is considered to be expert and if the outcome is death it is not considered to be murder. According to Mr Peek, this leads to the question of what stance should the law take on procedures such as tattooing and body piercing. These procedures are non-therapeutic, will not be carried out by qualified doctors, and can involve risks such as infection. In response, Peek stated that under common law tattooing is not unlawful for adults: It is not regarded as maiming or wounding but is an assault to which one may consent. However, the consent must be real and considered and come from a person capable of giving it (for example, not affected by alcohol). The only legal impediment to tattooing in South Australia is tattooing of minors. Mr Peek noted that at common law the issue concerning tattooing of minors is a far more open question: It is probably a case by case situation particularly given the diversity in maturity levels of people nearing the age of majority. Mr Peek quoted legal opinion in which the law both recognised cases where express or implied consent can be a defence to what would otherwise be an assault, and cases where consent cannot be a defence. With respect to the former, the cases include surgical operations, tattooing and ear piercing. Mr Peek emphasised that the legal opinion used the word ear piercing rather than body piercing because society understands the ramifications and nature of tattooing and ear piercing, but body piercing is a much broader range of conduct with which, perhaps, one needs to be a bit more careful. Mr Peek offered the view that because if a person was tattooed without consent, it would be a very serious assault. This underpins the question about whether people should be protected who are perhaps, intoxicated or subject to peer group pressure at a particular time, and whose apparent consent might not be a real. In other words should there be a cooling off period. In response to a question from the Committee about the prohibiting of intoxicated person from getting a tattoo, Mr Peek responded that with regard to tattooing, he thought that intoxication is a real problem in terms of proper consent because it precludes a person from clearly looking at the consequences of a proposed act. He noted that he did not want to make any political statement but strongly supported the concept of a cooling off period. 11

18 Mr Peek noted that there is a range of issues that can arises as a result of the case-by-case basis approach to body piercing and minors, in South Australia. He postulated three of these issues: Firstly, there has to be a minimum age limit at which a child simply cannot consent to such a thing as body piercing. The question relates to the appropriate minimum age. Secondly, given that that there is a range of ages under 18 where a valid consent can be given to some types of body piercing, (and much will depend on the nature of the particular piercing and the particular child) a critical issues is the extent to which the risks are explained by the operator and understood by the child. Thirdly, if the proposed procedure carries a substantial degree of risk to the health of the minor, the question in terms of the common law is whether a minor or the parent may give valid consent to taking the risk. In circumstances where there is no therapeutic purpose and the harm that may occur is substantial neither the minor nor the parent can consent. The reason for this is that it is an invasive procedure which the common law views as detrimental as it provides no benefit to the minor. Mr Peek finalised his evidence by making some tentative conclusions about the legal aspects of body piercing and tattooing. These are: Under the law minors cannot be tattooed; Presently there is no legislation addressing body piercing that is comparable to the Summary Offences Act - section 21; The question of the extent to which a minor can consent to tattooing or body piercing at common law is difficult and there is little authority on the issues; A case by case approach has to be taken to the question of whether a child can give valid consent to body piercing in order to prevent a crime being carried out by the piercer; However, there are difficulties with the case by case approach. They are: 1. how do you translate valid consent into a specified age eg: 8 or 10 years as much will depend on the type of piercing involved and level of cognitive awareness of the potential consequences 2. if a procedure does carry a substantial degree of risk to the health of the minor, the question is raised of whether a child of any age or the parent is able to give valid consent to running such a risk; 3. there is anecdotal information that some operators can and do perform body piercing on children under 10; 4. operators justify this on the basis that there is no law prohibiting such conduct. However, this completely ignores existing common law; 5. if people are performing body piercing on children 10 and under 12

19 criminal offences are being committed in some procedures irrespective of any apparent consent by the minor; 6. if businesses are performing different types of body piercing on minors between 1-15 years of age it is inevitable that some criminal offences are being committed (because of the high onus on explaining risks). A copy of Mr Peek s submission to the Committee is attached as appendix 7. Crown Law Advice The Committee sought Crown Law advice in respect to the current law and how it applies to and regulates tattooing and body piercing in South Australia. The Committee also sought specific information on the application of Part 3, Division 8 of the Criminal Law Consolidation Act 1935, and how this could be applied to the tattooing and or body piercing of female genitals. A copy of the advice is attached as Appendices 8 and 9 respectively. 13

20 Chapter 3: Policing the Tattooing and Body Piercing Industries; Evidence from a Representative from the South Australia Police The Committee sought expert opinion about issues concerned with policing 4 tattooing and body piercing practices from the South Australian Police Force (SAPOL). This chapter is comprised of the written submission from SAPOL and verbal evidence given before the Committee by SAPOL representative, Detective Chief Inspector Denis Edmonds. Published literature on legal and regulatory issues concerning tattooing and body piercing A literature search failed to identify any significant research on the issue of policing or prosecution of the tattooing and body piercing industries. A few articles were found on the law viz tattooing but they were not recent publications and were a response to the HIV/AIDS virus. 5 The bulk of the literature focuses upon the enforcement of environmental health regulations pertaining to tattoo businesses and issues concerning non compliance or failure to meet regulatory standards In this report policing means the surveillance of people and establishments practicing tattooing and body piercing and the prosecution of those persons and businesses that contravened current laws. See Stauter RL Laws regulating tattooing. American Journal of Public Health. 79(9): Stauter RL Tattooing: the protection of the public health..health Matrix. 6(2): Volker R Tougher on tattoos. Journal of the American Medical Association. 27(24): While the first two articles emphasised the need to regulate the tattoo industry in the wake of HIV/AIDs, this commentary reported a dramatic increase in regulations pertaining to, and policing of the tattooing industry in the United States between 1980 and 1995.Although there was no reported transmission of HIV/AIDS through tattooing, in 17 states where tattooing regulations were modified between 1980 and 1995, 10 states went from having no statute to issuing comprehensive regulations that include infection control, provisions and stipulations for artist training verification etc. See Oberdorfer A, Wiggers JH Environmental health officers knowledge and attitudes towards infection control. Environmental Health. 2(2): Oberdorfer A, Wiggers JH Monitoring, enforcing and promoting skin penetration guidelines in New South Wales, Environmental Health. 2(2): Richards E The legislative dependency chain: the identification of a missing link. Environmental Health. 2(2): Jurgeneit D, Scott K Infection control in the community setting. Australian Infection Control, 5 (3): Abstracts 9. 14

21 Current policing approach to tattooing and body piercing It is important to establish that the law is not consistent with respect to tattooing and body piercing. In South Australia the law prohibits tattooing of minors (under the age of 18). In contrast to the laws governing the tattooing of minors, there is no statute law that prohibits the body piercing of minors. This is a complex matter dealt with in the evidence of Mr D H Peek QC. It must also be noted that as stated elsewhere in this report, tattoo businesses appear to fit into a different culture milieu than businesses that provide body piercing. While tattooing is often linked to a more outlaw group, body piercing is usually conducted under the auspice of hair or beauty services. When asked by the Committee if their was any indication that tattooing business were associated with a criminal lifestyle, Det Chief Supt Edmonds replied that there was no evidence to support this view. 7 There is literature to the contrary. 8 The jurisdiction of the police to identify underage people seeking tattoos and body piercings is limited because the law prohibits them from asking for proof of age. 9 Their role is entirely complaint driven. Needless to say it is not common for a youth under 18 who has had an illegal tattoo to complain about this to the police. This applies to both the person doing a tattoo and the person receiving the tattoo In relation to the people who run these places, if you are asking about police intelligence on who runs them and who they might be linked to, then we know that a reasonable number of these places are run by people who are linked to motorcycle gangs, but we need to bear in mind that anybody is allowed to run a legitimate business, and there is really no intelligence to suggest to us that the tattoo parlours that might be linked to motorcycle gangs are in any way linked to any criminal conduct. Evidence, Detective Superintendent Chief Edmonds, SAPOL, Hansard, 2 March 2005, p. 55. See Life at the Bottom Theodore Dalrymple According to Det. Chief Supt. Edmonds: As a matter law and practice. The police could walk into one of these parlours and have a look about, but that is about all you could do. If you walked into a tattoo parlour, or anywhere, and you saw a person tattooing someone that the police reasonably believed was under 18 then you would form that required suspicion and you could start asking for names and addresses. You could not actually ask the child their name and address because they are not committing an offence. Evidence, Detective Superintendent Chief Edmonds, SAPOL, Hansard, 2 March 2005, p. 56. Det. Chief Supt. Edmonds stated: You really do not have the capacity or the lawful authority to start asking people's names, addresses, dates of birth and those sorts of questions, because no-one has committed an offence. With people getting the tattoos you really do not have any grounds to ask them their personal details, and with the person operating the tattoo parlour unless they are in the act of actually tattooing someone you suspect might be underage you do not really have the capacity to start asking them their details. Evidence, Detective Superintendent Chief Edmonds, SAPOL, Hansard, 2 March 2005, p

22 Further, the police do not currently have the mandate to request proof of age from anyone who they suspect is underage. 11 Det. Chief Supt Edmonds informed the Committee that in order to be more proactive in enforcing the law prohibiting the tattooing of minors, the police would require the capacity to request anyone present at the premises to provide their name and address. 12 Regulations also apply to the licensing of premises for the purpose of tattooing and to health standards within those premises. 13 These regulations are monitored by the Office of Consumer and Business Affairs and the Department of Health respectively. Tattooing minors: Investigation and prosecution of offenders The current approach to the investigation of breaches of the law prohibiting the tattooing of minors is described as complaints-driven. According to Det. Chief Supt Edmonds, although the police may have received complaints that have not resulted in prosecution, because of a lack of resources to extract the data, he was only able to comment on those complaints that were successfully prosecuted. He noted that the three people who were convicted of tattooing a minor were not linked to the tattoo industry Det. Chief Supt. Edmonds informed the committee that: If you walked into a tattoo parlour, or anywhere, and you saw a person tattooing someone that the police reasonably believed was under 18 then you would form that required suspicion and you could start asking for names and addresses. You could not actually ask the child their name and address because they are not committing an offence. Evidence, Detective Superintendent Chief Edmonds, SAPOL, Hansard, 2 March 2005, p. 56. Det. Chief Supt. Edmonds told the Committee: We would need a capacity to require anyone who was present in the premises to give us their name and proof of age. There might be some practicalities around that in that they might not be able to do it because they just do not have it with them. We would need a capacity to ask them their name, date of birth and age, and ask them to produce evidence of their age. We would also need a capacity to ask other people in the place who they are and what their role and function is there. Comment on regulations viz health chapter Det. Chief Supt. Edmonds informed the Committee: What we have done is we have gone through and found those three prosecutions that resulted from complaints from parents. The people who were convicted were not linked to the tattooing industry; they were private operators, and they knew the children who were tattooed. It was not as though a child went to a tattoo parlour and went home with a new tattoo and that resulted in the parent complaint. These are instances where most certainly we had a complaint from a parent, but the tattooist knew the child who was tattooed. Evidence, Detective Superintendent Chief Edmonds, SAPOL, Hansard, 2 March 2005, p

23 The maximum penalty for tattooing a minor under the Summary Offences Act 1953 is $1,250. This is considered to be a light penalty in view of the permanency of tattoos and issues concerning of the ability of minors to make informed decisions. 15 Discussion While there are no age restrictions on body piercing, tattooing of minors in South Australia is an offence. The policing of tattooing businesses by SAPOL is described as complaints-driven because the police only investigate incidents of the tattooing of underage people when a direct complaint is made. The opportunistic identification of underage people is limited by the ability of the police to request identity details. Even if they suspect a person may be underage they are unable to request proof of age because the minor is not actually committing an offence. This raises questions about the adequacy of the current approach to tattooing in South Australia to identify and prosecute offenders under the Summary Offences Act In all three cases the complaint was lodged by the parent of the minor in response to amateur tattooing on their child by an young adult male. Moreover, the fine for tattooing a minor is minimal compared to the fine associated with a transgression of other laws involving the behaviour of minors such as the sale of cigarettes or alcohol to a minor. The ability of this fine to act as a deterrent must be questioned. It is considered that changes should be made to the current law to authorise police to enter premises at will and demand proof of age (as with licensed premises). The penalty for tattooing a minor should be substantially increased and the defence of mistake, available to the tattooist, should be tightened up. 15 As noted by Det. Chief Supt. Edmonds: The penalty probably does not fit the crime at this point in time. He further states: I suppose if you put tattooing and body piercing into the context of offending, where the act is without the consent of the person, or with the consent of a person who is not old enough to consent (and Mr Peek's paper picks up on that in that regard), I suppose you would have to put it into the assault regime, and that might be an indicator as to what a suitable penalty would be. Here and now, I really could not put a suitable penalty on it. Evidence, Detective Superintendent Chief Edmonds, SAPOL, Hansard, 2 March 2005, p

24 Chapter 4: Evidence from Representatives from the Department of Health in South Australia The Committee sought information from the Department of Health on current policy and practice with respect to tattooing and body piercing practices in South Australia. This chapter draws on the written submission from the Department of Health and verbal evidence given before the Committee by Department representatives, Dr Rod Givney and Ms Helen Psarras. Harm minimisation view The Department of Health has adopted the policy of harm minimisation as its only position on the tattooing and body piercing practices seen in the population. 16 The aim of this policy is to minimise the potential harm associated with unsafe practices: In the case of body piercing and tattooing harm minimisation is designed to prevent the transmission of infectious diseases. 17 It appears that physical disfigurement or scarring are not within the scope of harm contemplated. The Department has developed this policy in response to the worldwide resurgence in the popularity of tattooing and body piercing and current public health approaches to preventing the transmission of blood-borne pathogens. 18 The Department of Health approach to harm minimisation is based upon three factors: Tattooing and body piercing are potential modes of transmission for Hepatitis C (HCV) and HIV; Harm minimisation is the policy whereby the authorities recognise that certain segments of the population engage in behaviour that carries with it certain risk and those authorities acknowledge that it cannot stop people from engaging in that risky behaviour. The authorities therefore put in place strategies to minimise the risk associated with that behaviour rather than outlaw that behaviour. Dr Givney explained the current epidemiology of blood borne pathogens and stated that the data points to an extremely low risk of transmission. For example, he noted that between 1995 and 2004 of all the incident notifications (646) for hepatitis C, only 6 have tattoos alone as their only recorded risk factor and 2 have had piercing as their only recorded risk exposure. Moreover, among the 34 incidence notifications of persons less than 18 years at the time of notification, none specified only tattoos or piercing as their risk exposure. Submission, Dr Givney, Department of Health, 2 March 2005, p. 4. Ritter, AJ, Wodak AD, Crofts, NJ Reducing drug-related harm: Australia leads the way. MJA. 2004; 181 (5):

25 The primary objective of any legislation regarding tattooing and body piercing should be to address the public health risk of tattooing and body piercing within a harm minimisation perspective. 19 There is sufficient reliable data to indicate that the practice of tattooing has been responsible for only a small number of HCV infections in Australia over the past ten years; 20 In order to ensure that the risk of transmission of blood borne pathogens is addressed, the Environmental Health Service in the Department of Health led the production of Guidelines for Safe and Hygienic Practice of Skin Penetration. These guidelines are specifically designed to regulate practices in businesses that provide tattooing and body piercing services. Ms Psarras informed the Committee that since these guidelines were released in 2004, the Department has worked together with businesses in order to ensure strict compliance as well as providing training for health inspectors According to Dr Givney: We would be concerned about any legislation or regulation that might cause such difficulties to the industry or to individuals that they go outside professional tattooists and body piercers (people whom we have some chance of regulating) and go into what is termed 'backyard' operations. Our interest, of course, is entirely in health. The health risks from these procedures are almost entirely related to infections, and we think that, if this becomes an industry that becomes a matter of private individuals in their own home doing what they just like doing, rather than something that is done in a public area we will have more trouble with infections. Evidence, Dr Givney, Department of Health, Hansard, 2 March 2005, p. 34. In his evidence Dr Givney informed the Committee that in the most recent data published by STD clinics, for the nine months ending September last year, in their total information, out of 335 cases, 16 said that tattoos alone were the only exposure in the list of things they get asked.. Evidence, Dr Givney, Department of Health, Hansard, 2 March 2005, p Ms Psarras informed the Committee: These guidelines were released in December 2004, and shortly after that I did a training session with all the health inspectors in South Australia. So, we are here to assist them if they have any questions about any inspection or what they should look for. We also got involved with industry. They helped us out there. We did an inspection of a tattoo studio and they had body piercing there as well. So, we provide training on a regular basis, and they do know what to look for. We have worked together well with the industry. Quite recently they have come on board and are happy to go by our guidelines. We come from a harm minimisation point of view where it protects you as the body piercer or the tattooist, and your client. They stand up and listen because it has got to do with them as well. So, we have not had a problem with them complying. Evidence, Ms Psarras, Department of Health, Hansard, 2 March 2005, p

26 The Department of Health view on issues of age and consent The Department of Health recommends that specific age restrictions apply to body piercing. The Department noted in its written submission that the current skin penetration guidelines for the Department of Health recommend: Persons must be at least 18 years of age for genital and nipple piercing persons be at least 16 years of age for all other piercings (except for ear lobes where no limits are stated) Piercings for persons under sixteen should be permitted (excluding genital and nipple person) provided written parental consent is obtained for the procedure. 22 The Department of Health view on changes to the current legislation The Department of Health expressed concern in their submission that changes to the enforcement of health and safety provisions through the Summary Offences Act may increase the use of backyard operators by the public. 23 The Department contends that it is not adequately resourced to regulate services at the local level. 24 However, if changes to the legislation better assist police supervision and management of the tattoo and body piercing businesses, then this problem would be adequately addressed. The spectre of backyard operators was not supported by any empirical evidence whatsoever. Indeed, in the absence of such evidence, the entire policy direction adopted by the department may be a case of leaping at shadows According to the Department: Department guidelines already seek proof of age and/or parental consent before undertaking skin penetration procedures. However, correspondence from the community indicates that not all skin penetration providers meet this element of the guidelines. According to the Department: The Department considers that there is risk that elements of the proposed legislation may increase the likelihood that people (including minors) will seek their tattoos or body piercing from backyard operators who would not be known to authorities and thus avoid the existing public health ;legislation and inspection. Submission, Department of Health, 2 March 2005, p. 3. The Department submission noted : If changes were made to enforce health and safety provisions through the Ace the SA police would be the regulatory authority. As the police are not equipped to deal with the public health issues there is potential for public health management to be inadequate. Submission, Department of Health, 2 March 2005, p