Tattooing Industry Control Act 2015

This Act may be cited as the Tattooing Industry Control

Act 2015.

In this Act, unless the contrary intention appears—

close associate—see subsection (3);

Commissioner for Consumer Affairs means the

Commissioner for Consumer Affairs under the Fair Trading Act 1987 or the person for the time being acting in the office of Commissioner for Consumer

Affairs;

criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person's life or physical safety;

director of a body corporate includes—

a person occupying or acting in the position of director or member of the governing body of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and

any person in accordance with whose directions or instructions the directors or members of the governing body of the body corporate are accustomed to act;

domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975, whether declared as such under that Act or not;

prescribed organisation—the following are prescribed organisations:

a declared organisation within the meaning of the

Serious and Organised Crime (Control)

Act 2008;

a criminal organisation within the meaning of Division 1 or

Division 2 of Part 3B of the Criminal Law Consolidation

Act 1935;

any other organisation prescribed by the regulations for the purposes of this definition, and a reference to a member of such an organisation is to be construed in accordance with the relevant Act;

tattoo means to insert into or through the skin any colouring material designed to leave a permanent mark;

Tribunal means the South Australian Civil and

Administrative Tribunal established under the South Australian Civil and Administrative Tribunal

Act 2013.

For the purposes of this Act, a reference to a parent, brother, sister or child of a person will be taken to include a reference to a step‑parent, step‑brother, step‑sister or step‑child (as the case requires) of the person.

For the purposes of this Act, 2 persons are close associates if—

1 is a spouse, domestic partner, parent, brother, sister or child of the other; or

they are members of the same household; or

they are in partnership; or

they are related bodies corporate (within the meaning of the

Corporations

Act 2001 of the Commonwealth); or

1 has a right to participate (otherwise than as a shareholder in a body corporate) in income or profits derived from a business conducted by the other; or

1 is in a position to exercise control or significant influence over the conduct of the other.

For the purposes of this Act, a person provides tattooing services if—

in the case of a natural person—he or she—

tattoos another person (whether or not for fee or reward); or

carries on a business in the course of which he or she or another person tattoos a person (whether or not for fee or reward); or

is a director of a body corporate that carries on a business in the course of which he or she or another person tattoos a person (whether or not for fee or reward); or

sells or supplies, or offers to sell or supply, prescribed tattooing equipment to a person; or

provides any other service of a kind prescribed by the regulations for the purposes of this paragraph; or

in the case of a body corporate—the body corporate—

carries on a business in the course of which a person tattoos another person (whether or not for fee or reward); or

is a close associate of a body corporate that carries on a business in the course of which a person tattoos another person (whether or not for fee or reward); or

sells or supplies, or offers to sell or supply, prescribed tattooing equipment to a person; or

provides any other service of a kind prescribed by the regulations for the purposes of this paragraph.

For the purposes of this section, a reference to supplying prescribed tattooing equipment does not include a reference to the mere delivery of prescribed tattooing equipment by Australia Post, a courier or a similar carriage service.

In this section—

prescribed tattooing equipment means the following equipment (however described) used, or to be used, in tattooing a person:

a tattoo machine or tattoo gun;

needles;

ink or other colouring material;

any other equipment prescribed by the regulations for the purposes of this paragraph.

Information that is classified by the Commissioner of Police as criminal intelligence for the purposes of this Act may not be disclosed to any person other than the Commissioner for Consumer Affairs, the Minister, a court, the Tribunal or a person to whom the Commissioner of Police authorises its disclosure.

If the Commissioner for Consumer Affairs—

disqualifies a person from providing tattooing services under

Part 2 or refuses to revoke a disqualification under Part 2; and

the decision to do so is 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 any proceedings under this Act, the court or tribunal determining the proceedings—

must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and

may take evidence consisting of or relating to information so classified by the Commissioner of Police by way of affidavit of a police officer of or above the rank of superintendent.

The Commissioner of Police may not delegate the function of classifying information as criminal intelligence for the purposes of this Act except to a Deputy Commissioner or Assistant Commissioner of

Police.

The Commissioner for Consumer Affairs is responsible, subject to the control and directions of the Minister, for the administration of this

Act.

A person must not provide tattooing services if the person is disqualified from providing tattooing services under this section. Maximum penalty: Maximum penalty:

in the case of a natural person—imprisonment for 4 years; or

in the case of a body corporate—$250 000.

A natural person is disqualified from providing tattooing services if he or she—

is a member of a prescribed organisation; or

is 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; or

is disqualified from providing tattooing services (however described) under a law of the Commonwealth or another State or Territory; or

is a person, or is a person of a class, prescribed by the regulations for the purposes of this subsection.

A body corporate is disqualified from providing tattooing services if—

the body corporate—

is a prescribed organisation; or

is disqualified from providing tattooing services (however described) under a law of the Commonwealth or another State or Territory; or

a director of the body corporate is disqualified from providing tattooing services under subsection (2); or

is a body corporate, or is a body corporate of a class, prescribed by the regulations for the purposes of this subsection.

A person is disqualified from providing tattooing services whether the events referred to in subsection (2) or (3) occur—

before or after the commencement of this section; or

before or after the person commences providing tattooing services.

Without limiting section 7, the Commissioner for Consumer Affairs may, by notice in writing (a disqualification notice), disqualify a person from providing tattooing services if—

the person was, at any time within the 5 preceding years, a member of a prescribed organisation; or

the person was, at any time within the 5 preceding years, a close associate of a member of a prescribed organisation; or

the person is found guilty, or has within the preceding 10 years been found guilty, of an offence prescribed by the regulations for the purposes of this section; or

the Commissioner for Consumer Affairs reasonably believes that such action is appropriate for the purpose of averting, eliminating or minimising a risk, or a perceived risk, to the safety of members of the public; or

the Commissioner for Consumer Affairs reasonably believes that to allow the person to provide tattooing services, or to continue to provide tattooing services, would otherwise not be in the public interest.

A disqualification notice has effect from the date specified in the notice and continues in force—

indefinitely; or

for the period specified in the notice; or

until the notice is revoked in accordance with this or any other

Act, whichever is the sooner.

A person who contravenes or fails to comply with a disqualification notice is guilty of an offence. Maximum penalty: Maximum penalty:

in the case of a natural person—imprisonment for 4 years;

or

in the case of a body corporate—$250 000.

A person does not commit an offence against this section in respect of an act or omission unless the person knew that the act or omission constituted a contravention of, or failure to comply with, the disqualification notice or was reckless as to that fact.

Subject to this section, a disqualification notice given by the

Commissioner for Consumer Affairs—

must state the grounds on which the notice has been given;

and

must contain a statement advising the recipient that he or she is entitled to seek a review of the Commissioner for Consumer Affairs decision to give the notice in accordance with section 17; and

must contain such other information as may be required by the regulations.

A statement of the grounds on which a disqualification notice has been issued must not contain information that is classified by the Commissioner for Police as criminal intelligence (however a failure to comply with this subsection does not invalidate a disqualification notice).

Subject to the making of an order under subsection (3), a disqualification notice must be served on the recipient personally and is not binding on the recipient until it has been so served.

If a police officer has reason to believe that a person is subject to a disqualification notice that has not been served on the person, the officer may—

require the person to remain at a particular place for—

so long as may be necessary for the notice to be served on the person; or

2 hours, whichever is the lesser; and

if the person refuses or fails to comply with the requirement or the officer has reasonable grounds to believe that the requirement will not be complied with, arrest and detain the person in custody (without warrant) for the period referred to in paragraph (a).

If a police officer satisfies a court that all reasonable efforts have been made to effect personal service of a disqualification notice on a recipient in accordance with this section but that those efforts have failed, the court may make such orders as it thinks fit in relation to substituted service (and the notice is not binding on the recipient until it has been so served).

The Commissioner for Consumer Affairs may, at any time, vary or revoke a disqualification notice by notice in writing to the recipient.

A person who carries on a business in the course of which tattooing services are provided must not allow a person who is disqualified under this

Act from providing tattooing services to provide tattooing services in the course of that business. Maximum penalty: Maximum penalty:

in the case of a natural person—imprisonment for 4 years;

or

in the case of a body corporate—$250 000.

In proceedings for an offence against subsection (1), it is a defence for the defendant to prove that he or she believed on reasonable grounds that the person who provided tattooing services in contravention of that subsection was not disqualified under this Act from providing such services.

An authorised officer may give a direction under this section to a person who provides tattooing services for the purpose of averting, eliminating or minimising a risk, or a perceived risk, to the safety of members of the public.

A direction under this section—

must be in the form of a written notice served on the person to whom it is issued; and

must specify the person to whom the direction is given (whether by name or by a description sufficient to identify the person); and

may direct 2 or more persons to do something specified in the notice jointly; and

without limiting any other provision, in the case of a direction that relates to the condition of any premises, may be given to any person who—

is the owner or occupier of the premises; or

has the management or control of the premises; and

must state the purpose for which the direction is given;

and

may impose any requirement reasonably required for the purpose for which the direction is given, including 1 or more of the following:

a requirement that the person discontinue, or not commence, a specified activity indefinitely or for a specified period or until further notice from an authorised officer;

a requirement that the person take specified action in a specified way, and within a specified period or at specified times or in specified circumstances;

a requirement that the person take action to prevent, eliminate, minimise or control any specified risk to the safety of members of the public;

and

must contain a statement advising the person to whom the direction is given that he or she is entitled to seek a review of the decision to give the direction in accordance with section 17.

A person to whom a direction is given under this section must not, without reasonable excuse, refuse or fail to comply with the direction. Maximum penalty: Maximum penalty:

in the case of a natural person—$100 000 or imprisonment for

1 year; or

in the case of a body corporate—$250 000.

A person who proposes to commence carrying on a business in the course of which tattooing services are provided must give the Commissioner for Consumer Affairs written notice in accordance with this section. Maximum penalty: Maximum penalty:

in the case of a natural person—$100 000 or imprisonment for 1 year; or

in the case of a body corporate—$250 000.

A person who—

on the commencement of this section is carrying on a business in the course of which tattooing services are provided; or

after the commencement of this section commences to carry on a business in the course of which tattooing services are provided, must give the Commissioner for Consumer Affairs written notice in accordance with this section. Maximum penalty: Maximum penalty:

in the case of a natural person—$100 000 or imprisonment for 1 year; or

in the case of a body corporate—$250 000.

A notice under subsection (1) or (2)—

must be given in a manner and form determined by the Commissioner for Consumer Affairs; and

must be given—

in the case of a person referred to in subsection (1)—at least 90 days before commencing to carry on the business; or

in the case of a person referred to in subsection (2)(a)—within 28 days after the commencement of this section; or

in the case of a person referred to in subsection (2)(b)—within 28 days after commencing carrying on the business; and

must include—

in the case of a body corporate—

the name of the body corporate and any business or trading name under which the body corporate is to provide tattooing services; and

the registered address of the body corporate; and

the full name, residential address and date of birth of each director of the body corporate; and

in the case of a natural person—his or her full name, residential address and date of birth; and

in any case—

the address of any premises at which tattooing services are to be provided by or on behalf of the person; and

the full name, residential address and date of birth of any other person employed by the person to provide tattooing services; and

such other information as may be required by the regulations.

A person required to give notice under this section must, within 14 days of any change in the information referred to in subsection (3), notify the Commissioner for Consumer Affairs of the changed information. Maximum penalty: Maximum penalty:

in the case of a natural person—$100 000 or imprisonment for 1 year; or

in the case of a body corporate—$250 000.

A notice under subsection (4) must be given in a manner and form determined by the Commissioner for Consumer Affairs.