1 Dec 2015
Tattooing Industry Control Bill
Adjourned debate on second reading.
(Continued from 19 November 2015.)
The Hon. A.L. McLACHLAN ( 22:28 ): The Liberal Party will be supporting the second reading of this bill. The Liberal Party has decided to support the passage of this bill through the parliament and not seek amendment unless there are substantive matters that come to the attention of the members during the debate and the committee stage.
The Liberal Party’s approach to this bill is to take on good faith the assertions of the police executive, and in turn the government, that it is necessary to enact this bill. The police have advised the Liberal Party that they requested that the government enact this legislation. It is the police executive that has access to the criminal intelligence that underpins the rationale for this bill.
The police executive are asking the parliament to take away the rights of our citizens based on the secrets that they alone keep. It is my view—and I have informed the chamber of this before—that it is an unsatisfactory state of affairs and that significant legislative reform is required regarding the use of criminal intelligence in the criminal justice system and the enhancement of the capabilities of the Crime and Public Integrity Policy Committee of the parliament.
What is disappointing to me is the disregard shown to the parliament prior to the bill coming to this chamber. This bill or proposed options for the regulation of tattoo parlours or even the need for regulation was not advised or put before the Crime and Public Integrity Policy Committee. Only a passing reference to tattoo parlours was made to the committee by the Commissioner of Police.
I am critical of the minister and the police executive for not paying appropriate regard to the role of the committee in the life of this parliament. This failure, at the earliest opportunity, to identify regulatory intent or even the need for potential regulatory schemes, unfortunately, shakes the faith of many in the opposition in the relationship the police executive has with many members of this parliament.
Nevertheless, the Liberal Party will once again take the protestations and advancements of the police executive in good faith. In criticising the police executive, I do not intend in any way to criticise or reflect adversely on the hardworking men and women of our police force; I admire them greatly.
The Hon. R.L. Brokenshire: And the executive.
The Hon. A.L. McLACHLAN: I hold out the hand of friendship to the police executive. I offer, if they wish it, my willingness to present to them on the importance of the rule of law to the working of a functioning democracy and the need for institutions like the police force to hold themselves to account. I want the South Australia Police to be seen as a bastion of integrity and best practice in the Asia-Pacific region, not a political player constantly furthering its own administrative agenda.
This bill will pass with the assistance of the Liberal Party; however, the acquiescence of the Liberal Party will not transpire without renewed obligations and expectations of the police executive. The Liberal Party will expect that there will be independently audited statistics regarding the operation and effectiveness of the legislation in fighting organised crime. If this does not transpire, then not only will the police’s position in respect of this bill be re-examined, but further legislative reform will beckon.
This is an oppressive piece of legislation. It is my personal view that the case has not been clearly made out for the bill’s enactment. Indeed, there are relatively few tattoo parlours that come under suspicion and, in my view, there are already adequate laws in operation that allow the police to deal with any associated criminal activity.
I now wish to comment on some of the substantive clauses in the bill. The bill creates a negative licensing regime. This regulatory approach is in part justified by limiting the compliance obligation of the owners of tattoo parlours, yet there will still be an increase in obligations imposed by this bill, which of itself undermines the justification for the regulatory approach adopted in this bill.
Under the proposed negative licensing scheme, certain categories of persons will be disqualified from providing tattoo services. Disqualification can occur in one of two ways. Firstly, a person is automatically and permanently disqualified from providing tattoo services if he or she is a member of a prescribed organisation, a close associate of a person who is a member of a prescribed organisation, is subject to a control order under the Serious and Organised Crime (Control) Act 2008, is disqualified from providing tattoo services under the law of the commonwealth or another state or territory, or is a person or a person of a class of persons prescribed by the regulations.
Secondly, the Commissioner for Consumer Affairs will also have the power to disqualify a person from providing tattooing services if certain criteria are satisfied. These criteria include:
•if a person was, within the preceding five years, a member of a prescribed organisation;
•if a person was, within the preceding five years, a close associate of a member of a prescribed organisation;
•if a person is found guilty or has, within the preceding ten years, been found guilty of an offence prescribed by the regulations;
•where the Commissioner for Consumer Affairs reasonably believes that such an action is appropriate for the purpose of averting, eliminating or minimising a risk to the safety of members of the public; or
•the commissioner reasonably believes that to allow a person to provide tattooing services would not be in the public interest.
This second type of disqualification—that is, made by the commissioner—takes effect from the date specified in the notice and continues in force either indefinitely or for a period specified in the notice or until the notice is revoked.
A ‘close associate’ is defined in the bill to include a spouse, a domestic partner, a parent, a brother, a sister or a child. Other categories of close associates include: members of the same household, persons who are in partnership, related bodies corporate, persons who have the right to participate in income or profits derived from a business conducted by the other, or where one person is in a position to exercise control or significant influence over the conduct of the other.
If the Commissioner for Consumer Affairs makes a disqualification and the decision is based on information that is classified by the police commissioner as criminal intelligence, the Commissioner for Consumer Affairs is not required to provide any grounds or reason for the decision other than it would be contrary to the public interest if the person were to provide tattooing services. I mention at this juncture the irony of this, which would be beautiful in any other context, that is, that the Commissioner for Consumer Affairs will have greater access to criminal intelligence than the elected members of the Crime and Public Integrity Policy Committee.
‘Criminal intelligence’ is defined in the act as:
…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.
In essence, certain individuals would be unable to operate a parlour. Alternatively, the Commissioner for Community Affairs can disqualify someone. Where the provisions of this bill are particularly offensive is that in the definition of a close associate of a person who is a member of a prescribed organisation. The only prescribed organisations in this state at present are certain motorcycle clubs. The immediate effect is that the family members are going to be punished for the actions of one person. They do not even need to have any dealings with the tattoo parlour business. They will be guilty by association.
It has been a long time since I have read Russian history, in particular, the revolution and its aftermath. This bill reminds me of darker times. It adopts the same logic or philosophical approach as that which was adopted by Stalin—no trial, no findings of guilt, families punished, wives and children arrested and close families tarred because of the suspicion of a state concerning the actions of a single relative.
I remind the chamber that, in this bill, no connection to the tattooing business needs to be established as a prerequisite to disqualification. In my view, we are losing our way in the manner in which we choose to keep our community safe. We are taking the wide path, the easy road, not the road where we can properly and carefully balance the rights of the individual with the safety of the community.
It has been suggested to me by many in the community that we in this place seem to be constantly seduced by a police bureaucracy that has more interest in its own advancement than concern for the community which it serves. The Liberal Party is strongly committed to fighting organised crime but, if we continue along this legislative path, it will expect greater assurances from the government and the police that such measures are necessary.
A curious provision that can be found in this bill is one where the Commissioner for Consumer Affairs does not need to provide reasons for his decision to ban someone from operating a parlour. One of the fundamental principles of our western legal tradition is that one has the right to confront one’s accusers. In other words, the accused must be allowed to hear the case against them and the supporting evidence. This right has existed for over 2,000 years. In The Bible, Acts chapter 25 verse 16 records Roman governor Festus as declaring:
It is not the manner of the Romans to deliver any man to die, before that which he is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him.
The government has seen as fit to seek to remove this basic right. There are appeal provisions that may mitigate the effect of this clause and I will ask a question of the government in this respect at the conclusion of my second reading contribution. Even on appeal, the accused will not have access to criminal intelligence that forms the basis of the complaint against them. It is my view that this provision, removing the need to provide reasons and supporting evidence, will ultimately lead to the undermining of the public confidence in the process. Justice must not only be done but also be seen to be done.
The provisions of this bill are not consistent with how a liberal democracy should operate. A better regulatory approach would have been a licensing regime as adopted in some other states. It would have been better to keep safe the rights of our citizens at the cost of a potential increased regulatory burden.
The great unanswered question in this debate is: what is next? Delicatessens, beauty parlours, law firms, accountancy practices? When I asked this question of the police, they responded that they would deal with each problem as it presents itself. In other words, there is no strategy, there is no endpoint envisaged. This bill may well be seen in the future as an admission of failure by the police executive to effectively deal with organised crime—a tombstone for the failed approach by the police executive of this decade.
The Liberal Party wants real outcomes from the fight against organised crime, not window dressing for marginal electorates. The Liberal Party is prepared to support the police in its reasonable endeavours in tackling all forms of criminality, but not a government enacting provisions for political expediency. Nevertheless, we take the assertions of the police executive on good faith that these measures are necessary one more time.
In passing, I note the powers of the authorised officers under the bill. Authorised officers include police officers. The provision has caused some in my party to reflect on the continued need for the police to have the general search warrant—unique to this state. This is because increasingly they are given specific powers in various pieces of legislation. That debate is for another day; however, calls to review the general search warrants grow.
My vision of justice is one with a proper balance between the protections of the civil liberties, presumed innocence, and procedural rights of persons against the needs of the state to apprehend, punish and rehabilitate perpetrators of crime. It is my personal view that this bill does not find an appropriate balance between these competing ideals.
I now have some questions that I would like responses to in the summing up of the second reading debate, if possible. I seek similar answers to the questions raised by the Hon. Tammy Franks. The answers to those questions are also of particular interest to the Liberal Party. Given that the rationale for this bill is predicated on criminal intelligence, I ask, as I have asked previously in this chamber, whether the provisions of section 74A—Special provisions relating to criminal intelligence, in the Police Act 1998, have now been complied with.
Provisions of section 74A require the Attorney to appoint a retired judge to review the effectiveness of the police commissioner’s guidelines in relation to criminal intelligence and its use. I ask whether someone has been appointed for the preceding 12 months—I understand it goes in a financial year basis—and in the previous years since the enactment of that clause. Without that assurance of an independent review of criminal intelligence, it makes a mockery of the rationale that the parliament should rely on the assertion that there is sufficient intelligence to warrant the introduction of this legislation.
I also ask the government to advise the chamber on what its implementation plan is for this legislation. Clearly, this will impact families who run businesses and that have an association (not of their choosing) with someone that may be in a declared organisation. These individuals may carry debt or other financial obligations in relation to their business. So I ask the government to set out its implementation plan in relation to this bill in the event that it is enacted. The passing of the bill, however, I fear will greatly diminish the value of the assets because potential buyers will know that the sale must take place in certain circumstances.
I also ask the government to set out how it envisages the appeal process to work. There are provisions in clause 17, I think it is, which relate to the provision of reasons. It appears that you are not given reasons by the Commissioner for Consumer Affairs upon making an order, but you do receive some reasons when you appeal, and I would like greater clarity on how the government envisages the appeal process to work. On that basis, I will complete my remarks for this second reading stage and I look forward to the committee stage.
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