Illegal ‘Backyard’ Tattooing Operations: the Law in NSW

tattooing

As the effects of COVID-19 continue to impact individuals and business, professional tattooists have found themselves operating illegal “backyard” tattooing operations given the industry wide shut down. The tattoo industry, along with the beauty industry, was ordered to close on 25  March 2020, and will be permitted to reopen during the second step of the three-step plan as decided by the National Cabinet.

 

Regulation of the Tattoo Industry

Tattoo artists and body art tattooing business in NSW a required to be licensed with NSW Fair Trading. Those performing ‘cosmetic tattooing procedures’ are not required to be licenced. These ‘cosmetic’ procedures include:

  • Providing eyeliner, eyebrow or any other permanent make-up effect, or
  • Medical reasons, such as to hide, disguise or correct a medical condition or post-operative outcome.

In NSW, it is an offence to do any body art tattooing procedure for a fee or reward or operate a body art tattooing business without an appropriate licence.

 

Police Powers in the Tattoo Industry

In accordance with the Tattoo Parlours Act 2012 (‘The Act’), an officer has the power, at any reasonable time, enter any licensed premises, or any other premises that the authorised officer reasonably suspects are being used to perform body art tattooing procedures to determine compliance with the Act.

This can be done without the need for a warrant. However, this does not allow entry to premises used only for residential purposes.

In the case of ‘backyard operations, if an officer is wanting to inspect a premises that they believe, on reasonable grounds, is being or has been contravened any provision of this Act or the regulations, they can apply for a warrant to:

  • enter the premises specified in the warrant; and
  • search the premises for evidence of a contravention of this Act or the regulations; and
  • exercise any other function under this part (such as issuing a penalty notice for non-compliance).

 

If Police do lawfully enter a premises under the Act, the powers conferred include the ability to examine, making copies, request or seize licences, registers, books, records or other documents on the premises or take photographs, films, audio, video or other recordings as the authorised officer considers necessary. This must, however, be done in accordance with the Law Enforcement (Powers and Responsibilities) Act 2002.

 

Offences relating to the Tattoo Industry

The Tattoo Parlours Act 2012 provides a number of offences that can be committed in relation to tattooing.  

 

Body art tattooing businesses to be licensed

Under the Act, a person must not carry on a body art tattooing business (whether on the person’s own behalf or on behalf of another person) at any premises unless the person is authorised to do so by an operator licence.

The maximum monetary penalty for a corporation is $11,000, and if this is a continuing offence, $11,000 for each day the offence continues. In all other cases, the maximum monetary penalty is $5,500 and in the case of a continuing offence $5,500 for each day the offence continues.

 

Body art tattooists to be licensed

As outlined by the Act, an individual must not perform any body art tattooing procedure for fee or reward unless authorised to do so by a tattooist licence.

The maximum monetary penalty for a first offence is $5,500, and for a second or subsequent offence, $11,000.

In addition, an individual must not perform any body art tattooing procedure at premises in respect of which an operator licence is in force unless authorised to do so by a tattooist licence. The same maximum penalties apply.

 

Employed body art tattooists to be licensed

As outlined by the Act, a person must not employ an individual to work as a body art tattooist unless the individual is the holder of a tattooist licence.

The maximum monetary penalty for a corporation is $11,000, and if this is a continuing offence, $11,000 for each day the offence continues. In all other cases, the maximum monetary penalty is $5,500 and in the case of a continuing offence $5,500 for each day the offence continues.

There is an applicable defence under this section if it can be proved that the person did not know, and could not reasonably have been expected to know, that the individual employed to work as a body art tattooist was unlicensed.

 

Body art tattooing business may not be carried on in closed premises

If a ‘Closure Order’ has been made with respect to a premises, it is an offence for a person, while a closure order is in force, to

  • carry on a body art tattooing business at those premises, or
  • work as a body art tattooist at those premises.

The maximum monetary penalty for a corporation is $11,000, and if this is a continuing offence, $11,000 for each day the offence continues. In all other cases, the maximum monetary penalty is $5,500 and in the case of a continuing offence $5,500 for each day the offence continues.

 

Issuing of Fines for tattoo related offences

Police have the powers to issue a penalty notice to a person if it appears that the person has committed a penalty notice offence, which includes those offences outlined above. As the Fines Act 1996 applies to these offences, if a person issued with a penalty notice does not wish to challenge the matter in court, payment of the amount specified in the notice will result in no further proceedings for the alleged offence.

 

If, however, there is a dispute about the alleged offence, this can be dealt with in either the Local Court or the Supreme Court, in their summary jurisdictions.

 

If proceedings are brought in the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is $22,000, despite any higher maximum monetary penalty provided in respect of the offence. Therefore, offences that a deemed ‘continuing’ are likely to be referred to the Supreme Court as a higher monetary penalty can be imposed.

 

If you or someone you know needs advice or representation for an alleged criminal offence, contact the team at Hamilton Janke Lawyer 24 hours a day, seven days a week by calling 4038 1666.

 

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