Tattoo Industry Act 2012 (NSW)

Tattoo Industry Act 2012 No 32 An Act to provide for the licensing and regulation of body art tattooing businesses and body art tattooists. Part 1 Preliminary 1 Name of Act This Act is the Tattoo Industry Act 2012. 2 Commencement (1) This Act commences on the date of assent to this Act, except as provided by subsection (2). (2) Part 2 commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— approved means approved by the Commissioner. authorised officer means any of the following— (a) a police officer, (b) a member of the NSW Police Force, other than a police officer, who is authorised by the Commissioner in writing to exercise the functions of an authorised officer under this Act, (c) any other person (or person belonging to a class of persons) prescribed by the regulations for the purposes of the provision in which the expression is used or generally. body art tattooing business means a business involving the carrying out of body art tattooing procedures (whether or not in combination with other tattooing procedures or with other activities). body art tattooing procedure means a tattooing procedure performed for decorative purposes, but does not include a cosmetic tattooing procedure. body art tattooist means an individual who performs body art tattooing procedures. business day means a day other than a Saturday, Sunday, public holiday or bank holiday in New South Wales. close associate—see section 4. closure order, in relation to premises, means an order made under section 28 or 29. Commissioner means the Commissioner of Police. controlled member of a declared organisation has the same meaning as in the Crimes (Criminal Organisations Control) Act 2012. cosmetic tattooing procedure means any of the following— (a) a tattooing procedure performed for the purpose of providing the individual on whom it is performed with an eyeliner, eyebrows or any other make up effect on a permanent basis, (b) a tattooing procedure performed by a medical practitioner or for a medical reason (for example, to hide, disguise or correct a medical condition or a post-operative outcome), (c) any tattooing procedure performed for any other purpose, or in any other circumstances, prescribed by the regulations. disqualifying offence means an offence prescribed by the regulations to be a disqualifying offence for— (a) all licences and permits, or (b) a type of licence or permit. employ includes engage under a contract for services or as an apprentice. function includes a power, authority or duty, and exercise a function includes perform a duty. interim closure order, in relation to premises, means an order made under section 28. licence means a licence under this Act. licence number, for a licence, means the number included in the licence under section 18. licensed premises, in relation to a master licence, means the premises to which the licence relates. licensee means the holder of a licence. master licence—see section 9. member, of a prescribed criminal organisation, includes the following— (a) a director or an officer of the organisation, (b) an associate member or prospective member, however described, of the organisation, (c) a person who identifies in some way with the organisation, including by wearing or carrying clothing, jewellery or an accessory displaying— (i) the colours, club patch, insignia or image of a prescribed criminal organisation, or (ii) an image, symbol, abbreviation, acronym or other form of writing that indicates membership of, or an association with, a prescribed criminal organisation, (d) a person who is treated by the organisation, or persons who belong to the organisation in some way, as if the person belongs to the organisation. permanent Australian resident means a person resident in Australia whose continued presence in Australia is not subject to a limitation as to time imposed by or in accordance with law. permit means a permit under this Act or the regulations. permit number, for a visiting tattooist permit, means the permit number included in the permit under section 26D. prescribed criminal organisation—see section 4A. serious criminal offence means an offence committed in New South Wales that is punishable by imprisonment for 2 years or more or an offence committed elsewhere that, if it had been committed in New South Wales, would be an offence so punishable. staff member, in relation to premises, means an individual employed to work at those premises. tattooing procedure means any procedure involving the making of a permanent mark on or in the skin of a person by means of ink, dye or any other colouring agent. tattooist licence—see section 9. visiting tattooist permit—see section 26A(1). Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) The regulations may make provision for or with respect to the circumstances in which the performing of a tattooing procedure is taken (or is not taken) to be for medical reasons for the purposes of paragraph (b) of the definition of cosmetic tattooing procedure in subsection (1). (3) Notes included in this Act do not form part of this Act. 4 Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of an applicant for a licence or a licensee if the person— (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in the person's own right or on behalf of any other person), in the business of the applicant or licensee that is or will be carried on under the authority of the licence, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the management or operation of that business, or (b) holds or will hold any relevant position, whether in the person's own right or on behalf of any other person, in the business of the applicant or licensee that is or will be carried on under the authority of the licence, or (c) is or will be engaged as a contractor or employed in the business of the applicant or licensee that is or will be carried on under the authority of the licence. (2) For the purposes of this section, a financial institution is not a close associate by reason only of having a relevant financial interest in relation to a business. (3) The provisions of this section extend to relevant financial interests and relevant powers even if those interests and powers are not payable, exercisable or otherwise enforceable as a matter of law or equity, but are nevertheless payable, exercisable or otherwise enforceable as a matter of fact. (4) In this section— relevant financial interest, in relation to a business, means— (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise, or (c) any entitlement to receive any rent, profit or other income in connection with the use or occupation of premises on which the business is or is to be carried on (such as, for example, an entitlement of the owner of the premises at which the business is carried on to receive rent as lessor of the premises). relevant position means— (a) the position of director, manager or secretary, or (b) any other position, however designated, if it is an executive position. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others— (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position. 4A Prescribed criminal organisations (1) The regulations may prescribe an incorporated body or unincorporated group, however structured, to be a prescribed criminal organisation. (2) The body or group may be prescribed whether or not the body or group is— (a) based outside New South Wales, or (b) consists of persons who are not ordinarily resident in New South Wales. (3) The Minister must consider the advice of the Commissioner before recommending the making of a regulation that prescribes a body or group to be a prescribed criminal organisation. 5 Relationship of Act to other laws Nothing in this Act limits any requirement imposed by or under the Environmental Planning and Assessment Act 1979, the Public Health Act 2010 or any other Act or law with respect to the carrying out of tattooing procedures or the carrying on of body art tattooing businesses. Part 2 Offences relating to unlicensed body art tattooing 6 Body art tattooing businesses to be licensed (1) 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 a master licence. Maximum penalty— (a) in the case of a corporation—100 penalty units and in addition, in the case of a continuing offence, 100 penalty units for each day the offence continues, and (b) in any other case—50 penalty units and in addition, in the case of a continuing offence, 50 penalty units for each day the offence continues. (2) If a body art tattooing business is carried on (or is proposed to be carried on) at more than one set of premises, a separate master licence is required to be held by a person for each set of premises for the purposes of subsection (1). (3) A person that requires, allows or permits a body art tattooing business to be carried on at premises on the person's behalf in contravention of subsection (1) is guilty of an offence. Maximum penalty— (a) in the case of a corporation—100 penalty units and in addition, in the case of a continuing offence, 100 penalty units for each day the offence continues, and (b) in any other case—50 penalty units and in addition, in the case of a continuing offence, 50 penalty units for each day the offence continues. (4) Subsection (1) does not apply to a person carrying on a body art tattooing business— (a) during the period of 7 business days after the death of a licensee who holds a master licence for the premises and, if a new application for a master licence is made during that period, until that application is determined by the Commissioner, or (b) during the period of 7 business days after a licensee who holds a master licence for the premises becomes unable to carry on the business because he or she is incapacitated and, if a new application is made by another person for a master licence for the premises during that period, until that application is determined by the Commissioner, or (c) in such other circumstances as may be prescribed by the regulations. (5) It is a defence in proceedings for an offence against subsection (3) if the person satisfies the court that the person did not know, and could not reasonably have been expected to know, that the body art tattooing business was not being carried on under the authority of a master licence. 7 Body art tattooists to be licensed (1) An individual must not perform any body art tattooing procedure for fee or reward unless authorised to do so by a tattooist licence. Maximum penalty— (a) for a first offence, 50 penalty units, and (b) for a second or subsequent offence, 100 penalty units. (1A) An individual must not perform any body art tattooing procedure (whether or not for fee or reward) at premises in respect of which a master licence is in force unless authorised to do so by a tattooist licence. Maximum penalty— (a) for a first offence, 50 penalty units, and (b) for a second or subsequent offence, 100 penalty units. (1B) An individual is not liable to be convicted of an offence under both subsections (1) and (1A) in respect of essentially the same act or omission. (2) Subsections (1) and (1A) do not apply to an individual who performs a body art tattooing procedure— (a) if the individual carries out the procedure as a self-employed individual at premises for which the individual holds a master licence, or (a1) if the individual performs the procedure under a visiting tattooist permit, or (b) in such other circumstances as may be prescribed by the regulations. 8 Employed body art tattooists to be licensed or hold permit (1) A person must not employ an individual to work as a body art tattooist unless the individual is the holder of a tattooist licence or a visiting tattooist permit. Maximum penalty— (a) in the case of a corporation—100 penalty units and in addition, in the case of a continuing offence, 100 penalty units for each day the offence continues, and (b) in any other case—50 penalty units and in addition, in the case of a continuing offence, 50 penalty units for each day the offence continues. (2) It is a defence in proceedings for an offence against this section if the person satisfies the court 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 or did not hold a visiting tattooist permit. (3) Subsection (1) does not apply to the employment of an individual to work as a body art tattooist in such circumstances as may be prescribed by the regulations. 8A Advertising body art tattooing (1) A person must not advertise that the person carries on a body art tattooing business at premises unless the person is the holder of a master licence. Maximum penalty— (a) for a corporation—100 penalty units, or (b) for an individual—50 penalty units. (2) The holder of a master licence must ensure an advertisement for the holder's body art tattooing business includes the licence number for the master licence to which the advertisement relates. Maximum penalty— (a) for a corporation—100 penalty units, or (b) for an individual—50 penalty units. (3) A person must not advertise that the person performs, or is willing to perform, a body art tattooing procedure referred to in the advertisement unless the person is— (a) an individual who carries out the procedure as a self-employed individual at premises for which the individual holds a master licence, or (b) the holder of— (i) a tattooist licence, or (ii) a permit. Maximum penalty—50 penalty units. (4) An individual who carries out a body art tattooing procedure as a self-employed individual must ensure that an advertisement for a body art tattooing procedure performed by the individual contains the licence number for the master licence to which the advertisement relates. Maximum penalty—50 penalty units. (5) The holder of a tattooist licence or the holder of a permit must ensure an advertisement for a body art tattooing procedure performed by the holder contains the licence number or permit number for the holder to whom the advertisement relates. Maximum penalty—50 penalty units. (6) In this section— advertisement includes a reference to any form of notice or statement in the nature of an advertisement. Example of an advertisement— a notice or statement on a social media platform that takes the nature of an advertisement about the performance of a body art tattooing procedure Part 3 Licensing scheme Division 1 General 9 Types of licences and authorisation conferred by licence (1) The following kinds of licence may be granted and held under this Act— (a) a master licence, (b) a tattooist licence. (2) A master licence authorises the licensee to carry on a body art tattooing business (whether on his or her own behalf or on behalf of another person) at the premises specified in the licence in accordance with this Act and the conditions of the licence. (3) A tattooist licence authorises the licensee to perform body art tattooing procedures in accordance with this Act and the conditions of the licence. (4) The authorisation conferred by a licence is subject to this Act and the regulations. 10 Licence conditions—general provisions (1) A licence is subject to— (a) such conditions as may be imposed by the Commissioner under this Act (whether at the time the licence is granted or at any later time), and (b) such conditions as are imposed by this Act or prescribed by the regulations. (2) Subject to subsection (4), the Commissioner may impose, vary or revoke conditions on a licence for such reasons, and in such circumstances, as the Commissioner considers appropriate or necessary. (3) The Commissioner may— (a) impose a condition at the time the licence is granted by specifying it on the licence that is issued, and (b) impose, vary or revoke conditions on a licence after it is granted by written notice served on the licensee. (4) Nothing in this section authorises the Commissioner— (a) to impose a condition that is inconsistent with a condition imposed by this Act or the regulations, or (b) to vary or revoke a condition imposed by this Act or the regulations. (5) A licensee must comply with any conditions to which the licence is subject. Maximum penalty (subsection (5)): 20 penalty units. Division 2 Licence and permit applications and granting of licences 11 Licence applications (1) An application for a licence is to be made to the Commissioner. (2) An application for a licence may only be made by an individual. Note— See Part 5A of the Crimes Act 1900 for offences with respect to the making of false and misleading applications, information and documentation. (3) An application for a master licence in connection with a body art tattooing business that is owned or operated by or on behalf of a corporation, partnership or trust must be made by an individual nominated by the corporation, partners or trustees to be the premises manager for the purposes of carrying on that business at the premises for which the licence is sought. (4) An application for a licence may not be made by— (a) an individual who is under the age of 18 years, or (b) an individual who is not an Australian citizen or a permanent Australian resident, or (c) an individual who is a controlled member of a declared organisation. Note— Controlled members are prohibited from applying for licences—see section 27 of the Crimes (Criminal Organisations Control) Act 2012. (5) An application for a licence must— (a) be in the approved form and manner, and (b) state the full name and residential address of the applicant, and (b1) in addition to the statement required under section 12, be accompanied by copies of 3 forms of personal identification of an approved kind for each individual identified as a close associate in that statement, and (c) in the case of a master licence— (i) specify the address of the proposed licensed premises, and (ii) specify the names and residential addresses of each staff member employed (or, if no staff members are currently employed, proposed to be employed) to work at the proposed licensed premises, and (iii) if the business to which the application relates is owned or operated by or on behalf of a corporation, partnership or trust—be accompanied by evidence in the approved form and manner that the applicant has been nominated by the corporation, partners or trustees to be the premises manager, and (d) in the case of a tattooist licence—be accompanied by evidence in the approved form and manner concerning previous, existing or impending employment as a body art tattooist (including employment as an apprentice), and (e) be accompanied by the fee prescribed by the regulations and such other information and particulars as may be prescribed by the regulations, and (f) comply with such other requirements as may be prescribed by the regulations. Note— See also section 12 for the requirement to provide a statement as to close associates of an applicant for a master licence. (6) If, before an application for a licence is determined by the Commissioner, a change occurs in the information provided in, or in connection with, the application (including any information provided in accordance with this subsection), the applicant must within 7 business days of the change give written notice to the Commissioner of the particulars of the change. Maximum penalty (subsection (6)): 20 penalty units. (7) Section 12 of the Criminal Records Act 1991 does not apply in relation to an application for a licence. 12 Statement as to close associates of applicant for master licence (1) An application for a master licence or for the renewal of a master licence must be accompanied by a written statement in the approved form, made by the applicant, specifying— (a) that the applicant has made all reasonable inquiries to ascertain the information required to complete the statement, and (b) the following information about any close associates of the applicant— (i) if the associate is an individual—the individual's name and date of birth, (ii) if the associate is a proprietary company—the name and ACN of the company and the names of its directors and shareholders, (iii) if the associate is any other kind of corporation—the name of the corporation, its ACN or ARBN (if any) and the names of the directors or members of its governing body, (iv) if the associate is a partnership—the trading name of the partnership and the names of the partners (including any silent partners), (v) if the associate is a trust—the names of the trustee or trustees and, if a trustee is a proprietary company or other corporation, the information referred to in subparagraphs (ii) and (iii) concerning its management and shareholders. (2) The regulations may provide for exceptions to this section. (3) In this section— ACN, ARBN and proprietary company have the same meanings as they have in the Corporations Act 2001 of the Commonwealth. 13 Fingerprinting and palm printing of applicants (1) An applicant for a licence must consent to having his or her fingerprints and palm prints taken by a police officer in order to confirm the applicant's identity. (2) The Commissioner must refuse to determine an application for a licence if the applicant refuses to be fingerprinted and palm printed. (3) Any fingerprints or palm prints obtained from an applicant in accordance with this section who is granted a licence may be used by the Commissioner for any purpose that the Commissioner sees fit. (4) A person who formerly held a licence, but is not currently a licensee, may apply to the Commissioner to have any of his or her fingerprints or palm prints obtained in accordance with this section and any copies of them destroyed. (5) The Commissioner may grant or refuse an application under subsection (4) as the Commissioner sees fit. (6) If an application for a licence is withdrawn or refused, the Commissioner is to ensure that any fingerprints or palm prints that are obtained in accordance with this section, and any copies of them, are destroyed as soon as is practicable after the application is withdrawn or refused. (7) As soon as practicable after any fingerprints or palm prints (or any copies of them) are destroyed in accordance with subsection (6), the Commissioner is to notify the applicant in writing that those fingerprints or palm prints (and those copies, if any) have been destroyed. 13A Renewal of licence (1) An application for the renewal of a licence may be made to the Commissioner by the licensee. (2) The application must— (a) be in the approved form and manner, and (b) be accompanied by the fee prescribed by the regulations, and (c) in addition to the statement required under section 12, be accompanied by copies of 3 forms of personal identification of an approved kind for each individual identified as a close associate in that statement and who was not identified as such in the statement that accompanied the previous licence or renewal application made by the licensee. Note— See sections 14–17 in relation to the grant, conditions and duration of renewed licences. (3) If an application for the renewal of a licence is received by the Commissioner on or before the date on which the licence is due to expire, the licence is, unless it is suspended for the time being under this or any other Act, taken to continue in force until the application is determined by the Commissioner. (4) Division 3 applies to an application for renewal of a licence in the same way as it applies to an application for a licence. (5) A licence may be renewed on more than one occasion. (6) Section 12 of the Criminal Records Act 1991 does not apply in relation to an application for the renewal of a licence. 13B Restoration of licence (1) An application for the restoration of a licence must be made— (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the Commissioner on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the Commissioner may extend the period within which an application for the restoration of a licence may be made if the Commissioner is satisfied that— (a) in a case where the applicant failed to apply for renewal before the licence expired—the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence. (3) A licence that has been surrendered or cancelled must not be restored. (4) An application for the restoration of a licence must— (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence. 14 Investigations, inquiries and determinations in relation to licence or permit applications If the Commissioner receives an application for a licence or permit, or for the renewal or restoration of a licence, the Commissioner may carry out the investigations or inquiries in relation to the application the Commissioner considers necessary for a proper consideration of the application, including in relation to the following matters— (a) whether the applicant is a fit and proper person to hold a licence or permit, (b) whether a close associate of the applicant is a fit and proper person, (c) whether it would be contrary to the public interest for— (i) the licence to be granted, renewed or restored, or (ii) the permit to be granted, (d) whether the applicant has, within the period of 10 years before the application was made, been convicted in New South Wales or elsewhere, of a disqualifying offence for the type of licence or permit applied for, whether or not the offence is an offence under New South Wales law, (e) whether the applicant— (i) is a member of a prescribed criminal organisation, or (ii) was a member of a prescribed criminal organisation in the 12 months before making the application. 15 Commissioner may require further information (1) The Commissioner may, by written notice served on the person concerned, require an applicant for a licence or for the renewal or restoration of a licence, or a close associate of the applicant, to do one or more of the following things— (a) provide, in accordance with directions in the notice, such information as, in the opinion of the Commissioner, is relevant to the investigation of the application and is specified in the notice, (b) produce, in accordance with directions in the notice, such records as, in the opinion of the Commissioner, are relevant to the investigation of the application and permit examination of the records, the taking of extracts from them and the making of copies of them, (c) authorise a person described in the notice to comply with a requirement of the kind referred to in paragraph (a) or (b), (d) give to the Commissioner such authorisations and consents as the Commissioner requires for the purpose of enabling the Commissioner to obtain information (including financial and other confidential information) from other persons concerning the applicant and the applicant's associates. (2) A person who complies with a requirement of a notice under this section does not on that account incur a liability to another person. (3) The Commissioner may refuse to determine an application if a requirement made under this section in relation to the application is not complied with. 16 Decision of Commissioner in relation to licence applications (1) The Commissioner may, after considering an application for a licence or for the renewal or restoration of a licence— (a) grant, renew or restore the licence, or (b) refuse to grant, renew or restore the licence. (2) The Commissioner may, in such circumstances as the Commissioner considers appropriate, treat an application for a licence or for the renewal or restoration of a licence as having been withdrawn. (3) The Commissioner must not grant, renew or restore a licence if— (a) the Commissioner is satisfied the application for the licence or for the renewal or restoration of the licence was not properly made, or (b) the applicant is a controlled member of a declared organisation, or Note— Controlled members are prohibited from applying for licences—see the Crimes (Criminal Organisations Control) Act 2012, section 27. (c) the Commissioner is satisfied the applicant is not a fit and proper person to be granted a licence, or to have a licence renewed or restored, or (d) the Commissioner is satisfied a close associate of the applicant is not a fit and proper person, or (e) the Commissioner is satisfied it would be contrary to the public interest for the applicant to be granted a licence, or have a licence renewed or restored, or (f) the Commissioner is satisfied the applicant had, within the period of 10 years before the application was made, been convicted in New South Wales or elsewhere of a disqualifying offence for the type of licence applied for, whether or not the offence is an offence under New South Wales law, or (g) the Commissioner is satisfied the applicant— (i) is a member of a prescribed criminal organisation, or (ii) was a member of a prescribed criminal organ