I find that the complaint is not proven. I order that the complaint be dismissed.

1 It is unlawful to refuse to provide a service to another person on the basis that the person has an infectious disease. But this law is qualified: one qualification allows discrimination if it is reasonably necessary to protect the health or safety of any person (including the person discriminated against) or the public generally. This case requires me to consider the matter in the context of a tattooist who refused to tattoo a man infected with HIV and Hepatitis C.

2 The facts about the refusal of service are not the subject of any real dispute. Mr Hay says that on 20 May 2004 he rang Mr Danny Dubbeld of Ink City Tattooing and said that he wished to have some artwork tattooed on both arms and on his left hand. He said he told Mr Dubbeld that he was HIV positive; to which Mr Dubbeld replied "that's alright". Mr Hay then said that he stated he was a carrier of Hepatitis C; to which Mr Dubbeld replied "sorry, mate, I can't help you". Mr Dubbeld's evidence was somewhat different. He said that, after being told that Mr Hay was both HIV positive and a carrier of Hepatitis C, he replied "personally I would rather not do the tattoo, but if you were to ring around you may find a store willing to do it". Both Mr Hay and Mr Dubbeld stated that the conversation was conducted in a courteous manner. It is sufficient that I find that Mr Dubbeld refused to provide a service to Mr Hay on the basis that Mr Hay was a carrier of Hepatitis C.

3 The real issue in the case is whether Mr Dubbeld was entitled to refuse to provide the service, in the circumstances, by reason of section 80(1)(a) of the Equal Opportunity Act 1995 ("the Act"). This provides:

(1) A person may discriminate against another person on the basis of impairment or physical features if the discrimination is reasonably necessary -

(a) to protect the health or safety of any person (including the person discriminated against) or of the public generally;

4 It has been established that the onus is on a person relying upon an exception, such as that in section 80, to show that the exception applies.[1] The respondents gave evidence about the circumstances, including the tattooing process and Mr Dubbeld's experience as a tattooist, so the ultimate issue does not so much depend upon onus as upon the meaning of section 80 and my findings as to the objective circumstances.[2]

Meaning of section 80(1)(a) of the Equal Opportunity Act

5 Section 80(1) of the Equal Opportunity Act was considered by the tribunal in Hall v Victorian Amateur Football Association[3]. This case involved an HIV positive man who was refused registration to play amateur football. In relation to the words "reasonably necessary" in section 80(1) the tribunal commented:

What is "reasonably necessary" is different from what is "necessary" and also from what is "reasonable". We do not take the view that the term "reasonably necessary" is meaningless, because the action is either necessary or it is not. We must attempt to give meaning to the words used.

We prefer not to substitute other words for the words used by Parliament. For section 80(1)(a) to apply, the conduct (here, the refusal to register Mr Hall and so to permit him to play football) must, in all the circumstances, be reasonably necessary (that is, on a reasonable judgment) to protect the health and safety of the class which the ban is designed to protect. The test is not an absolute test. The ban need not be necessary in absolute terms, but must, on a reasonable judgment, be necessary for the specified purpose. Parliament has not used the words "reasonable" or "quite desirable" for the specified purpose. It has used the words "reasonably necessary". The test is an objective one. The belief of the person who seeks to rely on section 80(1), at the time when the relevant conduct took place, as to whether or not the conduct was reasonably necessary for the specified purpose, and the inquiries (if any) reasonably made by that person and the information reasonably available to that person about whether or not the conduct was reasonably necessary for that purpose, are also relevant. It is not enough if the respondent believes the ban is necessary for the specified purpose if the ban is not, on a reasonable judgment, necessary for that purpose.

In the Hall case the tribunal found that it was not "reasonably necessary" to ban Mr Hall from playing football. The tribunal reached this conclusion having regard to the very low risk of another person being infected by Mr Hall if he played football. It concluded:

In our view the health and safety of the class in question is better protected by an understanding of the nature of the very low risk and by an understanding of and implementation of the proper procedures to be taken in further reducing such risk, than by banning Hall.

6 In my opinion, the tribunal must ask itself whether a reasonable person in the respondent's position would have regarded it as necessary to refuse to provide the service in order to protect the health or safety of any person or the public generally.[4] In answering this question, several elements will be involved. First, if the discrimination did not occur, what is the probability of an event occurring which might threaten the health or safety of a person ("the adverse event"). Second, if the adverse event occurs, what is the probability that the event will have a substantial impact upon the health or safety of a person ("the consequence"). Third, what is the utility of the thing in respect of which the discrimination occurs. Fourth, in objectively considering whether discrimination is reasonably necessary, it should not be assumed that all people are risk takers; many people are risk averse, particularly when it comes to protecting their own health or safety, and this factor should be reflected in any objective judgment of what is reasonably necessary in a particular case. This analysis is consistent with the decision of the High Court of Australia in X v Commonwealth of Australia.[5]

7 For what it is worth, I am satisfied that, at the time of the phone call on 20 May 2004, Mr Dubbeld believed that it was reasonably necessary to refuse to tattoo Mr Hay in order to protect his health (that is, Mr Dubbeld's health). But, as the relevant test is an objective one, this cannot determine the question.

8 Dr Edwina Wright, an infectious diseases physician, gave evidence as to the complainant's medical condition. She said that although the complainant was HIV positive and had chronic Hepatitis C, therapy had been successful and had substantially reduced the number of infected cells in the complainant's body. She gave evidence that, on balance, it would be relatively safe for the complainant to have further tattoos. But she said:

There are caveats of course to this and those are that any person having a tattoo is at risk of having a local cutaneous infection. In an uncontrolled situation where there is a failure of sterilisation, individuals are at risk of other serious infections including Hepatitis C, Hepatitis B and HIV infection.

She recommended that the complainant have some preventative antibiotics at around the time he had a tattoo, simply as a precaution.

9 Dr Wright also gave evidence that the tattooist would have to take precautions in terms of "universal precautions" and prevent themselves from being exposed to blood and bodily fluids at the time of the tattoo. She explained that in the health care setting the concept of universal precautions was now accepted practice. This concept is based upon the principle that all patients should be assumed to be infected with an infectious disease; with the consequence that precautions, such as wearing gloves and a mask, should be taken in the case of every patient.

10 Dr Wright said that, in the health care setting, the probability of infection as a result of a splash of blood to the eyes, nose or mouth was 0.1% in the case of HIV and of a similar order in the case of Hepatitis C. She said that, in the health care setting, the probability of infection passing as a result of a needle stick injury was 0.3% in the case of HIV and 2.0% in the case of Hepatitis C. Inevitably, these statistics can only provide general guidance as they are difficult to collect on a consistent basis. No doubt the risk is also dependent upon other factors, such as the extent of the infection in the infected person and the time lapse between a needle contacting the blood of the infected person and the blood of the other person.

11 A few months after Mr Dubbeld refused to tattoo the complainant, Dr Wright prepared a letter, directed at prospective tattoo artists, about potential risks. In her letter she stated that she had discussed the matter with Mr Hay. She continued:

I have also discussed the risk of transmission of HIV to the person performing the tattoo, and I have explained the types of precautions that the tattooist would take to prevent transmission. In addition, post-exposure prophylaxis is available to people who are exposed to HIV in the community through the Alfred Hospital.

Overall I think Geoff is safe to have the tattoo as long we check his white cells prior to the tattoo.

The prospect of a tattooist requiring drugs to deal with exposure to HIV or Hepatitis C is not an enticing one, as Dr Wright explained that up to 70% of persons having such treatment experience some side effects from the treatment.

12 Although Dr Wright was not particularly familiar with the tattooing industry, she thought that it would be wise for tattooists to take universal precautions in the same way as the medical profession. She acknowledged that the more skilled the person, the more likely that they would be able to safely carry out a particular procedure. Further she said that in the hospital setting new professionals experienced considerable training in the taking of precautions.

13 Mr Dubbeld, now aged 32 years, has only worked as a tattooist since 2001. He left school during year 9 and has had no further education. He has had various jobs: he worked as a labourer, he operated a fish and chip shop and has worked as a furniture removalist. Since a teenager, he has been interested in drawing and artwork. This led him to seek work as a tattooist, notwithstanding having had no previous experience in the health or personal services fields. When he started as a tattooist in 2001 he was provided with on-the-job training.

14 Mr Dubbeld gave evidence about the process usually used in tattooing. This evidence was based upon the practices of some 25 to 30 tattooists that he had observed. He said that a customer would first choose a design. The tattooist would then apply stick deodorant to the customer's skin, apply an outline of the design to the skin, smear the skin with Vaseline, and then use a mechanical needle to inject ink. Subsequently shading needles (up to 11 needles bunched together) would be used to apply shading to fill out the design. The tattooist would spread the client's skin to keep it taut; and the tattoo would be applied within a centimetre or so of the tattooist's fingers. During this process the tattooist would wear normal street clothes, with no face or eye protection; but he would wear latex gloves taken from a non-sterile container. Mr Dubbeld said that it was quite unusual for tattooists to use gowns, masks or safety glasses. During the process of applying a tattoo the customer's skin bleeds profusely and blood, usually mixed with ink, would be frequently wiped from the skin with a tissue in order to maintain a clear working surface. Mr Dubbeld said that in applying a routine tattoo he might use up to half a box of tissues in cleaning away blood and ink.

15 Mr Dubbeld told the tribunal that since being a tattooist he has had two needle stick injuries. The first injury occurred when a customer accidentally stepped on the foot pedal of the needle machine; and the second injury occurred when Mr Dubbeld was rinsing the needles prior to a colour change. It is apparent that the risk of a needle stick injury occurring in tattooing is a real one.

16 There appears to be no tertiary training course for tattooists. Rather tattooists learn their trade on the job. No doubt this can result in the development of practical skills; but it can also give rise to bad habits. For example, Mr Dubbeld said that sometimes he would have a beer whilst applying a tattoo. When challenged on this practice, he said: "well, no-one's died".

17 The tattooing industry in Victoria is subject to regulation, but this might be described as "light handed" regulation. To say this is not to be critical. No doubt there is a concern that if regulation is onerous, tattooing might be driven underground and would then occur in a completely unregulated environment.

18 Section 366C of the Health Act 1958 requires a person conducting the business of tattooing (along with hairdressing, a beauty parlour, ear piercing and acupuncture) to register the premises upon which the business is conducted. Further, the Health (Infectious Diseases) Regulations 2001 requires the proprietor of such a business to keep the premises in a clean and hygienic state. The regulations provide that the proprietor must ensure that an article intended to be used for penetrating the skin of a person is sterile at the time of use and an article which has penetrated the skin of a person, or is contaminated with blood, is destroyed or disposed of immediately in a manner as to prevent the infection of any other person.[6] The regulations also require the proprietor to ensure that each person in the business who is engaged in carrying out any tattooing is clean and has no exposed cuts, abrasions or wounds before carrying out the process. Further, the proprietor must ensure that before tattooing any person written information is provided to the person about the transmission of infectious diseases associated with the process.[7] Although it was once the case that a person who knows, or suspects, that he is suffering from any infectious or contagious disease could not enter a tattoo parlour,[8] this is no longer the law.

19 The Department of Human Services has published a client health information sheet directed at persons considering having a tattoo.[9] The client health information sheet states:

Contaminated equipment, unclean premises and unsafe procedures all have the potential to spread diseases such as Hepatitis, HIV and bacterial infections. Good tattooists will be happy to discuss their hygiene procedures with you.

The department has also published Health Guidelines for Personal Care and Body Art Industries ("the guidelines"). The guidelines are intended to assist those involved in the personal care and body art industries to comply with the regulations. The guidelines recommend the use of sterile single-use gloves. They state that the use of non-sterile single-use gloves is the minimum requirement if sterile gloves are not provided on-site.[10] It also recommends that operators should wear masks when there is a possibility of splashing or splattering of blood or other body substances.[11] Further, it recommends that eyes be protected from splashing. The guidelines identify hazards which are biological, chemical, physical and radiological. However it is stated that the majority of hazards encountered are usually biological.[12] Appendix 2 to the guidelines identifies a number of industry specific hazards, including "risk of infection to operator from client's blood". The control recommended in relation to this risk is to wear single-use disposable gloves during the procedure.

20 Part VI of the Health Act 1958 sets out provisions in relation to the management and control of infectious diseases. For example, it creates an offence to knowingly or recklessly infect another person with an infectious disease.[13] Further, the Secretary of the Department may, in certain circumstances, order that a person be tested for infectious diseases, and in more extreme circumstances may make an order imposing restrictions on the person's behaviour or movements. The interpretation of the various sections in Part VI of the Health Act has been assisted by the Parliament identifying principles to be used in interpretation. These are set out in section 119. Although these principles have been provided for another purpose, they provide general guidance which is useful in determining the question in this case.

21 Section 119 of the Health Act provides:

The following principles apply for the purposes of the application, operation and interpretation of this Part -

(a) the spread of infectious diseases should be prevented or limited without imposing unnecessary restrictions on personal liberty and privacy;

(b) a person at risk of contracting or being infected with an infectious disease must take all reasonable precautions to avoid contracting or being infected with the disease;

(c) a person who suspects that he or she has an infectious disease must ascertain -

(ii) what precautions should be taken to prevent others being infected:

(d) a person with an infectious disease must take necessary measures to ensure that others are not unknowingly placed at risk of becoming infected;

(e) a person with an infectious disease or at risk of contracting or being infected with an infectious disease has a right -

(i) to be protected from unlawful discrimination; and

(iii) to receive information about the medical and social consequences of the disease and any proposed treatment; and

(iv) to have access to available and appropriate treatment -

so long as those rights do not infringe on the well-being of others.

It is to be noted that these principles are designed to provide guidance in ascertaining an appropriate balance, with proper respect being paid not only to those with an infectious disease but also those at risk of contracting an infectious disease.

22 It is inevitable that a person engaged in tattooing will be at risk of being infected with infectious diseases. It follows, I think, that a tattooist ought take reasonable precautions to avoid being infected with such diseases. Although a person with an infectious disease ought take necessary measures to ensure that others are not unknowingly placed at risk of becoming infected (including disclosing his or her condition to a tattooist), a tattooist cannot reasonably expect that this obligation will always be met. Hence it is wise for a tattooist to adopt a policy of universal precautions.

23 Based upon my primary findings, I make the following specific secondary findings. If Mr Dubbeld had tattooed Mr Hay the probability of some adverse event occurring, such as a needle stick injury or a splash of blood, is low. However if such an adverse event did occur it is highly probable that this would have a substantial impact upon Mr Dubbeld's health. Hence the combined probability of an adverse event occurring and it also having a substantial impact upon Mr Dubbeld's health is low; but it is not so low that a reasonable person would safely ignore it.

24 Medical practitioners, nurses and other highly trained health professionals take universal precautions in relation to infection. But a tattooist is quite unlikely to have the same training as a health professional; and is unlikely to have the same understanding of infectious diseases. Hence the analogy with health professions, whilst relevant, is not decisive when it comes to the circumstances that might make it reasonably necessary for a tattooist to refuse to provide a tattooing service.

25 I find that the circumstances where it is "reasonably necessary" to refuse a service in order to protect the health of the service provider will depend upon the training, skill and experience of the person providing the service. This is because a person with a high level of training and skill, or with considerable experience, will be less likely to experience an adverse health impact as a result of providing the service. But when it comes to tattooing in Victoria in 2004, I find that the standards adopted in practice are, if not a world away, substantially lower to those applied in the provision of health services.

26 As I have mentioned earlier, another factor which is relevant is the utility of the event which is accompanied by risk. Some procedures are vitally important to public health: examples are immunisation, the giving of blood and the resuscitation of accident victims. By contrast, although a tattoo might be important to the individual concerned, it cannot generally be said that there is a strong public interest in the tattoo being provided. Hence circumstances which might make it "reasonably necessary" to refuse to provide a tattoo will not necessarily justify a refusal to provide medical treatment.

27 No doubt there will be tattooists who are willing to provides tattoos to persons who are infected with HIV or Hepatitis C. Possibly these persons will have considerable experience as a tattooist or a high degree of training, not only in their craft, but in relevant health consequences. But the fact that some tattooists would be willing to undertake the task does not mean that it is unlawful for other tattooists to refuse. Part of the balancing process requires consideration to be given to the risk averse tattooist, including those of limited education and experience.

28 Having considered these factors, I conclude that Mr Dubbeld has established that it was reasonably necessary for him to refuse to provide his tattooing services to Mr Hay in order to protect his health. This is because the provision of the service would have carried a real, albeit low, risk of Mr Dubbeld becoming infected with Hepatitis C; Mr Dubbeld was not highly trained and had an incomplete understanding of the transmission of infectious diseases; although the service was no doubt important to the complainant, there was no substantial public interest in the tattoo being provided; and a judgment as to what is "reasonably necessary" must take account of the varying risk-taking profiles of tattooists.

[1] Ellis v Mt Scopus Memorial College [1996] VADT 16; Hall v Victorian Amateur Football Association (1999) 16 VAR 183; Taylor v Moorabbin Saints Junior Football League [2004] VCAT 158.

[2] By reason of section 10 of the Equal Opportunity Act 1995 in determining whether or not a person discriminates, the person's motive is irrelevant.

[3] (1999) 16 VAR 183.

[4] Compare Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40, at 47.

[5] (1999) 200 CLR 177, see 190-192 per McHugh J.

[7] See regulation 25A, which was inserted by statutory rule 8/2004 on 30 January 2004.

[8] See clause 10 of the Health (Skin Penetration) No 2 Regulations 1977.

[9] Ironically this client health information document was published in May 2004, being the same month there was a refusal of service in this case.