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Violations by Amy and Dominic

In the present case, Amy was running a tattoo parlour and appointed Dominic who has no professional licence regarding the same. The Tattoo Parlour Act 2017 is required to fulfil certain criteria to run a tattoo business. It can be argued that section 5 of the Act states the business owner must obtained an operator’s licence regarding the same and it is stated under section 6 of the Act that a tattoo artist must have licence if he wants to perform the art professionally. Therefore, Amy is liable for violating the section.

In the first question of the part, there are certain provisions of the Tattoo Act 2017 breached by Amy and Dominic. There are some necessary provisions mentioned in the Act that regularise the business in a well manner. The Tattoo Parlour Act mentioned under section 7 that the duty of the parlour owner is to appoint tattoo artist who holds a licence. The provision mentioned under section 18 of the Act restricts the tattoo artist to give permission to an individual so that they cannot be performing the art without any professional licence as per requirements of the Act.

Dominic does not have any professional licence and they had breached the provision of section 7 of the Act. Amy also allows Dominic to work as an artist in her parlour without examining his licence properly. Therefore, the provision under section 18 has been violated.

Dominic used to clean the tattoo equipments with water and sterilised only the needles, razors and scissors. It has been provided under section 19 of the Act that all the equipments must be sterilised properly and therefore it can be stated that Dominic is guilty of violating this provision.

There are several parts included under the part A of this case and number of sections is included regarding this. From the moderation of the case it revealed that Dominic used to sell certain free tattoos and take certain narcotic substances as against the same. it is argued that no person working in the parlour should not store any illegal things at the premises of licensed area[4]. On the other hand, provision under section 22 of the Act states that a person should not advertise any tattoo material or sells the same that is not according to the legal parlance of the Act. Therefore, it can be said that Dominic has violated the same grounds as stated herein and liable for the same.

Requirements for license under the Act

Harry was an inspector who wanted to inspect all the necessary documents regarding the business. According to section 30 of the Tattoo Parlour Act 2017, the authorised officer can inspect the premises of the tattoo parlour without warrant. In occasion, any person restricts him to do his job properly, the person will be held liable under section 34 of the Act and certain penalties will be imposed on him.

During the inspection, Harry has asked for the staff register and they were unable to show the same. necessary provision regarding the staff register has acquired its validity from section 24 of the Act by providing that the operating person should be maintained a staff register and he or she has to inform the authority regarding the appointment of new staff or removal of old staff. However, Amy has not informed the concerned authority regarding the staff register and without maintaining the rules properly, she had appointed Dominic at her parlour and allowed him to work in the premises without knowing the fact that whether he holds valid licence or not.  

The Tattoo Parlour Act has provided that the person who is running the parlour business should be carried out these provisions and therefore, it is important to maintain the same. However, it is a fact that there was wrong on the parts of Amy and Dominic, but they have certain defences in this case. Dominic can apply for licence under section 8 of the Act. Amy could argue that she does not know about the provision regarding section 7 has proved it, she could defend herself on that base. If the licence is cancelled, Amy can re-apply for the same under section 29 of the Act within two years from the date of cancellation.

On the other hand, it can be argued that all the necessary requirements that have been provided under the above noted sections were being violated and they had  failed to keep all the basic needs and failed to check properly all the documents. It has been mentioned that the provisions of the Act should have to maintain properly. Their defensive statements can be challenged on the ground that their acts had breached the relevant provisions and therefore, their prayer could be regrettable. 

There is certain penalty provisions mentioned under the Act regarding the offence or violation of the provision of the Act in course of business. The penalty that is imposed on the offender who has violated the provision of section 7 is 100 units. It should be precluded under section 18 of the Act that penalty provision is 100 units and in case of section 19, the penalty is 50 units. Dominic, who is liable for violating the provision of section 21, section 22 and 23 of the Act will be penalised with a sum of 100 units, 50 units and 150 units respectively. The main observation fact of the case is that both Amy and Dominic refrained Harry to do his duty and violate the provisions regarding section 34 of the Act and has to face penalty up to 20 units[7]. The penalties that are to be imposed on the offender regarding the violation of section 24 of the Act are 100 units.   

Inspection process under the Act

The necessary provision regarding the case is attracting the subject matter stated under section 7 of the Tattoo Parlour Act 2017 and required that every person is required to hold licence regarding the performance of the art professionally and therefore it is clearly stated in the Act that licence is mandatory regarding the business. In the second part of the case, Dominic, who is working in the parlour of Amy and has possessed no valid licence, wanted to issue licence regarding the same so that he can perform his duty legally. The provision regarding the application for licence has been encrypted under section 8 of the Act. According to the section, it can be held that any person shall have the option to apply for the licence before the competent authority and the application should be made on the valid application form regarding the licence.

It is to be stated that every licence has certain time limitations and the same is to be generated for that time only. In any case, if the licence has been suspended, the applicant or the licence holder could not get an opportunity to apply for the same and his or her licence will be invalidated after the incident.

Certain eligibilities are being expressed under section 13 of the Act and it reads that no person, under the age of 18 could not be allowed to apply for the licence and he or she must be an Australian Citizen. There are certain other provisions mentioned under the section that required that the applicant should show all the original documents regarding the licence application and should completed course on body art from any approved University or institution. According to section 13 (2) (c) of the Act, it has been mentioned that the applicant should obtained certain practical knowledge from an approved tattoo parlour.

The requirements made under section 14 of the Act regarding the application of licence for the Tattoo parlour that the applicant should qualify the character test and it is to be mentioned that the applicant should not be a member of the criminal gang before. 

The main dilemma that has to be faced by him is the grounds of the character test. It is to be stated that Dominic had a criminal past and he was a member of a criminal gang. He has not possessed the certified course certificate. However, he has certain practical information regarding the same as he was working in the parlour of Amy. However, the certificate regarding the same is a mandatory provision. Furthermore, he was engaged in certain criminal activities and buy narcotic drugs in lieu of tattoo articles. Therefore, he may not get the permission for licence.

Principle of separation of powers

The standard provision regarding this part of the question attracts the rules under section 30 of the Act. According to this provision, an officer can search or inspect the parlour regarding the necessary documents without any warrant. The provision under the Act allows that the authorised officer at any reasonable time can enter into the premises and inspect the documents with a belief that the parlour has contravened the provision regarding the Act and it is his duty to investigate into it.

Two things are necessary regarding the inspection. The first thing is the inspection time that must be reasonable and the intention of the officer should be made for the investigative purpose. Harry can argue that he went for an inspection and got restricted by Amy and Dominic. On the other hand, his action can be wrong as he went at the parlour during the business time and at that point, there was too many customers at the parlour and it was not reasonable at all. The second thing is that the intention of Harry was not inspection primarily. He went there for getting a tattoo. He started to inspect due to grudge. Therefore, the inspection process made by him had not attracted the provision of section 30 of the Tattoo Parlours Act 2017[11].

Harry can argue that he had informed his office at the time of the inspection and had informed the parlour owner before the inspection regarding his aim; he can defend himself under section 30 of the Tattoo Parlour Act 2017. He can also argue that he had submitted all the required notice to his department.

However, it can be stated conversely that he had attempted the inspection on wrong timing. His purpose was not to inspect the documents. He made so due to grudge. Therefore, he may be held liable for non-maintaining of the provisions.

In this case, the doctrine regarding the separation of power has been adopted where the tri-power of the governance i.e. the executive, legislative and judiciary should be divided among the three departments. The principle regarding the separation of power has been supported the thesis of trias politica. The main profounder of the theory was Montesquieu. In the year 1748, he had given his opinion regarding the separation of power in his book The Spirit of Law. The theory argued that the power should be divided to ease the power of the government so that they can regularise the system more efficiently. According to the views of Montesquieu, division of power give rise to mental tranquillity and there is a possibility of tyranny if all the powers are centralised in the hands of one person. Therefore, there will be a little chance for the democracy existed in that area. The arena of the three powers are have been highlighted by the supporter of the doctrine. According to the views of Montesquieu, it can be stated that the duty of legislature is not to judge a person. Their duty is to inspect the matter so that the citizen can abide the legal parlance.

The base of the separation of power maintains the theory propounded by Montesquieu. The doctrine is based on the division of powers. In this theory, the power and function of the executive, legislative and judiciary have been included. It has been argued that separation of power works as a model regarding the governance of state and it has been stated that the division of powers are important to avoid confliction regarding the three heads of power.

The idea of separation of power has been derived from the mixed government and the founder of the idea was Aristotle. After this, Montesquieu ascribed the tripartite system regarding government. His ideology is based on the governing process of the Roman and British Empire.

The system of separation of power in the territory of Australia is regulating its parliamentary provision and it has been observed that the powers are divided among the separate departments of government. In Australia, federal system has been in charge and it can be stated that all the powers are being divided and not centralised. However, in the territory of Australia, the separation is not applied strictly. The High Court of Australia in Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan that strict division regarding the government cannot make the practical sense has observed it. According to many political researchers, strict divisions are not possible and section 64 of the constitution delivered its support regarding the separation of power. The judicial power of the Commonwealth is regarded as fundamental principle by the High Court in New South Wales v Commonwealth that has been known as the wheat case. Australia is encouraging the judicial deterrence that is helpful regarding the extrajudicial writings. The same principle has been established in the case of Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179.

The state courts of Australia are enjoying the separation of power regarding the federal power and the same has been encrypted under section 71 of the Commonwealth Constitution. The first three chapters of the Australian constitution are precisely discussed about the tripartite system of government. The main objective regarding the system is to avoid the abusive nature of the government regarding the application of power.

The system relating to separation of power helps to facilitate the administrative policies of a state. The political carrier graph of Australia is very much effected by the separation of power. Aristotle has stated that the system of power division established the doctrine of responsible government. In Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan, it was decided that there should be division of power in between the three levels. If all the three powers will be conferred on the same hand, the government will become autocratic. Therefore, the power should be divided for the betterment of the future of democracy and the state. However, the commonwealth has if there should be a unity in between these three steps of the government and without this, responsible government could not be existed.    

Reference:

Aroney, Nicholas, et al. The Constitution of the Commonwealth of Australia: History, Principle and Interpretation. Cambridge University Press, 2015.

Ayling, Julie. "Combating Organized Crime Aussie-Style: From Law Enforcement to Prevention." Contemporary Organized Crime. Springer, Cham, 2017. 189-212.

Bernholz, Peter. "The Constitution of Totalitarianism." Totalitarianism, Terrorism and Supreme Values. Springer International Publishing, 2017. 51-62.

Finn, John E. Peopling the Constitution. University Press of Kansas, 2014.

Hughes, Caitlin E., et al. "Understanding policy persistence—The case of police drug detection dog policy in NSW, Australia." International Journal of Drug Policy 44 (2017): 58-68.

Huq, Aziz Z. "Libertarian Separation of Powers." NYUJL & Liberty8 (2013): 1006.

Ikonen, Helena. "Body Modifications in Professional Contexts: Examining body modifications’ effects and implications for success in work environments." (2017).

Kende, Mark. "Enforcing the South African constitution: the fight for judicial independence and separation of powers." (2014).

Michaels, Jon D. "An Enduring, Evolving Separation of Powers." Colum. L. Rev. 115 (2015): 515.

Roggenkamp, Hannah, Andrew Nicholls, and Joseph M. Pierre. "Tattoos as a window to the psyche: How talking about skin art can inform psychiatric practice." World Journal of Psychiatry 7.3 (2017): 148-158.

Roth, Timothy A. "Major Questions Doctrine: Implications for Separation of Powers and the Clean Power Plan." Geo. Int'l Envtl. L. Rev. 29 (2016): 555.

Serup, Jørgen. "Seamless prevention of adverse events from tattooing: integrated strategy emphasising the customer-tattooist interaction." Tattooed Skin and Health. Vol. 48. Karger Publishers, 2015. 236-247.

Su, Hongyu, and Hai Bao. "Bi-directional tracing method based on the separation of power supply paths." Electricity Distribution (CICED), 2016 China International Conference on. IEEE, 2016.

Veenstra, Thijs. "The Amsterdam model for control of tattoo parlours and businesses." Tattooed Skin and Health. Vol. 48. Karger Publishers, 2015. 218-222.

Weill, Rivka. "the new commonwealth model of constitutionalism notwithstanding: on Judicial review and constitution-making." The American Journal of Comparative Law 62.1 (2014): 127-170. 

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