In Victoria, it is an offence under the Radiation Act 2005 (the Act) to conduct a commercial tanning practice (also known as a solarium).
Section 23D of the Act states that:
‘A person must not—
(a) provide, or offer to provide, for fee or reward the use of a tanning unit; or
(b) operate or offer to operate for fee or reward a tanning unit.’
The Department of Health and Human Services (department) takes enforcement action in relation to possible breaches of the Act. Enforcement action may include seizing sunbeds and tanning beds and prosecuting commercial tanning operators.
The department has successfully prosecuted for offences related to commercial tanning operations.
The maximum penalty for this offence in the case of a natural person is 60 penalty units whilst for a body corporate the maximum penalty is 300 penalty units.
If the department becomes aware that a person may be breaching this provision of the Act it may seek a search warrant under section 79 of the Act.
Where the search warrant is granted by a magistrate the department may deploy a small team to the property subject to the search warrant. The team deployed by the department usually consists of a number of authorised officers led by an experienced investigator, and assistants if necessary.
The team will arrive without warning at the property concerned and make themselves known to the occupant(s) of the property.
Where the search warrant authorises access to a particular property you must allow access to the property.
The search warrant may also allow for the authorised officer to search for and remove any article that in their view provides evidence of a contravention of the Act. This may include a tanning unit as well as any electronic devices such as mobile phones or computers.
If access to the property subject to the search warrant is denied the department may request the attendance of the Victoria Police to assist with access to the property. It is also an offence under the Act to obstruct or hinder an authorised officer who is exercising a power under the Act unless the person has a reasonable excuse.
Where articles are seized during the search the authorised officer will give the person in charge at the premises a receipt indicating which articles have been seized, the name of the authorised officer and the reason why the thing was seized.
What happens to the articles that are seized as evidence of a possible contravention of the Radiation Act 2005?
Tanning units which are seized are stored in a secure location. Electronic devices are examined and are usually returned to the owners once this process has been completed. This process usually takes several weeks.
The department will take reasonable steps to return a seized article if the reason for which it was seized no longer exists. If there are lawful circumstances for the department to continue to retain an article, the department may apply to the Magistrates Court of Victoria to continue to retain the articles seized during the search warrant for the period specified in the Act.
Unless a prosecution has commenced, the department may only retain any seized property for a maximum of 12 months.
My property has been searched. Do I need a lawyer?
The department strongly recommends that you seek legal advice if your property is searched by one of our authorised officers.
In this regard we note that the following matters are criminal offences under the Act:
- Providing for fee or reward the use of a tanning unit; or
- Offering to provide for fee or reward the use of a tanning unit; or
- Operating for fee or reward the use of a tanning unit; or
- Offering to operate for fee or reward the use of a tanning unit.
The above criminal offences carry a maximum penalty of 60 penalty units for a natural person and 300 penalty units in the case of a body corporate.
How can I find out whether I will be prosecuted?
After the department completes its investigation into any alleged offences, it will consider what enforcement action is appropriate to take in the circumstances.
One of the enforcement actions open to the department is prosecution.
Each possible contravention is taken seriously by the department and is assessed on a case by case basis.
If a decision is made to prosecute you, you will be notified in writing as soon as possible.
Being prosecuted by the department for an alleged breach of the Act is a serious matter. If you are prosecuted by the department for a breach of the Act you should seek legal advice. See find your lawyer page on the Law Institute Victoria website.
The department cannot provide you with any legal advice relating to your circumstances, including about what penalty a Court might impose on you.
To report the unlawful use of tanning units being used for commercial purposes, or for further queries regarding solarium legislation in Victoria, contact the Department of Health and Human Services Radiation Team on 1300 767 469 or email firstname.lastname@example.org.
Find out more about UV radiation and solariums (sunbeds and tanning beds) on the Better Health Channel.