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Tobacco Amendment (Protection of
Children) Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill, in amending the Tobacco Act
1987, which are--
· to provide that only retailers that are on-airport duty free
shops or that have been certified as specialist
tobacconists under new Part 2A of the Act may display
tobacco advertising;
· to ban the sale of tobacco products from temporary
outlets;
· to ban smoking in cars in which a person under the age
of 18 years is present;
· to enable the Minister to ban the sale of youth-oriented
tobacco products and certain other products;
· to create new offences in relation to smoking and the
sale of tobacco products;
· to amend the penalty and enforcement provisions and to
introduce new offences for bodies corporate;
· to make minor miscellaneous amendments to the
Principal Act.
Clause 2 provides for the commencement of the Bill. The provisions of
the Bill commence on 1 January 2010, except for Part 2 of the
Bill which comes into operation on 1 January 2011.
561350 1 BILL LA INTRODUCTION 23/6/2009
The delayed commencement of Part 2 of the Bill is necessary to
ensure that the retail outlets affected by the restrictions on
tobacco advertising imposed by Part 2 have time to prepare for
the restrictions by either changing their tobacco display
arrangements or applying for certification as specialist
tobacconists.
Clause 3 provides that the Tobacco Act 1987 is called the Principal Act.
PART 2--TOBACCO ADVERTISEMENTS IN RETAIL
OUTLETS
Part 2 limits the Principal Act's existing controls on tobacco advertising to
specialist tobacconists and on-airport duty free shops and prohibits tobacco
advertising (including tobacco product display) in all other retail outlets that
sell tobacco products.
Clause 4 subclause (1) inserts new section 6(2AA) into the Principal Act.
Subsection (2AA) provides that if there is a tobacco
advertisement at a retail outlet other than a specialist tobacconist
or an on-airport duty free shop, the person carrying on the
tobacco retailing business at that outlet is guilty of an offence.
The maximum penalty is 60 penalty units for a natural person and
300 penalty units for a body corporate.
Subclauses (2) and (3) amend sections 6(2A) and 6(2B) so that
offences against these sections may only be committed by
specialist tobacconists or on-airport duty free shops.
Subclause (4) extends the application of section 6(2D) of the
Principal Act so that if a tobacco company contravenes
section 6(2AA) it is guilty of an offence against section 6(2D)
and liable to the higher penalty set out in that section.
Subclauses (5) to (11) amend section 6(3) of the Principal Act.
Section 6(3) provides for matters to which the prohibitions of
tobacco advertising in section 6 do not apply--
· subclause (5) inserts new section 6(3)(ba), in order that
section 6 of the Principal Act does not apply to the
temporary display of tobacco products or immediate
packages of tobacco products in a retail outlet in
response to a customer request to purchase a specified
tobacco product. This allows a tobacco retailer to
briefly open a storage area of tobacco products without
this being considered to be the display of a tobacco
advertisement, so that the retailer may sell a specific and
requested tobacco product to a customer;
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· subclause (8) inserts new section 6(3)(cab), in order that
section 6 of the Principal Act does not apply to one
notice about tobacco products at one point of sale at a
retail outlet, if that notice complies with prescribed
requirements. The current regulations in respect of the
similar matter in paragraph (ca) provide for a "price-
board" listing products for sale;
· subclause (11) inserts new section 6(3)(d), in order that
section 6 of the Principal Act does not apply to one
notice at a retail outlet or a wholesale outlet to the effect
that tobacco products are available for sale at the outlet,
if that notice complies with prescribed requirements;
· subclauses (6), (7) and (9) amend sections 6(3)(c),
6(3)(ca) and 6(3)(cb) of the Principal Act so that these
sections only apply to specialist tobacconists and on
airport duty free shops rather than all retail outlets;
· subclause (10) amends section 6(3)(cc) of the Principal
Act , so that the exemption from section 6 for material
displayed on tobacco vending machines no longer
includes the display of images of packages of tobacco
products on the machine.
Clause 5 amends section 6A of the Principal Act. Section 6A currently
provides for permitted tobacco advertisements in retail outlets
and wholesale outlets at the point of sale. The amendments made
by clause 5 are of two types--
· subclauses (1), (3), (4) and (5) amend sections 6A(1),
6A(2), 6A(4) and 6A(7) so that references to retail
outlets are replaced with references to specialist
tobacconists or on-airport duty free shops;
· subclauses (2) and (6) repeal sections 6A(1)(c) and
6A(8), so that the display of tobacco products or images
of packages of tobacco products on vending machines is
no longer permitted.
Clause 6 amends section 37(2) of the Principal Act, so that the power of
the Court to order that an advertisement be removed or covered
and that a person pay costs for the removal or covering of an
advertisement is extended to persons who are convicted of an
offence under new section 6(2AA).
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PART 3--MISCELLANEOUS AMENDMENTS
Part 3 makes miscellaneous amendments to the Principal Act, providing for
amended penalty and enforcement provisions, amended powers for the
Secretary to require information, the insertion of new Divisions relating to
smoking in motor vehicles, prohibiting sales of tobacco products from
temporary outlets and ban orders for particular products and a new Part 2A
allowing for the certification of specialist tobacconists.
Clause 7 amends the purpose provision of the Principal Act, so that its
purposes refer to matters being amended by the Bill.
Clause 8 subclause (1) inserts new definitions of ban order, driver,
highway, motor vehicle and specialist tobacconist into section 3
of the Principal Act.
Subclause (2) substitutes the definition of occupier in section 3
of the Principal Act with a new definition that--
· in respect of natural persons, is based on the current
definition but "whether or not the person is present in
the area or premises";
· includes a body corporate that is or appears to be in
control of the area or premises.
Clause 9 makes a statute law revision amendment to the meaning of
tobacco advertisement in section 3B(4) of the Principal Act.
Clause 10 increases the penalty for an offence against section 5B(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
Clause 11 increases the penalty for an offence against section 5D(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
Clause 12 increases the penalty for an offence against section 5E(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
Clause 13 increases the penalty for an offence against section 5F(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
Clause 14 increases the penalty for an offence against section 5G(3) of the
Principal Act from 5 penalty units to 10 penalty units in the case
of a natural person and from 10 penalty units to 50 penalty units
in the case of a body corporate.
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Clause 15 increases the penalty for an offence against section 5H(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
Clause 16 increases the penalty for an offence against section 5K(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
Clause 17 increases the penalty for an offence against section 5N(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
Clause 18 increases the penalty for an offence against section 5R(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
Clause 19 inserts new Division 1A, (Smoking in Motor Vehicles), into
Part 2 of the Principal Act. Division 1A consists of three
sections--
· new section 5S provides that, despite anything to the
contrary in the Act, a person must not smoke in a motor
vehicle, whether or not the motor vehicle is in motion, if
another person is present in the motor vehicle and the
other person is under the age of 18 years. The penalty is
5 penalty units;
· new section 5T provides a police member with the
power to require a driver or person in charge of a motor
vehicle on a highway to stop the vehicle if the police
member believes on reasonable grounds that a person in
the vehicle has committed or is about to commit an
offence against new section 5S. It is an offence to fail
to stop (10 penalty units) if required to do so, unless the
person making the requirement to stop is not in uniform
and the driver or person in charge of the vehicle
believed that the person was not a police member;
· new section 5U provides that in proceedings for an
offence against new section 5S, evidence that a person
present in the relevant motor vehicle appeared to be
under the age of 18 is, in the absence of evidence to the
contrary, proof that the person was under the age of 18.
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Clause 20 amends the penalties for offences against sections 6(1), 6(2A)
and 6(2B) of the Principal Act, so that the penalty for each
section is 60 penalty units for a natural person and 300 penalty
units for a body corporate.
Clause 21 substitutes the reference to the expired Trade Practices
(Consumer Product Information Standards) (Tobacco)
Regulations 1994 (Cth) with a reference to the existing
regulations, i.e. the Trade Practices (Consumer Product
Information Standards) (Tobacco) Regulations 2004 of the
Commonwealth in sections 6A(1)(b)(i)(C) and 6A(2)(a)(ii) of the
Principal Act.
Clause 22 inserts a new penalty of 300 penalty units for an offence against
section 7(1) of the Principal Act that is committed by a body
corporate. The penalty for a natural person remains the same.
Clause 23 inserts a new penalty of 300 penalty units for an offence against
section 8(1) of the Principal Act that is committed by a body
corporate. The penalty for a natural person remains the same.
Clause 24 inserts a new penalty of 300 penalty units for an offence against
section 9(1) or section 9(2) of the Principal Act that is committed
by a body corporate. The penalty for a natural person remains
the same.
Clause 25 increases the penalty for an offence against section 11 of the
Principal Act from 100 penalty units to 120 penalty units for a
natural person and 600 penalty units for a body corporate.
Clause 26 increases the penalty for an offence against section 11A of the
Principal Act from 50 penalty units to 60 penalty units for a
natural person and 300 penalty units for a body corporate.
Clause 27 subclause (1) increases the penalty for an offence against
section 12(1) of the Principal Act from 50 penalty units to
100 penalty units for a natural person and 600 penalty units for
a body corporate.
Subclause (2) inserts a new penalty of 120 penalty units for an
offence against section 12(2) of the Principal Act that is
committed by a body corporate. The penalty for a natural person
remains the same.
Subclause (3) substitutes section 12(3) of the Principal Act so
that the occupier of premises on which a vending machine is
situated must not permit a person under the age of 18 to obtain a
tobacco product from that machine. The penalty for an offence
against section 12(3) is increased from 50 penalty units to
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60 penalty units for a natural person and 300 penalty units for a
body corporate.
Clause 28 increases the penalty for an offence against section 13(1) of the
Principal Act from 10 penalty units to 60 penalty units for a
natural person and 300 penalty units for a body corporate.
Clause 29 subclause (1) increases the penalty for an offence against section
13A(1) of the Principal Act from 100 penalty units to 120 penalty
units.
Subclause (2) increases the penalty for an offence against section
13A(2) of the Principal Act from 100 penalty units to 120 penalty
units for a natural person and 600 penalty units for a body
corporate.
Subclause (3) inserts new sections 13A(2A) and 13A(2B) into the
Principal Act. The new subsections provide that a tobacco
company is guilty of an indictable offence with a maximum
penalty of 5000 penalty units if it intentionally or recklessly
contravenes section 13A(2) or causes another person to
contravene sections 13A(1) or 13A(2).
Clause 30 increases the penalty for an offence against section 14 of the
Principal Act from 100 penalty units to 120 penalty units for a
natural person and 600 penalty units for a body corporate.
Clause 31 increases the penalty for an offence against section 15(1) of the
Principal Act from 100 penalty units to 120 penalty units for a
natural person and 600 penalty units for a body corporate.
Clause 32 inserts a new penalty of 50 penalty units for offences against
sections 15C(1) and 15C(3) of the Principal Act that are
committed by a body corporate. The penalty for a natural person
remains the same.
Clause 33 replaces the penalties for offences against sections 15D(2) and
15D(3) with a new penalty of 120 penalty units for a natural
person and 600 penalty units for a body corporate.
Clause 34 increases the penalty for an offence against section 15G(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
Clause 35 increases the penalty for an offence against section 15H(1) of the
Principal Act from 5 penalty units to 10 penalty units for a
natural person and 50 penalty units for a body corporate.
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Clause 36 inserts a new penalty of 300 penalty units for an offence against
section 15I(1) of the Principal Act that is committed by a body
corporate. The penalty for a natural person remains the same.
Clause 37 increases the penalty for an offence against section 15J of the
Principal Act from 50 penalty units to 60 penalty units for a
natural person and 300 penalty units for a body corporate.
Clause 38 inserts new Divisions 4 and 5 into Part 2 of the Principal Act.
Division 4 (Sales of tobacco products from temporary outlets)
consists of two sections--
First, new section 15L provides for two offences in relation to
selling tobacco products from a point of sale in a temporary
outlet. New section 15L(1) prohibits the sale of tobacco products
from a point of sale located in a temporary or mobile structure or
enclosure, whether or not part of that structure or enclosure is
permanent. For example, this offence would be committed by a
person selling tobacco products from a point of sale in a tent or
temporary display stand, including those used at outdoor events.
The offence in new section 15L(2) prohibits the sale of tobacco
products from a point of sale in a retail outlet established in an
area or premises for the duration of a specific sports, music or
arts-related function or event in the area or premises.
For example, section new 15L(2) prohibits a person selling
tobacco products from an outlet established in a street for the
duration of a specific fashion event in that street but not from a
tobacco retail outlet that is permanently established in an events
venue and that operates while various events take place there.
The penalty for offences against new sections 15L(1) and 15L(2)
is 60 penalty units for a natural person and 300 penalty units for a
body corporate.
Secondly, new section 15M provides that a tobacco company is
guilty of an indictable offence with a maximum penalty of
5000 penalty units if it intentionally or recklessly contravenes
new section 15L(1) or 15L(2) or causes another person to
contravene new section 15L(1) or 15L(2).
Division 5 (Prohibited products) consists of six sections--
· New section 15N(1) provides that the Minister may, by
order published in the Government Gazette, ban a
product or class of products. The Minister may do so
only in two cases, namely if the Secretary recommends
the making of the order to the Minister under section
new 15O or if the product or class of products has been
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prohibited or restricted by or under a law of the
Commonwealth or another State or Territory on the
ground that the product or the class of products meets
one or more criteria that substantially correspond to the
criteria set out in new section 15O(2)(a).
For example, the Minister may ban a class of tobacco
products declared under section 34A of the Tobacco
Products Regulation Act 1997 (South Australia) to be
prohibited products because they possess a distinctive
fruity character and the nature of the product may
encourage young people to smoke. In such a case, the
Secretary's recommendation is not required.
New section 15N(2) requires a ban order to specify the
basis on which it is made, and the grounds for the
Secretary's recommendation or the law or subordinate
instrument of the Commonwealth or other State or
Territory containing the prohibition or restriction, as the
case may be.
New section 15N(3) provides that a ban order may
apply, adopt or incorporate, wholly or partially or as
amended by the order any matter contained in any
document as existing from time to time or at a particular
time;
· New section 15O specifies the circumstances in which
the Secretary may recommend to the Minister that a ban
order be made. It requires the Secretary to fully
investigate the matter and be satisfied that the criteria
specified in new section 15O(2) apply. For example,
the Secretary might recommend that a ban order be
made in respect of a tobacco product that has packaging
that appeals to children or young people, with regard to
the object of the Act of actively discouraging the
smoking of tobacco in children and young people.
New section 15O(3) provides that a recommendation by
the Secretary must set out the grounds for the
recommendation;
· New section 15P provides that a ban order takes effect
on the date specified in the ban order or 7 days after the
ban order is published in the Government Gazette,
whichever is the later;
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· New section 15Q provides that the Minister, by order
published in the Government Gazette, may amend or
revoke a ban order;
· New section 15R sets out the notice requirements for
ban orders. Failure to comply with the notice
requirements does not invalidate an order;
· New section 15S(1) prohibits the selling by retail or
wholesale of a product in respect of which a ban order
under new section 15N is in force. The penalty for an
offence against new section 15S(1) is 120 penalty units
for a natural person and 600 penalty units for a body
corporate.
New section 15S(2) provides that a tobacco company is
guilty of an indictable offence and liable to a fine not
exceeding 5000 penalty units if it intentionally or
recklessly contravenes new section 15S(1) or causes
another person to do so.
Clause 39 inserts new Part 2A (Specialist Tobacconists) into the Principal
Act. New Part 2A provides for the certification of retail outlets
and proposed retail outlets as specialist tobacconists.
These certifications are relevant to Part 2 of the Bill which
introduces advertising controls referring to specialist
tobacconists. New Part 2A consists of nine sections--
· New section 15T provides that a person carrying on or
proposing to carry on a tobacco retailing business at
premises may apply to the Secretary for certification
that the premises are a specialist tobacconist.
New section 15T(2) sets out the requirements for an
application, for example, an application must be
accompanied by the application fee, if one has been
prescribed;
· New section 15U(1) provides that a Secretary must
determine an application by either certifying premises
as a specialist tobacconist or refusing to certify those
premises as a specialist tobacconist. New section
15U(2) provides that the Secretary may certify the
premises if satisfied of certain criteria.
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Before the Secretary may certify that premises are a
specialist tobacconist, he or she must be satisfied that a
tobacco retailing business is carried on or proposed to
be carried on at the premises.
The Secretary must also be satisfied that, if a tobacco
retailing business is being carried out at the premises at
the time of the application, the gross turnover for
tobacco products at the premises constitutes 80 per cent
or more of the gross turnover of all products sold at the
premises in the 12 months immediately preceding the
application or for the applicant's entire period of trading
at the premises, whichever period is the shorter.
However, if an application for certification is made on
the basis that a tobacco retailing business is proposed to
be carried on at the premises, the Secretary must be
satisfied that the gross turnover of tobacco products at
the premises is projected to constitute 80 per cent or
more of the projected gross turnover of all products to
be sold at the premises in the 12 months immediately
following the applicant commencing trading at the
premises.
The Secretary must also be satisfied that the premises
are separated from other retail premises by a wall and
that any entrance to the premises does not open directly
into any other retail premises. This requirement
prevents the certification of a retail outlet with a
doorway or entrance opening directly into another shop.
A retail outlet opening into a common passageway
between separate shops may, however, be certified.
The Secretary must also be satisfied that certification of
the premises is consistent with the objects of the
Principal Act and also with any strategic plan, policy
statement, code or guideline relating to specialist
tobacconists that the Minister has adopted.
For example, the Minister may adopt guidelines for
identifying premises that are unsuitable to be certified,
such as premises that are likely to attract customers
under the age of 18 years due to the nature of the
products sold there.
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New section 15U(3) provides that the Secretary may
refuse to certify premises as a specialist tobacconist if
the applicant does not comply with any requirement of
the Principal Act or its regulations or if the Secretary is
not satisfied that the criteria innew section 15U(2) have
been met.
New sections 15U(4), 15U(5) and 15U(6) enable the
Secretary to require further information from an
applicant for certification, require the Secretary to give
the applicant an opportunity to make a written
submission before the Secretary refuses an application
and require the Secretary to issue successful applicants
with a certificate;
· New section 15V requires a certification holder who
proposes to carry on a tobacco retailing business at
certified premises to notify the Secretary within 7 days
after the business commences at those premises of that
commencement;
· New section 15W(1) sets out the duration of the
certification of premises. A certification remains in
force until the tobacco retailing business carried on at
the premises either ceases or relocates, until the tobacco
retailing business is no longer carried on by the
applicant or until the certification is cancelled by the
Secretary under new section 15X(1) or 15X(4).
If a certification ceases to be in force because the
tobacco retailing business carried on at the premises
ceases, moves to different premises or is no longer
carried on by the applicant, new section 15W(2)
requires the certification holder to notify the Secretary
of that fact within 7 days after the certification ceases to
be in force;
· New section 15X sets out the circumstances in which
the Secretary may cancel a certification, namely, when
a certification holder does not comply with a
requirement of the Principal Act or the regulations or
with the criteria set out in new section 15U(2) or when
the certification holder requests cancellation.
New section 15X also provides for procedural matters
relating to the cancellation of a certification;
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· New section 15Y sets out the notice requirements on
determination or cancellation of a certification;
· New section 15Z provides for the issue of a replacement
certificate if the original certificate is lost, stolen or
destroyed;
· New section 15ZA prohibits knowingly giving false or
misleading information to the Secretary and producing
documents known to be false or misleading to the
Secretary. The penalty for an offence against new
section 15ZA(1) or 15ZA(2) is 60 penalty units for a
natural person and 300 penalty units for a body
corporate;
· New section 15ZB requires a person who carries on
business at a retail outlet that is certified to be a
specialist tobacconist to display the certificate in a
conspicuous place that invites attention. The penalty for
an offence against new section 15ZB is 10 penalty units
for a natural person and 50 penalty units for a body
corporate.
The Bill amends Part 3A of the Principal Act so that the powers of inspectors
under that Part do not apply in the case of offences against new Division 1A
of Part 2 (Smoking in Motor Vehicles).
Clause 40 amends section 36D(1) of the Principal Act to exclude
Division 1A of Part 2.
Clause 41 amends section 36F of the Principal Act to exclude Division 1A
of Part 2.
Clause 42 amends section 36I of the Principal Act to exclude Division 1A
of Part 2.
Clause 43 amends section 36L(2) of the Principal Act to exclude
Division 1A of Part 2.
Clause 44 amends section 36M of the Principal Act to exclude Division 1A
of Part 2.
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Clause 45 substitutes section 38(1) of the Principal Act in order to include a
reference to infringement penalties for bodies corporate in the
new Schedule substituted by clause 51.
Subclause (2) inserts new sections 38(1A) and 38(1B) into the
Principal Act, allowing only police members to serve
infringement notices for offences against new section 5S
(Offence to smoke in motor vehicle if person under 18 is
present). The infringement penalty for an offence against new
section 5S is 2 penalty units.
Clause 46 provides that inspectors may not bring proceedings for an offence
against new Division 1A of Part 2 (Smoking in Motor Vehicles).
Clause 47 substitutes section 41 of the Principal Act which sets out the
circumstances when, if a body corporate contravenes a provision
of the Principal Act, an officer of that body corporate is taken to
have contravened that provision.
Clause 48 inserts new section 41AA in the Principal Act, which sets out the
circumstances in which conduct engaged in by officers,
employees or agents of a body corporate is taken to be conduct
engaged in by that body corporate.
Clause 49 substitutes section 42A(1) of the Principal Act with new sections
42A(1) and 42A(1A). The amendments provide the Secretary
with a new power to require a person to provide the addresses of
retail outlets in Victoria that the person knows sells tobacco
products made by that person or purchased at wholesale from that
person. New section 42A(1A) provides that such information
must be in or to the effect of the form (including electronic)
approved by the Secretary.
The penalty for failing to comply with a request under section
42A(1) is increased to 60 penalty units for a natural person and
300 penalty units for a body corporate.
Clause 50 inserts new section 46 in the Principal Act, which contains
transitional provisions in relation to the definition of occupier
inserted by clause 8(2).
Clause 51 substitutes the Schedule of infringement offences with a new
Schedule that includes separate penalties for natural persons and
for bodies corporate. In comparison to the current Schedule, the
new Schedule also includes some higher penalties and
infringement penalties for some of the new offences introduced
by the Bill.
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PART 4--REPEAL
Clause 52 provides for the automatic repeal of this Bill on 1 January 2012.
The repeal will not affect the operation of the amendments to be
made by the Bill (see section 15(1) of the Interpretation of
Legislation Act 1984).
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