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TOBACCO ADVERTISING PROHIBITION BILL 1991*
NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
The object of this Bill is to encourage healthier lifestyles by prohibiting certain
activities aimed at promoting the sale of tobacco products and consequently reducing the
incentive for people to smoke.
The Bill also establishes the New South Wales Health Foundation whose objectives
include the funding of activities related to the promotion of good health, especially
among the young.
The Bill prohibits the advertising of tobacco products in certain specified ways and
also prohibits the use of competitions and other activities for the purpose of promoting
tobacco products.
PART 1--PRELIMINARY
Clause 1 specifics the short title of the proposed Act.
Clause 2 provides that the proposed Act commences on a day to be appointed by
proclamation.
Clause 3 states the purposes of the proposed Act as the following:
(a) the active discouragement of smoking by:
· encouraging non-smokers not to start smoking
· limiting exposure of young people to persuasion to smoke
· encouraging smokers to give up smoking
(b) the promotion of good health.
Clause 4 defines certain terms used in the proposed Act.
* Amended in committee--see table at end of volume.
Clause 5 prohibits commercial tobacco advertising:
· in, or so that it can be seen or heard from, a public place
· on unsolicited material distributed to the public
· by means of goods sold, hired or supplied for some benefit
but does not prohibit such advertising:
on radio or television
· in a newspaper or book printed or published outside the State, if incidental to the
main purpose of the newspaper or book
· on a package containing a tobacco product
· incidental to a film or video tape
· in a tobacconist's shop or similar retail outlet
· on documents used in the ordinary course of business
· otherwise exempted under the Act
The maximum penalty for a first offence, if committed by an individual, is 50 penalty
units (currently $5,000) and for subsequent offences is 100 penalty units (currently
$10,000).
The maximum penalty for a first offence, if committed by a corporation, is 200
penalty units (currently $20,000) and for subsequent offences is 400 penalty units
(currently $40,000).
An additional daily penalty of up to 50 penalty units (for an individual) or 200
penalty units (for a corporation) may be imposed in the case of a continuing offence.
(Penalties for offences under Part 2 are set out in proposed section 28.)
Clause 6 prohibits certain kinds of promotional schemes conducted either in
connection with the sale of a tobacco product or for the purpose of promoting such
sales.
The Governor is empowered by the proposed section to declare schemes as
promoting the sale of a tobacco product or as promoting smoking generally and the
conduct of any such scheme is prohibited.
The maximum penalties for offences committed by individuals or corporations are
the same as for an offence under proposed section 5.
Clause 7 prohibits the offering, giving or distributing of free samples of tobacco
products as a promotion of a sale of such a product.
The maximum penalties for offences committed by individuals or corporations are
the same as for an offence under proposed section 5.
Clause 8 prohibits the promotion of, or agreements to promote, tobacco products or
their trademark or brand name in return for a sponsorship of some activity and also
prohibits the provision of a sponsorship on such terms, subject to certain exceptions and
exemptions.
The maximum penalties for offences committed by individuals or corporations are
the same as for an offence under proposed section 5
Tobacco Advertising Prohibition 1991
Clause 9 prohibits the placement of tobacco vending machines in premises where
they may be operated by the public unless the premises are either:
· licensed under the Liquor Act 1982
· a staf amenity area provided by an employer
The clause also provides that the owner or lessee of a tobacco vending machine who
does not display a statement prescribed by regulations on the front of the machine
commits an offence.
The maximum penalties for offences committed by individuals or corporations are
the same as for an offence under proposed section 5.
Clause 10 prohibits the sale of loose cigarettes or of packets containing less than 20
cigarettes.
The maximum penalties for offences committed by individuals or corporations are
the same as for an offence under proposed section 5.
Clause l1 prohibits the sale of tobacco products that are not prepared for smoking
(such as chewing tobacco or snuff) except in certain circumstances set out in
regulations.
The maximum penalties for offences committed by individuals or corporations are
the same as for an offence under proposed section 5.
Clause 12 provides some exemptions from the prohibitions contained in proposed
sections 5 and 8. The exemptions are to be specified by the Minister in a notice
published in the Gazette and must have regard to certain criteria set out in the clause or,
where designed to avoid significant hardship, arc to operate only for a specified
transitional period.
PART 3--NEW SOUTH WALES HEALTH PROMOTION FOUNDATION
Clause 13 establishes a body corporate having the corporate name of New South
Wales Health Promotion Foundation.
Clause 14 provides for the Foundation to inform the Minister of its activities as
required
Clause 15 provides for the Foundation to consist of 9 members representing
appropriate organisations and Departments.
Clause 16 provides for members of the Foundation who are representative of
non-governmental organisations to be appointed for periods not exceeding 3 years.
Clause 17 provides for the members' remuneration and allowances.
Clause 18 provides for the resignation of members.
Clause 19 gives formal effect to Schedule 1 relating to further provisions governing
the constitution, proceedings and operations of the Foundation.
Clause 20 states the objectives of the foundation as being:
· to fund activities promoting good health
· to offer sponsorship of sporting and arts activities as an alternative to that of
tobacco manufacturers or wholesalers
Clause 22 empowers the Minister to give directions to the Foundation concerning
its functions and requires any such direction to be reported in the Foundation's annual
report.
Clause 23 provides for the personnel and consultancy resources necessary for the
Foundation to achieve its objectives.
Clause 24 provides for the funding of the Foundation and for the establishment of
the New South Wales Health Promotion Fund.
Provision is also made for the proportional allocation of funding under the
Foundation's annual program and for the return to the Consolidated Fund of any funds
not spent within 4 months of the end of the financial year.
Clause 25 provides for temporary investment of the Foundation's funds.
Clause 26 applies the Public Finance and Audit Act 1983 to the operations of the
Foundation, subject to the other provisions of Part 3.
PART 4--ENFORCEMENT
Clause 27 provides that any prosecution under the proposed Act requires the
consent of the Director-General of the Department of Health or of an authorised person.
Clause 28 states the penalties for offences against the proposed Act.
Clause 29 allows proceedings for an offence against the proposed Act to be taken m
a Local Court (in which case the maximum penalty that may be imposed is 50 penalty
units) or, at the option of the prosecutor, on indictment.
Clause 30 provides that every officer of a body corporate that commits an offence
also commits a like offence. The clause defines "officer" and provides a statutory
defence for any such officer.
PART 5--GENERAL
Clause 31 bars civil proceedings against a person for the doing, or the omission to
do, any thing which is &ne or omitted to be done m compliance with the proposed Act.
Clause 32 empowers the Governor to make regulations for the purposes of the
proposed Act.
Clause 33 provides that 3 years after the proposed Act has commenced, the
Minister is to have its operation, and the continuing need for it, investigated and a report
made. The report is to be tabled in Parliament.
Clause 34 gives effect to the amendments to other Acts set out in Schedule 2.
Tobacco Advertising Prohibition 1991
SCHEDULE 1--FURTHER PROVISIONS RELATING TO NEW SOUTH
WALES HEALTH PROMOTION FOUNDATION
Clause 1 defines certain terms used in Schedule 1.
Clause 2 provides for the meetings of the Foundation and the procedures to be
followed.
Clause 3 requires the disclosure of a member's pecuniary or other interests.
Clause 4 empowers the Foundation to delegate some of its functions.
Clause 5 empowers the Foundation to establish committees.
Clause 6 requires a member or officer of the Foundation to act honestly and with
reasonable care and diligence.
The maximum penalty for an offence is 50 penalty units (currently $5,000).
Clause 7 forbids unauthorised disclosure of confidential information.
The maximum penalty for an offence is 25 penalty units (currently $2,500).
SCHEDULE 2--AMENDMENT OF OTHER ACTS
Schedule 2 provides for the consequential amendment of certain other Acts.