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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Tobacco Amendment (Protection of Children) Bill
2009
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
3 Principal Act 2
PART 2--TOBACCO ADVERTISEMENTS IN RETAIL OUTLETS 3
4 Certain advertising prohibited 3
5 Point of sale advertisements 5
6 Removal of advertisements 5
PART 3--MISCELLANEOUS AMENDMENTS 6
7 Purpose of Principal Act amended 6
8 Definitions 6
9 Tobacco advertisements 7
10 Enclosed workplaces: offence by occupier 7
11 Outdoor dining or drinking areas: offence by occupier 7
12 Outdoor dining or drinking areas: no smoking signs 7
13 Enclosed restaurants and cafes: no smoking signs 7
14 Retail shopping centres: no smoking signs 7
15 Bingo areas and centres: no smoking signs 8
16 Casinos: no smoking signs 8
17 Approved venues: no smoking signs 8
18 Licensed premises: no smoking signs 8
19 New Division 1A inserted in Part 2 8
Division 1A--Smoking in motor vehicles 8
5S Offence to smoke in motor vehicle if person under 18
is present 8
5T Power to require driver to stop 9
5U Evidential burden regarding age 9
20 Certain advertising prohibited: penalties 10
21 Point of sale advertisements: references to Commonwealth
Regulations 10
561350B.I-23/6/2009 i BILL LA INTRODUCTION 23/6/2009
Clause Page
22 Competitions 11
23 Free samples 11
24 Prohibition of certain sponsorships 11
25 Packing of tobacco 12
26 Offence to possess certain tobacco products 12
27 Supplying tobacco to person under 18 years 12
28 Vending machines 13
29 Mobile selling of tobacco products 13
30 Packages of cigarettes 14
31 Smokeless tobacco 14
32 Retail outlets: signage 14
33 Prohibition of retailing at premises where offences have been
committed 15
34 Offence by occupier 15
35 No smoking signs 15
36 Covering vending machines, tobacco advertisements etc. 15
37 Prohibition on supplying tobacco at underage music/dance
events 16
38 New Divisions 4 and 5 inserted in Part 2 16
Division 4--Sales of tobacco products from temporary
outlets 16
15L Offence to sell tobacco products from temporary outlet 16
15M Offence for tobacco company to sell tobacco products
from temporary outlet 17
Division 5--Prohibited products 17
15N Ban orders 17
15O Secretary may recommend ban order 18
15P Operation of ban order 19
15Q Amendment or revocation of ban order 19
15R Notice of order 19
15S Offence to breach a ban order 20
39 New Part 2A inserted 21
PART 2A--SPECIALIST TOBACCONISTS 21
15T Application for certification as specialist tobacconist 21
15U Determination of application 21
15V Certification holder to notify Secretary of
commencement of tobacco retailing business 23
15W Duration of certification 23
15X Cancellation of certification 24
15Y Notice of determination or cancellation 25
15Z Replacement certificates 25
15ZA Offence to provide false or misleading information to
Secretary 26
15ZB Specialist tobacconist must display certificate 26
561350B.I-23/6/2009 ii BILL LA INTRODUCTION 23/6/2009
Clause Page
40 Entry or search with consent 27
41 Search warrants 27
42 Seizure of things not mentioned in warrant 27
43 Magistrate's Court may extend 3 month period 27
44 Requirement to assist inspector during entry 27
45 Infringement notices 27
46 Proceedings 28
47 Section 41 substituted 28
41 Offences by a body corporate 28
48 New section 41AA inserted 29
41AA Conduct by officers, employees or agents 29
49 Power to require names of persons supplied with tobacco 30
50 New section 46 inserted 31
46 Section 3: definition of occupier 31
51 Schedule substituted 32
SCHEDULE--Infringement Offences 32
PART 4--REPEAL 35
52 Repeal of amending Act 35
ENDNOTES 36
561350B.I-23/6/2009 iii BILL LA INTRODUCTION 23/6/2009
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Tobacco Amendment (Protection of
Children) Bill 2009
A Bill for an Act to amend the Tobacco Act 1987 and for other
purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The purpose of this Act is to amend the Tobacco
Act 1987--
5 (a) to provide that only retailers that are on-
airport duty free shops or that have been
certified as specialist tobacconists may
display tobacco advertising;
(b) to ban the sale of tobacco products from
10 temporary outlets;
(c) to ban smoking in cars in which a person
under the age of 18 years is present;
561350B.I-23/6/2009 1 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 1--Preliminary
s. 2
(d) to enable the Minister to ban the sale of
youth-oriented tobacco products and certain
other products;
(e) to create new offences in relation to smoking
5 and the sale of tobacco products;
(f) to amend the penalty and enforcement
provisions and to introduce new offences for
bodies corporate;
(g) to make minor miscellaneous amendments.
10 2 Commencement
(1) This Act, except Part 2, comes into operation on
1 January 2010.
(2) Part 2 comes into operation on 1 January 2011.
3 Principal Act
15 See: In this Act, the Tobacco Act 1987 is called the
Act No.
81/1987. Principal Act.
Reprint No. 6
as at
1 March 2006
and
amending
Act Nos
45/2005,
32/2006,
69/2006,
80/2006 and
46/2008.
LawToday:
www.
legislation.
vic.gov.au
__________________
561350B.I-23/6/2009 2 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 2--Tobacco Advertisements in Retail Outlets
s. 4
PART 2--TOBACCO ADVERTISEMENTS IN RETAIL
OUTLETS
4 Certain advertising prohibited
(1) After section 6(2) of the Principal Act insert--
5 "(2AA) 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 retail outlet is guilty of an offence and
10 liable to a penalty not exceeding 60 penalty
units, in the case of a natural person, or
300 penalty units, in the case of a body
corporate.
Note
15 See the definition of tobacco advertisement in
section 3B.".
(2) In section 6(2A) of the Principal Act, for "retail
outlet or" substitute "specialist tobacconist or an
on-airport duty free shop or at a".
20 (3) In section 6(2B) of the Principal Act, for "tobacco
retailing business or" substitute "tobacco retailing
business at a specialist tobacconist or an on-
airport duty free shop or a".
(4) In section 6(2D) of the Principal Act, after "(2),"
25 (wherever occurring) insert "(2AA),".
(5) After section 6(3)(b) of the Principal Act insert--
"(ba) the temporary display of tobacco products or
immediate packages of tobacco products in a
retail outlet in response to a request by a
30 customer wishing to purchase a specified
tobacco product; or".
(6) In section 6(3)(c) of the Principal Act, for "retail
outlet or" substitute "specialist tobacconist, an
on-airport duty free shop or a".
561350B.I-23/6/2009 3 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 2--Tobacco Advertisements in Retail Outlets
s. 4
(7) In section 6(3)(ca) of the Principal Act, for "retail
outlet or" substitute "specialist tobacconist, an
on-airport duty free shop or a".
(8) After section 6(3)(ca) of the Principal Act
5 insert--
"(cab) one notice about tobacco products at one
point of sale at a retail outlet (other than a
specialist tobacconist or an on-airport duty
free shop) that complies with the prescribed
10 requirements as to size, information
contained in it and the manner in which the
information is set out or the notice is
displayed; or".
(9) In section 6(3)(cb) of the Principal Act, for
15 "products displaying retail prices, being tickets or
labels that" substitute "products in a specialist
tobacconist or an on-airport duty free shop if the
tickets or labels display retail prices and".
(10) In section 6(3)(cc) of the Principal Act, for
20 "tickets or labels on, or adjacent to,
representations of immediate packages of tobacco
products in vending machines displaying retail
prices, being tickets or labels" substitute "tickets
or labels on or in vending machines".
25 (11) After section 6(3)(cc) of the Principal Act
insert--
"(d) one notice at a retail outlet or a wholesale
outlet to the effect that tobacco products are
available for sale at the outlet, being a notice
30 that does not exceed the prescribed
maximum size and complies with the
prescribed requirements as to information
contained in it and the manner in which the
information is set out or displayed; or".
561350B.I-23/6/2009 4 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 2--Tobacco Advertisements in Retail Outlets
s. 5
5 Point of sale advertisements
(1) In section 6A(1) of the Principal Act, for "retail
outlet" substitute "specialist tobacconist or an on-
airport duty free shop".
5 (2) Section 6A(1)(c) of the Principal Act is repealed.
(3) In section 6A(2) of the Principal Act, for "retail
outlet" substitute "specialist tobacconist or an on-
airport duty free shop".
(4) In section 6A(4) of the Principal Act, for "retail
10 outlet" substitute "specialist tobacconist or an on-
airport duty free shop".
(5) In section 6A(7) of the Principal Act, for "retail
outlet" substitute "specialist tobacconist or an on-
airport duty free shop".
15 (6) Section 6A(8) of the Principal Act is repealed.
6 Removal of advertisements
In section 37(2) of the Principal Act, for "or (2A)"
substitute ", (2AA) or (2A)".
__________________
561350B.I-23/6/2009 5 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 7
PART 3--MISCELLANEOUS AMENDMENTS
7 Purpose of Principal Act amended
In section 1 of the Principal Act, after "products"
insert "and certain non-tobacco products, to create
5 offences in relation to smoking and the possession
of tobacco products".
8 Definitions
(1) In section 3 of the Principal Act insert the
following definitions--
10 "ban order means an order made by the Minister
under section 15N(1);
driver has the same meaning as in the Road
Safety Act 1986;
highway has the same meaning as in the Road
15 Safety Act 1986;
motor vehicle has the same meaning as in the
Road Safety Act 1986;
specialist tobacconist means a retail outlet that is
certified by the Secretary as a specialist
20 tobacconist under section 15U;".
(2) In section 3 of the Principal Act, for the definition
of occupier substitute--
"occupier, in relation to an area or premises,
means--
25 (a) a person who appears to be of or over
the age of 16 years and who is or
appears to be in control of the area or
premises, whether or not the person is
present in the area or on the premises;
30 or
(b) a body corporate that is or appears to be
in control of the area or premises;".
561350B.I-23/6/2009 6 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 9
9 Tobacco advertisements
In section 3B(4) of the Principal Act, omit ", of a
tobacco product, of the packaging of a tobacco
product, or".
5 10 Enclosed workplaces: offence by occupier
In section 5B(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
the case of a body corporate".
10 11 Outdoor dining or drinking areas: offence by
occupier
In section 5D(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
15 the case of a body corporate".
12 Outdoor dining or drinking areas: no smoking signs
In section 5E(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
20 the case of a body corporate".
13 Enclosed restaurants and cafes: no smoking signs
In section 5F(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
25 the case of a body corporate".
14 Retail shopping centres: no smoking signs
In section 5G(3) of the Principal Act--
(a) for "5 penalty units" substitute "10 penalty
units"; and
561350B.I-23/6/2009 7 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 15
(b) for "10 penalty units in any other case"
substitute "50 penalty units in the case of a
body corporate".
15 Bingo areas and centres: no smoking signs
5 In section 5H(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
the case of a body corporate".
16 Casinos: no smoking signs
10 In section 5K(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
the case of a body corporate".
17 Approved venues: no smoking signs
15 In section 5N(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
the case of a body corporate".
18 Licensed premises: no smoking signs
20 In section 5R(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
the case of a body corporate".
19 New Division 1A inserted in Part 2
25 After Division 1 of Part 2 of the Principal Act
insert--
"Division 1A--Smoking in motor vehicles
5S Offence to smoke in motor vehicle if
person under 18 is present
30 Despite anything to the contrary in this Act,
a person must not smoke in a motor vehicle,
whether or not the motor vehicle is in
561350B.I-23/6/2009 8 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 19
motion, if another person is present in the
motor vehicle and the other person is under
the age of 18 years.
Penalty: 5 penalty units.
5 5T Power to require driver to stop
(1) A police member may require a driver or
person in charge of a motor vehicle on a
highway to stop the motor vehicle if the
police member believes on reasonable
10 grounds that a person in the vehicle has
committed or is about to commit an offence
against section 5S.
(2) Subject to subsection (3), a person must not
fail to stop a motor vehicle when required to
15 do so under subsection (1).
Penalty: 10 penalty units.
(3) Subsection (2) is not contravened if--
(a) the person making the requirement to
stop is not in uniform; and
20 (b) the driver or person in charge of the
motor vehicle believed that that person
was not a police member.
5U Evidential burden regarding age
In proceedings for an offence against
25 section 5S, evidence that a person present in
the relevant motor vehicle appeared to be
under the age of 18 years is, in the absence
of evidence to the contrary, proof that the
person was under the age of 18 years.".
561350B.I-23/6/2009 9 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 20
20 Certain advertising prohibited: penalties
(1) For the penalty at the foot of section 6(1) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
5 60 penalty units;
In the case of a body corporate,
300 penalty units.".
(2) In section 6(2A) of the Principal Act, after "guilty
of an offence" insert "and liable to a penalty not
10 exceeding 60 penalty units, in the case of a natural
person, or 300 penalty units, in the case of a body
corporate".
(3) The penalty at the foot of section 6(2A) of the
Principal Act is repealed.
15 (4) For the penalty at the foot of section 6(2B) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
20 300 penalty units.".
21 Point of sale advertisements: references to
Commonwealth Regulations
(1) In section 6A(1)(b)(i)(C) of the Principal Act, for
"Trade Practices (Consumer Product Information
25 Standards) (Tobacco) Regulations 1994"
substitute "Trade Practices (Consumer Product
Information Standards) (Tobacco) Regulations
2004".
(2) In section 6A(2)(a)(ii) of the Principal Act, for
30 "Trade Practices (Consumer Product Information
Standards) (Tobacco) Regulations 1994"
substitute "Trade Practices (Consumer Product
Information Standards) (Tobacco) Regulations
2004".
561350B.I-23/6/2009 10 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 22
22 Competitions
For the penalty at the foot of section 7(1) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
5 60 penalty units;
In the case of a body corporate,
300 penalty units.".
23 Free samples
For the penalty at the foot of section 8(1) of the
10 Principal Act substitute--
"Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.".
15 24 Prohibition of certain sponsorships
(1) For the penalty at the foot of section 9(1) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
60 penalty units;
20 In the case of a body corporate,
300 penalty units.".
(2) For the penalty at the foot of section 9(2) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
25 60 penalty units;
In the case of a body corporate,
300 penalty units.".
561350B.I-23/6/2009 11 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 25
25 Packing of tobacco
For the penalty at the foot of section 11 of the
Principal Act substitute--
"Penalty: In the case of a natural person,
5 120 penalty units;
In the case of a body corporate,
600 penalty units.".
26 Offence to possess certain tobacco products
For the penalty at the foot of section 11A of the
10 Principal Act substitute--
"Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.".
15 27 Supplying tobacco to person under 18 years
(1) For the penalty at the foot of section 12(1) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
120 penalty units;
20 In the case of a body corporate,
600 penalty units.".
(2) For the penalty at the foot of section 12(2) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
25 20 penalty units;
In the case of a body corporate,
100 penalty units.".
561350B.I-23/6/2009 12 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 28
(3) For section 12(3) of the Principal Act
substitute--
"(3) The occupier of premises on which a
vending machine is situated must not permit
5 a person under the age of 18 years to obtain a
tobacco product from that vending machine.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
10 300 penalty units.".
28 Vending machines
For the penalty at the foot of section 13(1) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
15 60 penalty units;
In the case of a body corporate,
300 penalty units.".
29 Mobile selling of tobacco products
(1) In section 13A(1) of the Principal Act, for
20 "100 penalty units" substitute "120 penalty
units".
(2) For the penalty at the foot of section 13A(2) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
25 120 penalty units;
In the case of a body corporate,
600 penalty units.".
(3) After section 13A(2) of the Principal Act insert--
"(2A) A tobacco company is guilty of an offence
30 against this subsection, and liable to a
penalty not exceeding 5000 penalty units, if
the tobacco company intentionally or
recklessly--
561350B.I-23/6/2009 13 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 30
(a) contravenes subsection (2); or
(b) causes another person to contravene
subsection (1) or (2).
(2B) An offence against subsection (2A) is an
5 indictable offence.".
30 Packages of cigarettes
For the penalty at the foot of section 14 of the
Principal Act substitute--
"Penalty: In the case of a natural person,
10 120 penalty units;
In the case of a body corporate,
600 penalty units.".
31 Smokeless tobacco
For the penalty at the foot of section 15(1) of the
15 Principal Act substitute--
"Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.".
20 32 Retail outlets: signage
(1) For the penalty at the foot of section 15C(1) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
10 penalty units;
25 In the case of a body corporate,
50 penalty units.".
(2) For the penalty at the foot of section 15C(3) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
30 10 penalty units;
In the case of a body corporate,
50 penalty units.".
561350B.I-23/6/2009 14 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 33
33 Prohibition of retailing at premises where offences
have been committed
(1) For the penalty at the foot of section 15D(2) of the
Principal Act substitute--
5 "Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.".
(2) For the penalty at the foot of section 15D(3) of the
10 Principal Act substitute--
"Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.".
15 34 Offence by occupier
In section 15G(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
the case of a body corporate".
20 35 No smoking signs
In section 15H(1) of the Principal Act, for
"5 penalty units" substitute "10 penalty units, in
the case of a natural person, or 50 penalty units, in
the case of a body corporate".
25 36 Covering vending machines, tobacco advertisements
etc.
For the penalty at the foot of section 15I(1) of the
Principal Act substitute--
"Penalty: In the case of a natural person,
30 60 penalty units;
In the case of a body corporate,
300 penalty units.".
561350B.I-23/6/2009 15 BILL LA INTRODUCTION 23/6/2009
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Part 3--Miscellaneous Amendments
s. 37
37 Prohibition on supplying tobacco at underage
music/dance events
For the penalty at the foot of section 15J of the
Principal Act substitute--
5 "Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.".
38 New Divisions 4 and 5 inserted in Part 2
10 After Division 3 of Part 2 of the Principal Act
insert--
"Division 4--Sales of tobacco products from
temporary outlets
15L Offence to sell tobacco products from
15 temporary outlet
(1) A person must not sell tobacco products
from a point of sale that is located in a
temporary display stand, booth or tent or
other temporary or mobile structure or
20 enclosure, whether or not a part of that
display stand, booth, tent, structure or
enclosure is permanent.
Penalty: In the case of a natural person,
60 penalty units;
25 In the case of a body corporate,
300 penalty units.
561350B.I-23/6/2009 16 BILL LA INTRODUCTION 23/6/2009
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Part 3--Miscellaneous Amendments
s. 38
(2) A person must not sell tobacco products
from a point of sale that is in a retail outlet
established in an area or premises for the
duration of a specific sports, music or arts-
5 related function or event in the area or
premises.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
10 300 penalty units.
15M Offence for tobacco company to sell
tobacco products from temporary outlet
(1) A tobacco company is guilty of an offence
against this subsection, and liable to a
15 penalty not exceeding 5000 penalty units, if
the tobacco company intentionally or
recklessly contravenes section 15L(1) or
15L(2) or causes another person to
contravene section 15L(1) or 15L(2).
20 (2) An offence against subsection (1) is an
indictable offence.
Division 5--Prohibited products
15N Ban orders
(1) The Minister, by order published in the
25 Government Gazette, may ban a product or a
class of products if--
(a) the Secretary recommends the making
of the order to the Minister under
section 15O; or
30 (b) the product or the class of products has
been 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
561350B.I-23/6/2009 17 BILL LA INTRODUCTION 23/6/2009
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Part 3--Miscellaneous Amendments
s. 38
meets one or more criteria that
substantially correspond to the criteria
set out in section 15O(2)(a).
(2) A ban order must--
5 (a) if the ban order is made on the
recommendation of the Secretary,
specify that fact and set out the grounds
for the recommendation; or
(b) if a ban order is made on the basis of a
10 prohibition or restriction by the
Commonwealth or another State or
Territory, specify that fact and the law
or subordinate instrument containing
the prohibition or restriction.
15 (3) 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--
(a) from time to time; or
20 (b) at a particular time.
15O Secretary may recommend ban order
(1) The Secretary may recommend to the
Minister that a ban order be made in respect
of a specified product or a specified class of
25 products.
(2) The Secretary must not make a
recommendation under subsection (1) unless
the Secretary has fully investigated the
matter and is satisfied that--
30 (a) the product--
(i) is a tobacco product and the
product or its smoke possesses a
distinctive fruity, sweet or
confectionery-like character; or
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Part 3--Miscellaneous Amendments
s. 38
(ii) is a tobacco product and has
packaging that appeals to children
or young people; or
(iii) is not a tobacco product but
5 resembles a tobacco product; or
(iv) is of a nature or is advertised in a
way that may encourage children
or young people to smoke; and
(b) the supply of the product should be
10 prohibited, having regard to the objects
of this Act.
(3) A recommendation by the Secretary must set
out the grounds for the recommendation.
15P Operation of ban order
15 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.
15Q Amendment or revocation of ban order
20 The Minister, by order published in the
Government Gazette, may amend or revoke a
ban order.
15R Notice of order
(1) The Secretary must cause a copy of a ban
25 order, or a copy of an order amending or
revoking a ban order--
(a) to be given to each person who, to the
knowledge of the Minister, supplies the
product or class of products in respect
30 of which the ban order was made; and
(b) to be published in a newspaper
circulating generally throughout the
State.
561350B.I-23/6/2009 19 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 38
(2) A copy of a ban order or a copy of an order
amending or revoking a ban order must be
given and published under subsection (1)
within 2 days after the publication of the
5 order in the Government Gazette, or if that is
not practicable, as soon as possible after the
end of that period.
(3) A failure to comply with subsection (1) or
(2) in relation to a ban order or an order
10 amending or revoking a ban order does not
invalidate the order.
15S Offence to breach a ban order
(1) A person must not sell by retail or wholesale
a product in respect of which a ban order
15 under section 15N is in force.
Penalty: In the case of a natural person,
120 penalty units;
In the case of a body corporate,
600 penalty units.
20 (2) A tobacco company is guilty of an offence
against this subsection and liable to a penalty
not exceeding 5000 penalty units, if the
tobacco company intentionally or
recklessly--
25 (a) contravenes subsection (1); or
(b) causes another person to contravene
subsection (1).
(3) An offence against subsection (2) is an
indictable offence.".
561350B.I-23/6/2009 20 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 39
39 New Part 2A inserted
After Part 2 of the Principal Act insert--
"PART 2A--SPECIALIST TOBACCONISTS
15T Application for certification as specialist
5 tobacconist
(1) 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.
10 (2) An application for certification must--
(a) be in or to the like effect of the form
approved by the Secretary; and
(b) specify the premises in respect of which
the application is made; and
15 (c) include any information specified in the
approved form; and
(d) be accompanied by the prescribed fee,
if any.
15U Determination of application
20 (1) On application under section 15T, the
Secretary must determine the application
by--
(a) certifying that the premises are a
specialist tobacconist; or
25 (b) refusing to so certify.
(2) The Secretary may certify that premises are a
specialist tobacconist if the Secretary is
satisfied that--
(a) a tobacco retailing business is carried
30 on or proposed to be carried on at the
premises; and
561350B.I-23/6/2009 21 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 39
(b) the gross turnover of tobacco products
at the premises--
(i) if the tobacco retailing business is
carried on at the premises at the
5 time of the application, constitutes
80 per cent or more of the gross
turnover of all products sold at the
premises in the 12 months
immediately preceding the
10 application or the applicant's
period of trading at the premises,
whichever is shorter; or
(ii) if the tobacco retailing business is
proposed to be carried on at the
15 premises at the time of the
application, is projected to
constitute 80 per cent or more of
the projected gross turnover of all
products to be sold at the premises
20 in the 12 months immediately
following the commencement of
trading by the applicant at the
premises; and
(c) certification of the premises is
25 consistent with the objects of this Act;
and
(d) certification of the premises is
consistent with any strategic plan,
policy statement, code or guideline
30 relating to specialist tobacconists that
has been adopted by the Minister; and
(e) the premises are separated from other
retail premises by a wall and that any
doorway or entrance to or exit from the
35 premises does not open directly into
any other retail premises.
561350B.I-23/6/2009 22 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 39
(3) The Secretary may refuse to certify premises
as a specialist tobacconist if--
(a) the applicant does not comply with any
requirement of this Act or the
5 regulations; or
(b) the Secretary is not satisfied as required
by subsection (2).
(4) For the purposes of determining an
application, the Secretary, by written notice
10 to the applicant, may require the applicant to
provide within a reasonable period
information relating to the application that is
specified in the notice.
(5) Before refusing to certify premises, the
15 Secretary must give the applicant an
opportunity to make a written submission.
(6) If the Secretary certifies that premises are a
specialist tobacconist, the Secretary must
issue the applicant with a certificate to that
20 effect.
15V Certification holder to notify Secretary of
commencement of tobacco retailing
business
A certification holder who proposes to carry
25 on a tobacco retailing business at premises
certified as a specialist tobacconist must
notify the Secretary within 7 days after the
business commences at those premises.
15W Duration of certification
30 (1) The certification of premises remains in
force until--
(a) the tobacco retailing business carried
on at the premises ceases or moves to
different premises; or
561350B.I-23/6/2009 23 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 39
(b) the tobacco retailing business carried
on at the premises is no longer carried
on by the applicant, whether solely or
with any other person; or
5 (c) the Secretary cancels the certification
under section 15X(1) or (4).
(2) If the certification of premises ceases to be in
force by reason of subsection (1)(a) or (1)(b),
the certification holder must notify the
10 Secretary of that fact within 7 days after the
certification ceases to be in force.
15X Cancellation of certification
(1) The Secretary may cancel a certification
under section 15U for premises if--
15 (a) the certification holder does not comply
with a requirement of this Act or the
regulations; or
(b) the premises no longer satisfy the
criteria set out in section 15U(2).
20 (2) For the purposes of determining whether to
cancel a certification, the Secretary, by
written notice to the certification holder, may
require the certification holder to provide
within a reasonable period information
25 relating to the certification that is specified in
the notice.
(3) Before cancelling a certification under
subsection (1), the Secretary must give the
certification holder an opportunity to be
30 heard.
(4) The Secretary may cancel a certification at
the request of the certification holder.
561350B.I-23/6/2009 24 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 39
(5) If premises are certified to be a specialist
tobacconist and the certification holder does
not commence carrying on a tobacco
retailing business at the premises within
5 12 months after the premises being certified,
the certification holder must request the
Secretary to cancel the certification under
subsection (4).
(6) If a certification is cancelled, the certification
10 holder must return the certificate issued
under section 15U(6) within a reasonable
period unless the certification holder satisfies
the Secretary that the original certificate is
lost, stolen or destroyed.
15 15Y Notice of determination or cancellation
(1) Within 7 days after determining an
application under section 15U, the Secretary
must notify the applicant in writing of the
determination and, if the application is
20 refused, the grounds for the determination.
(2) Within 7 days after cancelling a certification
under section 15X, the Secretary must notify
the certification holder in writing of the
cancellation, the grounds for the cancellation
25 and the date of cancellation.
15Z Replacement certificates
The Secretary may issue a replacement
certificate to a certification holder who
satisfies the Secretary that the original
30 certificate is lost, stolen or destroyed.
561350B.I-23/6/2009 25 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 39
15ZA Offence to provide false or misleading
information to Secretary
(1) A person must not give information to the
Secretary under this Part that the person
5 knows to be false or misleading in any
material particular.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
10 300 penalty units.
(2) A person must not produce a document to
the Secretary under this Part that the person
knows to be false or misleading in any
material particular without indicating the
15 respect in which it is false or misleading and,
if practicable, providing correct information.
Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
20 300 penalty units.
15ZB Specialist tobacconist must display
certificate
A person who carries on business at a retail
outlet that is certified to be a specialist
25 tobacconist must display the certificate
issued under section 15U(6) in a conspicuous
place at the retail outlet in a manner that
invites attention.
Penalty: In the case of a natural person,
30 10 penalty units;
In the case of a body corporate,
50 penalty units.
__________________".
561350B.I-23/6/2009 26 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 40
40 Entry or search with consent
In section 36D(1) of the Principal Act, after "this
Act" insert ", other than Division 1A of Part 2,".
41 Search warrants
5 (1) In section 36F(1) of the Principal Act, after "this
Act" insert ", other than Division 1A of Part 2,".
(2) In section 36F(2) of the Principal Act, after "this
Act" insert ", other than Division 1A of Part 2,".
42 Seizure of things not mentioned in warrant
10 In section 36I of the Principal Act, after "this Act"
(wherever occurring) insert ", other than
Division 1A of Part 2,".
43 Magistrate's Court may extend 3 month period
In section 36L(2) of the Principal Act, after "this
15 Act" (where first and secondly occurring) insert
", other than Division 1A of Part 2,".
44 Requirement to assist inspector during entry
In section 36M of the Principal Act, after "this
Act" insert ", other than Division 1A of Part 2,".
20 45 Infringement notices
(1) For section 38(1) of the Principal Act
substitute--
"(1) An inspector or a police member may serve
an infringement notice on a person who the
25 inspector or police member believes has
committed an infringement offence referred
to in an item in the Schedule requiring the
person to pay--
(a) in the case of a natural person, the
30 infringement penalty specified in
column A of the Schedule for that
infringement offence;
561350B.I-23/6/2009 27 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 46
(b) in the case of a body corporate, the
infringement penalty specified in
column B of the Schedule for that
infringement offence.".
5 (2) After section 38(1) of the Principal Act insert--
"(1A) A police member may serve an infringement
notice on a person if the police member has
reason to believe that the person has
committed an offence against section 5S.
10 (1B) The infringement penalty for an offence
against section 5S is 2 penalty units.".
(3) In section 38(2) of the Principal Act, for
"subsection (1)" substitute "subsection (1)
or (1A)".
15 (4) In section 38(3) of the Principal Act, for
"subsection (1)" substitute "subsections (1)
and (1A)".
46 Proceedings
(1) In section 39(1) of the Principal Act, for
20 "Proceedings" substitute "Subject to
subsection (1A), proceedings".
(2) After section 39(1) of the Principal Act insert--
"(1A) Proceedings for an offence under
Division 1A of Part 2 may not be brought by
25 an inspector.".
47 Section 41 substituted
For section 41 of the Principal Act substitute--
"41 Offences by a body corporate
(1) If a body corporate contravenes any
30 provision of this Act, each officer (within the
meaning of section 9 of the Corporations
Act) of the body corporate who knowingly
authorised or permitted the contravention is
561350B.I-23/6/2009 28 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 48
taken to have contravened the same
provision.
(2) Subsection (1) does not apply to an offence
against section 6(2D), 7(5), 8(3), 9(5),
5 13A(2A), 15M(1) or 15S(2).
(3) A person may be proceeded against and
convicted under a provision in accordance
with subsection (1), whether or not the body
corporate has been proceeded against or
10 convicted under that provision.
(4) Nothing in this section affects any liability
imposed on a body corporate for an offence
committed by the body corporate against this
Act.".
15 48 New section 41AA inserted
After section 41 of the Principal Act insert--
"41AA Conduct by officers, employees or agents
(1) For the purposes of any proceedings under
this Act, any conduct engaged in on behalf of
20 a body corporate is deemed to have been
engaged in also by the body corporate if the
conduct was engaged in by an employee,
agent or officer (within the meaning of
section 9 of the Corporations Act) of the
25 body corporate within the scope of the actual
or apparent authority of the employee, agent
or officer.
(2) If, in any proceedings under this Act, it is
necessary to establish the state of mind of a
30 body corporate in relation to particular
conduct, it is sufficient to show--
(a) that the conduct was engaged in by an
officer of the body corporate within the
scope of the officer's actual or apparent
561350B.I-23/6/2009 29 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 49
authority and the officer had that state
of mind; or
(b) that the conduct was engaged in by an
agent of the body corporate and--
5 (i) the agent acted at the specific
direction or with the specific
consent or agreement of the body
corporate; or
(ii) the agent had that state of mind; or
10 (iii) the body corporate was aware of
the agent's state of mind when the
conduct was engaged in.
(3) A reference in this section to the state of
mind of a person includes a reference to the
15 knowledge, intention, opinion, belief or
purpose of the person and the person's
reasons for the intention, opinion, belief or
purpose.".
49 Power to require names of persons supplied with
20 tobacco
(1) For section 42A(1) of the Principal Act
substitute--
"(1) The Secretary may, in writing addressed to a
person who manufactures tobacco products
25 or sells tobacco products by wholesale,
require the person to provide to the Secretary
within a reasonable period, being not less
than one month after the requirement is
made--
30 (a) the names and addresses of persons
carrying on a tobacco retailing business
in Victoria to whom the person has
supplied tobacco products in Victoria
within the preceding 12 months; and
561350B.I-23/6/2009 30 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 50
(b) the addresses of retail outlets in
Victoria that the person knows--
(i) sell tobacco products
manufactured by the person; or
5 (ii) sell tobacco products purchased at
wholesale from the person,
whether directly or indirectly.
(1A) Information provided to the Secretary in
response to a request under subsection (1)
10 must be in or to the effect of the form
(including electronic form) approved by the
Secretary.".
(2) For the penalty at the foot of section 42A(2) of the
Principal Act substitute--
15 "Penalty: In the case of a natural person,
60 penalty units;
In the case of a body corporate,
300 penalty units.".
50 New section 46 inserted
20 After section 45 of the Principal Act insert--
"46 Section 3: definition of occupier
(1) The definition of occupier inserted in
section 3 by section 8(2) of the Tobacco
Amendment (Protection of Children) Act
25 2009 applies to--
(a) offences alleged to have been
committed; and
(b) the exercise of powers under Part 3A--
on or after 1 January 2010.
30 (2) For the purposes of subsection (1), if an
offence is alleged to have been committed
between 2 dates of which one is before and
one is on or after 1 January 2010, the offence
561350B.I-23/6/2009 31 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 51
is alleged to have been committed before
1 January 2010.".
51 Schedule substituted
For the Schedule to the Principal Act substitute--
5 "SCHEDULE
Section 38
INFRINGEMENT OFFENCES
Column A Column B
Infringement
penalty Infringement
Infringement (natural penalty (body
Item offence person) corporate)
1 An offence against 1 penalty Not
section 5A(1) unit applicable
2 An offence against 2 penalty Not
section 5B(1) units applicable
3 An offence against 1 penalty Not
section 5C(1) unit applicable
4 An offence against 2 penalty Not
section 5D(1) units applicable
5 An offence against 2 penalty 5 penalty
section 5E(1) units units
6 An offence against 2 penalty 5 penalty
section 5F(1) units units
7 An offence against 2 penalty 5 penalty
section 5G(1) units units
8 An offence against 2 penalty 5 penalty
section 5H(1) units units
9 An offence against 2 penalty 5 penalty
section 5K(1) units units
10 An offence against 2 penalty 5 penalty
section 5N(1) units units
11 An offence against 2 penalty 5 penalty
section 5R(1) units units
561350B.I-23/6/2009 32 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 51
Column A Column B
Infringement
penalty Infringement
Infringement (natural penalty (body
Item offence person) corporate)
12 An offence against 3 penalty 30 penalty
section 6(2AA) units units
13 An offence against 3 penalty 30 penalty
section 6(2A) units units
14 An offence against 3 penalty 30 penalty
section 6(2B) units units
15 An offence against 4 penalty 60 penalty
section 12(1) units units
16 An offence against 2 penalty 12 penalty
section 12(2) units units
17 An offence against 3 penalty 30 penalty
section 12(3) units units
18 An offence against 3 penalty 30 penalty
section 13(1) units units
19 An offence against 4 penalty Not
section 13A(1) units applicable
20 An offence against 4 penalty 60 penalty
section 13A(2) units units
21 An offence against 3 penalty 60 penalty
section 14 units units
22 An offence against 2 penalty 5 penalty
section 15C(1) units units
23 An offence against 2 penalty 5 penalty
section 15C(3) units units
24 An offence against 1 penalty Not
section 15F(1) unit applicable
25 An offence against 2 penalty Not
section 15G(1) units applicable
26 An offence against 2 penalty 5 penalty
section 15H(1) units units
27 An offence against 3 penalty 30 penalty
section 15I(1) units units
561350B.I-23/6/2009 33 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 3--Miscellaneous Amendments
s. 51
Column A Column B
Infringement
penalty Infringement
Infringement (natural penalty (body
Item offence person) corporate)
28 An offence against 3 penalty 30 penalty
section 15J units units
29 An offence against 3 penalty 30 penalty
section 15L(1) units units
30 An offence against 3 penalty 30 penalty
section 15L(2) units units
31 An offence against 4 penalty 60 penalty
section 15S(1) units units
32 An offence against 1 penalty 5 penalty
section 15ZB unit units
33 An offence against 1 penalty Not
section 36C(3) unit applicable
".
__________________
561350B.I-23/6/2009 34 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Part 4--Repeal
s. 52
PART 4--REPEAL
52 Repeal of amending Act
This Act is repealed on 1 January 2012.
Note
5 The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
561350B.I-23/6/2009 35 BILL LA INTRODUCTION 23/6/2009
Tobacco Amendment (Protection of Children) Bill 2009
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561350B.I-23/6/2009 36 BILL LA INTRODUCTION 23/6/2009
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