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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Tobacco (Amendment) Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. Definitions 2
5. New sections 3A to 3D inserted 7
3A. Vending machines 7
3B. Agents and employees of tobacco retailers 7
3C. Controlled shopping centres 7
3D. Dining area 8
6. Heading to Part 2 8
PART 2--CONTROLS RELATING TO TOBACCO
PRODUCTS 8
7. New sections 5A to 5D inserted 9
5A. Enclosed restaurants and cafes and dining areas: offence
by smoker 9
5B. Enclosed restaurants and cafes and dining areas: offence
by occupier 9
5C. Controlled shopping centres: offence by smoker 10
5D. Controlled shopping centres: offence by occupiers 11
8. Point of sale advertising 11
9. New section 6A inserted 12
6A. Point of sale advertisements 12
10. Amendment of section 10 16
11. New section 11A inserted 16
11A. Offence to possess certain tobacco products 16
12. Amendment of section 12 16
13. New sections 15A to 15C inserted 18
15A. Enclosed restaurants and cafes and dining areas: no
smoking signs 18
15B. Controlled shopping centres: no smoking signs 19
15C. Retail outlets: signage 19
14. New section 15D inserted 19
15D. Prohibition of retailing at premises where offences have
been committed 20
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Clause Page
15. New Part 3A inserted 24
PART 3A--INSPECTORS AND POWERS OF
INSPECTORS 24
36. Appointment of persons as inspectors 24
36A. Inspector's identity card 25
36B. Production of identity card 25
36C. Power to require names and addresses 25
36D. Entry or search with consent 26
36E. Entry of premises open to the public 28
36F. Search warrants 29
36G. Announcement before entry 30
36H. Details of warrant to be given to occupier 31
36I. Seizure of things not mentioned in the warrant 31
36J. Copies of seized documents 32
36K. Retention and return of seized documents or things 32
36L. Magistrates' Court may extend 3 month period 33
36M. Requirement to assist inspector during entry 34
36N. Refusal or failure to comply with requirement 34
36O. Protection against self-incrimination 34
36P. Offence to give false or misleading information 35
36Q. Offence to hinder or obstruct inspector 35
36R. Offence to impersonate inspector 36
36S. Service of documents 36
36T. Confidentiality 36
16. Amendment of sections 37, 38 and 39 37
17. Application of penalties 38
18. New section 42A inserted 38
42A. Power to require names of persons supplied with tobacco
38
19. New section 42B inserted 39
42B. Supreme Court--limitation of jurisdiction 39
20. New Part 5 inserted 39
PART 5--TRANSITIONAL 40
44. Proceedings under section 6(2) 40
45. Section 15D 40
21. New Schedule substituted 40
22. Statute law revision 41
NOTES 43
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PARLIAMENT OF VICTORIA
Initiated in Assembly 3 May 2000
As amended in Assembly 25 May 2000
A BILL
to amend the Tobacco Act 1987 and for other purposes.
Tobacco (Amendment) Act 2000
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to amend the
Tobacco Act 1987--
(a) to make provision for smoke-free dining; and
5 (b) to make further provision regulating
advertising of tobacco products; and
(c) to increase penalties for selling tobacco
products to minors.
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2. Commencement
(1) Section 1 and this section come into operation on
the day after the day on which this Act receives
the Royal Assent.
5 (2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on
1 November 2000.
(3) Sections 7(1), 8, 9, 10, 13(1) and (3) and 16(1)(b)
come into operation on 1 July 2001.
10 3. Principal Act
No. 81/1987 In this Act, the Tobacco Act 1987 is called the
Reprint No. 3
Principal Act.
as at 14 May
1998.
Subsequently
amended by
Nos 46/1998
and 56/1998.
4. Definitions
(1) In section 3 of the Principal Act insert--
15 ' "carton" means a package containing packages
of a tobacco product, or a package designed
to contain packages of a tobacco product, but
does not include a package containing
individually-wrapped cigars (unless the
20 package contains a further package or
packages of the cigars);
"controlled shopping centre" means any
enclosed area that is, or is part of, a retail
shopping centre in respect of which an Order
25 in Council under section 3C is in force but
does not include--
(a) any part of that centre that is not used
by the public, or a section of the public;
or
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(b) any part of that centre that is an
enclosed restaurant or cafe; or
(c) any part of that centre in respect of
which a general licence or a club
5 licence within the meaning of the
Liquor Control Reform Act 1998 is in
force;
"dining area" has the meaning given by
section 3D;
10 "display", in relation to a tobacco product at a
retail outlet or a wholesale outlet, means
display to the customers of the retail outlet or
wholesale outlet;
"driver licence" means a driver licence issued
15 under the Road Safety Act 1986;
"enclosed", in relation to an area or premises,
means an area that is, or premises that are,
except for doorways, passageways and
internal wall openings, completely or
20 substantially enclosed by a solid permanent
ceiling or roof and solid permanent walls or
windows, whether the ceiling, roof, walls or
windows are fixed or movable and open or
closed;
25 "evidence of age document" means--
(a) a proof of age card or a card issued in
another State or a Territory that is the
equivalent of a proof of age card; or
(b) a driver licence or a licence issued in
30 another State or a Territory that is the
equivalent of a driver licence; or
(c) an Australian or foreign passport; or
(d) a document issued--
(i) by a person; or
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(ii) on behalf of a government
department or an agency--
approved by the Minister that bears a
photograph of the person to whom it is
5 issued and enables that person's age to
be determined;
"immediate package", in relation to a tobacco
product, means a package containing the
product--
10 (a) in the case of a tobacco product other
than cigars, not including a package
containing a further package or
packages of the product; and
(b) in the case of cigars--
15 (i) including a package constituted by
the individual wrapping of a cigar,
and a package containing
individually wrapped or
unwrapped cigars; but
20 (ii) not including any other package
containing a further package or
packages of cigars (whether
wrapped or unwrapped);
"inspector" means a person--
25 (a) who is an environmental health officer
appointed by a council (within the
meaning of section 3(1) of the Local
Government Act 1989) for the
purposes of the Health Act 1958; or
30 (b) who is appointed under this Act to be
an inspector for the purposes of this
Act;
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"occupier", in relation to an area or premises,
means a person who appears to be of or over
16 years of age and who is, or appears to be,
in control of the area or premises;
5 "package" does not include a transparent
wrapping, unless the wrapping has a tobacco
advertisement printed on it;
"point of sale" means a place where tobacco
products are sold within a retail outlet or
10 wholesale outlet, and includes a vending
machine from which tobacco products are
sold;
"premises" includes any part of premises and
includes a vehicle or vessel and a permanent
15 or temporary structure;
"product line" means a kind of tobacco product
distinguishable from other kinds by one or
more of the following characteristics--
(a) trademark;
20 (b) brand name;
(c) nicotine or tar content;
(d) flavour--
but not by the size of the package containing
the tobacco product;
25 "proof of age card" means a document issued by
the Director of Liquor Licensing under
section 176 of the Liquor Control Reform
Act 1998;
"restaurant or cafe" means premises that are, or
30 an area in premises that is, used by the
public, or a section of the public,
predominantly for the consumption of food
or non-alcoholic drinks purchased on the
premises (whether or not food or non-
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alcoholic drinks are also sold on the
premises for consumption off the premises)
and--
(a) in the case of a restaurant or cafe that is
5 an area in premises, includes any
abutting area in those premises that is
not separately enclosed from that area,
irrespective of the purpose or purposes
for which the abutting area is used; but
10 (b) does not include premises in respect of
which a general licence or a club
licence within the meaning of the
Liquor Control Reform Act 1998 is in
force;
15 "retail outlet" means premises where tobacco
products are available for sale by retail;
"retail shopping centre" has the same meaning
as in section 3 of the Retail Tenancies
Reform Act 19981;
20 "Secretary" means Secretary to the Department
of Human Services;
"tobacco retailing business" means the business
of selling tobacco by retail, either alone or in
conjunction with any other merchandise, and
25 includes--
(a) any such business carried on as part of,
or in conjunction with, any other
business; and
(b) any business that consists of, or
30 involves, management of a retail outlet
where tobacco products are available
for sale by means of a vending
machine;
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"tobacco wholesaling business" means the
business of selling tobacco for the purposes
of resale, either alone or in conjunction with
any other merchandise, and includes any
5 such business carried on as part of, or in
conjunction with, any other business;
"wholesale outlet" means premises where
tobacco products are available for sale
exclusively by wholesale.'.
10 (2) In section 3 of the Principal Act, in the definition
of "tobacco advertisement", at the end of
paragraph (b) insert--
"--
and includes the display of an immediate package
15 of a tobacco product;".
5. New sections 3A to 3D inserted
After section 3 of the Principal Act insert--
'3A. Vending machines
The presence on any premises of a vending
20 machine is deemed to constitute the carrying
on on those premises of a tobacco retailing
business.
3B. Agents and employees of tobacco retailers
A reference in this Act to a person who sells
25 tobacco or carries on a tobacco retailing
business does not include a reference to a
person who, as an agent or employee of the
first-mentioned person, sells tobacco or
carries on such a business.
30 3C. Controlled shopping centres
(1) The Governor in Council, by Order
published in the Government Gazette, may
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declare a retail shopping centre to be a
shopping centre to which this Act applies.
(2) A declaration under sub-section (1) must not
be made unless the owner of the retail
5 shopping centre has given consent in writing
to the retail shopping centre being a
controlled shopping centre for the purposes
of this Act and has not, by writing given to
the Minister, withdrawn that consent.
10 (3) In this section--
"owner" includes a person who is, or is
entitled to be registered under the
Transfer of Land Act 1958 as, the
proprietor of an estate in fee simple in
15 the land on which the retail shopping
centre is situated.
3D. Dining area
For the purposes of this Act, an area (other
than an outdoor area) used by the public or a
20 section of the public in premises in respect of
which a general licence or a club licence
within the meaning of the Liquor Control
Reform Act 1998 is in force is a dining area
at any time when the predominant activity in
25 that area is the consumption of food or non-
alcoholic drinks.'.
6. Heading to Part 2
For the heading to Part 2 of the Principal Act
substitute--
30 "PART 2--CONTROLS RELATING TO
TOBACCO PRODUCTS".
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7. New sections 5A to 5D inserted
(1) In Part 2 of the Principal Act, after the heading
insert--
"5A. Enclosed restaurants and cafes and dining
5 areas: offence by smoker
(1) A person must not smoke in an enclosed
restaurant or cafe or in a dining area.
Penalty: 5 penalty units.
(2) If an inspector believes on reasonable
10 grounds that a person is committing or has
committed an offence against sub-section
(1), the inspector, on producing his or her
identity card, may direct the person to cease
the contravention.
15 (3) A person who is contravening sub-section
(1) must not, without reasonable excuse, fail
to comply with a direction by an inspector to
cease the contravention.
Penalty applying to this sub-section:
20 5 penalty units.
5B. Enclosed restaurants and cafes and dining
areas: offence by occupier
(1) If smoking occurs in an enclosed restaurant
or cafe or in a dining area, in contravention
25 of section 5A, the occupier of the enclosed
restaurant or cafe or dining area is guilty of
an offence.
Penalty: 5 penalty units.
(2) It is a defence to a prosecution under sub-
30 section (1) if the defendant proves that the
defendant did not provide an ashtray,
matches, a lighter or any other thing
designed to facilitate smoking where the
contravention occurred and that--
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(a) the defendant was not aware, and could
not reasonably be expected to have
been aware, that the contravention was
occurring; or
5 (b) the defendant--
(i) requested the person contravening
to stop smoking; and
(ii) informed the person that the
person was committing an
10 offence.".
(2) In Part 2 of the Principal Act, before section 6
insert--
"5C. Controlled shopping centres: offence by
smoker
15 (1) A person must not smoke in a controlled
shopping centre.
Penalty: 5 penalty units.
(2) If an inspector believes on reasonable
grounds that a person is committing or has
20 committed an offence against sub-section
(1), the inspector, on producing his or her
identity card, may direct the person to cease
the contravention.
(3) A person who is contravening sub-section
25 (1) must not, without reasonable excuse, fail
to comply with a direction by an inspector to
cease the contravention.
Penalty: 5 penalty units.
(4) It is a defence to a prosecution under sub-
30 section (1) if the defendant proves that, at the
time of the contravention, a sign in
accordance with section 15B was not
displayed in the controlled shopping centre
in accordance with that section.
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5D. Controlled shopping centres: offence by
occupiers
(1) If smoking occurs in any part of a controlled
shopping centre, in contravention of
5 section 5C, the occupier of the part is guilty
of an offence.
Penalty: 5 penalty units.
(2) It is a defence to a prosecution under sub-
section (1) if the defendant proves that the
10 defendant did not provide an ashtray,
matches, a lighter or any other thing
designed to facilitate smoking where the
contravention occurred and that--
(a) the defendant was not aware, and could
15 not reasonably be expected to have
been aware, that the contravention was
occurring; or
(b) the defendant--
(i) requested the person contravening
20 to stop smoking; and
(ii) informed the person that the
person was committing an
offence.".
8. Point of sale advertising
25 (1) After section 6(2) of the Principal Act insert--
"(2A) If there is a tobacco advertisement of a
product line of a tobacco product at a point
of sale at a retail outlet or wholesale outlet
that is not in accordance with section 6A, the
30 person carrying on the tobacco retailing
business or the tobacco wholesaling business
at that outlet is guilty of an offence.
Penalty: For a first offence: 10 penalty
units.
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For a second or subsequent
offence: 100 penalty units.".
(2) In section 6(3) of the Principal Act--
(a) in paragraph (a)(iii), after "product" insert
5 ", other than a package at a point of sale";
(b) after paragraph (a) insert--
"(ab) a tobacco advertisement that is the
display of an immediate package of a
tobacco product, other than at a point of
10 sale; or".
(3) In section 6(3) of the Principal Act, for
paragraph (c) substitute--
"(c) a tobacco advertisement at a point of sale
that is in accordance with section 6A and is
15 inside a retail outlet or a wholesale outlet; or
(ca) a notice about tobacco products at a point of
sale at a retail outlet or wholesale outlet that
complies with the prescribed requirements as
to size, information contained in it and the
20 manner in which the information is set out;
or
(cb) tickets or labels on, or adjacent to,
immediate packages of tobacco products
displaying retail prices, being tickets or
25 labels that comply with the prescribed
requirements as to size, information
contained in them and the manner in which
the information is set out;".
9. New section 6A inserted
30 After section 6 of the Principal Act insert--
'6A. Point of sale advertisements
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(1) A tobacco advertisement at a point of sale at
a retail outlet or a wholesale outlet may
advertise a product line of a tobacco product
(other than cigars) in one only of the
5 following ways--
(a) by the display of a single immediate
package of the product line in the form
in which the package is available for
sale at that point of sale (including the
10 display of an immediate package if only
cartons are available for sale);
(b) by means of a stack dispenser for
immediate packages of the product line
in the form in which the package is
15 available for sale at that point of sale
if--
(i) in the case of packages stacked
directly behind each other (from
the point of view of the customer's
20 side of the customer service area)
("angled stack"), the most that is
displayed at the front of the stack
is the face, or any part, of a single
package; and
25 (ii) in the case of an angled stack,
only all or any part of the tops,
sides and bottoms of the other
packages in the stack are
displayed; and
30 (iii) in the case of packages stacked on
top of each other, no part of a
package other than a part of the
package on the top of the stack is
displayed;
35 (c) if the point of sale is a vending
machine, by a single representation of
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an immediate package of the product
line in the form in which the package is
available, or usually available, for sale
at that point of sale no larger than the
5 actual size of the package, with the
same appearance as the package.
(2) A tobacco advertisement at a point of sale at
a retail outlet or a wholesale outlet may
advertise a product line of cigars in one only
10 of the following ways--
(a) by the display of a single immediate
package of the product line in the form
in which the package is available for
sale at that point of sale (including the
15 display of an immediate package if only
cartons are available for sale);
(b) by means of a stack dispenser for
immediate packages of the product line
in the form in which the package is
20 available at that point of sale if--
(i) in the case of packages stacked
directly behind each other (from
the point of view of the customer's
side of the customer service area)
25 ("angled stack"), the most that is
displayed at the front of the stack
is the face, or any part, of a single
package; and
(ii) in the case of an angled stack,
30 only all or any part of the tops,
sides and bottoms of the other
packages in the stack are
displayed; and
(iii) in the case of packages stacked on
35 top of each other, no part of a
package other than a part of the
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package on the top of the stack is
displayed;
(c) by the display of either or both of the
following--
5 (i) up to 13 cigars of the product line
in an open box, or in any other
manner;
(ii) a single closed box full of the
product line in the form in which
10 the box is available for sale at that
point of sale.
(3) A display of tobacco products at a point of
sale may not consist of the display of the
products, packages of the products or
15 representations of the products or packages
so as to constitute a tobacco advertisement
itself as distinct from the display of each
product, package or representation.
(4) A display of a product line at a point of sale
20 at a retail outlet may not include the display
of a carton of the product line, or any part of
the carton, whether or not the carton is
empty or partly empty.
(5) A display of a product line at a point of sale
25 at a wholesale outlet--
(a) may include the display of one or more
cartons of the product line, but only
with the smallest (or one of the
smallest) sides of the carton (or
30 cartons) facing the customer service
area; and
(b) must otherwise comply with this
section.
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(6) At a retail outlet, there may be only one area
of display of tobacco products, being an area
not exceeding the prescribed area.
(7) A display of tobacco products on a vending
5 machine may include a display of one packet
only of each product line available, or
usually available, from the machine and must
not include the display of any other product
lines.'.
10 10. Amendment of section 10
In section 10(1) of the Principal Act, after "6(2)"
insert "or (2A)".
11. New section 11A inserted
After section 11 of the Principal Act insert--
15 "11A. Offence to possess certain tobacco products
A person who carries on a tobacco retailing
business or a tobacco wholesaling business
must not, without reasonable excuse, have in
the person's possession or under the person's
20 control, any tobacco products that the person
knows or ought reasonably to know--
(a) are smuggled goods or prohibited
imports within the meaning of the
Customs Act 1901 of the
25 Commonwealth; or
(b) are excisable goods within the meaning
of the Excise Act 1901 of the
Commonwealth upon which excise
duty has not been paid.
30 Penalty: 50 penalty units.".
12. Amendment of section 12
(1) In section 12 of the Principal Act--
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(a) for the penalty at the foot of sub-section (1),
substitute--
"Penalty: 50 penalty units.";
(b) for the penalty at the foot of sub-section (3),
5 substitute--
"Penalty: 50 penalty units.".
(2) After section 12(3) of the Principal Act insert--
'(3A) If an employee commits an offence against
sub-section (1), each manager is deemed to
10 have committed an offence against the sub-
section, whether or not the employee
committed the offence without the manager's
authority or contrary to the manager's orders
or instructions.
15 (3B) Proceedings under this section may be
brought against a manager whether or not
proceedings have been brought against the
employee and whether or not the employee
has been convicted.
20 (3C) If an offence is committed against sub-
section (1) on premises at which a business
is carried on, it must be presumed, unless the
contrary is established, that the offence was
committed in the course of the carrying on of
25 that business.
(3D) In this section--
"manager" means--
(a) the employer of the employee;
(b) a person who authorised the
30 person who committed the offence
to sell tobacco products as the
person's agent;
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(c) in the case of an offence
committed in the course of the
carrying on of a business, a person
who owns, manages, controls,
5 conducts or operates that
business.'.
(3) After section 12(4)(b) of the Principal Act
insert--
"; or
10 (c) at the time of the alleged offence, had seen
an evidence of age document of the person
whose age is material to the offence,
indicating that the person is of or over the
age of 18 years; or
15 (d) in the case of a prosecution against a
manager for an offence under sub-section
(1)--
(i) had no knowledge of the offence; and
(ii) could not, by the exercise of due
20 diligence, have prevented the
commission of the offence.".
13. New sections 15A to 15C inserted
(1) After section 15 of the Principal Act insert--
"15A. Enclosed restaurants and cafes and dining
25 areas: no smoking signs
If, within an enclosed restaurant or cafe or a
dining area, the prescribed no smoking signs
are not displayed, or are not displayed in the
prescribed manner (if any), without
30 reasonable excuse, the occupier of the
enclosed restaurant or cafe, or of the dining
area, is guilty of an offence.
Penalty: 5 penalty units.".
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(2) Before Part 3 of the Principal Act, insert in
Part 2--
"15B. Controlled shopping centres: no smoking
signs
5 The owner of a controlled shopping centre
must cause prescribed no smoking signs to
be displayed in such prominent positions at
entrances to the centre as would reasonably
identify the centre as a no smoking area for
10 persons entering the centre.
Penalty: 5 penalty units in the case of a
natural person.
10 penalty units in any other
case.".
15 (3) After section 15B of the Principal Act insert--
"15C. Retail outlets: signage
The occupier of premises on which a tobacco
retailing business is carried on must cause to
be displayed on those premises in
20 accordance with the regulations--
(a) a prescribed health warning sign; or
(b) a prescribed sign relating to programs
assisting in the cessation of smoking.
Penalty: 10 penalty units.".
25 14. New section 15D inserted
Before Part 3 of the Principal Act, insert in
Part 2--
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'15D. Prohibition of retailing at premises where
offences have been committed
(1) If--
(a) a person ("the retailer") carries on a
5 tobacco retailing business at premises
that are a retail outlet; and
(b) that person, or an associate of that
person, is found guilty of a relevant
offence in respect of, or relating to, the
10 carrying on of that business at those
premises; and
(c) the offence is a first relevant offence
committed in respect of those premises
by any of the retailer and the associates
15 of the retailer--
the court, in addition to imposing any other
penalty, may order that the retailer not carry
on a tobacco retailing business at those
premises or, if the court so determines, at
20 any new premises within 5 kilometres of
those premises, for such period, not
exceeding 3 months, and commencing on
such date, as the court determines.
(2) If--
25 (a) a person ("the retailer") carries on a
tobacco retailing business at premises
that are a retail outlet; and
(b) one relevant offence in respect of, or
relating to, the carrying on of that
30 business at those premises has been
committed by any of the retailer and the
associates of the retailer and there has
been a finding of guilt; and
(c) the retailer, or an associate of the
35 retailer, is found guilty of another
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relevant offence in respect of, or
relating to, the carrying on of that
business at those premises--
the retailer, or any associate of the retailer,
5 must not carry on a tobacco retailing
business at those premises or, if the court so
determines, at any new premises within
5 kilometres of those premises, during the
period of 3 months or, if the court which
10 makes the finding of guilt specifies a longer
period not exceeding 12 months, during that
specified period, and commencing on such
date, as the court determines.
Penalty: 50 penalty units and, for a
15 continuing offence, an additional
penalty of 2 penalty units for each
day on which the offence
continues--
(a) after service of a notice of
20 contravention by an
inspector on the person
carrying on the business; or
(b) if no notice of contravention
has been served, after the
25 commencement of the
period.
(3) If--
(a) a person ("the retailer") carries on a
tobacco retailing business at premises
30 that are a retail outlet; and
(b) two or more relevant offences in
respect of, or relating to, the carrying
on of that business at those premises
have been committed by any one or
35 more of the retailer and the associates
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of the retailer, and there has been a
finding of guilt for each such offence;
and
(c) the retailer, or an associate of the
5 retailer, is found guilty of another
relevant offence in respect of, or
relating to, the carrying on of that
business at those premises--
the retailer, or any associate of the retailer,
10 must not carry on a tobacco retailing
business at those premises or, if the court so
determines, at any new premises within
5 kilometres of those premises, during the
period of 5 years commencing on such date
15 as the court determines.
Penalty: 50 penalty units and, for a
continuing offence, an additional
penalty of 2 penalty units for each
day on which the offence
20 continues--
(a) after service of a notice of
contravention by an
inspector on the person
carrying on the business; or
25 (b) if no notice of contravention
has been served, after the
commencement of the
period.
(4) A person is not prohibited from carrying on a
30 tobacco retailing business at any premises by
reason of sub-section (2) or (3) if the court
referred to in that sub-section--
(a) is satisfied that there are exceptional
circumstances and that it is reasonable
35 that the tobacco retailing business
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continue to be carried on at those
premises; and
(b) makes an order to that effect.
(5) An offence is not to be taken into account for
5 the purposes of this section while an appeal
is pending against a finding of guilt for the
offence.
(6) If two or more persons are found guilty of an
offence arising from the sale or possession of
10 the same tobacco products, there is deemed
to be only one offence for the purposes of
this section.
(7) If a retailer and an associate of a retailer are
prohibited from carrying on a tobacco
15 retailing business for 2 or more periods that
overlap, those periods are, to the extent that
they apply to the same premises, to apply
consecutively.
(8) In this section--
20 "associate", in relation to a person, means--
(a) if the person carries on a tobacco
retailing business in partnership
with another person, that other
person;
25 (b) if the person is a corporation--
(i) a director or person
concerned in the
management of the
corporation; or
30 (ii) a person who is entitled to
more than 25% of the shares
in the corporation;
"new premises", in relation to an offence by
a person in relation to premises, does
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not include premises at which the
person carried on a tobacco retailing
business before the offence was
committed;
5 "relevant offence" means--
(a) an offence against section 12; or
(b) an offence against section 11A; or
(c) an offence against the Customs
Act 1901 of the Commonwealth in
10 respect of the possession of
tobacco products that are
smuggled goods or prohibited
imports within the meaning of that
Act; or
15 (d) an offence against the Excise Act
1901 of the Commonwealth in
respect of the possession of
tobacco products that are
excisable goods within the
20 meaning of that Act upon which
excise duty had not been paid.'.
15. New Part 3A inserted
After Part 3 of the Principal Act insert--
"PART 3A--INSPECTORS AND POWERS OF
25 INSPECTORS
36. Appointment of persons as inspectors
The Secretary may, by instrument, appoint as
an inspector--
(a) a person nominated by the Chief
30 Executive Officer of a council within
the meaning of the Local Government
Act 1989 and employed by, or
providing services to, that council;
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(b) an employee or member of a class of
employees employed under Part 3 of
the Public Sector Management and
Employment Act 1998.
5 36A. Inspector's identity card
(1) The Secretary must issue an identity card to
each inspector.
(2) An identity card must contain a photograph
of the inspector to whom it is issued.
10 36B. Production of identity card
(1) An inspector must produce his or her identity
card for inspection--
(a) before exercising a power under this
Part other than a requirement made by
15 post; and
(b) at any time during the exercise of a
power under this Part, if asked to do so.
Penalty: 10 penalty units.
(2) This section does not apply to the exercise of
20 a power under section 36E.
36C. Power to require names and addresses
(1) An inspector may request a person to state
his or her name and address if the inspector
believes on reasonable grounds that the
25 person has committed, or is about to commit,
an offence against a provision of this Act
referred to in the Schedule.
(2) An inspector who makes a request under
sub-section (1) must inform the person of the
30 grounds for his or her belief in sufficient
detail to allow the person to understand the
nature of the offence or suspected offence.
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(3) A person must not, in response to a request
made by an inspector in accordance with this
section--
(a) refuse or fail to comply with the
5 request; or
(b) state a name that is false in a material
particular; or
(c) state an address other than the full and
correct address of his or her ordinary
10 place of residence or business.
Penalty: 5 penalty units.
(4) A person who is requested by an inspector to
state his or her name and address may
request the inspector to state, orally or in
15 writing, his or her name and to produce his
or her identity card.
(5) An inspector must not, in response to a
request under sub-section (4)--
(a) refuse or fail to comply with the
20 request; or
(b) state a name that is false in a material
particular; or
(c) refuse to comply with the request in
writing if requested to do so.
25 Penalty: 5 penalty units.
36D. Entry or search with consent
(1) If an inspector believes, on reasonable
grounds, that a person has contravened this
Act or the regulations, the inspector, with the
30 consent of the occupier of the premises--
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(a) may enter and search any premises;
(b) may seize anything found on the
premises which the inspector believes,
on reasonable grounds, to be connected
5 with the alleged contravention;
(c) may inspect and make copies of, or take
extracts from, any document found on
the premises.
(2) An inspector must not enter and search any
10 premises with the consent of the occupier
unless, before the occupier consents to that
entry, the inspector--
(a) has produced his or her identity card for
inspection; and
15 (b) has informed the occupier--
(i) of the purpose of the search; and
(ii) that the occupier may refuse to
give consent to the entry and
search or to the seizure of
20 anything found during the search;
and
(iii) that the occupier may refuse to
consent to the taking of any copy
or extract from a document found
25 on the premises during the search;
and
(iv) that anything seized or taken
during the search with the consent
of the occupier may be used in
30 evidence in proceedings.
(3) If an occupier consents to an entry and
search, the inspector who requested consent
must before entering the premises ask the
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occupier to sign an acknowledgment in the
prescribed form stating--
(a) that the occupier has been informed of
the purpose of the search and that
5 anything seized or taken in the search
with the consent of the occupier may be
used in evidence in proceedings; and
(b) that the occupier has been informed that
he or she may refuse to give consent to
10 the entry and search; and
(c) that the occupier has consented to such
an entry and search; and
(d) the date and time that the occupier
consented.
15 (4) If an occupier consents to the seizure or
taking of any thing during a search under this
section, the inspector must before seizing or
taking the thing ask the occupier to sign an
acknowledgment stating--
20 (a) that the occupier has consented to the
seizure or taking of the thing; and
(b) the date and time that the occupier
consented.
(5) An occupier who signs an acknowledgment
25 must be given a copy of the signed
acknowledgment before the inspector leaves
the premises.
(6) If, in any proceeding, an acknowledgment is
not produced to the court or a tribunal, it
30 must be presumed, until the contrary is
proved, that the occupier did not consent to
the entry and search or to the seizure or the
taking of the thing.
36E. Entry of premises open to the public
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An inspector may enter and inspect any part
of premises that, at the time of the entry and
inspection, are open to the public and--
(a) may take photographs; and
5 (b) may direct the occupier to remove any
tobacco advertisement placed or
displayed in the premises in
contravention of this Act.
36F. Search warrants
10 (1) An inspector, with the written approval of
the Secretary or, if the inspector is an
environmental health officer of a council or a
person employed by, or providing services
to, a council, with the written approval of the
15 Chief Executive Officer of the council, may
apply to a magistrate for the issue of a search
warrant in relation to particular premises, if
the inspector believes on reasonable grounds
that there is on the premises evidence that a
20 person or persons may have contravened this
Act or the regulations.
(2) If a magistrate is satisfied, by the evidence,
on oath or by affidavit, of the inspector that
there are reasonable grounds to believe that
25 there is a thing or things of a particular kind
connected with a contravention of this Act or
the regulations on any premises, the
magistrate may issue a search warrant, in
accordance with the Magistrates' Court Act
30 1989, authorising an inspector named in the
warrant, together with any other person or
persons named or otherwise identified in the
warrant and with any necessary equipment--
(a) to enter the premises specified in the
35 warrant, if necessary by force; and
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(b) to do all or any of the following--
(i) search for;
(ii) seize;
(iii) secure against interference;
5 (iv) inspect and make copies of, or
take extracts from--
a thing or things of a particular kind
named or described in the warrant and
which the inspector believes, on
10 reasonable grounds, to be connected
with the alleged contravention.
(3) A search warrant issued under this section
must state--
(a) the purpose for which the search is
15 required and the nature of the alleged
contravention; and
(b) any conditions to which the warrant is
subject; and
(c) whether entry is authorised to be made
20 at any time of the day or night or during
stated hours of the day or night; and
(d) a day, not later than 28 days after the
issue of the warrant, on which the
warrant ceases to have effect.
25 (4) Except as provided by this Act, the rules to
be observed with respect to search warrants
under the Magistrates' Court Act 1989
extend and apply to warrants under this
section.
30 36G. Announcement before entry
(1) On executing a search warrant, the inspector
executing the warrant--
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(a) must announce that he or she is
authorised by the warrant to enter the
premises; and
(b) if the inspector has been unable to
5 obtain unforced entry, must give any
person at the premises an opportunity
to allow entry to the premises.
(2) An inspector need not comply with sub-
section (1) if he or she believes, on
10 reasonable grounds, that immediate entry to
the premises is required to ensure that the
effective execution of the search warrant is
not frustrated.
36H. Details of warrant to be given to occupier
15 (1) If the occupier is present at premises where a
search warrant is being executed, the
inspector must--
(a) identify himself or herself to the
occupier; and
20 (b) give to the occupier a copy of the
warrant.
(2) If the occupier is not present at premises
where a search warrant is being executed, the
inspector must--
25 (a) identify himself or herself to a person at
the premises; and
(b) give to the person a copy of the
warrant.
36I. Seizure of things not mentioned in the
30 warrant
A search warrant under section 36F
authorises an inspector executing the search
warrant, in addition to the seizure of any
thing of the kind described in the warrant, to
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seize any thing which is not of the kind
described in the warrant if--
(a) the inspector believes, on reasonable
grounds, that the thing is of a kind
5 which could have been included in a
search warrant issued under that section
and will afford evidence about the
contravention of this Act or the
regulations; and
10 (b) the inspector believes, on reasonable
grounds, that it is necessary to seize
that thing in order to prevent its
concealment, loss or destruction or its
use in the contravention of this Act or
15 the regulations.
36J. Copies of seized documents
(1) If an inspector retains possession of a
document seized from a person under this
Part, the inspector must give the person,
20 within 21 days after the seizure, a copy of
the document certified as correct by the
inspector.
(2) A copy of a document certified under sub-
section (1) shall be received in all courts and
25 tribunals to be evidence of equal validity to
the original.
36K. Retention and return of seized documents
or things
(1) If an inspector seizes a document or other
30 thing under this Part, the inspector must take
reasonable steps to return the document or
thing to the person from whom it was seized
if the reason for its seizure no longer exists.
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(2) If the document or thing seized has not been
returned within 3 months after it was seized,
the inspector must take reasonable steps to
return it unless--
5 (a) proceedings for the purpose for which
the document or thing was retained
have commenced within that 3 month
period and those proceedings
(including any appeal) have not been
10 completed; or
(b) the Magistrates' Court makes an order
under section 36L extending the period
during which the document or thing
may be retained.
15 36L. Magistrates' Court may extend 3 month
period
(1) An inspector may apply to the Magistrates'
Court within 3 months after seizing a
document or other thing under this Part for
20 an extension of the period for which the
inspector may retain the document or thing.
(2) The Magistrates' Court may order such an
extension if it is satisfied that retention of the
document or other thing is necessary--
25 (a) for the purposes of an investigation into
whether a contravention of this Act or
the regulations has occurred; or
(b) to enable evidence of a contravention of
this Act or the regulations to be
30 obtained for the purposes of a
proceeding under this Act.
(3) The Magistrates' Court may adjourn an
application to enable notice of the
application to be given to any person.
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36M. Requirement to assist inspector during
entry
To the extent that it is reasonably necessary
to determine compliance with this Act or the
5 regulations, an inspector exercising a power
of entry under this Part who produces his or
her identity card for inspection by the
occupier of the premises or an agent or
employee of the occupier may require that
10 person--
(a) to give information to the inspector,
orally or in writing; and
(b) to produce documents to the inspector;
and
15 (c) to give reasonable assistance to the
inspector.
36N. Refusal or failure to comply with
requirement
A person must not, without reasonable
20 excuse, refuse or fail to comply with a
requirement of an inspector under this Part.
Penalty: 60 penalty units.
36O. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person
25 to refuse or fail to give information or do any
other thing that the person is required to do
by or under this Part, if the giving of the
information or the doing of that other thing
would tend to incriminate the person.
30 (2) Despite sub-section (1), it is not a reasonable
excuse for a natural person to refuse or fail
to produce a document that the person is
required to produce by or under this Part, if
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the production of the document would tend
to incriminate the person.
(3) If--
(a) before producing a document that the
5 person is required to produce by or
under this Part, the person claims that
the document would tend to incriminate
the person; and
(b) the document would in fact tend to
10 incriminate the person--
the document is not admissible in evidence
against the person in a criminal proceeding
other than a proceeding in respect of an
offence against this Act or the regulations.
15 36P. Offence to give false or misleading
information
A person must not--
(a) give information to an inspector under
this Part that the person knows to be
20 false or misleading in any material
particular; or
(b) produce a document to an inspector
under this Part that the person knows to
be false or misleading in a material
25 particular without indicating the respect
in which it is false or misleading and, if
practicable, providing correct
information.
Penalty: 60 penalty units.
30 36Q. Offence to hinder or obstruct inspector
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A person must not, without reasonable
excuse, hinder or obstruct an inspector who
is exercising a power under this Part.
Penalty: 60 penalty units.
5 36R. Offence to impersonate inspector
A person who is not an inspector must not, in
any way, hold himself or herself out to be an
inspector.
Penalty: 60 penalty units.
10 36S. Service of documents
(1) A written requirement by an inspector under
this Part may be given personally or by
registered post to a person--
(a) at the last known place of business,
15 employment or residence of the person;
or
(b) in the case of a body corporate, at the
registered office of the body corporate.
(2) A person who provides a document or
20 information in response to a requirement of
an inspector under this Part may send that
document or information to the inspector by
registered post.
36T. Confidentiality
25 (1) An inspector must not, except to the extent
necessary to carry out the inspector's
functions under this Part, give to any other
person, whether directly or indirectly, any
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information acquired by the inspector in
carrying out those functions.
Penalty: 60 penalty units.
(2) Sub-section (1) does not apply to the giving
5 of information--
(a) to a court or tribunal in the course of
legal proceedings; or
(b) pursuant to an order of a court or
tribunal; or
10 (c) to the extent reasonably required to
enable the investigation or the
enforcement of a law of this State or of
any other State or Territory or of the
Commonwealth; or
15 (d) with the written authority of the
Secretary or, if the inspector is an
environmental health officer of a
council or a person employed by, or
providing services to, a council, with
20 the written authority of the Chief
Executive Officer of the council; or
(e) with the written authority of the person
to whom the information relates.".
16. Amendment of sections 37, 38 and 39
25 (1) In section 37 of the Principal Act--
(a) sub-section (1) is repealed;
(b) in sub-section (2), after "6(2)" insert "or
(2A)";
(c) in sub-section (2)(a) and (b), for "authorised
30 officer" substitute "inspector";
(d) sub-section (4) is repealed.
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(2) In section 38 of the Principal Act--
(a) in sub-sections (1), (2), (4) and (5), for
"authorised officer" substitute "inspector";
(b) in sub-section (1), for "the officer"
5 substitute "the inspector";
(c) sub-section (8) is repealed.
(3) In section 39(1) of the Principal Act, for
"authorised officer within the meaning of
section 37" substitute "inspector".
10 17. Application of penalties
In section 40(2) of the Principal Act, after
"municipality" insert "or in respect of
infringement notices served by an inspector who
is an environmental health officer of a council or
15 who is employed by, or provides services to, a
council".
18. New section 42A inserted
After section 42 of the Principal Act insert--
"42A. Power to require names of persons supplied
20 with tobacco
(1) The Secretary may, in writing addressed to a
person who manufactures tobacco products,
or sells tobacco products by wholesale,
require the person to provide to the Secretary
25 within a reasonable period, being not less
than one month after the requirement is
made, the names and addresses of persons
carrying on a tobacco retailing business in
Victoria to whom the person has supplied
30 tobacco products in Victoria within the
preceding 12 months.
(2) If a person to whom a requirement under
sub-section (1) is addressed refuses or fails
to respond or provides information that the
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person knows to be false or misleading in
any material particular, the person is guilty
of an offence.
Penalty: For a first offence: 10 penalty
5 units.
For a second or subsequent
offence: 100 penalty units.
(3) The Secretary must not give to any other
person, whether directly or indirectly, any
10 information acquired by the Secretary under
this section except to the extent necessary to
enable an inspector to carry out functions
under this Act.
Penalty: 60 penalty units.
15 (4) Sub-section (3) does not apply to the giving
of information--
(a) to a court or tribunal in the course of
legal proceedings; or
(b) pursuant to an order of a court or
20 tribunal; or
(c) with the written authority of the person
to whom the information relates.".
19. New section 42B inserted
Before section 43 of the Principal Act insert--
25 "42B. Supreme Court--limitation of jurisdiction
It is the intention of section 42, as it has
effect on and after the commencement of
section 19 of the Tobacco (Amendment)
Act 2000, to alter or vary section 85 of the
30 Constitution Act 1975.".
20. New Part 5 inserted
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After Part 4 of the Principal Act insert--
"PART 5--TRANSITIONAL
44. Proceedings under section 6(2)
Despite the repeal of sub-section (1) of
5 section 37 by section 16 of the Tobacco
(Amendment) Act 2000, that sub-section, as
in force immediately before the
commencement of that section, continues to
apply in respect of an offence committed
10 before that commencement if a notice under
that sub-section in respect of that offence
was given before that commencement.
45. Section 15D
A reference in section 15D to an offence
15 does not include a reference to an offence
committed before the commencement of
section 14 of the Tobacco (Amendment)
Act 2000.".
21. New Schedule substituted
20 For the Schedule to the Principal Act substitute--
Section 38
"SCHEDULE
INFRINGEMENTS
Infringements Penalty
1. An offence against section 5A(1) 1 penalty unit
2. An offence against section 5B(1) 1 penalty unit
3. An offence against section 5C(1) 1 penalty unit
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3A. An offence against section 5D(1) 1 penalty unit
4. An offence against section 6(2A) 1 penalty unit
5. An offence against section 12(1) 2 penalty units
6. An offence against section 12(2) 1 penalty unit
7. An offence against section 12(3) 2 penalty units
8. An offence against section 13 1 penalty unit
9. An offence against section 15A 1 penalty unit
10. An offence against section 15B 1 penalty unit
11. An offence against section 15C 1 penalty unit
12. An offence against section 36C(3) 1 penalty
unit.".
22. Statute law revision
(1) In the Principal Act--
(a) in section 13(1)(a), for "Liquor Control
Act 1987" substitute "Liquor Control
5 Reform Act 1998";
(b) in section 18(g), for "relevent" substitute
"relevant".
(2) In section 20 of the Principal Act, for sub-sections
(2) and (3) substitute--
10 "(2) Section 15 of the Subordinate Legislation
Act 1994 applies to a guideline of which
notice is published under sub-section (1) as
if the guideline were a statutory rule within
the meaning of that Act notice of which had
15 been published in the Government Gazette
on the day on which the notice under sub-
section (1) was published.
(3) A guideline notice of which is published
under sub-section (1) is subject to
20 disallowance by a House of the Parliament
and sections 23, 24 and 25 of the
Subordinate Legislation Act 1994 apply as
if the guideline were a statutory rule notice
of which had been published in the
41
541078B.A1-26/5/2000 BILL LA AS SENT 26/5/2000
Tobacco (Amendment) Act 2000
s. 22
Act No.
Government Gazette on the day on which the
notice under sub-section (1) was published.".
(3) In section 27 of the Principal Act, omit "(1)".
(4) In section 43 of the Principal Act, for sub-section
5 (3) substitute--
"(3) The regulations are subject to disallowance
by a House of the Parliament.".
42
541078B.A1-26/5/2000 BILL LA AS SENT 26/5/2000
Tobacco (Amendment) Act 2000
Notes
Act No.
NOTES
1
S. 4 def. of "retail shopping centre": The definition of "retail shopping
centre" in the Retail Tenancies Reform Act 1998 (as at 1 May 2000)
was--
' "retail shopping centre" means a cluster of premises--
(a) 5 or more of which are retail premises; and
(b) all of which have, or if leased would have, a common head
landlord--
but does not include a building with more than one storey except
in relation to each storey of the building on which is situated a
cluster of premises in respect of which paragraphs (a) and (b)
apply;'.
By Authority. Government Printer for the State of Victoria.
43
541078B.A1-26/5/2000 BILL LA AS SENT 26/5/2000
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