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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Butane Products Control Bill 2009
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Interpretation 2
4. Application to Crown 4
Part 2 -- Sale and supply
5. Supply etc. to people under 18 prohibited 5
6. Purchase on behalf of people under 18 prohibited 5
7. Indirect sales: proof of age required 5
8. Refusal of supply etc. if no proof of age 5
9. Defence: age of receiver 5
10. Proof of age 6
Part 3 -- Investigations
Division 1 -- Investigators and investigation
purposes
11. Appointment of investigators and restricted
investigators 7
12. Powers of restricted investigators 7
13. Police to have power of investigators 7
14. CEO to have power of investigator 8
15. Identity cards 8
16. Identity card to be shown 8
17. Investigation purposes 8
Division 2 -- Powers of investigators
18. Application of Tobacco Products Control Act 2006 9
19. Offences 9
041--1 page i
Butane Products Control Bill 2009
Contents
Division 3 -- Compliance surveys and
controlled purchase operations
20. Application of Tobacco Products Control Act 2006 10
Part 4 -- Enforcement
Division 1 -- Young persons
21. Terms used 11
22. Seizing butane products from young persons 11
23. Young person to provide information 12
24. Parent may be informed 12
25. Limitation of powers of investigator 12
Division 2 -- Offences
26. Providing false or misleading information 13
27. Obstruction 13
28. Corporations or employers, conduct on behalf of 13
29. Liability of officers of bodies corporate 14
30. Liability of employers 15
Division 3 -- Prosecutions
31. When a prosecution can be commenced 16
32. Consent to be given for certain prosecutions 16
33. Evidentiary matters 17
34. Evidentiary status of copies and reproductions of
documents 18
Division 4 -- Penalties
35. General penalties 18
36. Continuing penalties 19
Division 5 -- Seized things and forfeiture
37. Storage of seized things 19
38. Expenses of storage payable by convicted person 19
39. Forfeiture on conviction 20
40. Dealing with unclaimed seized things 20
Part 5 -- Miscellaneous
41. Protection from liability for wrongdoing 21
42. Confidentiality 21
43. Regulations 22
44. Review of Act 22
page ii
Western Australia
LEGISLATIVE ASSEMBLY
(Introduced by Mr Cook, MLA)
Butane Products Control Bill 2009
A Bill for
An Act to reduce the incidence of illness and death related to the use
of butane products by prohibiting the supply of butane products to
young persons, and for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Butane Products Control Bill 2009
Part 1 Preliminary
s. 1
1 Part 1 -- Preliminary
2 1. Short title
3 This is the Butane Products Control Act 2009.
4 2. Commencement
5 (1) This Act comes into operation as follows on the day fixed by
6 proclamation.
7 (2) Different days may be fixed under subsection (1) for different
8 purposes.
9 3. Interpretation
10 In this Act --
11 approved means approved by the CEO;
12 butane product means any of the following --
13 (a) a butane cigarette lighter;
14 (b) a canister of butane cigarette lighter refill material;
15 (c) such other products or classes of products as may be
16 prescribed by regulations;
17 CEO means the chief executive officer of the Department as
18 defined in the Health Legislation Administration Act 1984
19 section 3;
20 corresponding law means a law of another State or Territory or
21 of the Commonwealth that corresponds, or has similar purposes,
22 to this Act;
23 environmental health officer has the meaning given to that
24 term in the Health Act 1911 section 3;
25 identity card means an identity card issued to an investigator
26 under section 15;
27 indirect sale means a sale by retail where the seller (or the
28 seller's employee or agent) and the purchaser are not in the
29 same place at the time of the sale and includes a sale made by
page 2
Butane Products Control Bill 2009
Preliminary Part 1
s. 3
1 way of internet, electronic mail, telephone, facsimile or mail
2 order;
3 investigation purposes means any or all of the purposes for
4 which an investigation may be carried out under section 17;
5 investigator means a person appointed under section 11;
6 officer, in relation to a body corporate, has the same meaning as
7 in the Corporations Act 2001 of the Commonwealth, but does
8 not include an employee of the body unless the employee is
9 concerned in the management of the body;
10 record means any thing or process --
11 (a) upon or by which information is recorded or stored; or
12 (b) by means of which a meaning can be conveyed in a
13 visible or recoverable form,
14 whether or not the use or assistance of some electronic,
15 electrical, mechanical, chemical or other device or process is
16 required to recover or convey the information or meaning;
17 seized thing means a thing possession of which is taken under
18 section 18(2) or under a warrant issued under section 87 of the
19 Tobacco Products Control Act 2006;
20 sell includes any of the following --
21 (a) barter or exchange;
22 (b) offer or expose for sale, barter or exchange;
23 (c) supply, or offer to supply, in circumstances in which the
24 supplier derives, or would derive, a direct or indirect
25 pecuniary benefit;
26 (d) supply, or offer to supply, gratuitously but with a view
27 to gaining or maintaining custom or otherwise with a
28 view to commercial gain;
29 (e) keep or have possession for sale;
30 (f) agree to sell;
31 (g) send or deliver for sale;
page 3
Butane Products Control Bill 2009
Part 1 Preliminary
s. 4
1 supply includes to provide, or offer to provide, whether or not
2 gratuitously or with a view to commercial gain or maintaining
3 custom.
4 4. Application to Crown
5 This Act binds the Crown.
page 4
Butane Products Control Bill 2009
Sale and supply Part 2
s. 5
1 Part 2 -- Sale and supply
2 5. Supply etc. to people under 18 prohibited
3 A person must not sell, supply or deliver a butane product to a
4 person who has not reached 18 years of age.
5 Penalty: See section 35.
6 6. Purchase on behalf of people under 18 prohibited
7 A person must not purchase a butane product on behalf of a
8 person who has not reached 18 years of age.
9 Penalty: See section 35.
10 7. Indirect sales: proof of age required
11 A person who is requested to sell a butane product by way of an
12 indirect sale must not authorise or allow the butane product to
13 be delivered unless the person who is to take possession of the
14 butane product produces evidence that he or she has reached
15 18 years of age.
16 Penalty: See section 35.
17 8. Refusal of supply etc. if no proof of age
18 A person who is requested to sell a butane product may refuse
19 to do so unless the person who is to take possession of the
20 butane product produces evidence that he or she has reached
21 18 years of age.
22 9. Defence: age of receiver
23 (1) In this section --
24 receiver means --
25 (a) a person to whom a butane product was sold, supplied or
26 delivered; or
27 (b) a person on whose behalf a butane product was
28 purchased,
page 5
Butane Products Control Bill 2009
Part 2 Sale and supply
s. 10
1 as is relevant to the case;
2 relevant time means the time at which an offence under
3 section 5, 6 or 7 is alleged to have been committed.
4 (2) If a person is charged with an offence under section 5, 6 or 7 it
5 is a defence to prove --
6 (a) that at the relevant time the person charged had no
7 reason to believe that the receiver had not reached
8 18 years of age;
9 (b) that at the relevant time the receiver had reached
10 14 years of age; and
11 (c) that at or before the relevant time the receiver had
12 produced evidence that the receiver had reached
13 18 years of age.
14 10. Proof of age
15 (1) For the purposes of sections 7, 8 and 9 the following documents
16 can be used as evidence that a person has reached 18 years of
17 age --
18 (a) a current passport;
19 (b) a current Australian driver's licence;
20 (c) a prescribed document,
21 that bears a photograph of the person and indicates by reference
22 to the person's date of birth or otherwise that the person has
23 reached 18 years of age.
24 (2) A person must not, for the purpose of obtaining a
25 butane product, use --
26 (a) another person's document of identification; or
27 (b) a document of identification that has been forged or
28 tampered with.
29 Penalty: A fine of $100.
page 6
Butane Products Control Bill 2009
Investigations Part 3
Investigators and investigation purposes Division 1
s. 11
1 Part 3 -- Investigations
2 Division 1 -- Investigators and investigation purposes
3 11. Appointment of investigators and restricted investigators
4 (1) A person appointed as an investigator under section 76 of the
5 Tobacco Products Control Act 2006 is deemed to be an
6 investigator for the purposes of this Act
7 (2) A person appointed as a restricted investigator under section 77
8 of the Tobacco Products Control Act 2006 is deemed to be a
9 restricted investigator for the purposes of this Act.
10 12. Powers of restricted investigators
11 (1) A restricted investigator has the functions of an investigator that
12 are specified in the restricted investigator's instrument of
13 appointment in respect of --
14 (a) the State; or
15 (b) the area of the State for which the restricted investigator
16 is appointed.
17 (2) The performance of a function by a restricted investigator may
18 be made subject to any condition or limitation.
19 13. Police to have power of investigators
20 (1) For the purposes of this Act a police officer --
21 (a) may exercise the powers, and perform the functions, of
22 an investigator; and
23 (b) has the authorities of, and protections that apply under
24 this Act to, an investigator.
25 (2) The powers that a police officer may exercise under this section
26 are in addition to, and do not derogate from, the powers that the
27 police officer has under any other law.
28 (3) Sections 15 and 16 do not apply to a police officer.
page 7
Butane Products Control Bill 2009
Part 3 Investigations
Division 1 Investigators and investigation purposes
s. 14
1 14. CEO to have power of investigator
2 In addition to performing the functions conferred on the CEO
3 under this Act, the CEO may exercise the powers, and perform
4 the functions, of an investigator.
5 15. Identity cards
6 An identity card issued under section 81 of the Tobacco
7 Products Control Act 2006 is an identity card for the purposes
8 of this Act.
9 16. Identity card to be shown
10 (1) An investigator must show the investigator's identity card to a
11 person if --
12 (a) the investigator has performed, or is about to perform, a
13 function under this Act in relation to a person; and
14 (b) the person requests that the identity card be shown.
15 (2) A restricted investigator or an environmental health officer must
16 show the form of identification (if any) that is issued to that
17 person as evidence of the person's appointment as an
18 environmental health officer if --
19 (a) the restricted investigator or environmental health
20 officer has performed, or is about to perform, a function
21 under this Act in relation to a person; and
22 (b) the person requests that the identification be shown.
23 17. Investigation purposes
24 An investigation may be carried out under this Part for one of
25 more of the following purposes --
26 (a) to seek evidence of a suspected offence under this Act;
27 (b) to assess whether or not the provisions of this Act are
28 being complied with;
29 (c) any other purpose relevant to the administration of this
30 Act.
page 8
Butane Products Control Bill 2009
Investigations Part 3
Powers of investigators Division 2
s. 18
1 Division 2 -- Powers of investigators
2 18. Application of Tobacco Products Control Act 2006
3 (1) Subject to subsection (2), sections 84, 85, 86, 87, 88, 89, 91, 92
4 and 93 of the Tobacco Products Control Act 2006 are taken to
5 apply to an investigator for the purposes of this Act with such
6 amendments as are required by the context of this Act.
7 (2) Section 89(1)(b) of the Tobacco Products Control Act 2006
8 applies only to documents, butane products or samples of such
9 products, advertisements or anything else relevant to the
10 investigation.
11 19. Offences
12 (1) A person must not remove, tamper or otherwise interfere with a
13 thing secured against interference under section 89(1)(g) of the
14 Tobacco Products Control Act 2006.
15 (2) A person must comply with a requirement made under
16 section 89(1)(h) of the Tobacco Products Control Act 2006.
17 Penalty in respect of subsections (1) and (2): A fine of $20,000.
18 (3) If a person is charged with an offence under subsection (2), it is
19 a defence to prove that the accused could not, by the exercise of
20 reasonable diligence, have complied with the requirement to
21 which the charge relates.
page 9
Butane Products Control Bill 2009
Part 3 Investigations
Division 3 Compliance surveys and controlled purchase operations
s. 20
1 Division 3 -- Compliance surveys and controlled purchase
2 operations
3 20. Application of Tobacco Products Control Act 2006
4 (1) Subject to subsection (2), sections 94, 95, 96 and 97 of the
5 Tobacco Products Control Act 2006 are taken to apply for the
6 purposes of this Act with such amendments as are required by
7 the context of this Act.
8 (2) For the purposes of this Division --
9 young person offence means an offence under section 5, 6 or 7
10 of this Act.
page 10
Butane Products Control Bill 2009
Enforcement Part 4
s. 21
1 Part 4 -- Enforcement
2 Division 1 -- Young persons
3 21. Terms used
4 In this Division --
5 parent, in relation to a young person, means a person who at
6 law has responsibility for --
7 (a) the long-term care, welfare and development of the
8 young person; or
9 (b) the day to day care, welfare and development of the
10 young person;
11 young person means a person who an investigator suspects on
12 reasonable grounds has not reached 18 years of age.
13 22. Seizing butane products from young persons
14 (1) An investigator may seize any butane product from a young
15 person.
16 (2) A police officer may seize any butane product from a young
17 person and use reasonable force in doing so.
18 (3) The power under subsection (1) or (2) to seize a butane product
19 is not to be exercised in respect of a person unless --
20 (a) the person has been requested to produce a document
21 mentioned in section 10(1) showing that the person has
22 reached 18 years of age; and
23 (b) the document was not produced at the time of the
24 request.
25 (4) A butane product that is seized under subsection (1) or (2) --
26 (a) is to be returned to the person from whom it was seized
27 if, within 7 days of the seizure, the person produces to
28 the investigator a document mentioned in section 10(1)
page 11
Butane Products Control Bill 2009
Part 4 Enforcement
Division 1 Young persons
s. 23
1 showing that the person had reached 18 years of age at
2 the time of the seizure; or
3 (b) if not returned under paragraph (a), is to be destroyed in
4 an approved manner.
5 23. Young person to provide information
6 (1) If an investigator finds a young person in possession of a butane
7 product the investigator may do any of the following --
8 (a) require the young person to give his or her name and
9 address;
10 (b) require the young person to give the name and address
11 of a parent of the young person;
12 (c) require the young person to give information relating to
13 the identity of any person who supplied the butane
14 product;
15 (2) A person who has reached 14 years of age --
16 (a) must comply with a requirement made under
17 subsection (1);
18 (b) must not provide false or misleading information in
19 response to a requirement.
20 Penalty: A fine of $100.
21 24. Parent may be informed
22 If an investigator finds a young person in possession of a butane
23 product, or obtaining or attempting to obtain any butane
24 product, the investigator may notify a parent of the young
25 person of the finding.
26 25. Limitation of powers of investigator
27 An investigator is not to exercise the powers mentioned in
28 section 84 of the Tobacco Products Control Act 2006 for the
29 purposes of performing a function under this Division.
page 12
Butane Products Control Bill 2009
Enforcement Part 4
Offences Division 2
s. 26
1 Division 2 -- Offences
2 26. Providing false or misleading information
3 A person must not provide information under this Act to the
4 CEO, an investigator or a police officer, knowing it to be false
5 or misleading in material particular.
6 27. Obstruction
7 (1) A person must not, when the CEO, an investigator or police
8 officer is performing a function under this Act, hinder or
9 obstruct the CEO, investigator or police officer.
10 (2) If under this section a person is charged with an offence in
11 relation to an investigator, it is a defence to prove --
12 (a) that the investigator did not show the investigator's
13 identity card to the person or did not otherwise identify
14 himself or herself to the person as an investigator; and
15 (b) that the person did not otherwise know that the
16 investigator was an investigator.
17 28. Corporations or employers, conduct on behalf of
18 (1) In this section --
19 director of a body corporate includes a constituent member of a
20 body corporate incorporated for a public purpose by a written
21 law or a law of the Commonwealth, another State or a Territory;
22 engaging in conduct includes failing or refusing to engage in
23 conduct;
24 state of mind of a person includes --
25 (a) the knowledge, intention, opinion, belief or purpose of
26 the person; and
27 (b) the person's reasons for the intention, opinion, belief or
28 purpose.
29 (2) This section applies to and in relation to proceedings for an
30 offence under this Act.
page 13
Butane Products Control Bill 2009
Part 4 Enforcement
Division 2 Offences
s. 29
1 (3) If it is necessary to establish the state of mind of a body
2 corporate in relation to particular conduct, it is sufficient to
3 show:
4 (a) that the conduct was engaged in by a director, employee
5 or agent of the body corporate within the scope of his or
6 her actual or apparent authority; and
7 (b) that the director, employee or agent had the relevant
8 state of mind.
9 (4) Conduct engaged in on behalf of a body corporate by a director,
10 employee or agent of the body corporate within the scope of his
11 or her actual or apparent authority is taken to have been engaged
12 in also by the body corporate, unless the body corporate
13 establishes that it took reasonable precautions and exercised due
14 diligence to avoid the conduct.
15 (5) If it is necessary to establish the state of mind of a person other
16 than a body corporate in relation to particular conduct, it is
17 sufficient to show --
18 (a) that the conduct was engaged in by an employee or
19 agent of the person within the scope of his or her actual
20 or apparent authority; and
21 (b) that the employee or agent had the relevant state of
22 mind.
23 (6) Conduct engaged in on behalf of an employer other than a body
24 corporate by an employee or agent of the employer within the
25 scope of his or her actual or apparent authority is taken to have
26 been engaged in also by the employer unless the employer
27 establishes that the employer took reasonable precautions and
28 exercised due diligence to avoid the conduct.
29 29. Liability of officers of bodies corporate
30 (1) If a body corporate is charged with an offence under this Act,
31 every person who was an officer of the body at the time the
32 offence is alleged to have been committed may also be charged
33 with the offence.
page 14
Butane Products Control Bill 2009
Enforcement Part 4
Offences Division 2
s. 30
1 (2) If a body corporate and an officer are charged as permitted by
2 subsection (1) and the body corporate is convicted of the
3 offence, the officer is to be taken to have also committed the
4 offence, subject to subsection (5).
5 (3) If a body corporate commits an offence under this Act then,
6 although the body corporate is not charged with the offence,
7 every person who was an officer of the body corporate at the
8 time the offence is alleged to have been committed may be
9 charged with the offence.
10 (4) If an officer is charged as permitted by subsection (3) and it is
11 proved that the body corporate committed the offence, the
12 officer is to be taken to have also committed the offence, subject
13 to subsection (5).
14 (5) If under this section an officer is charged with an offence it is a
15 defence to prove --
16 (a) that the offence was committed without the officer's
17 consent or connivance; and
18 (b) that the officer took all the measures to precent the
19 commission of the offence that he or she could
20 reasonably be expected to have taken having regard to
21 the officer's functions and to all the circumstances.
22 30. Liability of employers
23 (1) If a person is charged with an offence under this Act, the
24 person's employer at the time the offence is alleged to have
25 been committed may also be charged with the offence.
26 (2) If a person and the person's employer are charged as permitted
27 by subsection (1) and the employee is convicted of the offence,
28 the employer is to be taken to have also committed the offence,
29 subject to subsection (5).
30 (3) If a person commits an offence under this Act then, although the
31 person is not charged with the offence, the person's employer at
page 15
Butane Products Control Bill 2009
Part 4 Enforcement
Division 3 Prosecutions
s. 31
1 the time the offence is alleged to have been committed may be
2 charged with the offence.
3 (4) If an employer is charged as permitted by subsection (3) and it
4 is proved that the person's employee committed the offence, the
5 employer is to be taken to have also committed the offence,
6 subject to subsection (5).
7 (5) If under this section an employer is charged with an offence it is
8 a defence to prove --
9 (a) that the offence was committed without the employer's
10 consent or connivance; and
11 (b) that the employer took all the measures to prevent the
12 commission of the offence that the employer could
13 reasonably be expected to have taken having regard to
14 all the circumstances.
15 Division 3 -- Prosecutions
16 31. When a prosecution can be commenced
17 A prosecution of a person for an offence under this Act must be
18 commenced within 2 years after the date on which the offence
19 was allegedly committed.
20 32. Consent to be given for certain prosecutions
21 (1) A person who is not a police officer cannot commence a
22 prosecution for an offence under this Act without the written
23 consent of the CEO or a person authorised by the CEO for the
24 purposes of this section.
25 (2) A police officer who commences a prosecution for an offence
26 under this Act is to inform the CEO in writing of that fact and of
27 the outcome of the prosecution.
page 16
Butane Products Control Bill 2009
Enforcement Part 4
Prosecutions Division 3
s. 33
1 33. Evidentiary matters
2 (1) In proceedings for an offence under this Act, an allegation in the
3 prosecution notice of any of the following matters is, in the
4 absence of evidence to the contrary, to be taken to be proved --
5 (a) that at a specified time a person held a specified office;
6 (b) that the prosecutor is authorised, and has the CEO's
7 consent, to commence the prosecution;
8 (c) that a specified substance or article is, or was at a
9 specified time, a butane product;
10 (d) that at a specified time a person had not reached
11 18 years of age;
12 (e) that at a specified time a person had reached 14 years of
13 age.
14 (2) A certificate purporting to be signed by the CEO or the CEO's
15 delegate and stating that the person named in the certificate was,
16 at the time or during the period specified in the certificate --
17 (a) an investigator, restricted investigator or environmental
18 health officer; or
19 (b) a person authorised under section 95 of the Tobacco
20 Products Control Act 2006 to act as a controlled
21 purchase officer,
22 and authorised to do anything stated in the certificate is, without
23 proof of any appointment, delegation, or signature, evidence of
24 the facts stated in the certificate.
25 (3) In proceedings for an offence under this Act it is to be
26 presumed, unless the contrary is proved, that a document
27 purporting to have been signed or certified by the CEO, an
28 investigator or a police officer was signed or certified by a
29 person who was at the time the CEO, an investigator or a police
30 officer, as the case may be.
31 (4) In proceedings for an offence under this Act it is to be
32 presumed, unless the contrary is proved, that a document
page 17
Butane Products Control Bill 2009
Part 4 Enforcement
Division 4 Penalties
s. 34
1 purporting to have been signed by a delegate of the CEO was
2 signed by a person who at the time was such a delegate and was
3 authorised to sign it.
4 (5) This section is in addition to and does not affect the operation of
5 the Evidence Act 1906.
6 34. Evidentiary status of copies and reproductions of documents
7 (1) In proceedings under this Act, a copy of a notice or other
8 document issued by the CEO --
9 (a) is, if produced by or on behalf of the CEO, admissible in
10 the same way as the original; and
11 (b) has the same evidentiary value as the original.
12 (2) For the purposes of the law of evidence, if 2 or more documents
13 are produced from the same computer data (or from computer
14 date recording the same information), they are both or all to be
15 regarded as originals.
16 (3) A copy of a document, possession of which is taken by an
17 investigator under section 21(2) or under a warrant issued under
18 section 87 of the Tobacco Products Control Act 2006, is
19 admissible in evidence if it is certified by the investigator as
20 having been obtained under the relevant provision.
21 Division 4 -- Penalties
22 35. General penalties
23 (1) For an offence under sections 5, 6, or 7 of this Act the penalty
24 is --
25 (a) for an individual --
26 (i) for a first offence, a fine of $10,000;
27 (ii) for a second or subsequent offence, a fine of
28 $20,000;
29 (b) for a body corporate --
30 (i) for a first offence, a fine of $40,000;
page 18
Butane Products Control Bill 2009
Enforcement Part 4
Seized things and forfeiture Division 5
s. 36
1 (ii) for a second or subsequent offence, a fine of
2 $80,000;
3 (2) The provision in subsection (1) of a penalty for a body corporate
4 does not affect the operation of section 40(5) of the Sentencing
5 Act 1995 in relation to an offence under a provision of this Act
6 that is not specified in that subsection.
7 36. Continuing penalties
8 For each separate and further offence committed by a person
9 under section 71 of the Interpretation Act 1984 the penalty is --
10 (a) for an individual, a fine of $10,000;
11 (b) for a body corporate, a fine of $40,000.
12 Division 5 -- Seized things and forfeiture
13 37. Storage of seized things
14 (1) The CEO may arrange the location of, and manner in which,
15 seized things are to be stored before they are returned under
16 section 92 of the Tobacco Products Control Act 2006 or
17 forfeited to the Crown under section 39.
18 (2) The CEO may, on behalf of the State, enter into a written
19 contract under which the contractor provides services in respect
20 of the storage of seized things.
21 38. Expenses of storage payable by convicted person
22 (1) A person who is convicted of an offence under this Act is liable
23 to pay to the CEO all expenses reasonably incurred by the CEO
24 in relation to the storage of a seized thing that was used in, the
25 subject of, or otherwise involved in, the commission of the
26 offence.
27 (2) The CEO may recover expenses for which a person is liable
28 under subsection (1) from that person in a court of competent
29 jurisdiction as a debt due to the CEO.
page 19
Butane Products Control Bill 2009
Part 4 Enforcement
Division 5 Seized things and forfeiture
s. 39
1 (3) This section applies whether or not a seized thing is forfeited to
2 the Crown under section 39 but a person is not liable to pay
3 storage expenses incurred on and from the day on which the
4 thing is forfeited.
5 39. Forfeiture on conviction
6 (1) On the conviction of a person for an offence under this Act, the
7 court may order the forfeiture to the Crown of anything that was
8 used in, the subject of, or otherwise involved in, the commission
9 of the offence.
10 (2) The court may make the order --
11 (a) whether or not the thing is a seized thing; and
12 (b) in the case of a seized thing, whether or not the thing has
13 been returned to its owner.
14 (3) The court may make any order it considers appropriate to
15 enforce the forfeiture.
16 40. Dealing with unclaimed seized things
17 (1) A seized thing is unclaimed if --
18 (a) the thing is not forfeited to the Crown under section 39;
19 and
20 (b) the CEO cannot return the thing in accordance with
21 section 92(2) of the Tobacco Products Control Act 2006
22 despite making reasonable efforts to do so.
23 (2) After the expiry of the time for any relevant appeal an
24 unclaimed seized thing --
25 (a) that is a butane product is to be destroyed in such
26 manner as the CEO directs; or
27 (b) that is not a butane product may be destroyed, sold or
28 otherwise disposed of in such manner as the court
29 directs, or in the absence of a court direction, as the
30 CEO directs.
page 20
Butane Products Control Bill 2009
Miscellaneous Part 5
s. 41
1 Part 5 -- Miscellaneous
2 41. Protection from liability for wrongdoing
3 (1) An action in tort does not lie against a person for anything that
4 the person has done, in good faith, in the performance or
5 purported performance of a function under this Act.
6 (2) The CEO and the Crown are also relieved of any liability that
7 either of them might otherwise have had for another person
8 having done anything as described in subsection (1).
9 (3) Subsection (1) does not relieve a contractor of any liability that
10 the contractor might have for anything done, as described in that
11 subsection, by the contractor or any other person.
12 (4) The protection given by this section applies even though the
13 thing done as described in subsection (1) may have been
14 capable of being done whether or not this Act had been enacted.
15 (5) In this section, a reference to the doing of anything includes a
16 reference to an omission to do anything.
17 (6) In subsection (3) --
18 contractor means a person who has entered into a contract with
19 the CEO under section 39(2).
20 42. Confidentiality
21 (1) A person must not record, disclose or make use of any
22 information obtained by reason of a function that the person has,
23 or at any time had, in the administration of this Act except --
24 (a) for the purposes of performing a function under this Act;
25 (b) as required or allowed by this Act or under another
26 written law;
27 (c) for the purposes of any legal proceedings arising out of
28 the administration of this Act;
29 (d) for the purpose of assisting a person who is performing a
30 function under a corresponding law;
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Butane Products Control Bill 2009
Part 5 Miscellaneous
s. 43
1 (e) with the written consent of the person to whom the
2 information relates;
3 (f) in prescribed circumstances.
4 Penalty: a fine of $10,000 and imprisonment for 12 months.
5 (2) Subsection (1) does not apply to the recording, disclosure or use
6 of statistical or other information that could not reasonably be
7 expected to lead to the identification of any person to whom it
8 relates.
9 43. Regulations
10 The Governor may make regulations prescribing all matters that
11 are required or permitted by this Act to be prescribed, or are
12 necessary or convenient to be prescribed for giving effect to the
13 purposes of this Act.
14 44. Review of Act
15 (1) The Minister is to carry out a review of the operation and
16 effectiveness of this Act as soon as is practicable after 4 years
17 have elapsed since the Act comes into operation.
18 (2) The Minister is to prepare a report based on the review carried
19 out under subsection (1) and is to cause the report to be laid
20 before each House of Parliament as soon as is practicable after
21 the report is prepared, and in any event in relation to a review
22 under subsection (1), not later than 12 months after the
23 requirement for the review arose.
24
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