Tobacco Act 1987 - Victorian Legislation and Parliamentary ... · PDF fileTobacco Act 1987 No. 81 of 1987 ... 5T Power to require driver to stop 31 5U Evidential burden regarding age

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Version No. 071

Tobacco Act 1987

No. 81 of 1987

Version incorporating amendments as at 1 July 2010

TABLE OF PROVISIONS

Section Page

PART 1—PRELIMINARY 2

1 Purpose 22 Commencement 23 Definitions 23A Vending machines 163B Tobacco advertisements 163C Bingo area 193D Repealed 193E Declared smoking areas in casinos 194 Application of Act 205 Objects of Act 20

PART 2—CONTROLS RELATING TO TOBACCO PRODUCTS 22

Division 1—No smoking areas 22

5A Enclosed workplaces: offence by smoker 225B Enclosed workplaces: offence by occupier 235BA Repealed 245C Outdoor dining or drinking areas: offence by smoker 245D Outdoor dining or drinking areas: offence by occupier 255E Outdoor dining or drinking areas: no smoking signs 265F Enclosed restaurants and cafes: no smoking signs 265G Retail shopping centres: no smoking signs 275H Bingo areas and centres: no smoking signs 275I, 5J Repealed 285K Casinos: no smoking signs 285L, 5M Repealed 295N Approved venues: no smoking signs 295O–5Q Repealed 305R Licensed premises: no smoking signs 30

Section Page

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Division 1A—Smoking in motor vehicles 31

5S Offence to smoke in motor vehicle if person under 18is present 31

5T Power to require driver to stop 315U Evidential burden regarding age 32

Division 2—Advertising and other controls 32

6 Certain advertising prohibited 326A Point of sale advertisements 357 Competitions 398 Free samples 419 Prohibition of certain sponsorships 4210 Exemptions 4411 Packing of tobacco 4511A Offence to possess certain tobacco products 4512 Supplying tobacco to person under 18 years 4613 Vending machines 4913A Mobile selling of tobacco products 5114 Packages of cigarettes 5215 Smokeless tobacco 5215A, 15B Repealed 5315C Retail outlets: signage 5315D Prohibition of retailing at premises where offences have

been committed 54

Division 3—Underage music/dance events 58

15E What is an underage music/dance event? 5815F No smoking at underage music/dance events 5815G Offence by occupier 5915H No smoking signs 6015I Covering vending machines, tobacco advertisements etc. 6015J Prohibition on supplying tobacco at underage

music/dance events 6115K No offence by minors 61

Division 4—Sales of tobacco products from temporary outlets 62

15L Offence to sell tobacco products from temporary outlet 6215M Offence for tobacco company to sell tobacco products

from temporary outlet 62

Division 5—Prohibited products 63

15N Ban orders 6315O Secretary may recommend ban order 6415P Operation of ban order 64

Section Page

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15Q Amendment or revocation of ban order 6515R Notice of order 6515S Offence to breach a ban order 65

PART 2A—SPECIALIST TOBACCONISTS 67

15T Application for certification as specialist tobacconist 6715U Determination of application 6715V Certification holder to notify Secretary of commencement

of tobacco retailing business 6915W Duration of certification 6915X Cancellation of certification 7015Y Notice of determination or cancellation 7115Z Replacement certificates 7115ZA Offence to provide false or misleading information to

Secretary 7115ZB Specialist tobacconist must display certificate 72

PART 3—VICTORIAN HEALTH PROMOTION FOUNDATION 73

16 Victorian Health Promotion Foundation 7317 Objectives of Foundation 7418 Functions of Foundation 7419 Powers of Foundation 7520 Foundation to be responsible to Minister 7521 Membership of Foundation 7622 Term of appointment 7723 Remuneration and allowances 7824 Removal from office 7825 Resignation 7826 Disclosure of interests etc. 7827 Validity of acts and decisions 8028 Meetings of Foundation 8129 Patrons 8130 Advisory committees 8131 Chief executive officer and staff 8232 Victorian Health Promotion Fund 8333 Budget 8534, 35 Repealed 85

PART 3A—INSPECTORS AND POWERS OF INSPECTORS 86

36 Appointment of persons as inspectors 8636A Inspector's identity card 8636B Production of identity card 8636C Power to require names and addresses 8736D Entry or search with consent 88

Section Page

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36E Entry of premises open to the public 9036F Search warrants 9036G Announcement before entry 9236H Details of warrant to be given to occupier 9236I Seizure of things not mentioned in the warrant 9336J Copies of seized documents 9336K Retention and return of seized documents or things 9336L Magistrates' Court may extend 3 month period 9436M Requirement to assist inspector during entry 9536N Refusal or failure to comply with requirement 9536O Protection against self-incrimination 9536P Offence to give false or misleading information 9636Q Offence to hinder or obstruct inspector 9636R Offence to impersonate inspector 9636S Service of documents 9736T Confidentiality 97

PART 4—MISCELLANEOUS 99

37 Removal of advertisements 9938 Infringement notices 9939 Proceedings 10140 Application of penalties 10241 Offences by a body corporate 10241AA Conduct by officers, employees or agents 10341A No double jeopardy 10442 Civil proceedings 10442AA Repealed 10442A Power to require names of persons supplied with tobacco 10442B Supreme Court—limitation of jurisdiction 10643 Regulations 106

PART 5—TRANSITIONAL 108

44 Proceedings under section 6(2) 10845 Section 15D 10846 Section 3: definition of occupier 108

__________________

SCHEDULE—Infringement Offences 110

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Section Page

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ENDNOTES 113

1. General Information 113

2. Table of Amendments 114

3. Explanatory Details 118

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Version No. 071

Tobacco Act 1987

No. 81 of 1987

Version incorporating amendments as at 1 July 2010

The Parliament of Victoria enacts as follows:

Preamble

Whereas—

(a) the following guiding principles arerecognised in relation to the use, supply andpromotion of tobacco—

(i) tobacco use is so injurious to the healthof both smokers and non-smokers as towarrant restrictive legislation;

(ii) tobacco use has adverse health effectseven with infrequent use and there is nocompletely safe form of tobacco use;

(iii) tobacco use is a widely acceptedpractice amongst adults which it isinappropriate to ban completely;

(iv) the extent of the health effects ofsmoking requires strong action to deterpeople from taking up smoking and toencourage existing smokers to give upsmoking;

(v) the association of smoking with socialsuccess, business advancement andsporting prowess through use ofadvertising and promotion has aparticularly harmful effect byencouraging children and young peopleto take up smoking; and

Part 1—Preliminary

Tobacco Act 1987No. 81 of 1987

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(b) it has been resolved to discourage the use oftobacco in all its forms and to prohibitvarious types of promotion and advertising oftobacco products in order to reduce theincidence of tobacco-related illness anddeath.

The Parliament of Victoria therefore enacts as follows:

PART 1—PRELIMINARY

1 Purpose

The purpose of this Act is to prohibit certain salesor promotion of tobacco products and certain non-tobacco products, to create offences in relation tosmoking and the possession of tobacco productsand to establish the Victorian Health PromotionFoundation.

2 Commencement

(1) Except as provided in this section, this Act comesinto operation on the day on which it receives theRoyal Assent.

(2) Sections 6(1) and (3), 13 and 15 come intooperation on 1 April 1988.

(3) Section 14 comes into operation on 1 July 1988.

(4) Section 6(2) comes into operation on 1 January1989.

3 Definitions

In this Act—

acceptable no smoking sign means a sign thatcontains—

(a) a no smoking symbol in the form of acircle and diagonal line printed in redover a depiction of a cigarette andsmoke printed in black, or other symbol

S. 1amendedbyNo. 49/2009s. 7.

s. 1

S. 3 def. ofacceptableno smokingsigninserted byNo. 45/2005s. 3(a).



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that clearly indicates that smoking isnot permitted, with the symbol being atleast 70mm in height; and

(b) the phrase "No Smoking" or "SmokingProhibited", or other wording thatclearly indicates that smoking is notpermitted, in letters that are at least20mm in height;

angled stack means packages stacked behind eachother from the point of view of thecustomer's side of the customer service area;

approved issuer document means a documentissued—

(a) by a person; or

(b) on behalf of a government departmentor an agency—

approved by the Minister;

approved venue has the same meaning as in theGambling Regulation Act 2003;

ban order means an order made by the Ministerunder section 15N(1);

* * * * *

S. 3 def. ofangled stackinserted byNo. 28/2001s. 3(1).

S. 3 def. ofapprovedissuerdocumentinserted byNo. 45/2005s. 3(a).

S. 3 def. ofapprovedvenueinserted byNo. 31/2002s. 4(1),amendedbyNo. 114/2003s. 12.1.3(Sch. 6item 13.1(a)).

s. 3

S. 3 def. ofban orderinserted byNo. 49/2009s. 8(1).

S. 3 def. ofbar areainserted byNo. 31/2002s. 4(1),repealed byNo. 45/2005s. 21(a)(i).



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bingo has the same meaning as in the GamblingRegulation Act 2003;

bingo area has the meaning given by section 3C;

bingo centre has the same meaning as in theGambling Regulation Act 2003;

carton means a package containing packages of atobacco product, or a package designed tocontain packages of a tobacco product, butdoes not include a package containingindividually-wrapped cigars (unless thepackage contains a further package orpackages of the cigars);

casino has the same meaning as in the CasinoControl Act 1991;

Chairperson means Chairperson of theFoundation;

S. 3 def. ofbingoinserted byNo. 31/2002s. 4(1),amendedbyNo. 114/2003s. 12.1.3(Sch. 6item 13.1(b)).

S. 3 def. ofbingo areainserted byNo. 31/2002s. 4(1).

S. 3 def. ofbingo centreinserted byNo. 31/2002s. 4(1),amendedbyNo. 114/2003s. 12.1.3(Sch. 6item 13.1(b)).

S. 3 def. ofcartoninserted byNo. 43/2000s. 4(1).

s. 3

S. 3 def. ofcasinoinserted byNo. 31/2002s. 4(1).



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* * * * *

declared smoking area, in relation to a casino,means an area declared under section 3E;

* * * * *

* * * * *

display, in relation to a tobacco product at a retailoutlet or a wholesale outlet, means display tothe customers of the retail outlet orwholesale outlet;

driver has the same meaning as in the RoadSafety Act 1986;

S. 3 def. ofcontrolledshoppingcentreinserted byNo. 43/2000s. 4(1),repealed byNo. 28/2001s. 3(2)(a).

S. 3 def. ofdeclaredsmoking areainserted byNo. 31/2002s. 4(1),amendedbyNo. 45/2005s. 21(a)(ii).

S. 3 def. ofdesignatednon-smokingroominserted byNo. 31/2002s. 4(1),repealed byNo. 45/2005s. 21(b).

s. 3

S. 3 def. ofdining areainserted byNo. 43/2000s. 4(1),repealed byNo. 45/2005s. 21(b).

S. 3 def. ofdisplayinserted byNo. 43/2000s. 4(1).

S. 3 def. ofdriverinserted byNo. 49/2009s. 8(1).



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* * * * *

enclosed means an area, room or premises that isor are substantially enclosed by a roof andwalls, regardless of whether the roof or wallsor any part of them are—

(a) permanent or temporary;

(b) open or closed;

evidence of age document means a documentthat—

(a) is—

(i) a Victorian proof of age card or aninterstate proof of age card; or

(ii) a Victorian driver licence or aninterstate driver licence; or

(iii) an Australian or foreign passport;or

(iv) an approved issuer document; and

(b) contains a photograph of the bearer;and

(c) indicates, by reference to a date of birthor otherwise, that the bearer is of orover a particular age;

exercise yard means an area in a prison (withinthe meaning of the Corrections Act 1986)that is provided for the purpose of allowingprisoners to have access to the open air;

S. 3 def. ofdriver licenceinserted byNo. 43/2000s. 4(1),repealed byNo. 45/2005s. 3(b).

S. 3 def. ofenclosedinserted byNo. 43/2000s. 4(1),amendedbyNo. 31/2002s. 4(2)(a)(b),substituted byNo. 45/2005s. 3(c).

S. 3 def. ofevidenceof agedocumentinserted byNo. 43/2000s. 4(1),substituted byNo. 45/2005s. 3(d).

s. 3

S. 3 def. ofexercise yardinserted byNo. 45/2005s. 3(a).



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Foundation means the Victorian HealthPromotion Foundation;

gaming machine has the same meaning as in theGambling Regulation Act 2003;

gaming machine area has the same meaning as inthe Gambling Regulation Act 2003;

gaming room means a room in an approved venuein which gaming machines available forgaming are installed;

high roller room means a room in a casino that isused substantially for gaming byinternational visitors to the casino;

highway has the same meaning as in the RoadSafety Act 1986;

immediate package, in relation to a tobaccoproduct, means a package containing theproduct—

(a) in the case of a tobacco product otherthan cigars, not including a packagecontaining a further package orpackages of the product; and

S. 3 def. ofgamingmachineinserted byNo. 31/2002s. 4(1),amendedbyNo. 114/2003s. 12.1.3(Sch. 6item 13.1(a)).

S. 3 def. ofgamingmachine areainserted byNo. 31/2002s. 4(1),amendedbyNo. 114/2003s. 12.1.3(Sch. 6item 13.1(a)).

S. 3 def. ofgaming roominserted byNo. 31/2002s. 4(1).

S. 3 def. ofhigh rollerroominserted byNo. 31/2002s. 4(1).

S. 3 def. ofhighwayinserted byNo. 49/2009s. 8(1).

S. 3 def. ofimmediatepackageinserted byNo. 43/2000s. 4(1).

s. 3



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(b) in the case of cigars—

(i) including a package constituted bythe individual wrapping of a cigar,and a package containingindividually wrapped orunwrapped cigars; but

(ii) not including any other packagecontaining a further package orpackages of cigars (whetherwrapped or unwrapped);

inspector means a person—

(a) who is an environmental health officerappointed under section 29 of thePublic Health and Wellbeing Act2008; or

(b) who is appointed under this Act to bean inspector for the purposes of thisAct;

interstate driver licence means a licence issued inanother State or a Territory that is theequivalent of a Victorian driver licence;

interstate proof of age card means a card issuedin another State or a Territory that is theequivalent of a Victorian proof of age card;

licensed premises means premises in respect ofwhich a general licence, an on-premiseslicence or a club licence within the meaningof the Liquor Control Reform Act 1998 isin force, other than premises that are arestaurant or cafe or a bingo centre;

member means member of the Foundation;

S. 3 def. ofinspectorinserted byNo. 43/2000s. 4(1),amendedbyNo. 46/2008s. 291.

s. 3

S. 3 def. ofinterstatedriver licenceinserted byNo. 45/2005s. 3(a).

S. 3 def. ofinterstateproof of agecardinserted byNo. 45/2005s. 3(a).

S. 3 def. oflicensedpremisesinserted byNo. 31/2002s. 4(1).



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minor gaming permit means a permit issuedunder Division 2 of Part 3 of Chapter 8 ofthe Gambling Regulation Act 2003;

motor vehicle has the same meaning as in theRoad Safety Act 1986;

newspaper means any paper or pamphlet in paperform containing any public news orcomments on public news or any politicalmatter printed for sale or distribution andpublished periodically at intervals notexceeding 26 days but does not include anydocument containing only matter wholly of acommercial nature;

occupier, in relation to an area or premises,means—

(a) a person who appears to be of or overthe age of 16 years and who is orappears to be in control of the area orpremises, whether or not the person ispresent in the area or on the premises;or

(b) a body corporate that is or appears to bein control of the area or premises;

on-airport duty free shop has the same meaningas in regulation 93 of the CustomsRegulations 1926 of the Commonwealth;

S. 3 def. ofminor gamingpermitinserted byNo. 31/2002s. 4(1),amendedbyNo. 114/2003s. 12.1.3(Sch. 6item 13.1(c)).

s. 3

S. 3 def. ofmotor vehicleinserted byNo. 49/2009s. 8(1).

S. 3 def. ofnewspapersubstituted byNo. 56/1998s. 5(2).

S. 3 def. ofoccupierinserted byNo. 43/2000s. 4(1),substituted byNo. 49/2009s. 8(2).

S. 3 def. ofon-airportduty free shopinserted byNo. 28/2001s. 3(1).



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outdoor dining or drinking area means any of thefollowing outdoor areas that ispredominantly used for the consumption offood or drinks or both—

(a) a balcony or verandah;

(b) a courtyard;

(c) a rooftop;

(d) a marquee;

(e) a street or footpath;

(f) any similar outdoor area;

package does not include a transparent wrapping,unless the wrapping has a tobaccoadvertisement printed on it;

point of sale means a place where tobaccoproducts are sold within a retail outlet orwholesale outlet, and includes a vendingmachine from which tobacco products aresold;

police member means a member of the forcewithin the meaning of the Police RegulationAct 1958;

premises includes any part of premises andincludes a vehicle or vessel and a permanentor temporary structure;

product line means a kind of tobacco productdistinguishable from other kinds by one ormore of the following characteristics—

* * * * *

(b) brand name;

S. 3 def. ofoutdoordining ordrinking areainserted byNo. 45/2005s. 3(a).

S. 3 def. ofpackageinserted byNo. 43/2000s. 4(1).

S. 3 def. ofpoint of saleinserted byNo. 43/2000s. 4(1).

S. 3 def. ofpolicememberinserted byNo. 45/2005s. 3(a).

S. 3 def. ofpremisesinserted byNo. 43/2000s. 4(1).

S. 3 def. ofproduct lineinserted byNo. 43/2000s. 4(1),amendedbyNo. 31/2002s. 4(3).

s. 3



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(c) nicotine or tar content;

(d) flavour—

but not by the size of the package containingthe tobacco product;

* * * * *

public place includes a place to which the publicordinarily has access, whether by payment ornot, but does not include a part of a place towhich the public has access by reason onlyof the carrying on of a trade, business orprofession on or in that place;

residential care facility means—

(a) a residential care service, State fundedresidential care service or supportedresidential service within the meaningof the Health Services Act 1988; or

(b) an aged care service within the meaningof the Aged Care Act 1997 of theCommonwealth;

restaurant or cafe means premises that are, or anarea in premises that is, used by the public,or a section of the public, predominantly forthe consumption of food or non-alcoholicdrinks purchased on the premises (whetheror not food or non-alcoholic drinks are alsosold on the premises for consumption off thepremises) and—

(a) in the case of a restaurant or cafe that isan area in premises, includes anyabutting area in those premises that is

S. 3 def. ofproof of agecardinserted byNo. 43/2000s. 4(1),repealed byNo. 45/2005s. 3(e).

S. 3 def. ofresidentialcare facilityinserted byNo. 45/2005s. 3(a).

S. 3 def. ofrestaurantor cafeinserted byNo. 43/2000s. 4(1).

s. 3



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not separately enclosed from that area,irrespective of the purpose or purposesfor which the abutting area is used; but

(b) does not include premises in respect ofwhich a general licence or a clublicence within the meaning of theLiquor Control Reform Act 1998 is inforce;

retail outlet means premises where tobaccoproducts are available for sale by retail;

retail shopping centre means a cluster of premises5 or more of which are retail premises and—

(a) all of which have, or if leased wouldhave, a common head landlord; or

(b) each of which is on a lot on the sameplan of subdivision and those lots areland affected by an owners corporationwithin the meaning of the SubdivisionAct 1988—

but does not include—

(c) a building with more than one storeyexcept in relation to each storey of thebuilding on which is situated a clusterof premises in respect of whichparagraph (a) or (b) applies; or

(d) any part of those premises—

(i) that is not used by the public, or asection of the public; or

(ii) that is an enclosed restaurant orcafe; or

(iii) in respect of which a generallicence or a club licence withinthe meaning of the Liquor

S. 3 def. ofretail outletinserted byNo. 43/2000s. 4(1).

S. 3 def. ofretailshoppingcentreinserted byNo. 43/2000s. 4(1),substituted byNo. 28/2001s. 3(2)(b),amendedbyNos 114/2003s. 12.1.3(Sch. 6item 13.1(b)),69/2006.s. 224(Sch. 3item 9).

s. 3



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Control Reform Act 1998 is inforce; or

(iv) that is a bingo centre within themeaning of the GamblingRegulation Act 2003; or

(v) that is a road or road related areawithin the meaning of the RoadSafety Act 1986;

roof includes any structure or device (whetherfixed or movable) that prevents orsignificantly impedes upward airflow,including a ceiling;

* * * * *

Secretary means the Department Head (within themeaning of the Public Administration Act2004) of the Department of Health;

sell includes—

(a) barter or exchange; and

(b) offer or expose for sale, barter orexchange; and

(c) supply, or offer to supply, incircumstances in which the supplierderives, or would derive, a direct orindirect pecuniary benefit; and

(d) supply, or offer to supply, gratuitouslybut with a view to gaining or

S. 3 def. ofroofinserted byNo. 45/2005s. 3(a).

S. 3 def. ofroominserted byNo. 31/2002s. 4(1),repealed byNo. 45/2005s. 3(e).

s. 3

S. 3 def. ofSecretaryinserted byNo. 43/2000s. 4(1),substituted byNo. 29/2010s. 73.



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maintaining custom, or otherwise witha view to commercial gain;

specialist tobacconist means a retail outlet that iscertified by the Secretary as a specialisttobacconist under section 15U;

substantially enclosed includes completelyenclosed;

* * * * *

theatre means a place where any liveentertainment or film is presented, performedor exhibited to which admission is or may beprocured by payment or by ticket or by anyother means, token or consideration;

tobacco advertisement has the meaning given insection 3B;

tobacco company means—

(a) a public company (within the meaningof the Corporations Act) that is engagedin any one or more of—

S. 3 def. ofspecialisttobacconistinserted byNo. 49/2009s. 8(1).

S. 3 def. ofsubstantiallyenclosedinserted byNo. 45/2005s. 3(a).

S. 3 def. ofTAB areainserted byNo. 31/2002s. 4(1),amendedbyNo. 114/2003s. 12.1.3(Sch.6 item 13.1(d)(i)(ii)),repealed byNo. 45/2005s. 21(b).

S. 3 def. oftobaccoadvertisementamendedbyNo. 43/2000s. 4(2),substituted byNo. 45/2005s. 3(f).

s. 3

S. 3 def. oftobaccocompanyinserted byNo. 45/2005s. 3(a).



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(i) tobacco growing;

(ii) manufacturing tobacco products;

(iii) wholesaling tobacco products; or

(b) a proprietary company (within themeaning of the Corporations Act) thatis a subsidiary or related body corporate(within the meaning of that Act) of acompany referred to in paragraph (a);

tobacco product means tobacco, cigarette or cigaror any other product the main ingredient ofwhich is tobacco and which is designed forhuman consumption;

tobacco retailing business means the business ofselling tobacco by retail, either alone or inconjunction with any other merchandise, andincludes—

(a) any such business carried on as part of,or in conjunction with, any otherbusiness; and

(b) any business that consists of, orinvolves, management of a retail outletwhere tobacco products are availablefor sale by means of a vendingmachine;

tobacco wholesaling business means the businessof selling tobacco for the purposes of resale,either alone or in conjunction with any othermerchandise, and includes any such businesscarried on as part of, or in conjunction with,any other business;

vending machine means a machine, device orcontrivance that is constructed to containtobacco products that may be obtained fromit by an operation that involves the insertion

S. 3 def. oftobaccoretailingbusinessinserted byNo. 43/2000s. 4(1).

s. 3

S. 3 def. oftobaccowholesalingbusinessinserted byNo. 43/2000s. 4(1).



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in the machine, device or contrivance of acoin, token or similar object;

Victorian driver licence means a driver licenceissued under the Road Safety Act 1986;

Victorian proof of age card means a documentissued by the Director of Liquor Licensingunder section 176 of the Liquor ControlReform Act 1998;

wall includes any structure or device (whetherfixed or movable) that prevents orsignificantly impedes lateral airflow,including a window or door;

wholesale outlet means premises where tobaccoproducts are available for sale exclusively bywholesale.

workplace means any premises or area where oneor more employees or self-employed persons(or both) work, whether or not they receiveany payment for that work.

3A Vending machines

The presence on any premises of a vendingmachine is deemed to constitute the carrying onon those premises of a tobacco retailing business.

3B Tobacco advertisements

(1) Subject to this section, for the purposes of thisAct, a tobacco advertisement is any writing, stillor moving picture, sign, symbol or other visualimage, or any audible message, or anycombination of 2 or more of those things, that

S. 3 def. ofVictoriandriver licenceinserted byNo. 45/2005s. 3(a).

S. 3 def. ofVictorianproof of agecardinserted byNo. 45/2005s. 3(a).

S. 3 def. ofwallinserted byNo. 45/2005s. 3(a).

S. 3 def. ofwholesaleoutletinserted byNo. 43/2000s. 4(1).

S. 3 def. ofworkplaceinserted byNo. 45/2005s. 3(a).

S. 3Ainserted byNo. 43/2000s. 5.

s. 3A

S. 3Binserted byNo. 43/2000s. 5,repealed byNo. 31/2002s. 5, new s. 3Binserted byNo. 45/2005s. 4.



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gives publicity to, or otherwise promotes or isintended to promote—

(a) smoking; or

(b) the purchase or use of a tobacco product or arange of tobacco products; or

(c) the whole or a part of a trade mark that isregistered under the Trade Marks Act 1955of the Commonwealth in respect of goodsthat are or include tobacco products; or

(d) the whole or a part of a design that isregistered under the Designs Act 2003 of theCommonwealth in relation to products thatare or include tobacco products; or

(e) the whole or a part of the name of a person—

(i) who is a manufacturer of tobaccoproducts; and

(ii) whose name appears on, or on thepackaging of, some or all of thoseproducts; or

(f) any other words (for example the whole or apart of a brand name) or designs, orcombination of words and designs, that areclosely associated with a tobacco product ora range of tobacco products (whether alsoclosely associated with other kinds ofproducts).

(2) A reference in subsection (1) to a visual image ora design includes a reference to an image ordesign consisting of a colour or a scheme ofcolours.

(3) Without limiting subsection (1), a tobaccoadvertisement includes—

(a) the display of an immediate package of atobacco product;

s. 3B



18

(b) the advertisement of cigarette papers.

(4) Words, signs or symbols that appear as part of thestandard wording of an invoice, statement, orderform, letterhead, business card, cheque, manual,or other document, ordinarily used in the normalcourse of the business of a manufacturer,distributor or retailer of tobacco products(a business document) do not, when so appearing,constitute a tobacco advertisement (but this doesnot prevent a still or moving picture, or othervisual image of a business document, from being atobacco advertisement).

(5) Words, signs or symbols that appear in or on landor buildings occupied by a manufacturer oftobacco products do not, when so appearing,constitute a tobacco advertisement (but this doesnot prevent a still or moving picture, or othervisual image, of words, signs or symbols that soappear from being a tobacco advertisement).

(6) For the avoidance of doubt, the taking of anyaction to prevent a product from causing injury toanyone, including action—

(a) to recall a product; or

(b) to disclose a defect in, or a dangerouscharacteristic of, a product; or

(c) to disclose circumstances in which the use ofa product is or may be dangerous; or

(d) to disclose procedures for disposing of aproduct—

does not constitute a tobacco advertisement.

(7) If—

(a) apart from this subsection, something (theadvertisement) would, technically, be atobacco advertisement; and

S. 3B(4)amendedbyNo. 49/2009s. 9.

s. 3B



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(b) it is clear from the advertisement that its soleor principal purpose is to discouragesmoking or the use of tobacco products—

then, despite subsection (1), the advertisement isnot a tobacco advertisement for the purposes ofthis Act.

(8) In this section—

words includes abbreviations, initials andnumbers.

3C Bingo area

For the purposes of this Act, an area (other than anoutdoor area) is a bingo area at any time when thepredominant activity in that area is the conductingof a session of bingo under a minor gamingpermit.

* * * * *

3E Declared smoking areas in casinos

(1) For the purposes of this Act, the Minister, bynotice published in the Government Gazette, maydeclare an area in a casino that, in the Minister'sopinion, is a high roller room, to be a declaredsmoking area.

(2) The Minister, by notice published in theGovernment Gazette, may revoke or vary adeclaration under subsection (1).

(3) The Minister must consult the Ministeradministering Part 2 of the Casino Control Act1991 before making, revoking or varying adeclaration under this section.

S. 3Cinserted byNo. 43/2000s. 5,repealed byNo. 28/2001s. 4,new s. 3Cinserted byNo. 31/2002s. 6.

s. 3C

S. 3Dinserted byNo. 43/2000s. 5,repealed byNo. 45/2005s. 21(c).

S. 3Einserted byNo. 45/2005s. 22.



20

4 Application of Act

(1) Nothing in this Act applies to anything done byradio or television broadcast.

(2) Nothing in this Act or the regulations applies to—

(a) the labelling of packages of tobacco if thetobacco is packed for sale outside Victoriaand is not sold in Victoria; or

(b) anything which causes, permits, authorises orassists in the sale or promotion of the sale,purchase, use or consumption of a tobaccoproduct if the sale, purchase, use orconsumption occurs solely outside Victoria.

(3) Nothing in section 9 applies to anything donebefore 1 January 1989 under a contract oragreement entered into before 8 October 1987.

5 Objects of Act

(1) The objects of this Act are—

(a) the active discouragement of the smoking oftobacco—

(i) by encouraging non-smokers,particularly young people, not to startsmoking; and

(ii) by limiting exposure of children andyoung people to persuasion to smoke;and

(iii) by encouraging and assisting smokersto give up smoking; and

(b) the promotion of health and illnessprevention.

s. 4



21

(2) In giving effect to the objects of this Act, theMinister shall cause steps to be taken to—

(a) plan and co-ordinate an integrated State-wideprogram to reduce the prevalence of smokingin Victoria; and

(b) encourage agreements to prohibit or limit theplaces and times at which people may smokein enclosed public places or in the workenvironment; and

(c) ensure that tobacco usage by all age and sexgroups in the population is monitored andreported upon regularly; and

(d) evaluate the effectiveness of anti-smokingprograms and plan future activities andpolicies on tobacco usage.

_______________

s. 5

Part 2—Controls Relating to Tobacco Products


22

PART 2—CONTROLS RELATING TO TOBACCOPRODUCTS

Division 1—No smoking areas

5A Enclosed workplaces: offence by smoker

(1) A person must not smoke in an enclosedworkplace.

Penalty: 5 penalty units.

(2) Subsection (1) does not apply to the following—

(a) residential premises, other than a part ofresidential premises being used for carryingon a business while one or more persons whodo not reside at the premises are present inthat part;

* * * * *

(c) an outdoor dining or drinking area;

(d) a declared smoking area of a casino;

(e) a vehicle;

(f) a place of business occupied by the soleoperator of the business that is not for the useof members of the public;

Pt 2(Heading)substituted byNo. 43/2000s. 6.

Pt 2 Div. 1(Heading)inserted byNo. 31/2002s. 7.

S. 5Ainserted byNo. 43/2000s. 7(1),substituted byNo. 45/2005s. 5.

s. 5A

S. 5A(2)(b)repealed byNo. 45/2005s. 23(1).

S. 5A(2)(d)substituted byNo. 45/2005s. 23(2).



23

(g) a personal sleeping or living area of—

(i) premises providing accommodation tomembers of the public for a fee; or

(ii) a residential care facility;

(h) an area in an approved mental health service(within the meaning of the Mental HealthAct 1986) that is declared, or that is in aclass of area that is declared, by theSecretary, by notice published in theGovernment Gazette, to be a smoking area;

(i) a personal sleeping or living area, or anexercise yard, of a prison within the meaningof the Corrections Act 1986;

(j) a detention centre established for thepurposes of the Migration Act 1958 of theCommonwealth.

(3) If an inspector believes on reasonable grounds thata person is contravening subsection (1), theinspector, on producing his or her identity card,may direct the person to cease the contravention.

(4) A person who is contravening subsection (1) mustnot, without reasonable excuse, fail to complywith a direction by an inspector to cease thecontravention.


5B Enclosed workplaces: offence by occupier

(1) If smoking occurs in an enclosed workplace, incontravention of section 5A, the occupier of theenclosed workplace is guilty of an offence andliable to a penalty not exceeding 10 penalty units,

S. 5Binserted byNo. 43/2000s. 7(1),substituted byNo. 45/2005s. 5.

s. 5B




24

in the case of a natural person, or 50 penalty units,in the case of a body corporate.

(2) It is a defence to a prosecution undersubsection (1) if the accused proves that theaccused did not provide an ashtray, matches, alighter or any other thing designed to facilitatesmoking where the contravention occurred andthat—

(a) the accused was not aware, and could notreasonably be expected to have been aware,that the contravention was occurring; or

(b) the accused—

(i) requested the person contravening tostop smoking; and

(ii) informed the person that the person wascommitting an offence.

* * * * *

5C Outdoor dining or drinking areas: offence bysmoker

(1) A person must not smoke in an outdoor dining ordrinking area if—

(a) the area has a roof and walls in place; and

(b) the total actual area of the wall surfacesexceeds 75% of the total notional wall area.



S. 5B(2)amendedbyNo. 68/2009s. 97(Sch.item 120.1).

S. 5B(2)(a)amendedbyNo. 68/2009s. 97(Sch.item 120.1).

S. 5B(2)(b)amendedbyNo. 68/2009s. 97(Sch.item 120.1).

S. 5BAinserted byNo. 31/2002s. 8,repealed byNo. 45/2005s. 5.

s. 5C

S. 5Cinserted byNo. 43/2000s. 7(2),amendedbyNos 28/2001s. 5, 31/2002s. 10(a),substituted byNo. 45/2005ss 5, 24.



25




total notional wall area means what would be thetotal area of the wall surfaces if the wallswere—

(a) at the perimeter of the roofed area; and

(b) continuous; and

(c) of a uniform height equal to the lowestheight of the roof.

5D Outdoor dining or drinking areas: offence byoccupier

(1) If smoking occurs in an outdoor dining ordrinking area, in contravention of section 5C, theoccupier of the area is guilty of an offence andliable to a penalty not exceeding 10 penalty units,in the case of a natural person, or 50 penalty units,in the case of a body corporate.

(2) It is a defence to a prosecution under subsection(1) if the accused proves that the accused did notprovide an ashtray, matches, a lighter or any otherthing designed to facilitate smoking where thecontravention occurred and that—


S. 5Dinserted byNo. 43/2000s. 7(2),amendedbyNo. 28/2001s. 6,substituted byNo. 45/2005ss 5, 24.

s. 5D

S. 5D(1)amendedbyNo. 49/2009s. 11.

S. 5D(2)amendedbyNo. 68/2009s. 97(Sch.item 120.2).

S. 5D(2)(a)amendedbyNo. 68/2009s. 97(Sch.item 120.2).



26

(b) the accused—



5E Outdoor dining or drinking areas: no smoking signs

(1) The occupier of an outdoor dining or drinkingarea in which smoking is prohibited by section 5Cis guilty of an offence, and liable to a penalty notexceeding 10 penalty units, in the case of a naturalperson, or 50 penalty units, in the case of a bodycorporate, if, without reasonable excuse,acceptable no smoking signs are not displayed inaccordance with subsection (2).

Note

Section 3 defines an acceptable no smoking sign.

(2) The signs must be displayed in a manner thatensures that a person is reasonably likely to seeone or more of them either on entering the outdoordining or drinking area or from within the outdoordining or drinking area.

5F Enclosed restaurants and cafes: no smoking signs

(1) The occupier of an enclosed restaurant or cafe isguilty of an offence, and liable to a penalty notexceeding 10 penalty units, in the case of a naturalperson, or 50 penalty units, in the case of a bodycorporate, if, without reasonable excuse,

S. 5D(2)(b)amendedbyNo. 68/2009s. 97(Sch.item 120.2).

S. 5Einserted byNo. 31/2002s. 9,substituted byNo. 45/2005ss 5, 24.

S. 5E(1)amendedbyNo. 49/2009s. 12.

S. 5Finserted byNo. 31/2002s. 9,substituted byNo. 45/2005s. 5.

s. 5E

S. 5F(1)amendedbyNo. 49/2009s. 13.



27

acceptable no smoking signs are not displayed inaccordance with subsection (2).

Note


(2) The signs must be displayed in a manner thatensures that a person is reasonably likely to seeone or more of them either on entering theenclosed restaurant or cafe or from within theenclosed restaurant or cafe.

5G Retail shopping centres: no smoking signs

(1) The occupier of a retail shopping centre is guiltyof an offence if, without reasonable excuse,acceptable no smoking signs are not displayed inaccordance with subsection (2).

Note


(2) The signs must be displayed in such prominentpositions at entrances to any enclosed areas of thecentre as would reasonably identify those areas ofthe centre as no smoking areas for personsentering them.

(3) The maximum penalty for an offence againstsubsection (1) is 10 penalty units in the case of anatural person and 50 penalty units in the case of abody corporate.

5H Bingo areas and centres: no smoking signs

(1) The occupier of a bingo area or bingo centre isguilty of an offence, and liable to a penalty notexceeding 10 penalty units, in the case of a naturalperson, or 50 penalty units, in the case of a bodycorporate, if, without reasonable excuse,

S. 5Ginserted byNo. 31/2002s. 9,substituted byNo. 45/2005s. 5.

s. 5G

S. 5G(3)amendedbyNo. 49/2009s. 14.

S. 5Hinserted byNo. 31/2002s. 9,substituted byNo. 45/2005s. 5.

S. 5H(1)amendedbyNo. 49/2009s. 15.



28

acceptable no smoking signs are not displayed inaccordance with subsection (2).

Note


(2) The signs must be displayed in a manner thatensures that a person is reasonably likely to seeone or more of them either on entering the bingoarea or bingo centre or from within the bingo areaor bingo centre.

* * * * *

5K Casinos: no smoking signs

(1) The occupier of an area of a casino, other than adeclared smoking area, is guilty of an offence, andliable to a penalty not exceeding 10 penalty units,in the case of a natural person, or 50 penalty units,in the case of a body corporate, if, withoutreasonable excuse, acceptable no smoking signsare not displayed in accordance withsubsection (2).

Note


(2) The signs must be displayed in a manner thatensures that a person is reasonably likely to seeone or more of them either on entering the area orfrom within the area.

Ss 5I, 5Jinserted byNo. 31/2002s. 9,repealed byNo. 45/2005s. 25(a).

s. 5G

S. 5Kinserted byNo. 31/2002s. 9,substituted byNo. 45/2005s. 6.

S. 5K(1)amendedbyNo. 49/2009s. 16.



29

* * * * *

* * * * *

5N Approved venues: no smoking signs

(1) The occupier of a gaming machine area or anenclosed gaming room is guilty of an offence, andliable to a penalty not exceeding 10 penalty units,in the case of a natural person, or 50 penalty units,in the case of a body corporate, if, withoutreasonable excuse, acceptable no smoking signsare not displayed in accordance withsubsection (2).

Note


(2) The signs must be displayed in a manner thatensures that a person is reasonably likely to seeone or more of them either on entering the gamingmachine area or enclosed gaming room or fromwithin the area or room.

S. 5Linserted byNo. 31/2002s. 9,amendedbyNo. 45/2005s. 7(a)-(c),repealed byNo. 45/2005s. 25(a).

S. 5Minserted byNo. 31/2002s. 9,amendedbyNo. 45/2005s. 7(d),repealed byNo. 45/2005s. 25(a).

S. 5Ninserted byNo. 31/2002s. 9,substituted byNo. 45/2005s. 8.

s. 5N

S. 5N(1)amendedbyNos 45/2005s. 25(b),49/2009 s. 17.



30

* * * * *

* * * * *

* * * * *

5R Licensed premises: no smoking signs

(1) The occupier of enclosed licensed premises isguilty of an offence, and liable to a penalty notexceeding 10 penalty units, in the case of a naturalperson, or 50 penalty units, in the case of a bodycorporate, if, without reasonable excuse,acceptable no smoking signs are not displayed inaccordance with subsection (2).

Note


S. 5Oinserted byNo. 31/2002s. 9,amendedbyNo. 45/2005s. 9(a),repealed byNo. 45/2005s. 25(c).

S. 5Pinserted byNo. 31/2002s. 9,amendedbyNo. 45/2005s. 9(b),repealed byNo. 45/2005s. 25(c).

S. 5Qinserted byNo. 31/2002s. 9,repealed byNo. 45/2005s. 25(c).

S. 5Rinserted byNo. 31/2002s. 9,substituted byNo. 45/2005s. 10.

s. 5R

S. 5R(1)amendedbyNos 45/2005s. 25(d)(i),49/2009 s. 18.



31

(2) The signs must be displayed in a manner thatensures that a person is reasonably likely to seeone or more of them either on entering theenclosed licensed premises or from within thosepremises.

Division 1A—Smoking in motor vehicles

5S Offence to smoke in motor vehicle if person under18 is present

Despite anything to the contrary in this Act, aperson must not smoke in a motor vehicle,whether or not the motor vehicle is in motion, ifanother person is present in the motor vehicle andthe other person is under the age of 18 years.


5T Power to require driver to stop

(1) A police member may require a driver or personin charge of a motor vehicle on a highway to stopthe motor vehicle if the police member believeson reasonable grounds that a person in the vehiclehas committed or is about to commit an offenceagainst section 5S.

(2) Subject to subsection (3), a person must not fail tostop a motor vehicle when required to do so undersubsection (1).


(3) Subsection (2) is not contravened if—

(a) the person making the requirement to stop isnot in uniform; and

S. 5R(2)amendedbyNo. 45/2005s. 25(d)(ii).

Pt 2 Div. 1A(Heading andss 5S–5U)inserted byNo. 49/2009s. 19.

S. 5Sinserted byNo. 49/2009s. 19.

s. 5S

S. 5Tinserted byNo. 49/2009s. 19.



32

(b) the driver or person in charge of the motorvehicle believed that that person was not apolice member.

5U Evidential burden regarding age

In proceedings for an offence against section 5S,evidence that a person present in the relevantmotor vehicle appeared to be under the age of 18years is, in the absence of evidence to thecontrary, proof that the person was under the ageof 18 years.

Division 2—Advertising and other controls

6 Certain advertising prohibited

(1) A person must not for any direct or indirectpecuniary benefit—

(a) display or cause or permit to be displayed, orauthorise the display of, a tobaccoadvertisement in a theatre; or

(b) sell, or cause or permit to be sold, any filmor video tape that contains a tobaccoadvertisement; or

(c) distribute or cause or permit to bedistributed, or authorise the distribution of,to the public any unsolicited leaflet, handbillor other document that is a tobaccoadvertisement.

Penalty: In the case of a natural person,60 penalty units;

In the case of a body corporate,300 penalty units.

S. 5Uinserted byNo. 49/2009s. 19.

s. 5U

Pt 2 Div. 2(Heading)inserted byNo. 31/2002s. 10(b).

S. 6(1)amendedbyNos 45/2005s. 11(1),49/2009s. 20(1).



33

(2) A person must not for any direct or indirectpecuniary benefit—

(a) place or display or cause or permit to beplaced or displayed, or authorise the placingor display of, a tobacco advertisement that isvisible from a public place; or

(b) place or display, or cause or permit to beplaced or displayed, or authorise the placingor display of, a tobacco advertisement on theoutside of any road, sea or air vehicle orvessel.


(2A) If there is a tobacco advertisement of a productline of a tobacco product at a point of sale at aretail outlet or wholesale outlet that is not inaccordance with section 6A, the person carryingon the tobacco retailing business or the tobaccowholesaling business at that outlet is guilty of anoffence and liable to a penalty not exceeding60 penalty units, in the case of a natural person, or300 penalty units, in the case of a body corporate.

(2B) A person must not, in the course of carrying on atobacco retailing business or tobacco wholesalingbusiness, display tobacco products at a retailoutlet or wholesale outlet other than at a point ofsale.



(2C) Subsection (2B) does not apply to—

(a) the display of cigars in an operatinghumidor; or

(b) the display of cartons at an on-airport dutyfree shop.

S. 6(2)amendedbyNo. 45/2005s. 11(1).

S. 6(2A)inserted byNo. 43/2000s. 8(1) (asamendedbyNo. 28/2001s. 19(1)),amendedbyNos 45/2005s. 11(1),49/2009s. 20(2)(3).

s. 6

S. 6(2B)inserted byNo. 43/2000s. 8(1) (asamendedbyNo. 28/2001s. 19(1)),amendedbyNos 45/2005s. 11(1),49/2009s. 20(4).

S. 6(2C)inserted byNo. 43/2000s. 8(1) (asamendedbyNo. 28/2001s. 19(1)).



34

(2D) A tobacco company is guilty of an offence againstthis subsection, and liable to a penalty notexceeding 5000 penalty units, if the tobaccocompany intentionally or recklessly—

(a) contravenes subsection (1), (2), (2A) or (2B);or

(b) causes another person to contravenesubsection (1), (2), (2A) or (2B).

(2E) An offence against subsection (2D) is anindictable offence.

(3) Nothing in this section applies to—

(a) a tobacco advertisement in or on—

(i) a newspaper or magazine; or

(ii) a book; or

(iii) a package containing a tobaccoproduct, other than a package at a pointof sale; or

(b) a tobacco advertisement that is an accidentalor incidental accompaniment to a film orvideo tape; or

(c) a tobacco advertisement (other than a displayof a tobacco product carried about on aperson) at a point of sale inside a retail outletor wholesale outlet that is in accordance withsection 6A; or

(ca) one notice about tobacco products at one ormore points of sale at a retail outlet orwholesale outlet that complies with theprescribed requirements as to size,information contained in it and the manner inwhich the information is set out or displayed;or

S. 6(2D)inserted byNo. 45/2005s. 11(2).

S. 6(2E)inserted byNo. 45/2005s. 11(2).

S. 6(3)(a)(iii)amendedbyNo. 43/2000s. 8(2)(a).

s. 6

S. 6(3)(c)substituted byNo. 43/2000s. 8(3) (asamendedbyNo. 28/2001s. 19(3)(a)–(c)).

S. 6(3)(ca)inserted byNo. 43/2000s. 8(3) (asamendedbyNo. 28/2001s. 19(3)(a)–(c)).



35

(cb) tickets or labels on, or adjacent to, immediatepackages of tobacco products displayingretail prices, being tickets or labels thatcomply with the prescribed requirements asto size, information contained in them andthe manner in which the information is setout or displayed; or

(cc) tickets or labels on, or adjacent to,representations of immediate packages oftobacco products in vending machinesdisplaying retail prices, being tickets orlabels that comply with the prescribedrequirements as to size, informationcontained in them and the manner in whichthe information is set out or displayed; or

* * * * *

(e) anything to which, by reason of section 10,this section does not apply; or

(f) an invoice, statement, order, letterhead,business card, cheque, manual or otherdocument ordinarily used in the course ofbusiness.

6A Point of sale advertisements

(1) A tobacco advertisement at one point of sale at aretail outlet or at any point of sale at a wholesaleoutlet may advertise a product line of a tobaccoproduct in one only of the following ways—

(a) by the display of a single immediate packageof the product line in the form in which thepackage is available for sale at that point ofsale (including the display of an immediate

S. 6(3)(cb)inserted byNo. 43/2000s. 8(3) (asamendedbyNo. 28/2001s. 19(3)(a)–(c)).

S. 6(3)(cc)inserted byNo. 43/2000s. 8(3) (asamendedbyNo. 28/2001s. 19(3)(a)–(c)).

S. 6(3)(d)amendedbyNo. 28/2001s. 7,repealed byNo. 45/2005s. 11(3).

s. 6A

S. 6Ainserted byNo. 43/2000s. 9 (asamendedbyNo. 28/2001s. 20(1)–(5)).



36

package if only cartons are available forsale);

(b) by means of a stack dispenser for immediatepackages of the product line in the form inwhich the packages are available for sale atthat point of sale if—

(i) in the case of an angled stack, the mostthat is displayed is—

(A) any part of the single package atthe front of the stack; and

(B) any part (other than the face) ofthe other packages in the stack;and

(C) those parts of the faces of theother packages that bear thewarning message required by theTrade Practices (ConsumerProduct Information Standards)(Tobacco) Regulations 2004 ofthe Commonwealth; and

(ii) in the case of packages stacked on topof each other, the most that is displayedis any part of the package on the top ofthe stack and any part of the package onthe bottom of the stack;

(c) if the point of sale is a vending machine, by asingle representation of an immediatepackage of the product line in the form inwhich the package is available, or usuallyavailable, for sale at that point of sale nolarger than the actual size of the package,with the same appearance as the package;

s. 6A

S.6A(1)(b)(i)(C)amendedbyNo.49/2009s.21(1).



37

(d) in the case of a product line of cigars, by thedisplay of either or both of the following—

(i) up to 13 cigars of the product line in anopen box, or in any other manner;

(ii) a single closed box full of the productline in the form in which the box isavailable for sale at that point of sale.

(2) A tobacco advertisement at any other point of saleat a retail outlet may advertise a product line of atobacco product by means of a stack dispenser forimmediate packages of the product line in theform in which the packages are available at thatpoint of sale if—

(a) in the case of an angled stack, the most thatis displayed is—

(i) any part (other than the face) of anypackage in the stack; and

(ii) those parts of the faces of the packagesthat bear the warning message requiredby the Trade Practices (ConsumerProduct Information Standards)(Tobacco) Regulations 2004 of theCommonwealth; and

(b) in the case of packages stacked on top ofeach other, the most that is displayed is anypart of the package on the top of the stack(but not including the face or the top of thatpackage as stacked or the side or end of thatpackage directly facing the customer) andany part of the package on the bottom of thestack (but not including the face or thebottom of that package as stacked or the sideor end of that package directly facing thecustomer).

s. 6A

S. 6A(2)(a)(ii)amendedbyNo. 49/2009s. 21(2).



38

(3) A display of tobacco products at a point of salemay not consist of the display of the products,packages of the products or representations of theproducts or packages so as to constitute a tobaccoadvertisement itself as distinct from the display ofeach product, package or representation.

(4) A display of a product line at a point of sale at aretail outlet may not include the display of acarton of the product line, or any part of thecarton, whether or not the carton is empty orpartly empty.

(5) Despite subsection (4), a product line at a point ofsale at a retail outlet that is an on-airport duty freeshop may be displayed in such a way that—

(a) one carton of the product line is visible; or

(b) in the case of cartons of the same size aseach other, the cartons are stacked directlybehind each other, and the most that isvisible is—

(i) any part of the carton at the front of thestack; and

(ii) any end or the top (or both) of the nextcarton in the stack; or

(c) in the case of cartons of different sizes, themost that is visible is—

(i) one carton of one size; and

(ii) any end or the top (or both) of oneother carton of that size; and

(iii) the smallest side (or one of the smallestsides) of one carton of any other size.

s. 6A



39

(6) A display of a product line at a point of sale at awholesale outlet—

(a) may include the display of one or morecartons of the product line, but only with thesmallest (or one of the smallest) sides of thecarton (or cartons) facing the customerservice area; and

(b) must otherwise comply with this section.

(7) The area of display of tobacco products thatconstitute a tobacco advertisement referred to insubsection (1) at a retail outlet must not exceedthe prescribed area.

(8) A display of tobacco products on a vendingmachine may include a display of one packet onlyof each product line available, or usuallyavailable, from the machine and must not includethe display of any other product lines.

7 Competitions

(1) A person must not, in connection with the sale ofa tobacco product or for the purpose of promotingthe sale of a tobacco product—

(a) supply to the purchaser or any otherperson—

(i) any non-tobacco product or otherbenefit (whether or not a separatecharge is made for that product orbenefit); or

(ii) a stamp, coupon, token, voucher, ticketor other thing by virtue of which thepurchaser or any other person maybecome entitled to, or may qualify forany non-tobacco product or otherbenefit (whether the entitlement orqualification is absolute or conditional);or

s. 7

S. 7(1)amendedbyNos 45/2005s. 12(1),49/2009 s. 22.

S. 7(1)(a)(i)substituted byNo. 28/2001s. 8(1)(a).

S. 7(1)(a)(ii)amendedbyNo. 28/2001s. 8(1)(b).



40

(iii) any thing which, or a copy or facsimileof which, is a necessary prerequisite toparticipation in, or is likely to confer anadvantage in, any game, contest orother activity in which a participantmay become entitled to, or may qualifyfor, any non-tobacco product or otherbenefit (whether the entitlement orqualification is absolute or conditional);or

(b) conduct a scheme declared by the Governorin Council by Order published in theGovernment Gazette for the purposes of thissection to be a scheme to promote the sale ofa tobacco product or to promote smokinggenerally.



(2) In proceedings for an offence against subsection(1), it is a defence to prove that the benefit orthing supplied, or participation in the scheme, wasonly incidentally connected with the purchase of atobacco product and that equal opportunity toreceive the benefit or thing, or to participate in thescheme, was afforded generally to persons whopurchased products whether or not they weretobacco products.

(3) Subsection (1) does not prohibit the sale of non-tobacco products such as lighters, matches,ashtrays or other items that are necessary for, orancillary to, the smoking of tobacco products,unless the consideration for the sale of those non-tobacco products is less than it would have beenhad they not been sold in connection with the saleof tobacco products.

S. 7(1)(a)(iii)amendedbyNo. 28/2001s. 8(1)(c).

s. 7

S. 7(3)inserted byNo. 28/2001s. 8(2).



41

(4) For the avoidance of doubt, subsection (1) appliesto a tobacco company that, or a person carrying ona tobacco wholesaling business who, doesanything referred to in paragraph (a) or (b) of thatsubsection in connection with the sale of atobacco product or for the purposes of promotingthe sale of a tobacco product.

(5) A tobacco company is guilty of an offence againstthis subsection, and liable to a penalty notexceeding 5000 penalty units, if the tobaccocompany intentionally or recklessly—

(a) contravenes subsection (1); or

(b) causes another person to contravenesubsection (1).

(6) An offence against subsection (5) is an indictableoffence.

8 Free samples

(1) A person must not, for the purpose of inducing orpromoting—

(a) the sale of a tobacco product; or

(b) the use or consumption of a tobacco product;or

(c) smoking generally—

offer, give or distribute to a member of the publica free sample of a tobacco product or a productwhich advertises a tobacco product.



(2) Nothing in subsection (1) applies to a gratuitousoffer of a tobacco product to a person without any

S. 7(4)inserted byNo. 45/2005s. 12(2).

S. 7(5)inserted byNo. 45/2005s. 12(2).

s. 8

S. 7(6)inserted byNo. 45/2005s. 12(2).

S. 8(1)amendedbyNos 45/2005s. 13(1),49/2009 s. 23.



42

direct or indirect pecuniary benefit or inducementto purchase a tobacco product.





9 Prohibition of certain sponsorships

(1) A person must not, under a contract, agreement,undertaking or understanding, whether or notlegally binding, with another person—

(a) promote—

(i) a tobacco product; or

(ii) a trademark or brand name or part of atrademark or brand name of a tobaccoproduct; or

(b) promote the name or interests of amanufacturer or distributor of a tobaccoproduct in association, whether directly orindirectly, with that tobacco product—

in exchange for a sponsorship, gift, prize,scholarship or like benefit given or agreed to begiven by another person.



S. 8(3)inserted byNo. 45/2005s. 13(2).

s. 9

S. 8(4)inserted byNo. 45/2005s. 13(2).




43

(2) A person must not, under a contract, agreement,undertaking or understanding, whether or notlegally binding, with another person give or agreeto give any sponsorship, gift, prize, scholarship orlike benefit in exchange for the promotion of, oran agreement to promote, a tobacco product or aname, interest, trademark or brand name referredto in subsection (1).



(3) Nothing in subsection (1) or (2) applies to thegiving of, or an agreement to give, a scholarshipby a manufacturer or distributor of a tobaccoproduct to an employee or a member of the familyof an employee, of the manufacturer or distributor.

(4) Nothing in this section applies to the annualfestival known as the Myrtleford Tobacco, Hopsand Timber Festival.


(a) contravenes subsection (1) or (2); or

(b) causes another person to contravenesubsection (1) or (2).



s. 9

S. 9(5)inserted byNo. 45/2005s. 14(2).

S. 9(6)inserted byNo. 45/2005s. 14(2).



44

10 Exemptions

(1) Sections 6(1)(c), 6(2) or (2A) and 9 do not applyto a person who, under a contract or agreementrelating to a sports or arts function or event orseries of functions or events, with another person,in exchange for a sponsorship, gift, prize or likebenefit, displays only in connection with such afunction or event—

(a) the whole or part of a trademark, or brandname of a tobacco product; or

(b) the name of the manufacturer or distributorof a tobacco product—

if the display of the trademark, brand name orname is restricted in accordance with theregulations to—

(c) signs or objects on or within the site of sucha function or event; or

(d) naming such a function, event or part of sucha function or event, a scholarship, gift orprize; or

(e) any booklet, leaflet or handbill distributed tothe public; or

(f) signs or objects on the outside of any road,sea or air vehicle used in any such functionor event or on any participant in any suchfunction or event.

(2) The Governor in Council, on the recommendationof the Minister, by Order published in theGovernment Gazette, may declare that section6(2) does not apply in respect of a specifiedtobacco advertisement or a specified class oftobacco advertisement placed or displayed before1 July 1991 in accordance with an agreemententered into before 8 October 1987.

s. 10

S. 10(1)amendedbyNo. 43/2000s. 10.



45

(3) In making a recommendation to the Governor inCouncil for the purposes of subsection (2), theMinister must take into account—

(a) the desirability of the application of theprohibitions in section 6(2) in stages; and

(b) the extent to which undue hardship will besuffered by compliance with section 6(2)before 1 July 1991.

11 Packing of tobacco

A person must not sell any tobacco prepared forsmoking that is in a package—

(a) that is not labelled in accordance with theregulations with a prescribed statement andwarning (if any) applicable to packages ofthat class; or

(b) that is not labelled with the prescribedstatement (if any) applicable to packages ofthat class giving the tar content of thetobacco; or

(c) that is not labelled with any other prescribedinformation applicable to packages of thatclass.



11A Offence to possess certain tobacco products

A person who carries on a tobacco retailingbusiness or a tobacco wholesaling business mustnot, without reasonable excuse, have in theperson's possession or under the person's control,any tobacco products that the person knows orought reasonably to know—

S. 11amendedbyNo. 49/2009s. 25.

s. 11

S. 11Ainserted byNo. 43/2000s. 11,amendedbyNo. 49/2009s. 26.



46

(a) are smuggled goods or prohibited importswithin the meaning of the Customs Act1901 of the Commonwealth; or

(b) are excisable goods within the meaning ofthe Excise Act 1901 of the Commonwealthupon which excise duty has not been paid.



12 Supplying tobacco to person under 18 years

(1) A person must not sell a tobacco product to aperson under the age of 18 years.



(2) A person must not purchase a tobacco product forthe use of a person under the age of 18 years.



(3) The occupier of premises on which a vendingmachine is situated must not permit a personunder the age of 18 years to obtain a tobaccoproduct from that vending machine.



s. 12

S. 12(1)amendedbyNos 83/1993s. 4, 43/2000s. 12(1)(a),49/2009s. 27(1).

S. 12(2)amendedbyNos 83/1993s. 4, 45/2005s. 15(1),49/2009s. 27(2).

S. 12(3)amendedbyNos 83/1993s. 4, 43/2000s. 12(1)(b),substituted byNo. 49/2009s. 27(3).



47

(3A) If a person (the primary offender) commits anoffence against subsection (1), each manager ofthe primary offender (if any) also commits anoffence against that subsection.

(3B) Proceedings for an offence committed by amanager because of subsection (3A) may bebrought whether or not proceedings have beenbrought against the primary offender and whetheror not the primary offender has been convicted.

(3C) If an offence is committed against subsection (1)on premises at which a business is carried on, itmust be presumed, unless the contrary isestablished, that the offence was committed in thecourse of the carrying on of that business.

* * * * *

(4) It is a defence to a prosecution under this sectionif a person proves that he or she—

* * * * *

* * * * *

S. 12(3A)inserted byNo. 43/2000s. 12(2),substituted byNo. 45/2005s. 15(2).

S. 12(3B)inserted byNo. 43/2000s. 12(2),substituted byNo. 45/2005s. 15(2).

S. 12(3C)inserted byNo. 43/2000s. 12(2).

S. 12(3D)inserted byNo. 43/2000s. 12(2),repealed byNo. 45/2005s. 15(3).

s. 12

S. 12(4)(a)amendedbyNo. 83/1993s. 4,repealed byNo. 45/2005s. 15(4)(a).

S. 12(4)(b)amendedbyNos 83/1993s. 4, 43/2000s. 12(3),repealed byNo. 45/2005s. 15(4)(a).



48

(c) at the time of the alleged offence, had seenan evidence of age document of the personwhose age is material to the offence,indicating that the person is of or over theage of 18 years; or

(d) in the case of a prosecution against amanager for an offence againstsubsection (1)—

(i) had no knowledge of the primaryoffence; and

(ii) had taken prevention measures inrelation to the primary offender.


manager of a primary offender, means—

(a) an employer of the primary offender; or

(b) a person who authorised the primaryoffender to sell tobacco products as theperson's agent; or

(c) if the primary offence was committedin the course of carrying on abusiness—a person who owns,manages, controls, conducts or operatesthat business;

prevention measures by a manager in relation to aprimary offender, means doing the followingthings at intervals not exceeding 6 months—

(a) instructing the primary offender—

(i) not to sell tobacco products to aperson under the age of 18 yearsin any circumstances, even if thetobacco products are for, orclaimed to be for, a person overthat age; and

S. 12(4)(c)inserted byNo. 43/2000s. 12(3).

s. 12

S. 12(4)(d)inserted byNo. 43/2000s. 12(3),substituted byNo. 45/2005s. 15(4)(b).

S. 12(5)inserted byNo. 45/2005s. 15(5).



49

(ii) to sight an evidence of agedocument for a person beforeselling a tobacco product to theperson; and

(b) warning the primary offender that if theprimary offender sells tobacco productsto a person under the age of 18 years indisregard of the instructions mentionedin paragraph (a), the primary offendercommits an offence against this Act;and

(c) obtaining written acknowledgement bythe primary offender that the primaryoffender received the instructions andwarning mentioned in paragraphs (a)and (b);

primary offence means the offence committed bythe primary offender;

primary offender has the meaning given insubsection (3A).

13 Vending machines

(1) A person must not place or cause or permit to beplaced in any premises a vending machine foroperation by members of the public.



S. 13amendedbyNos 16/1997s. 120, 43/2000s. 22(1)(a),114/2003s. 12.1.3(Sch. 6item 13.2),substituted byNo. 45/2005s. 16.

s. 13

S. 13(1)amendedbyNo. 49/2009s. 28.



50

(2) Subsection (1) does not apply to a vendingmachine that is placed—

(a) in the bar area of licensed premises in line ofsight of a bar; or

(b) in an approved venue or in a casino in line ofsight of a service counter of the approvedvenue or casino; or

(c) in a bottle shop immediately adjacent to theservice counter of the bottle shop.


bar means a place in licensed premises that—

(a) is stocked with liquor of various types;and

(b) is used solely or mainly for the supplyof liquor to customers; and

(c) has a counter—

(i) across which liquor is supplieddirectly to customers; and

(ii) at which, or in the immediatevicinity of which, customers mayimmediately consume the liquorsupplied;

bar area means the area—

(a) in the immediate vicinity of a bar; and

(b) not more than 5 metres from the outeredge of the counter of the bar;

bottle shop means an area in licensed premiseswhere liquor is supplied to customers solelyfor consumption off the licensed premises;

s. 13



51

service counter—

(a) of an approved venue or a casino,means a counter at which gamingtokens (within the meaning of theGambling Regulation Act 2003) maybe issued or redeemed;

(b) of a bottle shop, means a counter in thebottle shop across which liquor issupplied directly to customers.

13A Mobile selling of tobacco products

(1) A person must not, in the course of carrying on abusiness or in the course of his or heremployment, sell any tobacco product that iscarried about on his or her person.


(2) A person must not authorise another (the seller) tosell any tobacco product that is carried about onthe seller's person.



(2A) A tobacco company is guilty of an offence againstthis subsection, and liable to a penalty notexceeding 5000 penalty units, if the tobaccocompany intentionally or recklessly—


(b) causes another person to contravenesubsection (1) or (2).


s. 13A

S. 13A(1)amendedbyNos 45/2005s. 17, 49/2009s. 29(1).

S. 13A(2)amendedbyNos 45/2005s. 17, 49/2009s. 29(2).

S. 13A(2A)inserted byNo. 49/2009s. 29(3).



52

(2B) An offence against subsection (2A) is anindictable offence.

(3) A reference in this section to a tobacco productcarried about on a person includes a reference to atobacco product that is intended to be sold from atray, bag or other container whether or not it isbeing carried about on the person at the time ofsale.

14 Packages of cigarettes

A person must not sell cigarettes unless thecigarettes are in a package containing at least20 cigarettes.



15 Smokeless tobacco

(1) A person must not manufacture or sell a tobaccoproduct other than a product prepared forsmoking.



(2) Subsection (1) does not apply to the manufactureor sale of prescribed tobacco products.

S. 13A(2B)inserted byNo. 49/2009s. 29(3).

S. 14amendedbyNos 28/2001s. 10, 45/2005s. 17, 49/2009s. 30.

s. 14

S. 15(1)amendedbyNo. 49/2009s. 31.



53

* * * * *

* * * * *

15C Retail outlets: signage

(1) The occupier of premises on which a tobaccoretailing business is carried on must cause to bedisplayed on those premises in accordance withthe regulations—

(a) a health warning sign; or

(b) a sign relating to programs assisting in thecessation of smoking.



(2) A sign referred to in subsection (1) must complywith any prescribed requirements as to size,information contained in it (including where

S. 15Ainserted byNo. 43/2000s. 13(1) (asamendedbyNo. 28/2001s. 21(1)(a)(b)(2)),repealed byNo. 31/2002s. 10(c).

S. 15Binserted byNo. 43/2000s. 13(2),substituted byNo. 28/2001s. 11,repealed byNo. 31/2002s. 10(c).

S. 15Cinserted byNo. 43/2000s. 13(3) (asamendedbyNo. 28/2001s. 22).

s. 15C

S. 15C(1)amendedbyNo. 49/2009s. 32(1).



54

people may obtain more information) and themanner in which the information is set out ordisplayed.

(3) The occupier of premises on which a tobaccoretailing business is carried on must cause to bedisplayed on those premises in accordance withthe regulations a prescribed sign relating to theprohibition of the sale of tobacco products topersons under the age of 18 years.



15D Prohibition of retailing at premises where offenceshave been committed

(1) If—

(a) a person (the retailer) carries on a tobaccoretailing business at premises that are a retailoutlet; and

(b) that person, or an associate of that person, isfound guilty of a relevant offence in respectof, or relating to, the carrying on of thatbusiness at those premises; and

(c) the offence is a first relevant offencecommitted in respect of those premises byany of the retailer and the associates of theretailer—

the court, in addition to imposing any otherpenalty, may order that the retailer not carry on atobacco retailing business at those premises or, ifthe court so determines, at any new premiseswithin 5 kilometres of those premises, for suchperiod, not exceeding 3 months, and commencingon such date, as the court determines.

S. 15C(3)inserted byNo. 28/2001s. 12,amendedbyNo. 49/2009s. 32(2).

S. 15Dinserted byNo. 43/2000s. 14.

s. 15D



55

(2) If—


(b) one relevant offence in respect of, or relatingto, the carrying on of that business atthose premises has been committed by anyof the retailer and the associates of theretailer and there has been a finding of guilt;and

(c) the retailer, or an associate of the retailer, isfound guilty of another relevant offence inrespect of, or relating to, the carrying on ofthat business at those premises—

the retailer, or any associate of the retailer, mustnot carry on a tobacco retailing business at thosepremises or, if the court so determines, at any newpremises within 5 kilometres of those premises,during the period of 3 months or, if the courtwhich makes the finding of guilt specifies a longerperiod not exceeding 12 months, during thatspecified period, and commencing on such date,as the court determines.



(3) If—


(b) two or more relevant offences in respect of,or relating to, the carrying on of that businessat those premises have been committed byany one or more of the retailer and the

S. 15D(2)amendedbyNo. 49/2009s. 33(1).

s. 15D

S. 15D(3)amendedbyNo. 49/2009s. 33(2).



56

associates of the retailer, and there has beena finding of guilt for each such offence; and

(c) the retailer, or an associate of the retailer,is found guilty of another relevantoffence in respect of, or relating to, thecarrying on of that business at thosepremises—

the retailer, or any associate of the retailer, mustnot carry on a tobacco retailing business at thosepremises or, if the court so determines, at any newpremises within 5 kilometres of those premises,during the period of 5 years commencing on suchdate as the court determines.



(4) A person is not prohibited from carrying on atobacco retailing business at any premises byreason of subsection (2) or (3) if the court referredto in that subsection—

(a) is satisfied that there are exceptionalcircumstances and that it is reasonable thatthe tobacco retailing business continue to becarried on at those premises; and

(b) makes an order to that effect.

(5) An offence is not to be taken into account for thepurposes of this section while an appeal ispending against a finding of guilt for the offence.

(6) If two or more persons are found guilty of anoffence arising from the sale or possession of thesame tobacco products, there is deemed to be onlyone offence for the purposes of this section.

s. 15D



57

(7) If a retailer and an associate of a retailer areprohibited from carrying on a tobacco retailingbusiness for 2 or more periods that overlap, thoseperiods are, to the extent that they apply to thesame premises, to apply consecutively.


associate, in relation to a person, means—

(a) if the person carries on a tobaccoretailing business in partnership withanother person, that other person;

(b) if the person is a corporation—

(i) a director or person concerned inthe management of thecorporation; or

(ii) a person who is entitled to morethan 25% of the shares in thecorporation;

new premises, in relation to an offence by aperson in relation to premises, does notinclude premises at which the person carriedon a tobacco retailing business before theoffence was committed;

relevant offence means—

(a) an offence against section 12; or

(b) an offence against section 11A; or

(c) an offence against the Customs Act1901 of the Commonwealth in respectof the possession of tobacco productsthat are smuggled goods or prohibitedimports within the meaning of that Act;or

s. 15D



58

(d) an offence against the Excise Act 1901of the Commonwealth in respect of thepossession of tobacco products that areexcisable goods within the meaning ofthat Act upon which excise duty hadnot been paid.

Division 3—Underage music/dance events

15E What is an underage music/dance event?

For the purposes of this Division, an underagemusic/dance event is an event that—

(a) involves the provision of music (whether liveor recorded and whether for listening to ordancing to or both); and

(b) is predominantly organised or intended for,or predominantly attended by, persons underthe age of 18 years; and

(c) is open to members of the public (whetherwith or without payment); and

(d) takes place in any area or premises otherthan a private residence.

15F No smoking at underage music/dance events

(1) A person must not smoke in any area or premiseswhile an underage music/dance event is takingplace there.



Pt 2 Div. 3(Heading andss 15E–15K)inserted byNo. 45/2005s. 18.

S. 15Einserted byNo. 45/2005s. 18.

S. 15Finserted byNo. 45/2005s. 18.

s. 15E



59



15G Offence by occupier

(1) If smoking occurs in an area or premises while anunderage music/dance event is taking place there,in contravention of section 15F, the occupier ofthe area or premises is guilty of an offence andliable to a penalty not exceeding 10 penalty units,in the case of a natural person, or 50 penalty units,in the case of a body corporate.

(2) It is a defence to a prosecution under subsection(1) if the accused proves that the accused did notprovide an ashtray, matches, a lighter or any otherthing designed to facilitate smoking where thecontravention occurred and that—


(b) the accused—



S. 15Ginserted byNo. 45/2005s. 18.

s. 15G

S. 15G(1)amendedbyNo. 49/2009s. 34.

S. 15G(2)amendedbyNo. 68/2009s. 97(Sch.item 120.3).

S. 15G(2)(a)amendedbyNo. 68/2009s. 97(Sch.item 120.3).

S. 15G(2)(b)amendedbyNo. 68/2009s. 97(Sch.item 120.3).



60

15H No smoking signs

(1) The occupier of an area or premises where anunderage music/dance event is taking place isguilty of an offence, and liable to a penalty notexceeding 10 penalty units, in the case of a naturalperson, or 50 penalty units, in the case of a bodycorporate, if, without reasonable excuse,acceptable no smoking signs are not displayed inaccordance with subsection (2).

Note


(2) The signs must be displayed in a manner thatensures that a person is reasonably likely to seeone or more of them either on entering the area orpremises or from within the area or premises.

15I Covering vending machines, tobaccoadvertisements etc.

(1) The occupier of an area or premises where anunderage music/dance event is taking place mustensure that each of the following is removed orcovered at all times while the event is takingplace—

(a) a vending machine in the area or premises;

(b) a tobacco advertisement in the area orpremises;

(c) a display of tobacco products in the area orpremises.



S. 15Hinserted byNo. 45/2005s. 18.

s. 15H

S. 15H(1)amendedbyNo. 49/2009s. 35.

S. 15Iinserted byNo. 45/2005s. 18.

S. 15I(1)amendedbyNo. 49/2009s. 36.



61


covered means—

(a) in relation to a vending machine—covered by an opaque material or someother means in such a way that none ofthe top, front, back and sides of themachine or its contents are visible;

(b) in relation to a tobacco advertisementor display of tobacco products—covered by an opaque material or someother means in such a way that theadvertisement or products are notvisible.

15J Prohibition on supplying tobacco at underagemusic/dance events

A person must not sell a tobacco product toanother person in any area or premises while anunderage music/dance event is taking place there.



15K No offence by minors

Despite anything to the contrary in this Divisionor the Sentencing Act 1991, a person under theage of 18 years does not commit an offence if heor she contravenes a provision of this Division.

S. 15Jinserted byNo. 45/2005s. 18,amendedbyNo. 49/2009s. 37.

s. 15J

S. 15Kinserted byNo. 45/2005s. 18.



62

Division 4—Sales of tobacco products from temporaryoutlets

15L Offence to sell tobacco products from temporaryoutlet

(1) A person must not sell tobacco products from apoint of sale that is located in a temporary displaystand, booth or tent or other temporary or mobilestructure or enclosure, whether or not a part ofthat display stand, booth, tent, structure orenclosure is permanent.



(2) A person must not sell tobacco products from apoint of sale that is in a retail outlet established inan area or premises for the duration of a specificsports, music or arts-related function or event inthe area or premises.



15M Offence for tobacco company to sell tobaccoproducts from temporary outlet

(1) A tobacco company is guilty of an offence againstthis subsection, and liable to a penalty notexceeding 5000 penalty units, if the tobaccocompany intentionally or recklessly contravenessection 15L(1) or 15L(2) or causes another personto contravene section 15L(1) or 15L(2).

Pt 2 Div. 4(Heading andss 15L, 15M)inserted byNo. 49/2009s. 38.

S. 15Linserted byNo. 49/2009s. 38.

s. 15L

S. 15Minserted byNo. 49/2009s. 38.



63


Division 5—Prohibited products

15N Ban orders

(1) The Minister, by order published in theGovernment Gazette, may ban a product or a classof products if—

(a) the Secretary recommends the making of theorder to the Minister under section 15O; or

(b) the product or the class of products has beenprohibited or restricted by or under a law ofthe Commonwealth or another State orTerritory on the ground that the product orthe class of products meets one or morecriteria that substantially correspond to thecriteria set out in section 15O(2)(a).

(2) A ban order must—

(a) if the ban order is made on therecommendation of the Secretary, specifythat fact and set out the grounds for therecommendation; or

(b) if a ban order is made on the basis of aprohibition or restriction by theCommonwealth or another State or Territory,specify that fact and the law or subordinateinstrument containing the prohibition orrestriction.

(3) A ban order may apply, adopt or incorporate,wholly or partially or as amended by the order,any matter contained in any document asexisting—

Pt 2 Div. 5(Heading andss 15N–15S)inserted byNo. 49/2009s. 38.

S. 15Ninserted byNo. 49/2009s. 38.

s. 15N



64

(a) from time to time; or

(b) at a particular time.

15O Secretary may recommend ban order

(1) The Secretary may recommend to the Ministerthat a ban order be made in respect of a specifiedproduct or a specified class of products.

(2) The Secretary must not make a recommendationunder subsection (1) unless the Secretary has fullyinvestigated the matter and is satisfied that—

(a) the product—

(i) is a tobacco product and the product orits smoke possesses a distinctive fruity,sweet or confectionery-like character;or

(ii) is a tobacco product and has packagingthat appeals to children or youngpeople; or

(iii) is not a tobacco product but resembles atobacco product; or

(iv) is of a nature or is advertised in a waythat may encourage children or youngpeople to smoke; and

(b) the supply of the product should beprohibited, having regard to the objects ofthis Act.

(3) A recommendation by the Secretary must set outthe grounds for the recommendation.

15P Operation of ban order

A ban order takes effect on the date specified inthe ban order or 7 days after the ban order ispublished in the Government Gazette, whicheveris the later.

S. 15Oinserted byNo. 49/2009s. 38.

s. 15O

S. 15Pinserted byNo. 49/2009s. 38.



65

15Q Amendment or revocation of ban order

The Minister, by order published in theGovernment Gazette, may amend or revoke a banorder.

15R Notice of order

(1) The Secretary must cause a copy of a ban order, ora copy of an order amending or revoking a banorder—

(a) to be given to each person who, to theknowledge of the Minister, supplies theproduct or class of products in respect ofwhich the ban order was made; and

(b) to be published in a newspaper circulatinggenerally throughout the State.

(2) A copy of a ban order or a copy of an orderamending or revoking a ban order must be givenand published under subsection (1) within 2 daysafter the publication of the order in theGovernment 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) inrelation to a ban order or an order amending orrevoking 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 aproduct in respect of which a ban order undersection 15N is in force.



S. 15Qinserted byNo. 49/2009s. 38.

s. 15Q

S. 15Rinserted byNo. 49/2009s. 38.




66

(2) A tobacco company is guilty of an offence againstthis subsection and liable to a penalty notexceeding 5000 penalty units, if the tobaccocompany intentionally or recklessly—




__________________

s. 15S

Part 2A—Specialist Tobacconists


67

PART 2A—SPECIALIST TOBACCONISTS

15T Application for certification as specialist tobacconist

(1) A person carrying on or proposing to carry on atobacco retailing business at premises may applyto the Secretary for certification that the premisesare a specialist tobacconist.

(2) An application for certification must—

(a) be in or to the like effect of the formapproved by the Secretary; and

(b) specify the premises in respect of which theapplication is made; and

(c) include any information specified in theapproved form; and

(d) be accompanied by the prescribed fee, if any.

15U Determination of application

(1) On application under section 15T, the Secretarymust determine the application by—

(a) certifying that the premises are a specialisttobacconist; or

(b) refusing to so certify.

(2) The Secretary may certify that premises are aspecialist tobacconist if the Secretary is satisfiedthat—

(a) a tobacco retailing business is carried on orproposed to be carried on at the premises;and

Pt 2A(Heading andss 15T–15ZB)inserted byNo. 49/2009s. 39.


s. 15T

S. 15Uinserted byNo. 49/2009s. 39.



68

(b) the gross turnover of tobacco products at thepremises—

(i) if the tobacco retailing business iscarried on at the premises at the time ofthe application, constitutes 80 per centor more of the gross turnover of allproducts sold at the premises in the12 months immediately preceding theapplication or the applicant's period oftrading at the premises, whichever isshorter; or

(ii) if the tobacco retailing business isproposed to be carried on at thepremises at the time of the application,is projected to constitute 80 per cent ormore of the projected gross turnover ofall products to be sold at the premisesin the 12 months immediatelyfollowing the commencement oftrading by the applicant at the premises;and

(c) certification of the premises is consistentwith the objects of this Act; and

(d) certification of the premises is consistentwith any strategic plan, policy statement,code or guideline relating to specialisttobacconists that has been adopted by theMinister; and

(e) the premises are separated from other retailpremises by a wall and that any doorway orentrance to or exit from the premises doesnot open directly into any other retailpremises.

s. 15U



69

(3) The Secretary may refuse to certify premises as aspecialist tobacconist if—

(a) the applicant does not comply with anyrequirement of this Act or the regulations; or

(b) the Secretary is not satisfied as required bysubsection (2).

(4) For the purposes of determining an application,the Secretary, by written notice to the applicant,may require the applicant to provide within areasonable period information relating to theapplication that is specified in the notice.

(5) Before refusing to certify premises, the Secretarymust give the applicant an opportunity to make awritten submission.

(6) If the Secretary certifies that premises are aspecialist tobacconist, the Secretary must issue theapplicant with a certificate to that effect.

15V Certification holder to notify Secretary ofcommencement of tobacco retailing business

A certification holder who proposes to carry on atobacco retailing business at premises certified asa specialist tobacconist must notify the Secretarywithin 7 days after the business commences atthose premises.

15W Duration of certification

(1) The certification of premises remains in forceuntil—

(a) the tobacco retailing business carried on atthe premises ceases or moves to differentpremises; or

(b) the tobacco retailing business carried on atthe premises is no longer carried on by theapplicant, whether solely or with any otherperson; or

S. 15Vinserted byNo. 49/2009s. 39.

s. 15V

S. 15Winserted byNo. 49/2009s. 39.



70

(c) the Secretary cancels the certification undersection 15X(1) or (4).

(2) If the certification of premises ceases to be inforce by reason of subsection (1)(a) or (1)(b), thecertification holder must notify the Secretary ofthat fact within 7 days after the certificationceases to be in force.

15X Cancellation of certification

(1) The Secretary may cancel a certification undersection 15U for premises if—

(a) the certification holder does not comply witha requirement of this Act or the regulations;or

(b) the premises no longer satisfy the criteria setout in section 15U(2).

(2) For the purposes of determining whether to cancela certification, the Secretary, by written notice tothe certification holder, may require thecertification holder to provide within a reasonableperiod information relating to the certification thatis specified in the notice.

(3) Before cancelling a certification under subsection(1), the Secretary must give the certificationholder an opportunity to be heard.

(4) The Secretary may cancel a certification at therequest of the certification holder.

(5) If premises are certified to be a specialisttobacconist and the certification holder does notcommence carrying on a tobacco retailingbusiness at the premises within 12 months afterthe premises being certified, the certificationholder must request the Secretary to cancel thecertification under subsection (4).

S. 15Xinserted byNo. 49/2009s. 39.

s. 15X



71

(6) If a certification is cancelled, the certificationholder must return the certificate issued undersection 15U(6) within a reasonable period unlessthe certification holder satisfies the Secretary thatthe original certificate is lost, stolen or destroyed.

15Y Notice of determination or cancellation

(1) Within 7 days after determining an applicationunder section 15U, the Secretary must notify theapplicant in writing of the determination and, ifthe application is refused, the grounds for thedetermination.

(2) Within 7 days after cancelling a certificationunder section 15X, the Secretary must notify thecertification holder in writing of the cancellation,the grounds for the cancellation and the date ofcancellation.

15Z Replacement certificates

The Secretary may issue a replacement certificateto a certification holder who satisfies the Secretarythat the original certificate is lost, stolen ordestroyed.

15ZA Offence to provide false or misleading informationto Secretary

(1) A person must not give information to theSecretary under this Part that the person knows tobe false or misleading in any material particular.



S. 15Yinserted byNo. 49/2009s. 39.

s. 15Y

S. 15Zinserted byNo. 49/2009s. 39.

S. 15ZAinserted byNo. 49/2009s. 39.



72

(2) A person must not produce a document to theSecretary under this Part that the person knows tobe false or misleading in any material particularwithout indicating the respect in which it is falseor misleading and, if practicable, providingcorrect information.



15ZB Specialist tobacconist must display certificate

A person who carries on business at a retail outletthat is certified to be a specialist tobacconist mustdisplay the certificate issued under section 15U(6)in a conspicuous place at the retail outlet in amanner that invites attention.



_______________

S. 15ZBinserted byNo. 49/2009s. 39.

s. 15ZB

Part 3—Victorian Health Promotion Foundation


73

PART 3—VICTORIAN HEALTH PROMOTIONFOUNDATION

16 Victorian Health Promotion Foundation

(1) There is established by this Act a body to becalled the Victorian Health PromotionFoundation.

(2) The Foundation—

(a) is a body corporate with perpetualsuccession; and

(b) shall have an official seal; and

(c) may sue and be sued in its corporate name;and

(d) is capable of taking, purchasing, leasing,holding, selling and disposing of real andpersonal property for the purpose ofperforming its functions and exercising itspowers under this Act; and

(e) is capable of doing and suffering all suchacts and things as bodies corporate may bylaw do or suffer and which are necessary orexpedient for the purpose of performing itsfunctions and exercising its powers underthis Act.

(3) The Foundation represents, and shall be taken tobe part of, the Crown.

(4) The official seal of the Foundation shall be kept insuch custody as the Foundation directs and mustnot be used except as authorised by theFoundation.

(5) All courts, judges and persons acting judiciallyshall take judicial notice of the seal of theFoundation affixed to a document and shallpresume that it was duly affixed.

s. 16



74

17 Objectives of Foundation

The objects of the Foundation are—

(a) to fund activity related to the promotion ofgood health, safety or the prevention andearly detection of disease; and

(b) to increase awareness of programs forpromoting good health in the communitythrough the sponsorship of sports, the artsand popular culture; and

(c) to encourage healthy lifestyles in thecommunity and support activities involvingparticipation in healthy pursuits; and

(d) to fund research and development activitiesin support of these objects.

18 Functions of Foundation

The following are the functions of theFoundation—

(a) to promote its objects;

(b) to make grants from the Fund for activities,facilities, projects or research programs infurtherance of the objects of the Foundation;

(c) to provide sponsorships for sporting orcultural activities;

(d) to keep statistics and other records relating tothe achievement of the objects of theFoundation;

(e) to provide advice to the Minister on mattersrelated to its objects referred by the Ministerto the Foundation and generally in relation tothe achievement of its objects;

s. 17



75

(f) to make loans or otherwise provide financialaccommodation for activities, facilities,projects or research programs in furtheranceof the objects of the Foundation;

(g) to consult regularly with relevantGovernment Departments and agencies andto liaise with persons and organisationsaffected by the operation of this Act;

(h) to perform such other functions as areconferred on the Foundation by this or anyother Act.

19 Powers of Foundation

(1) The Foundation has power to do all thingsnecessary to be done in the performance of itsfunctions or achievement of its objects.

(2) In addition to its other powers, the Foundation haspower, following consultation with the Minister,to make grants from the Fund for the relief of losssuffered as a result of the application of this Act toanything existing at or before the date ofenactment of this Act where special circumstanceswarrant assistance of that kind.

20 Foundation to be responsible to Minister

(1) The Foundation shall perform its functions andexercise its powers subject to any guidelines ordirections on any matter or class of mattersdeclared by the Governor in Council on therecommendation of the Minister after consultationwith the Minister administering the Sport andRecreation Act 1972 by notice published in theGovernment Gazette to be guidelines or directionsfor the purposes of this section.

S. 18(g)amendedbyNo. 43/2000s. 22(1)(b).

s. 19



76

(2) Section 15 of the Subordinate Legislation Act1994 applies to a guideline of which notice ispublished under subsection (1) as if the guidelinewere a statutory rule within the meaning of thatAct notice of which had been published in theGovernment Gazette on the day on which thenotice under subsection (1) was published.

(3) A guideline notice of which is published undersubsection (1) is subject to disallowance by aHouse of the Parliament and sections 23, 24and 25 of the Subordinate Legislation Act 1994apply as if the guideline were a statutory rulenotice of which had been published in theGovernment Gazette on the day on which thenotice under subsection (1) was published.

21 Membership of Foundation

(1) The Foundation shall consist of—

(a) three persons with expertise in health andillness prevention, one of whom shall bechosen by the Minister from a panel of threenames submitted by the Anti-CancerCouncil; and

(b) four persons with expertise in sport or sportsadministration, one of whom shall be chosenby the Minister from a panel of three namessubmitted by the Sports Federation ofVictoria or, if that body ceases to exist,another body representing amateur sport inVictoria and nominated by the Minister andone of whom shall be nominated by theMinister as representing country sport; and

(c) two persons with expertise in business,management, communications or law; and

(d) one person with expertise in the arts or artsadministration; and

(e) one person with expertise in advertising; and

S. 20(2)substituted byNo. 43/2000s. 22(2).


s. 21



77

(f) three persons who are members of theLegislative Council or the LegislativeAssembly elected by the Legislative Counciland Legislative Assembly jointly.

(2) The Minister may appoint a Chairperson and aDeputy Chairperson from amongst the membersreferred to in subsection (1) (other thanparagraph (f)).

(3) The members (other than the members referred toin subsection (1)(f))—

(a) shall be appointed by the regulations; and

(b) are, in respect of the office of member,subject to the Public Administration Act2004 (other than Part 3 of that Act).

(4) If the regulation appointing a member isdisallowed, the appointment ceases to have effect.

22 Term of appointment

(1) Subject to this Part, a member appointed undersection 21 holds office for such period notexceeding 5 years as is specified in the instrumentof appointment but is eligible for re-appointment.

* * * * *

(4) A member elected under section 21(1)(f) holdsoffice, subject to this Part for three years but iseligible for re-election.

S. 21(3)(b)amendedbyNo. 46/1998s. 7(Sch. 1),substituted byNos 108/2004s. 117(1)(Sch. 3item 204.1),80/2006s. 26(Sch.item 101).

s. 22

S. 22(2)(3)repealed byNo. 42/1995s. 224(Sch. 2item 41).



78

(5) Subject to this Part, a member holds office onsuch terms and conditions as are determined bythe Governor in Council.

23 Remuneration and allowances

A member (other than a member referred to insection 21(1)(f)) shall be paid such remunerationand allowances (if any) as are determined by theGovernor in Council.

24 Removal from office

The Governor in Council may remove a memberfrom office.

25 Resignation

A member may resign office by writing signed byhim or her and delivered to the Governor inCouncil.

26 Disclosure of interests etc.

(1) A member of the Foundation who is in any way,whether directly or indirectly interested in acontract or proposed contract with the Foundationmust, as soon as practicable after the relevant factshave come to his or her knowledge, declare thefact and the nature and extent of the interest at ameeting of the Foundation.

(2) Subsection (1) does not apply if the interest of themember consists only of being a member orcreditor of a body that is interested in a contract orproposed contract with the Foundation if theinterest may properly be regarded as not being amaterial interest.

(3) For the purposes of subsection (1), a generalnotice given to the members of the Foundation bya member to the effect that he or she is a member,officer or employee of a body and is to beregarded as interested in any contract that may,after the date of the notice, be made with that

s. 23



79

body is sufficient declaration of interest in relationto any contract so made or proposed to be madeif—

(a) the notice states the nature and extent of theinterest of the member in the body; and

(b) when the question of the confirming orentering into a contract is first taken intoconsideration, the extent of the member'sinterest is not greater than that stated in thenotice; and

(c) the notice is read at a meeting of theFoundation or the member takes reasonablesteps to ensure that it is brought up and readat the next meeting of the Foundation after itis given.

(4) A member of the Foundation who possesses anyproperty or holds any office whereby, whetherdirectly or indirectly, interests or duties might becreated in conflict with the member's interests orduties as a member must, in accordance withsubsection (5), declare at a meeting of themembers of the Foundation the fact and natureand extent of the conflict.

(5) A declaration required by subsection (4) inrelation to the possession of any property or theholding of any office must be made by a person—

(a) if the person possesses the property or holdsthe office as mentioned in subsection (4)when he or she becomes a member—at thefirst meeting of the Foundation held after—

(i) he or she becomes a member; or

(ii) the relevant facts as to the possession ofthe property or the holding of the officecome to his or her knowledge—

whichever is the later; or

s. 26



80

(b) if the person comes into possession of theproperty or commences to hold the office asmentioned in subsection (4) after he or shebecomes a member—at the first meeting ofthe Foundation held after the relevant factsas to the possession of the property or theholding of the office come to his or herknowledge.

(6) The Chairperson must cause to be recorded everydeclaration under this section in the minutes of themeeting at which it was made.

(7) This section is in addition to, and not inderogation of, the operation of any Act or rule oflaw restricting a member from having an interestin contracts with the Foundation or frompossessing property or holding offices involvinginterests or duties in conflict with the member'sinterests or duties as a member.

27 Validity of acts and decisions

An act or decision of the Foundation is not invalidby reason only—

(a) of a vacancy in the office of a member; or

(b) of any defect or irregularity in or inconnection with the appointment of amember; or

(c) in the case of a person appointed to act asChairperson or as a member, that theoccasion for so acting had not arisen or hadceased.

S. 27amendedbyNo. 43/2000s. 22(3).

s. 27



81

28 Meetings of Foundation

(1) The Chairperson shall preside at a meeting of theFoundation at which he or she is present and, ifthe Chairperson is not present, the memberspresent shall elect a member to preside.

(2) A majority of members in office at any timeconstitutes a quorum at a meeting of theFoundation.

(3) A question arising at a meeting of the Foundationshall be determined by a majority of votes of themembers present and voting on the question.

(4) If there is an equality of votes on a question at ameeting, the Chairperson or other personpresiding at the meeting has a casting vote.

(5) Subject to this Part, the Foundation may regulateits own procedure.

29 Patrons

The Governor in Council may appoint persons ashonorary patrons of the Foundation.

30 Advisory committees

(1) The Foundation may, following consultation withthe Minister and the Minister administering theSport and Recreation Act 1972, appointadvisory committees for the purposes of providingadvice and information to assist the Foundation inthe performance of its functions.

(2) A member of an advisory committee shall be paidsuch allowances and expenses as are determinedby the Governor in Council.

s. 28



82

31 Chief executive officer and staff

(1) There shall be a chief executive officer of theFoundation, who shall be appointed by theGovernor in Council on the recommendation ofthe Minister for such period and subject to suchterms and conditions as are determined by theGovernor in Council.

(2) Before making a recommendation for thepurposes of subsection (1), the Minister must seekthe advice of the Foundation.

(3) The Governor in Council may remove the chiefexecutive officer from office.

(4) The chief executive officer may resign office inwriting signed by him or her and delivered to theGovernor in Council.

(5) The chief executive officer is not, in respect of theoffice of chief executive officer, subject to thePublic Administration Act 2004.

(6) The Foundation shall appoint such other staff asare necessary for the purposes of this Part.

(7) If the chief executive officer or a member of thestaff of the Foundation was, immediately beforehis or her appointment, an officer within themeaning of the Superannuation Act 1958, thechief executive officer or member continues,subject to that Act, to be an officer within themeaning of that Act while he or she continues tobe the chief executive officer or such a member.

s. 31

S. 31(5)amendedbyNos 46/1998s. 7(Sch. 1),108/2004s. 117(1)(Sch. 3item 204.2).



83

(8) If a person was, immediately before appointmentas the chief executive officer or a member of thestaff of the Foundation, an employee in the publicservice, the person upon ceasing to be the chiefexecutive officer or member, is eligible to beemployed in the public service with aclassification and emolument corresponding withor higher than that which the person held orreceived in the public service immediately beforeappointment as the chief executive officer or sucha member as if the period of service as the chiefexecutive officer or such a member had beenservice in the public service.

32 Victorian Health Promotion Fund

(1) There shall be established in the Public Accountas part of the Trust Fund an account to be knownas the Victorian Health Promotion Fund.

(2) The Fund shall be administered by theFoundation.

(3) All money received by the Foundation must bepaid into the Fund.

(3A) There shall be paid out of the Consolidated Fund(which is to the necessary extent appropriatedaccordingly) into the Victorian Health PromotionFund, in respect of the financial year commencingon 1 July 1997, an amount of $21 395 000 in suchinstalments and at such times as are determined bythe Treasurer.

(4) There shall be paid out of the Fund in accordancewith the budget of the Foundation—

(a) amounts determined by the Foundation forpayment to sporting bodies; and

S. 31(8)substituted byNo. 46/1998s. 7(Sch. 1).

s. 32


S. 32(3A)inserted byNo. 94/1997s. 21(1).

S. 32(4)(a)amendedbyNo. 94/1997s. 21(2).



84

(b) amounts determined by the Foundation forpayment to bodies for the purpose of healthpromotion; and

(c) other amounts by way of grant or loan orfinancial accommodation for payment inaccordance with this Act to persons or bodiesdetermined by the Foundation; and

(d) the cost and expenses incurred by theFoundation under this Act; and

(e) amounts determined by the Minister forpayment to a body or bodies specified by theMinister for the purpose of medical researchrelated to the prevention and treatment ofillness; and

(f) any other money authorised under this or anyother Act to be paid out of the Fund.

(5) The Foundation may, with the approval of theMinister administering Part 7 of the FinancialManagement Act 1994, maintain an account oraccounts with an authorised deposit-takinginstitution within the meaning of the Banking Act1959 of the Commonwealth.

(6) An amount paid to a body out of the Fund undersubsection (4) (except paragraph (d)) must bepresented or otherwise delivered to the body bythe Chairperson or the chief executive officer orby a member of the Foundation (other than amember appointed under section 21(1)(f))nominated by the Chairperson for that purposeand must be made only in the name of theFoundation.

S. 32(4)(b)amendedbyNo. 94/1997s. 21(2).

S. 32(5)amendedbyNo. 46/1998s. 7(Sch. 1),substituted byNo. 11/2001s. 3(Sch.item 76).

s. 32



85

33 Budget

(1) The Foundation must, before 1 June in each year,submit to the Minister for the Minister's approvala budget for the next financial year of money to bepaid into the Fund and money to be paid out of theFund.

(2) The budget must be in a form required by theMinister.

(2A) The amounts included in the budget for a financialyear to be paid out of the Fund to sporting bodiesand to bodies for the purpose of health promotionmust each be not less than 30% of the total moneybudgeted to be paid into the Fund out of theConsolidated Fund in that year.

(3) The Minister may, after consultation with theTreasurer and the Minister administering theSport and Recreation Act 1972, approve abudget as submitted to the Minister, or approve itwith such alterations as the Minister determines.

(4) The Minister may, if requested to do so by theFoundation, at any time, approve alterations to thebudget.

* * * * *

_______________


s. 33

Ss 34–36repealed byNo. 31/1994s. 4(Sch. 2item 90).

Part 3A—Inspectors and Powers of Inspectors


86

PART 3A—INSPECTORS AND POWERS OF INSPECTORS

36 Appointment of persons as inspectors

The Secretary may, by instrument, appoint as aninspector—

(a) a person nominated by the Chief ExecutiveOfficer of a council within the meaning ofthe Local Government Act 1989 andemployed by, or providing services to, thatcouncil;

(b) an employee or member of a class ofemployees employed under Part 3 of thePublic Administration Act 2004.

36A Inspector's identity card

(1) The Secretary must issue an identity card to eachinspector.

(2) An identity card must contain a photograph of theinspector to whom it is issued.

36B Production of identity card

(1) An inspector must produce his or her identity cardfor inspection—

(a) before exercising a power under this Partother than a requirement made by post; and

(b) at any time during the exercise of a powerunder this Part, if asked to do so.


(2) This section does not apply to the exercise of apower under section 36E(1).

Pt 3A(Heading andss 36–36T)inserted byNo. 43/2000s. 15.

New s. 36inserted byNo. 43/2000s. 15.

s. 36

S. 36(b)amendedbyNo. 108/2004s. 117(1)(Sch. 3item 204.2).


S. 36Binserted byNo. 43/2000s. 15.




87

36C Power to require names and addresses

(1) An inspector may request a person to state his orher name and address if the inspector believes onreasonable grounds that the person has committed,or is about to commit, an offence against aprovision of this Act referred to in the Schedule.

(2) An inspector who makes a request undersubsection (1) must inform the person of thegrounds for his or her belief in sufficient detail toallow the person to understand the nature of theoffence or suspected offence.

(3) A person must not, in response to a request madeby an inspector in accordance with this section—

(a) refuse or fail to comply with the request; or

(b) state a name that is false in a materialparticular; or

(c) state an address other than the full andcorrect address of his or her ordinary placeof residence or business.


(4) A person who is requested by an inspector to statehis or her name and address may request theinspector to state, orally or in writing, his or hername and to produce his or her identity card.

(5) An inspector must not, in response to a requestunder subsection (4)—

(a) refuse or fail to comply with the request; or

(b) state a name that is false in a materialparticular; or

(c) refuse to comply with the request in writingif requested to do so.


S. 36Cinserted byNo. 43/2000s. 15.

s. 36C



88

36D Entry or search with consent

(1) If an inspector believes, on reasonable grounds,that a person has contravened this Act, other thanDivision 1A of Part 2, or the regulations, theinspector, with the consent of the occupier of thepremises—

(a) may enter and search any premises;

(b) may seize anything found on the premiseswhich the inspector believes, on reasonablegrounds, to be connected with the allegedcontravention;

(c) may inspect and make copies of, or takeextracts from, any document found on thepremises.

(2) An inspector must not enter and search anypremises with the consent of the occupier unless,before the occupier consents to that entry, theinspector—

(a) has produced his or her identity card forinspection; and

(b) has informed the occupier—

(i) of the purpose of the search; and

(ii) that the occupier may refuse to giveconsent to the entry and search or to theseizure of anything found during thesearch; and

(iii) that the occupier may refuse to consentto the taking of any copy or extractfrom a document found on the premisesduring the search; and

S. 36Dinserted byNo. 43/2000s. 15.

s. 36D

S. 36D(1)amendedbyNo. 49/2009s. 40.



89

(iv) that anything seized or taken during thesearch with the consent of the occupiermay be used in evidence inproceedings.

(3) If an occupier consents to an entry and search, theinspector who requested consent must beforeentering the premises ask the occupier to sign anacknowledgment in the prescribed form stating—

(a) that the occupier has been informed of thepurpose of the search and that anythingseized or taken in the search with the consentof the occupier may be used in evidence inproceedings; and

(b) that the occupier has been informed that heor she may refuse to give consent to the entryand search; and

(c) that the occupier has consented to such anentry and search; and

(d) the date and time that the occupierconsented.

(4) If an occupier consents to the seizure or taking ofany thing during a search under this section, theinspector must before seizing or taking the thingask the occupier to sign an acknowledgmentstating—

(a) that the occupier has consented to the seizureor taking of the thing; and

(b) the date and time that the occupierconsented.

(5) An occupier who signs an acknowledgment mustbe given a copy of the signed acknowledgmentbefore the inspector leaves the premises.

(6) If, in any proceeding, an acknowledgment is notproduced to the court or a tribunal, it must bepresumed, until the contrary is proved, that the

s. 36D



90

occupier did not consent to the entry and search orto the seizure or the taking of the thing.

36E Entry of premises open to the public

(1) An inspector may enter and inspect any part ofpremises that, at the time of the entry andinspection, are open to the public and—

(a) may take photographs; and

(b) may direct the occupier to remove anytobacco advertisement placed or displayed inthe premises in contravention of this Act.

(2) After entering premises under subsection (1), aninspector may inspect and measure any tobaccoadvertisement that is visible from the customer'sside of the customer service area, whether or notthe advertisement is in a part of the premises opento the public.

36F Search warrants

(1) An inspector, with the written approval of theSecretary or, if the inspector is an environmentalhealth officer of a council or a person employedby, or providing services to, a council, with thewritten approval of the Chief Executive Officer ofthe council, may apply to a magistrate for theissue of a search warrant in relation to particularpremises, if the inspector believes on reasonablegrounds that there is on the premises evidence thata person or persons may have contravened thisAct, other than Division 1A of Part 2, or theregulations.

(2) If a magistrate is satisfied, by the evidence, onoath or by affidavit, of the inspector that there arereasonable grounds to believe that there is a thingor things of a particular kind connected with a

S. 36Einserted byNo. 43/2000s. 15,amendedbyNo. 28/2001s. 14 (ILAs. 39B(1)).

s. 36E

S. 36E(2)inserted byNo. 28/2001s. 14.

S. 36Finserted byNo. 43/2000s. 15.

S. 36F(1)amendedbyNo. 49/2009s. 41(1).

S. 36F(2)amendedbyNo. 49/2009s. 41(2).



91

contravention of this Act, other than Division 1Aof Part 2, or the regulations on any premises, themagistrate may issue a search warrant, inaccordance with the Magistrates' Court Act1989, authorising an inspector named in thewarrant, together with any other person or personsnamed or otherwise identified in the warrant andwith any necessary equipment—

(a) to enter the premises specified in thewarrant, if necessary by force; and

(b) to do all or any of the following—

(i) search for;

(ii) seize;

(iii) secure against interference;

(iv) inspect and make copies of, or takeextracts from—

a thing or things of a particular kind namedor described in the warrant and which theinspector believes, on reasonable grounds, tobe connected with the alleged contravention.

(3) A search warrant issued under this section muststate—

(a) the purpose for which the search is requiredand the nature of the alleged contravention;and

(b) any conditions to which the warrant issubject; and

(c) whether entry is authorised to be made at anytime of the day or night or during statedhours of the day or night; and

(d) a day, not later than 28 days after the issue ofthe warrant, on which the warrant ceases tohave effect.

s. 36F



92

(4) Except as provided by this Act, the rules to beobserved with respect to search warrants under theMagistrates' Court Act 1989 extend and apply towarrants under this section.

36G Announcement before entry

(1) On executing a search warrant, the inspectorexecuting the warrant—

(a) must announce that he or she is authorisedby the warrant to enter the premises; and

(b) if the inspector has been unable to obtainunforced entry, must give any person at thepremises an opportunity to allow entry to thepremises.

(2) An inspector need not comply with subsection (1)if he or she believes, on reasonable grounds, thatimmediate entry to the premises is required toensure that the effective execution of the searchwarrant is not frustrated.

36H Details of warrant to be given to occupier

(1) If the occupier is present at premises where asearch warrant is being executed, the inspectormust—

(a) identify himself or herself to the occupier;and

(b) give to the occupier a copy of the warrant.

(2) If the occupier is not present at premises where asearch warrant is being executed, the inspectormust—

(a) identify himself or herself to a person at thepremises; and

(b) give to the person a copy of the warrant.

S. 36Ginserted byNo. 43/2000s. 15.

s. 36G

S. 36Hinserted byNo. 43/2000s. 15.



93

36I Seizure of things not mentioned in the warrant

A search warrant under section 36F authorises aninspector executing the search warrant, in additionto the seizure of any thing of the kind described inthe warrant, to seize any thing which is not of thekind described in the warrant if—

(a) the inspector believes, on reasonablegrounds, that the thing is of a kind whichcould have been included in a search warrantissued under that section and will affordevidence about the contravention of this Act,other than Division 1A of Part 2, or theregulations; and

(b) the inspector believes, on reasonablegrounds, that it is necessary to seize thatthing in order to prevent its concealment,loss or destruction or its use in thecontravention of this Act, other thanDivision 1A of Part 2, or the regulations.

36J Copies of seized documents

(1) If an inspector retains possession of a documentseized from a person under this Part, the inspectormust give the person, within 21 days after theseizure, a copy of the document certified ascorrect by the inspector.

(2) A copy of a document certified undersubsection (1) shall be received in all courts andtribunals to be evidence of equal validity to theoriginal.

36K Retention and return of seized documents or things

(1) If an inspector seizes a document or other thingunder this Part, the inspector must take reasonablesteps to return the document or thing to the personfrom whom it was seized if the reason for itsseizure no longer exists.

S. 36Iinserted byNo. 43/2000s. 15.

S. 36I(a)amendedbyNo. 49/2009s. 42.

S. 36I(b)amendedbyNo. 49/2009s. 42.

S. 36Jinserted byNo. 43/2000s. 15.

s. 36I

S. 36Kinserted byNo. 43/2000s. 15.



94

(2) If the document or thing seized has not beenreturned within 3 months after it was seized, theinspector must take reasonable steps to return itunless—

(a) proceedings for the purpose for which thedocument or thing was retained havecommenced within that 3 month period andthose proceedings (including any appeal)have not been completed; or

(b) the Magistrates' Court makes an order undersection 36L extending the period duringwhich the document or thing may beretained.

36L Magistrates' Court may extend 3 month period

(1) An inspector may apply to the Magistrates' Courtwithin 3 months after seizing a document or otherthing under this Part for an extension of the periodfor which the inspector may retain the documentor thing.

(2) The Magistrates' Court may order such anextension if it is satisfied that retention of thedocument or other thing is necessary—

(a) for the purposes of an investigation intowhether a contravention of this Act, otherthan Division 1A of Part 2,". or theregulations has occurred; or

(b) to enable evidence of a contravention of thisAct, other than Division 1A of Part 2, or theregulations to be obtained for the purposes ofa proceeding under this Act.

(3) The Magistrates' Court may adjourn anapplication to enable notice of the application tobe given to any person.

S. 36Linserted byNo. 43/2000s. 15.

s. 36L

S. 36L(2)(a)amendedbyNo. 49/2009s. 43.

S. 36L(2)(b)amendedbyNo. 49/2009s. 43.



95

36M Requirement to assist inspector during entry

To the extent that it is reasonably necessary todetermine compliance with this Act, other thanDivision 1A of Part 2, or the regulations, aninspector exercising a power of entry under thisPart who produces his or her identity card forinspection by the occupier of the premises or anagent or employee of the occupier may requirethat person—

(a) to give information to the inspector, orally orin writing; and

(b) to produce documents to the inspector; and

(c) to give reasonable assistance to the inspector.

36N Refusal or failure to comply with requirement

A person must not, without reasonable excuse,refuse or fail to comply with a requirement of aninspector under this Part.


36O Protection against self-incrimination

(1) It is a reasonable excuse for a natural person torefuse or fail to give information or do any otherthing that the person is required to do by or underthis Part, if the giving of the information or thedoing of that other thing would tend to incriminatethe person.

(2) Despite subsection (1), it is not a reasonableexcuse for a natural person to refuse or fail toproduce a document that the person is required toproduce by or under this Part, if the production ofthe document would tend to incriminate theperson.

S. 36Minserted byNo. 43/2000s. 15,amendedbyNo. 49/2009s. 44.

S. 36Ninserted byNo. 43/2000s. 15.

s. 36M

S. 36Oinserted byNo. 43/2000s. 15.



96

(3) If—

(a) before producing a document that the personis required to produce by or under this Part,the person claims that the document wouldtend to incriminate the person; and

(b) the document would in fact tend toincriminate the person—

the document is not admissible in evidence againstthe person in a criminal proceeding other than aproceeding in respect of an offence against thisAct or the regulations.

36P Offence to give false or misleading information

A person must not—

(a) give information to an inspector under thisPart that the person knows to be false ormisleading in any material particular; or

(b) produce a document to an inspector underthis Part that the person knows to be false ormisleading in a material particular withoutindicating the respect in which it is false ormisleading and, if practicable, providingcorrect information.


36Q Offence to hinder or obstruct inspector

A person must not, without reasonable excuse,hinder or obstruct an inspector who is exercising apower under this Part.


36R Offence to impersonate inspector

A person who is not an inspector must not, in anyway, hold himself or herself out to be aninspector.


S. 36Pinserted byNo. 43/2000s. 15.

S. 36Qinserted byNo. 43/2000s. 15.

s. 36P

S. 36Rinserted byNo. 43/2000s. 15.



97

36S Service of documents

(1) A written requirement by an inspector under thisPart may be given personally or by registered postto a person—

(a) at the last known place of business,employment or residence of the person; or

(b) in the case of a body corporate, at theregistered office of the body corporate.

(2) A person who provides a document or informationin response to a requirement of an inspector underthis Part may send that document or informationto the inspector by registered post.

36T Confidentiality

(1) An inspector must not, except to the extentnecessary to carry out the inspector's functionsunder this Part, give to any other person, whetherdirectly or indirectly, any information acquired bythe inspector in carrying out those functions.


(2) Subsection (1) does not apply to the giving ofinformation—

(a) to a court or tribunal in the course of legalproceedings; or

(b) pursuant to an order of a court or tribunal; or

(c) to the extent reasonably required to enablethe investigation or the enforcement of a lawof this State or of any other State or Territoryor of the Commonwealth; or



s. 36S



98

(d) with the written authority of the Secretary or,if the inspector is an environmental healthofficer of a council or a person employed by,or providing services to, a council, with thewritten authority of the Chief ExecutiveOfficer of the council; or

(e) with the written authority of the person towhom the information relates.

__________________

s. 36T

Part 4—Miscellaneous


99

PART 4—MISCELLANEOUS

37 Removal of advertisements

* * * * *

(2) If a person is convicted of an offence undersection 6(2) or (2A), the Court, in addition toimposing any other penalty, may order—

(a) that the advertisement may be removed orobscured by an inspector; and

(b) that the person convicted pay the reasonablecosts incurred by the inspector in removingor obscuring the advertisement.

(3) Costs payable under subsection (2) may berecovered as a debt due to the Council of themunicipality or the State, as the case requires.

* * * * *

38 Infringement notices

(1) An inspector or a police member may serve aninfringement notice on a person who the inspectoror police member believes has committed aninfringement offence referred to in an item in theSchedule requiring the person to pay—

s. 37

S. 37(1)repealed byNo. 43/2000s. 16(1)(a).

S. 37(2)amendedbyNo. 43/2000s. 16(1)(b).

S. 37(2)(a)amendedbyNo. 43/2000s. 16(1)(c).

S. 37(2)(b)amendedbyNo. 43/2000s. 16(1)(c).

S. 37(4)amendedbyNos 125/1993s. 20(12),46/1998s. 7(Sch. 1),repealed byNo. 43/2000s. 16(1)(d).

S. 38(1)amendedbyNo. 43/2000s. 16(2)(a)(b),substituted byNos 45/2005s. 19(1),49/2009s. 45(1).



100

(a) in the case of a natural person, theinfringement penalty specified in column Aof the Schedule for that infringementoffence;

(b) in the case of a body corporate, theinfringement penalty specified in column Bof the Schedule for that infringementoffence.

(1A) A police member may serve an infringementnotice on a person if the police member has reasonto believe that the person has committed anoffence against section 5S.

(1B) The infringement penalty for an offence againstsection 5S is 2 penalty units.

(2) An offence referred to in subsection (1) or (1A)for which an infringement notice may be served isan infringement offence within the meaning of theInfringements Act 2006.

(3) For the purposes of subsections (1) and (1A), aninfringement notice must be in the form requiredby the Infringements Act 2006 and may containany additional prescribed details.

S. 38(1A)inserted byNo. 45/2005s. 19(1),repealed byNo. 32/2006s. 94(Sch.item 47(1)),new s. 38(1A)inserted byNo. 49/2009s. 45(2).

s. 38

S. 38(1B)inserted byNo. 49/2009s. 45(2).

S. 38(2)amendedbyNo. 43/2000s. 16(2)(a),substituted byNos 45/2005s. 19(1),32/2006s. 94(Sch.item 47(2)),amendedbyNo. 49/2009s. 45(3).

S. 38(3)substituted byNo. 32/2006s. 94(Sch.item 47(3)),amendedbyNo. 49/2009s. 45(4).



101

* * * * *

* * * * *

* * * * *

* * * * *

39 Proceedings

(1) Subject to subsection (1A), proceedings for anoffence under this Act or for an infringementreferred to in section 38 may be brought by apolice member or an inspector.

(1A) Proceedings for an offence under Division 1A ofPart 2 may not be brought by an inspector.

S. 38(4)amendedbyNos 43/2000s. 16(2)(a),45/2005s. 19(2)(a)(i),repealed byNo. 32/2006s. 94(Sch.item 47(4)).

S. 38(5)amendedbyNos 57/1989s. 3(Sch. item198(a)(b)),43/2000s. 16(2)(a),45/2005s. 19(2)(a)(ii),repealed byNo. 32/2006s. 94(Sch.item 47(4)).

S. 38(6)(7)repealed byNo. 32/2006s. 94(Sch.item 47(4)).

S. 38(8)repealed byNo. 43/2000s. 16(2)(c).

s. 39

S. 39(1)amendedbyNos 43/2000s. 16(3),45/2005s. 19(2)(b)(i),49/2009s. 46(1).




102

(2) Proceedings shall not be brought for an offenceunder section 9 without the consent in writing ofthe Minister.

* * * * *

40 Application of penalties

(1) Except as provided in subsection (2) penaltiesunder this Act form part of and must be paid intothe Consolidated Fund.

(2) Penalties under this Act in respect of proceedingsbrought by or on behalf of the council of amunicipality or in respect of infringement noticesserved by an inspector who is an environmentalhealth officer of a council or who is employed by,or provides services to, a council are payable tothe municipal fund of that council.

41 Offences by a body corporate

(1) If a body corporate contravenes any provision ofthis Act, each officer (within the meaning ofsection 9 of the Corporations Act) of the bodycorporate who knowingly authorised or permittedthe contravention is taken to have contravened thesame provision.

(2) Subsection (1) does not apply to an offenceagainst section 6(2D), 7(5), 8(3), 9(5), 13A(2A),15M(1) or 15S(2).

(3) A person may be proceeded against and convictedunder a provision in accordance with subsection(1), whether or not the body corporate has beenproceeded against or convicted under thatprovision.

S. 39(2)amendedbyNo. 28/2001s. 15(1).

S. 39(3)inserted byNo. 28/2001s. 15(2),repealed byNo. 45/2005s. 19(2)(b)(ii).

s. 40

S. 40(2)amendedbyNo. 43/2000s. 17.

S. 41amendedbyNo. 45/2005s. 19(3) (ILAs. 39B(1)),substituted byNo. 49/2009s. 47.



103

(4) Nothing in this section affects any liabilityimposed on a body corporate for an offencecommitted by the body corporate against this Act.

41AA Conduct by officers, employees or agents

(1) For the purposes of any proceedings under thisAct, any conduct engaged in on behalf of a bodycorporate is deemed to have been engaged in alsoby the body corporate if the conduct was engagedin by an employee, agent or officer (within themeaning of section 9 of the Corporations Act) ofthe body corporate within the scope of the actualor apparent authority of the employee, agent orofficer.

(2) If, in any proceedings under this Act, it isnecessary to establish the state of mind of a bodycorporate in relation to particular conduct, it issufficient to show—

(a) that the conduct was engaged in by an officerof the body corporate within the scope of theofficer's actual or apparent authority and theofficer had that state of mind; or

(b) that the conduct was engaged in by an agentof the body corporate and—

(i) the agent acted at the specific directionor with the specific consent oragreement of the body corporate; or

(ii) the agent had that state of mind; or

(iii) the body corporate was aware of theagent's state of mind when the conductwas engaged in.

(3) A reference in this section to the state of mind of aperson includes a reference to the knowledge,intention, opinion, belief or purpose of the personand the person's reasons for the intention, opinion,belief or purpose.

S. 41AAinserted byNo. 49/2009s. 48.

s. 41AA



104

41A No double jeopardy

If an act or omission constitutes more than oneoffence against this Act, the offender is liable tobe prosecuted for any or all of those offences butis not liable to be punished more than once for thesame act or omission.

42 Civil proceedings

An action does not lie against a person for thefailure or refusal to do anything that wouldconstitute an offence against this Act.

* * * * *

42A Power to require names of persons supplied withtobacco

(1) The Secretary may, in writing addressed to aperson who manufactures tobacco products orsells tobacco products by wholesale, require theperson to provide to the Secretary within areasonable period, being not less than one monthafter the requirement is made—

(a) the names and addresses of persons carryingon a tobacco retailing business in Victoria towhom the person has supplied tobaccoproducts in Victoria within the preceding12 months; and


S.42AAinsertedbyNo.31/2002s.12,amendedbyNo.114/2003s.12.1.3(Sch.6item13.3(a)–(h)),repealedbyNo.45/2005s.25(e).


s. 41A

S. 42A(1)substituted byNo. 49/2009s. 49(1).



105

(b) the addresses of retail outlets in Victoria thatthe person knows—

(i) sell tobacco products manufactured bythe person; or

(ii) sell tobacco products purchased atwholesale from the person, whetherdirectly or indirectly.

(1A) Information provided to the Secretary in responseto a request under subsection (1) must be in or tothe effect of the form (including electronic form)approved by the Secretary.

(2) If a person to whom a requirement undersubsection (1) is addressed refuses or fails torespond or provides information that the personknows to be false or misleading in any materialparticular, the person is guilty of an offence.



(3) The Secretary must not give to any other person,whether directly or indirectly, any informationacquired by the Secretary under this sectionexcept to the extent necessary to enable aninspector to carry out functions under this Act.


(4) Subsection (3) does not apply to the giving ofinformation—

(a) to a court or tribunal in the course of legalproceedings; or

(b) pursuant to an order of a court or tribunal; or

(c) with the written authority of the person towhom the information relates.

S. 42A(1A)inserted byNo. 49/2009s. 49(1).

S. 42A(2)amendedbyNo. 49/2009s. 49(2).

s. 42A



106

42B Supreme Court—limitation of jurisdiction

(1) It is the intention of section 42, as it has effect onand after the commencement of section 19 of theTobacco (Amendment) Act 2000, to alter or varysection 85 of the Constitution Act 1975.

(2) It is the intention of section 42, as it has effectimmediately after the commencement of each ofthe amendments made to this Act by the Tobacco(Further Amendment) Act 2001, to alter or varysection 85 of the Constitution Act 1975.

(3) It is the intention of section 42, as it has effect onand after the commencement of sections 8 and 9of the Tobacco (Miscellaneous Amendments)Act 2002, to alter or vary section 85 of theConstitution Act 1975.

43 Regulations

(1) The Governor in Council may make regulationsfor or with respect to—

(a) the labelling of packages containing tobaccoincluding the position of labels on packetsand the size, colour, style and nature oflabels or labelling; and

(aa) specifying the method or methods by whichaverage yields of tar, nicotine and carbonmonoxide of tobacco in a package are to bedetermined if a label is required to disclosethose yields; and

(b) prescribing statements or warnings for thepurpose of labelling packages; and

(c) generally prescribing any other matter orthing required or permitted by this Act to beprescribed or necessary to be prescribed togive effect to this Act.

S. 42Binserted byNo. 43/2000s. 19,amendedbyNo. 28/2001s. 16 (ILAs. 39B(1)).

s. 42B

S. 42B(2)inserted byNo. 28/2001s. 16.

S. 42B(3)inserted byNo. 31/2002s. 13.

S. 43(1)(aa)inserted byNo. 83/1993s. 5.



107

(2) The regulations—

(a) may be of general or limited application; and

(b) may differ according to differences in time,place or circumstance; and

(c) may apply, adopt or incorporate (with orwithout modification) any matter containedin an Act of the Commonwealth or in aninstrument made under such an Act as inforce from time to time.

(3) The regulations are subject to disallowance by aHouse of the Parliament.

(4) This section authorises the prescribing byregulation of the matters contained in the Health(Tobacco Warning Labels) Regulations 1986 andthose Regulations have effect as if they had beenmade under this section.

__________________


s. 43

Part 5—Transitional


108

PART 5—TRANSITIONAL

44 Proceedings under section 6(2)

Despite the repeal of subsection (1) of section 37by section 16 of the Tobacco (Amendment) Act2000, that subsection, as in force immediatelybefore the commencement of that section,continues to apply in respect of an offencecommitted before that commencement if a noticeunder that subsection in respect of that offencewas given before that commencement.

45 Section 15D

A reference in section 15D to an offence does notinclude a reference to an offence committedbefore the commencement of section 14 of theTobacco (Amendment) Act 2000.

* * * * *

* * * * *

* * * * *

46 Section 3: definition of occupier

(1) The definition of occupier inserted in section 3 bysection 8(2) of the Tobacco Amendment(Protection of Children) Act 2009 applies to—

New Pt 5(Heading andss 44, 45)inserted byNo. 43/2000s. 20.


s. 44


Pt 5(Heading)repealed byNo. 94/1997s. 21(4).

S. 44repealed byNo. 94/1997s. 21(4).

S. 45repealed byNo. 83/1993s. 6.

S. 46repealed byNo. 83/1993s. 6, new s. 46inserted byNo. 49/2009s. 50.

Part 5—Transitional


109

(a) offences alleged to have been committed;and

(b) the exercise of powers under Part 3A—

on or after 1 January 2010.

(2) For the purposes of subsection (1), if an offence isalleged to have been committed between 2 datesof which one is before and one is on or after1 January 2010, the offence is alleged to havebeen committed before 1 January 2010.

__________________

s. 46


110

SCHEDULE

Section 38

INFRINGEMENT OFFENCES

Column A Column B

Item Infringement offence

Infringementpenalty(naturalperson)

Infringementpenalty (bodycorporate)

1 An offence against section 5A(1) 1 penaltyunit

Notapplicable

2 An offence against section 5B(1) 2 penaltyunits

Notapplicable

3 An offence against section 5C(1) 1 penaltyunit

Notapplicable

4 An offence against section 5D(1) 2 penaltyunits

Notapplicable

5 An offence against section 5E(1) 2 penaltyunits

5 penaltyunits

6 An offence against section 5F(1) 2 penaltyunits

5 penaltyunits

7 An offence against section 5G(1) 2 penaltyunits

5 penaltyunits

8 An offence against section 5H(1) 2 penaltyunits

5 penaltyunits

9 An offence against section 5K(1) 2 penaltyunits

5 penaltyunits

10 An offence against section 5N(1) 2 penaltyunits

5 penaltyunits

11 An offence against section 5R(1) 2 penaltyunits

5 penaltyunits

12 An offence againstsection 6(2AA)

3 penaltyunits

30 penaltyunits

13 An offence against section 6(2A) 3 penaltyunits

30 penaltyunits

Sch.substituted byNo. 43/2000s. 21,amendedbyNos 28/2001s. 17(1)(2),31/2002s. 14(a)–(c),substituted byNo. 45/2005s. 20,amendedbyNo. 45/2005s. 25(f),substituted byNo. 49/2009s. 51.

Sch.


111

Column A Column B




14 An offence against section 6(2B) 3 penaltyunits

30 penaltyunits

15 An offence against section 12(1) 4 penaltyunits

60 penaltyunits


12 penaltyunits


30 penaltyunits


30 penaltyunits

19 An offence against section 13A(1) 4 penaltyunits

Notapplicable

20 An offence against section 13A(2) 4 penaltyunits

60 penaltyunits

21 An offence against section 14 3 penaltyunits

60 penaltyunits

22 An offence against section 15C(1) 2 penaltyunits

5 penaltyunits

23 An offence against section 15C(3) 2 penaltyunits

5 penaltyunits

24 An offence against section 15F(1) 1 penaltyunit

Notapplicable

25 An offence against section 15G(1) 2 penaltyunits

Notapplicable

26 An offence against section 15H(1) 2 penaltyunits

5 penaltyunits

27 An offence against section 15I(1) 3 penaltyunits

30 penaltyunits

28 An offence against section 15J 3 penaltyunits

30 penaltyunits

29 An offence against section 15L(1) 3 penaltyunits

30 penaltyunits

Sch.


112

Column A Column B




30 An offence against section 15L(2) 3 penaltyunits

30 penaltyunits

31 An offence against section 15S(1) 4 penaltyunits

60 penaltyunits

32 An offence against section 15ZB 1 penaltyunit

5 penaltyunits

33 An offence against section 36C(3) 1 penaltyunit

Notapplicable

═══════════════

Sch.


113

ENDNOTES

1. General Information

Minister's second reading speech—

Legislative Assembly: 7 October 1987

Legislative Council: 30 October 1987

Long title

The long title for the Bill for this Act was "A Bill to provide for theregulation of the sale and promotion of tobacco products and for otherpurposes.".

The Tobacco Act 1987 was assented to on 24 November 1987 and came intooperation as follows:

Sections 6(1)(3), 13, 15 on 1 April 1988: section 2(2); section 6(2) on1 January 1989: section 2(4); section 14 on 1 July 1988: section 2(3); rest ofAct on 24 November 1987: section 2(1).

Endnotes


114

2. Table of Amendments

This Version incorporates amendments made to the Tobacco Act 1987 byActs and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Magistrates' Court (Consequential Amendments) Act 1989, No. 57/1989Assent Date: 14.6.89Commencement Date: S. 4(1)(a)–(e)(2) on 1.9.89: Government Gazette

30.8.89 p. 2210; rest of Act on 1.9.90: GovernmentGazette 25.7.90 p. 2217

Current State: All of Act in operation

Tobacco (Amendment) Act 1993, No. 83/1993Assent Date: 3.11.93Commencement Date: Ss 1–3, 5, 6 on 3.11.93; s. 4 on 1.1.94: s. 2(2)Current State: All of Act in operation

Local Government (Miscellaneous Amendments) Act 1993, No. 125/1993Assent Date: 7.12.93Commencement Date: S. 20(12) on 7.12.93: s. 2(4)Current State: This information relates only to the provision/s

amending the Tobacco Act 1987

Financial Management (Consequential Amendments) Act 1994, No. 31/1994Assent Date: 31.5.94Commencement Date: S. 4(Sch. 2 item 90) on 1.1.95: Government Gazette

28.7.94 p. 2055Current State: This information relates only to the provision/s


Equal Opportunity Act 1995, No. 42/1995Assent Date: 14.6.95Commencement Date: S. 224 on 5.10.95: Government Gazette 28.9.95

p. 2731; Sch. 2 item 41 on 1.1.96: GovernmentGazette 21.12.95 p. 3571

Current State: This information relates only to the provision/samending the Tobacco Act 1987

Gaming No. 2 Act 1997, No. 16/1997Assent Date: 6.5.97Commencement Date: S. 120 on 31.3.98: s. 2(4)Current State: This information relates only to the provision/s


Business Franchise Fees (Safety Net) Act 1997, No. 94/1997Assent Date: 16.12.97Commencement Date: S. 21 on 16.12.97: s. 2(3)Current State: This information relates only to the provision/s


Endnotes


115

Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998Assent Date: 26.5.98Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2)Current State: This information relates only to the provision/s


Printers and Newspapers (Repeal) Act 1998, No. 56/1998Assent Date: 13.10.98Commencement Date: S. 5(2) on 19.11.98: Government Gazette 19.11.98

p. 2792Current State: This information relates only to the provision/s


Tobacco (Amendment) Act 2000, No. 43/2000 (as amended by No. 28/2001)Assent Date: 6.6.00Commencement Date: Ss 4–6, 7(2), 11, 12, 13(2), 14, 15,

16(1)(a)(c)(d)(2)(3), 17–22 on 1.11.00: s. 2(2); ss 7(1),13(1)(3) on 1.7.01: s. 2(3); ss 8–10, 16(1)(b) on 1.1.02:s. 2(4)


Statute Law Amendment (Authorised Deposit-taking Institutions) Act 2001,No. 11/2001

Assent Date: 8.5.01Commencement Date: S. 3(Sch. item 76) on 1.6.01: s. 2(2)Current State: This information relates only to the provision/s


Tobacco (Further Amendment) Act 2001, No. 28/2001Assent Date: 12.6.01Commencement Date: S. 16 on 13.6.01: s. 2(1); s. 8 on 1.7.01: s. 2(2); ss 7, 9,

10, 12, 15, 17(2) on 1.10.01: s. 2(3); ss 3(2), 4–6, 11on 1.11.01: s. 2(4); ss 3(1), 13, 14, 17(1) on 1.1.02:s. 2(5)


Tobacco (Miscellaneous Amendments) Act 2002, No. 31/2002Assent Date: 12.6.02Commencement Date: Ss 4(3), 5, 12 on 13.6.02: s. 2(1); ss 4(1)(2), 6–11, 13,

14 on 1.9.02: s. 2(2)Current State: This information relates only to the provision/s


Gambling Regulation Act 2003, No. 114/2003Assent Date: 16.12.03Commencement Date: S. 12.1.3(Sch. 6 item 13) on 1.7.04: Government

Gazette 1.7.04 p. 1843Current State: This information relates only to the provision/s


Endnotes


116

Public Administration Act 2004, No. 108/2004Assent Date: 21.12.04Commencement Date: S. 117(1)(Sch. 3 item 204) on 5.4.05: Government

Gazette 31.3.05 p. 602Current State: This information relates only to the provision/s


Tobacco (Amendment) Act 2005, No. 45/2005Assent Date: 16.8.05Commencement Date: Ss 3–20 on 1.3.06: s. 2(1); ss 21–25 on 1.7.07: s. 2(2)Current State: This information relates only to the provision/s


Infringements (Consequential and Other Amendments) Act 2006, No. 32/2006Assent Date: 13.6.06Commencement Date: S. 94(Sch. item 47) on 1.7.06: Government Gazette



Owners Corporations Act 2006, No. 69/2006Assent Date: 19.9.06Commencement Date: S. 224(Sch. 3 item 9) on 31.12.07: s. 2(2)Current State: This information relates only to the provision/s


Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006,No. 80/2006

Assent Date: 10.10.06Commencement Date: S. 26(Sch. item 101) on 11.10.06: s. 2(1)Current State: This information relates only to the provision/s


Public Health and Wellbeing Act 2008, No. 46/2008Assent Date: 2.9.08Commencement Date: S. 291 on 1.1.10: s. 2(2)Current State: This information relates only to the provision/s


Tobacco Amendment (Protection of Children) Act 2009, No. 49/2009Assent Date: 18.8.09Commencement Date: Ss 7–51 on 1.1.10: s. 2(1)Current State: This information relates only to the provision/s


Criminal Procedure Amendment (Consequential and Transitional Provisions)Act 2009, No. 68/2009

Assent Date: 24.11.09Commencement Date: S. 97(Sch. item 120) on 1.1.10: Government Gazette



Endnotes


117

Health and Human Services Legislation Amendment Act 2010, No. 29/2010Assent Date: 8.6.10Commencement Date: S. 73 on 1.7.10: Special Gazette (No. 235) 23.6.10 p. 1Current State: This information relates only to the provision/s


––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

Endnotes


118

3. Explanatory Details

No entries at date of publication.

Endnotes

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