TOBACCO CONTROL LEGISLATION AMENDMENT BILL 2010 Explanatory Statement

Northern Territory Explanatory Statements

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TOBACCO CONTROL LEGISLATION AMENDMENT BILL 2010

14
ATTACHMENT C

CABSUB - Attachment C - Explanatory Statement for TCAAmendment Bill 2010 - 29 April 2010.doc
10-5-10

TOBACCO CONTROL ACT AND REGULATIONS AMENDMENT BILL 2010
SERIAL NO. 104

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR HEALTH

EXPLANATORY STATEMENT

GENERAL OUTLINE

Tobacco use continues to be the number one cause of preventable death and illness in the Northern Territory. One in five Territorians die as a direct result of tobacco use, and the rate of smoking amongst Territorians is over double the national average.

The Tobacco Control Act (the Act) was introduced by the current Government in 2002 to reduce the harms caused by tobacco use, through discouraging people from smoking, protecting people from environmental tobacco smoke, and supporting those that choose to quit.

The Act is broad in its approach and provides a for a retail licence scheme to regulate supply; provisions for smoke free areas affording protections against environmental tobacco smoke; and restrictions on the advertising, display, and promotion to discourage uptake.

At the time of its introduction in 2002 it was the most contemporary and comprehensive legislation of its type in Australia; however, since 2002 it has been surpassed by more contemporary legislation in all other States and Territories.

The purpose of the Tobacco Control Act and Regulations Amendment Bill 2010 (the Bill) is to achieve better health for Territorians by taking further steps to protect employees and the public from environmental tobacco smoke, reduce children’s exposure to smoking and tobacco products to prevent uptake, and to support smokers who choose to quit. The amendments will ensure the Territory tobacco control legislation is comparable to all other jurisdictions and will indeed put the Northern Territory at the forefront of tobacco control in Australia again.

The Bill proposes new smoke free area provisions that will prohibit smoking in all public outdoor eating and drinking areas. This will provide improved protections for staff that work in those areas and the public that use them, as well as act to discourage people from smoking.

Exemptions to the new smoke free area provisions will be provided to liquor licensed premises so that pubs and clubs can designate an Outdoor Smoking Area (OSA). An OSA will provide a space where patrons can still enjoy a smoke and a beer, however OSA’s will be subject to conditions maximize protections to staff, patrons and children and act promote denormalisation of the smoking culture.

The Bill also proposes amendments to the current display restrictions that will prohibit the display of tobacco products at the point of sale. This will mean that retailers in the Northern Territory will be required to cover their displays or keep products under the counter. Tobacco products will no longer be an image that children associate with the sales counters at their local store, supermarket or service station, and by removing tobacco products from view it will also support those smokers that have chosen to quit.

Changes to the licensing arrangements under the Act will see the introduction of an annual licence fee of $200, and improve the ability of the Director of Licensing to impose and enforce conditions on tobacco retailers. Closer regulation on the supply of tobacco products will act to reduce the uptake of smoking by children, and revenue raised will support Government activities such as the Quitline to support smokers who choose to quit.

NOTES ON CLAUSES

PART 1 PRELIMINARY

This Part provides for the preliminary matters in the Bill.

Clause 1. Short Title

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Tobacco Control Act and Regulations Amendment Bill 2010.

Clause 2. Commencement

This Act will commence on the day which the Administrator’s ascent is declared, enabling people and organisations to immediately voluntarily declare outdoor areas smokefree, casinos to locate gaming machines in the high roller room, and introduce transitional arrangments for the amendments to commence on 2 January 2011.

Part 3 of the Act will commence on 2 Jauary 2011 and will provide for the ban on smoking in outdoor eating and drinking areas, a ban on the display of tobacco products at the point of sale and new license fees and conditions.

Part 2 AMENDMENTS COMMENCING ON ASSENT

This part provides for all matters that will commence on assent.

Division 1 Amendment of Tobacco Control Act

Clause 3. Act amended

This Act amends the Tobacco Control Act.

Clause 4. Amendment of section 5 (Definitions)

The definitions have been updated to reflect the amendments of this
Bill.

Clause 5. Amendment of section 7 (Smoke-free area)

At section 7(1) of the Act the Bill proposes to include a voluntarily declared area as one of the prescribed smoke free areas, effectively prohibiting smoking in any area voluntarily declared as a smoke free area by the owner occupier of the area.

Clause 6. New Section 7A

The Bill proposes to add a new section 7A to the Act to enable the owners or occupiers of premises to voluntarily declare any outdoor place, accessible by the public, as a smoke free area that is enforceable under the Act.

The amendments prescribe a voluntarily declared area as a smoke free area, providing the power for an owner or occupier to declare a voluntary smoke free area, and providing the requirements for declaring such an area.

The new provisions will commence on ascent of the new Act, therefore giving all premises the chance to voluntarily accelerate the implementation of the proposed amendments.

The hospitals in the Northern Territory will be able to use this provision to declare the entire premises as a smokefree area that is enforceable under the Act.

Clause 7 Repeal and substitution of section 30

Section 30 of the Act currently prevents the Director of Licensing from issuing conditions on a licence that relate to the value or quantity of tobacco sold. The Bill proposes that this provision be repealed to enable the Director of Licensing impose conditions on the licence that ban the sale of specific products (such as fruit and confectionary flavoured cigarettes that are marketed at children).

The Bill also proposes that the current section 30 be replaced by a new provision that makes it an offence to fail to comply with the conditions of a tobacco retail licence.

Since the introduction of the Act the Director of Licensing has had the power to issue conditions on a licence, however in a drafting oversight it was not made an offence for a licensee to breach any such conditions, this new provision will remedy this.

Clause 8. Amendment of section 45

This amendment simply removes the body corporate offence given that this provision cannot apply to a body corporate.

Clause 9. Amendment of section 48

This amendment simply removes the body corporate offence given that this provision cannot apply to a body corporate.

Clause 10. Amendment of section 57

This amendment simply removes the body corporate offence given that this provision cannot apply to a body corporate.

Clause 11. Repeal and substitution of Part 8

The Bill proposes to repeal the current transitional arrangements that were provided for the commencement of the legislation when the act was introduced in 2002, and substitute it with a new Part 8 - Transitional Matters for Tobacco Control Amendment Act 2010, to provide transitional arrangements for the commencement of the Tobacco Control Amendment Act.

Under Part 8, the Bill proposes to add Section 59 (Outdoor eating and drinking areas - exemption for transitional period) which will enable the Minister exempt all or part of a liquor licensed premises from the prohibition on smoking in outdoor eating and drinking areas until the end of the transitional period.

The new provision specifies the transitional period will be from
2 January 2011 until 31 September 2011. It further requires that the Minister only grant the exemption where he is satisfied that the liquor licensee cannot complete the work necessary to designate an outdoor smoking area prior to commencement of the Tobacco Control Amendment Act on 2 January 2011.

Division 2 Amendment of the Tobacco Control Regulations

Clause 12 Regulations Amended

This Act amends the Tobacco Control Regulations.

Clause 13 Amendment of Regulation 8A (Minister may declare high roller room within casino)

The Bill proposes to amend the current regulation 8A to enable a casino to locate gaming machines in an area that has been declared high roller room, and exempted from the smoke free provisions.

The prposed amendments also specify conditions to control the number and type of gaming machines located in the room to ensure the high roller room maintains the appearance of, and operates only as high roller facility.

PART 3 AMENDMENTS COMMENCING ON 2 JANUARY 2011

This part provides for those amendments that will take effect from
2 January 2011.

Division 1 Amendment to Tobacco Control Act

Clause 14 Act amended

This Act amends the Tobacco Control Act.

Clause 15. Amendment of section 5 (Definitions)

The definitions have been updated to reflect the amendments in the Bill.

Clause 16 New Section 5B

The Bill proposes to add a new section 5B (Outdoor Eating and Drinking Place) to the Act providing a definition for outdoor eating and drinking place.

The Act does not currently provide a definition for outdoor eating and drinking place. This section establishes that an outdoor eating and drinking place is any public area that is provided for people to consume food or drink provided by an on-site food service, where the area is not enclosed.

Whether or not an area is a liquor licensed area has no effect on whether it is defined as an outdoor eating and drinking place meaning cafés, kiosks, takeaways and restaurants (such as the cool spot, McDonalds and the local fish and chip shop with tables out the front) will be smokefree.

The definition clearly identifies that residential premises (including caravan parks and hotel rooms) are not considered an outdoor eating and drinking area, and places where consumption of food and drink of food and drink are prohibited will be excluded.

The definition also clearly excludes places like car parks, bottle shop drive throughs, golf couses and large pieces of land separated from a food service area will not be capture by the Act.

The Bill also proposes that a new section 5C will be added to enable the Minister to declare major events in large outdoor areas (such as the Darwin Cup and V8 Super Cars) as exempt areas subject to conditions that will minimize staff and public exsposure to environmental tobacco smoke.

Clause 17 Amendment of section 7 (Smoke free area)

At section 7(1) of the Act the Bill proposes to include an outdoor eating and drinking area as one of the prescribed smoke free areas, effectively prohibiting smoking in all outdoor eating and drinking places.

Clause 18 Amendment of Section 11

The Bill proposes to amend section 11 to add a new provision that will provide a head of power to implement regulations that will enable the Director of Licensing to issue a certificate of compliance for the delineation of outdoor areas to which the act applies and the location, size and structure of outdoor smoking areas. This provision also enables the Director to impose a fee for this service.

Clause 19 Amendment of section 18 (Restrictions on price boards and shelf ticketing)

The Bill proposes to amend section 18 of the Act by removing the term shelf ticketing from the heading and the section, given that the amendments to section 20 will prohibit the display of tobacco products meaning shelf ticketing will no longer be possible.

Clause 20. Repeal and substitution on sections 20 and 21

The bill proposes to repeal section 20 and 21. Section 20 will be replaced by a new section that prohibits the display of tobacco products at a place where they are sold. The amendments will make it an offence by the occupier if a member of the public can see a tobacco product in that premises.

The new provision specifies that the section does not apply when a customer asks to buy or carries a tobacco product to avoid any absurd interpretation.

The Bill proposes to repeal section 21 (Conditions for displays other than on vending machines) of the Act. Section 21 currently sets out the requirements that apply to the display of tobacco products; this section will not be required when displays have been prohibited by the amendments to section 20.

Clause 21 Amendments of section 22 (conditions of vending machine displays)

The Bill proposes to amend section 22 by omitting the provision that prohibits the display of tobacco products on a vending machine. Given that not retailer will be permitted to have displays at a point of sale there is no longer any need to prohibit the display of tobacco products on a vending machine where it is the second point of sale on licensed premises.

The Bill also proposes to add an offence provision to ensure a licensed premises does not breach the display restrictions in section 22 of the Act. This was an oversight in the current Act.

Clause 22. Amendment of section 29 (Grant or refusal of licence)

At section 29(1)(c) of the Act the Bill proposes to add the requirement that an application for the grant of a licence must be accompanied by the prescribed fee.

Clause 23 New section 29A

The Bill proposes to add a new section 29A (Renewal of licence) to the Act which will provide for the renewal of a tobacco retailer licence. The new provision specifies that the application for renewal of a tobacco retailer licence shall be subject to the same process/requirements as the application for grant of a licence prescribed by section 29 of the Act.

Clause 24 Repeal and substitution of section 32

The Bill proposes to repeal section 32 which provides the current never ending license duration, and substitute it with a new a provision that causes a tobacco retail licence to expire 12 months from the date of the grant or renewal of the licence. This new provision will ensure that licensee must seek renewal of their licence through the Director of Licensing every 12 months subject to the prescribed fee.
The new provision will also continue to address circumstances where the licence is cancelled, surrendered or the licensee dies or becomes dissolved.

Clause 25 Amendment to section 39 (Notice to show cause)

The Bill proposes to add a new provision to section 39 of the Act that requires the Director of Licensing to invite the licensee to show cause if he refuses to renew a licence or renews it subject to a new condition.

Clause 26 New section 57A

The Bill proposes to add a section 57A (Acquisition on just terms) to the Act which enable a person to seek compensation from the Northern Territory (through the courts) if the operation of the Act results in the acquisition of their property.

It is necessary to include this provision given the amendment to section 32 of the Act changing the duration of the licence from a potentially never ending period to a maximum of 12 months.

Clause 27 New section 60

The Bill proposes to add a section 60 (Savings – existing tobacco retail licences) to the Act to ensure the existing tobacco licences, which do not expire, will expire at the end of 2011 unless surrendered or cancelled first.

This will ensure that all tobacco licences, not just licences issued after commencement of the Tobacco Control Amendment Act on
2 January 2011 are required to renew the licence on a annual basis. This provision provides licensees 12 months (the whole of 2011) to seek renewal of their licences.

Clause 28 Other amendments of Acts

The amendments in the schedule will take affect to provide for style and other minor changes.

Division 2 Amendment of Tobacco Control Regulations

Clause 29 Regulations Amended

This Act amends the Tobacco Control Regulations.

Clause 30 Amendment of Regulation 3 (Definitions)

The definitions have been updated to reflect the amendments of this
Bill.

Clause 31 Amendment of regulation 11 (Outdoor public venues)

The Bill proposes that regulation 11 be amended to specify that it only applies to outdoor public venues where there is no on-site food service in order to ensure that it does not contradict the new provisions prohibiting smoking in outdoor eating and drinking areas.

Clause 32 Repeal of regulation 12

Regulation 12 (Outdoor food service areas) currently provides the occupier of an outdoor food service area the ability to exempt that area from the smoke free requirements. The Bill proposes that regulation 12 be repealed to avoid inconsistency with the new prohibition on smoking in outdoor eating and drinking areas in the Act.

Clause 33 New regulations 15B and 15C

The Bill proposes that the new regulations 15B and 15C be added; Liquor licensed premises – outdoor smoking areas, and Certificate for outdoor smoking area, to provide liquor licensed premises with the ability to exempt all or part of their outdoor eating and drinking area as an outdoor smoking area (OSA).

The new regulation 15B will enable liquor licensed premises to designate up to 50% of the outdoor eating and drinking area as an OSA subject to the following conditions:

Each OSA must be delineated and marked by signage indicating it is a smoking area;
Food other than pre-packaged snack food cannot be consumed in the OSA;
Each OSA must have buffers on its perimeter wherever it is adjacent to other parts of the premises’ outdoor area;
A buffer must be an impervious barrier of at least 2.1 meters in height or a space 2 meters in width where a barrier is not present;
Entertainment such as bands, gaming machines or pool tables cannot be provided within the OSA, only electronic forms of entertainment such as TV screens, juke boxes and speakers may be permitted;
There must be equal access to outdoor amenities, and the OSA cannot provide a better standard of amenity than the smoke free outdoor areas within the premises;
The OSA must not contravene section 7 of the Act; and
The licensee must maintain an up-to-date smoking management plan that is available for perusal by authorised officers and patrons on request.

To enable the requirement to maintain a smoking management plan the proposed new regulation also specifies that in the plan the occupier must:
Identify the outdoor eating and drinking areas;
Identify the outdoor smoking areas;
Identify the buffers for the outdoor smoking areas;
State how the occupier will minimize the exposure of staff and patrons to environmental tobacco smoke;
Describe the training and instruction given to staff to ensure the Act and the plans are complied with; and
Provide for signage that clearly identifies where smoking is or is not allowed.

The new regulation 15C will enable the Director of Licensing to issue a certificate of compliance that identifies all outdoor eating and drinking areas on a premises and certifies that the OSA, or the plans for a proposed OSA, are compliant with the restrictions established under regulation 15B.

Only licensed premises that want to seek a certificate for their own assurity need do so under the proposed provision, and they will be required to submit a report from an architect, building certifier or other person to enable the Director to be satisfied that the OSA is or will be compliant.

This provision will give licensed premises security to invest money into the redesign and construction of outdoor smoking areas first having obtained approval of what they intend to provide.

Clause 34 Amendment of Part 4 Heading

The Bill proposes to remove the word displays from the heading given that the amendments to the Act mean that there will no longer be any prescribed regulations relating to the display of tobacco products.

Clause 35 Amendment of regulation 19 (Price boards)

The Bill proposes to omit regulation 19(5) given that the amendments to the Act prohibit a display which means that there will no longer be any requirement for a price board to be within a prescribed distance from the display.

Clause 36 Repeal of regulation 20, 21 and 21A

The Bill proposes to repeal regulation 20 (Shelf tickets), regulation 21(Displays other than at specialist tobacconists or on vending machines), and regulation 21A (Displays at specialist tobacconists) given that the amendments to the Act that prohibit the display of tobacco products mean that there will no longer be any requirement for regulations prescribing conditions relating to shelf tickets or the display of tobacco products.

Clause 37 Amendment of regulation 25 (Application for grant of licence)

The Bill proposes to amend regulation 25 to reflect the amendments to the Act now enabling the renewal of a tobacco retail licence. This amendment will require a criminal history (name check) to accompany an application for a licence renewal.

The amendment to regulation 25 will also specify the application for the grant or renewal of a licence shall be accompanied by a fee of 200 revenue units, which currently equates to $200.

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