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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Tobacco Products Regulation (E-Cigarettes and Review)
Amendment Bill 2018
A BILL FOR
An Act to amend the
Tobacco
Products Regulation Act 1997
.
Contents
Part 2—Amendment of Tobacco Products
Regulation Act 1997
6Amendment of section 3—Objects of
Act
7Amendment of section
4—Interpretation
9Amendment of section
6—Requirement for licence
10Amendment of section
9—Licence conditions
11Amendment of Heading to Part 3
30Restrictions on
retail sale of tobacco products and e-cigarette products
14Amendment of section 36—Products
designed to resemble tobacco products
15Amendment of section 37—Sale of tobacco
products or e-cigarette products by vending machine
37ASale of
e-cigarette products from temporary outlet
18Amendment of section 38A—Sale or supply
of tobacco products or e-cigarette products to children
19Amendment of section 39—Power to require
evidence of age
20Amendment of section 40—Certain
advertising prohibited
21Amendment of section 41—Prohibition of
certain sponsorships
22Amendment of section 42—Competitions and
reward schemes etc
23Amendment of section 43—Free
samples
24Amendment of section 51—Smoking banned
in certain public areas—short term bans
25Amendment of section 52—Smoking banned
in certain public areas—longer term bans
26Amendment of section 66—Powers of
authorised officers
27Amendment of section 69—Powers in
relation to seized products
29Amendment of section 70A—Confiscation of
products from children
30Amendment of section
71—Exemptions
31Amendment of section
85—Evidence
33Amendment of section
87—Regulations
Schedule 1—Transitional
provisions
3References to Tobacco Products Regulation
Act 1997
Schedule 2—Further amendment of
Tobacco Products Regulation Act 1997—penalty provisions
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Tobacco Products Regulation (E-Cigarettes
and Review) Amendment Act 2018.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Tobacco Products Regulation
Act 1997
Long title—delete "the sale, packing, importing, advertising and use
of tobacco products;" and substitute:
tobacco products and e-cigarette products,
Section 1—delete the section and substitute:
1—Short title
This Act may be cited as the Tobacco and E-Cigarette Products
Act 1997.
6—Amendment
of section 3—Objects of Act
(1) Section 3—after "resources" insert:
, and in recognition of the potential harm caused by smoking
e-cigarettes
(2) Section 3(b)—after "tobacco products" first occurring
insert:
and e-cigarettes
(3) Section 3(b)(i)—delete subparagraph (i) and
substitute:
(i) by requiring health warnings to be displayed on tobacco products and
e-cigarette products and otherwise disseminating information about the harmful
effects of such smoking or consumption;
(4) Section 3(b)(ii)—after "tobacco products" insert:
and e-cigarette products
(5) Section 3(b)(iv)—after "tobacco products" insert:
and e-cigarette products
(6) Section 3(c)—after "tobacco smoke" insert:
and e-cigarette vapour
7—Amendment
of section 4—Interpretation
(1) Section 4(1), definition of advertise—after
"tobacco products" first occurring insert:
or e-cigarette products
(2) Section 4(1), definition of advertise—delete
"tobacco" second, third and fourth occurring and substitute:
such
(3) Section 4(1), definition of advertise— delete ",
and tobacco advertisement and advertisement have
corresponding meanings"
(4) Section 4(1), after the definition of child
insert:
cigarette does not include an e-cigarette;
(5) Section 4(1), definition of consume—delete the
definition and substitute:
consume means—
(a) in relation to a tobacco product—
(i) smoke; or
(ii) inhale (in the form of a powder); or
(iii) chew or suck; or
(iv) give away; or
(b) in relation to an e-cigarette—smoke;
(6) Section 4(1)—after the definition of contract of
service insert:
contravene includes fail to comply with;
e-cigarette means—
(a) a device that is designed to generate or release an aerosol or vapour
for inhalation by its user in a manner similar to the inhalation of smoke from
an ignited tobacco product; or
(b) a device of a kind declared by the Minister by notice in the Gazette
to be an e-cigarette,
but does not include a device of a kind excluded from the ambit of this
definition by the regulations;
e-cigarette advertisement includes any writing, still or
moving picture, sign, symbol or other visual image or message designed to
promote or publicise—
(a) the purchase or use of an e-cigarette product; or
(b) a trademark or brand name, or part of a trademark or brand name, of an
e-cigarette product;
e-cigarette product means—
(a) an e-cigarette; or
(b) any part comprising an e-cigarette; or
(c) a cartridge, capsule or other container designed to contain a liquid,
aerosol, gas, vapour or other substance for use in an e-cigarette; or
(d) a heating element designed for use in an e-cigarette; or
(e) a battery designed for use in an e-cigarette; or
(f) a product of a kind prescribed by the regulations;
(7) Section 4(1), definition of health warning—delete
the definition and substitute:
health warning, in relation to a tobacco product or
e-cigarette product, means a warning prescribed by regulation (or by direction
of the Minister under the regulations) for the purposes of this Act in relation
to such a product;
(8) Section 4(1), definition of label—delete "but that
does not comprise part of the package; and labelling and
labelled have a corresponding meaning" and substitute:
or e-cigarette products but that does not comprise part of the
package
(9) Section 4(1), definition of purchase—delete
"includes receipt of tobacco" and substitute:
or e-cigarette products includes receipt of such
(10) Section 4(1), definition of record—delete ",
microfilm"
(11) Section 4(1), after the definition of shared area
insert:
shisha tobacco means a fibrous plant product (whether or not
comprised of or containing tobacco) that is designed for smoking in a shisha,
hookah, water pipe or similar device;
(12) Section 4(1), definition of smoke—delete the
definition and substitute:
smoke means—
(a) in relation to a tobacco product—smoke, hold or otherwise have
control over, an ignited tobacco product; or
(b) in relation to an e-cigarette—inhale from, hold or otherwise
have control over, an e-cigarette that is in use;
(13) Section 4(1), definition of tobacco
advertisement—delete "means" and substitute:
includes
(14) Section 4(1), definition of tobacco product—after
paragraph (c) insert:
(ca) shisha tobacco; or
(15) Section 4(1), definition of tobacco product,
(f)—delete paragraph (f) and substitute:
(f) any other product, of a kind prescribed by regulation, that is
comprised of or contains tobacco; or
(16) Section 4(1), definition of tobacco product,
(g)—after "product" insert:
(other than an e-cigarette product)
(17) Section 4(1), definition of vending
machine—delete "tobacco"
Section 4A—delete the section
9—Amendment
of section 6—Requirement for licence
Section 6—after paragraph (a) insert:
(ab) carry on the business of selling e-cigarette products by retail;
or
10—Amendment
of section 9—Licence conditions
(1) Section 9(2)—delete "the conditions of a licence may include"
and substitute:
a licence condition may limit the sale of tobacco products or e-cigarette
products, including by
(2) Section 9(2)(a) and (b)—delete "tobacco" wherever occurring and
substitute in each case:
such
(3) Section 9(5)—delete ", or fail to comply with,"
11—Amendment
of Heading to Part 3
Heading to Part 3—after "tobacco products" insert:
and e-cigarette products
Section 29—delete the section
Section 30—delete the section and substitute:
30—Restrictions on retail sale of tobacco products
and e-cigarette products
(1) The following provisions apply in relation to the retail sale of
tobacco products:
(a) a person must not sell cigarettes—
(i) singly or loose; or
(ii) if the package enclosing the cigarettes—
(A) contains, or is designed to contain, fewer than 20 cigarettes;
or
(B) is able, or is readily able, to be divided into portions containing
fewer than 20 cigarettes each;
(b) a person must not sell a tobacco product unless it is enclosed in a
package that complies with the regulations and is labelled in accordance with
the regulations;
(c) a person must not sell a tobacco product that is enclosed in 2 or
more packages unless each package complies with the regulations and is labelled
in accordance with the regulations;
(d) a person must not sell a package containing a tobacco product unless
the package is wrapped in a material that is wholly transparent;
(e) a person must not sell a tobacco product if the order for the product
has been placed by mail, telephone, fax, email, Internet or other electronic
means.
Maximum penalty: $10 000.
Expiation fee: $500.
(2) A person must not sell an e-cigarette product if the order for the
e-cigarette product has been placed by mail, telephone, fax, email, Internet or
other electronic means.
Maximum penalty: $10 000.
Expiation fee: $500.
(3) In this section—
sell means sell by retail.
14—Amendment
of section 36—Products designed to resemble tobacco
products
Section 36—after "product" second occurring insert:
or an e-cigarette
15—Amendment
of section 37—Sale of tobacco products or e-cigarette products by vending
machine
Section 37(2)—delete subsection (2) and substitute:
(2) A person must not sell e-cigarettes or any other e-cigarette products
by means of a vending machine.
Maximum penalty: $10 000.
Expiation fee: $500.
After section 37 insert:
37A—Sale of e-cigarette products from temporary
outlet
(1) A person must
not sell e-cigarettes or any other e-cigarette product by retail from a
temporary outlet.
Maximum penalty: $10 000.
Expiation fee: $500.
(2) An occupier of premises must not cause or permit another person to
sell e-cigarettes or any other e-cigarette products by retail on those premises
in contravention of
subsection (1)
.
Maximum penalty: $10 000.
Expiation fee: $500.
(3) In this section—
temporary outlet means a booth, stand, tent or other
temporary or mobile structure or enclosure, whether or not part of that booth,
stand, tent, structure or enclosure is permanent.
17—Amendment
of section 38—Carrying tray etc of tobacco products or e-cigarette
products for making of successive retail sales
(1) Section 38(1)—after "tobacco products" first occurring
insert:
or e-cigarette products
(2) Section 38(1)—delete "tobacco" second occurring and
substitute:
such
18—Amendment
of section 38A—Sale or supply of tobacco products or e-cigarette products
to children
(1) Section 38A(1)—after "tobacco product" insert:
or e-cigarette product
(2) Section 38A(5)—after "tobacco products" first occurring
insert:
or e-cigarette products
(3) Section 38A(5)—after "tobacco" second occurring
insert:
such
(4) Section 38A(6), definition of responsible
person—after "tobacco product" insert:
or e-cigarette product
19—Amendment
of section 39—Power to require evidence of age
Section 39(1)—after "tobacco product" insert:
or e-cigarette product
20—Amendment
of section 40—Certain advertising prohibited
(1) Section 40(1)—after "tobacco products" insert:
or e-cigarette products
(2) Section 40(2)(a)—after "tobacco advertisement" insert:
or e-cigarette advertisement
(3) Section 40(2)(b)—after "tobacco advertisement" insert:
or e-cigarette advertisement
(4) Section 40(3)(a)—after "tobacco products" insert:
or e-cigarette products
(5) Section 40(3)(b)—after "tobacco products" insert:
or e-cigarette products
21—Amendment
of section 41—Prohibition of certain sponsorships
(1) Section 41(1)(a)—after "tobacco product" first and second
occurring insert:
or e-cigarette product
(2) Section 41(1)(b)—after "tobacco product" first occurring
insert:
or e-cigarette product
(3) Section 41(1)(b)—delete "tobacco" second occurring
22—Amendment
of section 42—Competitions and reward schemes etc
Section 42(1)—after "tobacco product" wherever occurring
insert:
or e-cigarette product
23—Amendment
of section 43—Free samples
(1) Section 43—after "tobacco product" first occurring
insert:
or e-cigarette product
(2) Section 43—delete "a tobacco" second occurring and
substitute:
such a
24—Amendment
of section 51—Smoking banned in certain public areas—short term
bans
(1) Section 51(1)—delete "or areas, and during the period (being a
period not exceeding 3 days)," and substitute:
or areas described, or shown on a map, in the notice and during a period
not exceeding 3 days
(2) Section 51(5)—delete subsection (5) and substitute:
(5) The occupier of a public area to which a notice under
subsection (1) applies must place signs in the area setting out the effect
of the notice in such numbers and positions as to be likely to be seen by
persons within the area.
Maximum penalty: $750.
25—Amendment
of section 52—Smoking banned in certain public areas—longer term
bans
(1) Section 52(1)—delete "specified" and substitute:
described, or shown on a map,
(2) Section 52(3) and (4)—delete subsections (3) and (4) and
substitute:
(3) A regulation made under this section—
(a) may exempt specified areas, specified circumstances or specified times
from the operation of subsection (2); and
(b) may be conditional or unconditional.
(4) The occupier of a public area to which a declaration under this
section applies must place signs in the area setting out the effect of the
declaration in such numbers and positions as to be likely to be seen by persons
within the area.
Maximum penalty: $750.
26—Amendment
of section 66—Powers of authorised officers
(1) Section 66(1)—after "Subject to this Part" insert:
, an authorised officer may
(2) Section 66(1)(a)—delete "an authorised officer may "
(3) Section 66(1)(c)—delete paragraph (c) and substitute:
(c) require a person to produce any record as reasonably required in
connection with the administration or enforcement of this Act;
(4) Section 66(1)(e)—delete "public dining or café area" and
substitute:
area that is subject to smoking restrictions under this Act
(5) Section 66(1)(g)—after "tobacco products" insert:
, e-cigarette products
27—Amendment
of section 69—Powers in relation to seized products
(1) Section 69—after "tobacco products" insert:
or e-cigarette products
(2) Section 69(a)—delete "and sell the products by public
tender"
(3) Section 69(e)—delete paragraph (e) and substitute:
(e) any products forfeited under this section may be disposed of in such
manner as the Minister may direct;
Part 6—delete Part 6
29—Amendment
of section 70A—Confiscation of products from children
(1) Section 70A(1)—after "tobacco products" insert:
or e-cigarette products
(2) Section 70A(2)—after "tobacco products" insert:
or e-cigarette products
(3) Section 70A(3)—after "tobacco products" insert:
or e-cigarette products
30—Amendment
of section 71—Exemptions
(1) Section 71(1)—delete "Subject to this section, the" and
substitute:
The
(2) Section 71(1)(a)—delete paragraph (a) and substitute:
(a) exempt a person, tobacco product or e-cigarette product, or a class of
persons, tobacco products or e-cigarette products, from the operation of a
provision of this Act subject to such conditions as may be set out in the
proclamation;
(3) Section 71(2) to (4)—delete subsections (2) to (4)
(inclusive)
31—Amendment
of section 85—Evidence
(1) Section 85(2)—after "tobacco products" first occurring
insert:
or e-cigarette products
(2) Section 85(2)—delete "tobacco" second occurring and
substitute:
such
After section 86 insert:
86A—Immunity
(1) No personal
liability attaches to an authorised officer or any other person engaged in the
administration of this Act for an honest act or omission in the performance,
exercise or discharge, or purported performance, exercise or discharge, of a
function, power or duty under this Act.
(2) A liability that would, but for
subsection (1)
, lie against a person lies instead against the Crown.
33—Amendment
of section 87—Regulations
Section 87(2)—delete subsections (2) and (3) and
substitute:
(2) Without limiting the generality of subsection (1), the regulations may
make provision for or in relation to—
(a) the design, construction and materials of packages containing tobacco
products or e-cigarette products; and
(b) labelling requirements for packages containing tobacco products or
e-cigarette products; and
(c) warnings and information that must be displayed—
(i) on packages containing tobacco products or e-cigarette products;
and
(ii) at premises at which tobacco products or e-cigarette products are
offered for sale by retail,
(including the manner and form in which such warnings must be displayed);
and
(d) other warnings in relation to tobacco products or e-cigarette products
generally or tobacco products or e-cigarette products of a particular class;
and
(e) signs that must be displayed in relation to places or areas where
smoking is prohibited or permitted and the manner and form in which those signs
must be displayed; and
(f) fines (not exceeding $10 000) for offences against the
regulations; and
(g) expiation fees (not exceeding $500) for alleged offences against the
regulations; and
(h) evidentiary provisions to facilitate proof of contraventions of the
Act or the regulations for the purposes of proceedings for offences.
(3) The regulations may—
(a) be of general or limited application; and
(b) make different provision according to the matters or circumstances to
which they are expressed to apply; and
(c) make provisions of a saving or transitional nature consequent on the
enactment of the
Tobacco
Products Regulation (E-Cigarettes and Review) Amendment
Act 2018
or on the commencement of a specified provision of that Act or on the
making of regulations under this Act; and
(d) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister or an
authorised officer.
Schedule 1—Transitional
provisions
In this Schedule—
principal Act means the
Tobacco
Products Regulation Act 1997
as in force immediately before the commencement of this clause.
(1) A licence that
is in force under Part 2 of the principal Act immediately before the
commencement of this clause will, on the commencement of this clause, be taken
to authorise the carrying on of the business of selling e-cigarette products by
retail.
(2) A reference to a tobacco product in a licence condition in force
immediately before the commencement of this clause will, on the commencement of
section 10
of this Act, be taken to include a reference to an e-cigarette
product.
3—References
to Tobacco Products Regulation
Act 1997
A reference in a licence under the principal Act or in any instrument,
contract, agreement or other document to the
Tobacco
Products Regulation Act 1997
will, on and from the commencement of this clause, have effect as if it
were a reference to the
Tobacco
and E-Cigarette Products Act 1997
.
Schedule 2—Further
amendment of Tobacco Products Regulation
Act 1997—penalty provisions
Penalty provision amended or inserted |
How amended |
---|---|
Section 6 |
Delete the penalty provision and substitute: Maximum penalty: $20 000. Expiation fee: $1 000. |
Section 9(5) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 31(1) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 31(2) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 34A(4) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 35 |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 36 |
Delete the penalty provision and substitute: Maximum penalty: $10 000. |
Section 37(1) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 38(1) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 38(2) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 38A(1) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 38A(5) |
Delete the penalty provision and substitute: Maximum penalty: $1 250. Expiation fee: $160. |
Section 39(2) |
Delete the penalty provision and substitute: Maximum penalty: $750. Expiation fee: $105. |
Section 40(1) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $1 000. |
Section 40(2) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $1 000. |
Section 41(1) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $1 000. |
Section 41(2) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $1 000. |
Section 42(1) |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $1 000. |
Section 43 |
Delete the penalty provision and substitute: Maximum penalty: $10 000. |
Section 45 |
Delete the penalty provision and substitute: Maximum penalty: $10 000. Expiation fee: $500. |
Section 46(2) |
Delete the penalty provision and substitute: Maximum penalty: $750. Expiation fee: $105. |
Section 46(3) |
Delete the penalty provision and substitute: Maximum penalty: $2 500. Expiation fee: $210. |
Section 46(4) |
Delete the penalty provision and substitute: Maximum penalty: $2 500. Expiation fee: $210. |
Section 48(1) |
Delete the penalty provision and substitute: Maximum penalty: $750. Expiation fee: $105. |
Section 49(1) |
Delete the penalty provision and substitute: Maximum penalty: $750. Expiation fee: $105. |
Section 50(1) |
Delete the penalty provision and substitute: Maximum penalty: $750. Expiation fee: $105. |
Section 51(4) |
Delete the penalty provision and substitute: Maximum penalty: $750. Expiation fee: $105. |
Section 52(2) |
Delete the penalty provision and substitute: Maximum penalty: $750. Expiation fee: $105. |
Section 65(3) |
Delete the penalty provision and substitute: Maximum penalty: $35 000. |
Section 67 |
Delete the penalty provision and substitute: Maximum penalty: $35 000. |
Section 75 |
Delete the penalty provision and substitute: Maximum penalty: $75 000. |
Section 76(2) |
Delete the penalty provision and substitute: Maximum penalty: $35 000. |
Section 78 |
Delete the penalty provision and substitute: Maximum penalty: $20 000. |