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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 44
Lapsed owing to prorogation,
Tobacco
Products Regulation (Further Restrictions) Amendment Bill 2004
A Bill For
An
Act to amend the Tobacco Products Regulation Act 1997.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Tobacco
Products Regulation Act 1997
4 Amendment of section
4—Interpretation
5 Insertion of section 4A
4A Independent Gambling Authority
powers excluded
6 Amendment of section 9—Licence
conditions
7 Substitution of heading to Part 3
8 Repeal of section 28
9 Amendment of section 32—Tobacco products
in relation to which no health warning has been prescribed
10 Repeal of section 33
11 Substitution of section 36
36 Products designed to resemble
tobacco products
12 Substitution of section 37
37
13 Substitution of section 38
38 Carrying tray etc of tobacco
products for making of successive retail sales
38A
14 Amendment of section 39—Power to
require evidence of age
15 Amendment of section 40—Certain
advertising prohibited
16 Substitution of sections 44 to 47
45 Business promotions to attract
smokers
Part 4—Restrictions on smoking
46 Smoking banned in enclosed public
places, workplaces and shared areas
47 Temporary exceptions to smoking
ban
17 Amendment of section 71—Exemptions
18 Amendment of section 81—Vicarious
liability
19 Amendment of
section 87—Regulations
The Parliament of
This Act may be cited as the Tobacco Products Regulation
(Further Restrictions) Amendment Act 2004.
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
4—Amendment of section 4—Interpretation
(1) Section 4(1)—after the definition of act
insert:
advertise tobacco products means take any action that is designed to
publicise or promote tobacco products, smoking, or the sale of tobacco
products, whether visual or auditory means are employed and whether tobacco products
are directly depicted or referred to or symbolism of some kind is employed, and
includes take any action of a kind prescribed by regulation, and tobacco
advertisement and advertisement have corresponding
meanings;
(2) Section 4(1), definition of entertainment—delete
the definition and substitute:
employee has the same meaning as in the Occupational Health, Safety and
Welfare Act 1986;
enclosed public place, workplace or shared
area means—
(a) an
enclosed public place; or
(b) an
enclosed workplace; or
(c) an
enclosed shared area;
(3) Section
4(1), definition of health warning— delete "for Human
Services"
(4) Section 4(1), definition of place of
public entertainment—delete the definition and substitute:
multi-unit premises means premises divided into parts that are in separate
ownership or let or provided for separate occupation;
place includes a vehicle;
(5) Section 4(1), definition of public—delete
the definition and substitute:
public area or public place means an area or place that the
public, or a section of the public, is entitled to use or that is open to, or
used by, the public or a section of the public (whether access is unrestricted
or subject to payment of money, membership of a body or otherwise);
(6) Section 4(1)— after the definition of record
insert:
residential premises means—
(a) a
house, home or residential unit, apartment or flat; or
(b) a
bedroom or living area let or provided for separate occupation (for example,
accommodation in a motel, hotel, boarding house, hostel, nursing home or
college or accommodation for employees); or
(c) a
sleeping or living area in a prison or other place of detention; or
(d) any
other place of a kind prescribed by regulation;
(7) Section 4(1)— after the definition of sell
insert:
shared area means an area in multi-unit premises the use of which is shared
by persons from various parts of the premises that are in separate ownership or
occupation;
(8) Section 4(1), definition of tobacco
product— after paragraph (f) insert:
(g) any
product that does not contain tobacco but is designed for smoking,
(9) Section 4(1)— after the definition of vending
machine insert:
workplace has the same meaning as in the Occupational
Health, Safety and Welfare Act 1986, but does not include—
(a) a
place occupied as residential premises; or
(b) a
place where a self-employed person works and at which no employee is also at
work; or
(c) a
vehicle that is not used for work purposes by more than 1 employee; or
(d) any
other place of a kind prescribed by regulation.
(10) Section 4—after subsection (2) insert:
(3) A
place or area is enclosed if it is fully enclosed or is at least
partially covered by a ceiling and has walls such that the total area of the
ceiling and wall surfaces exceeds 70 per cent of the total notional ceiling and
wall area.
(4) For the purposes of subsection (3)—
(a) ceiling
includes any structure or device (whether fixed or movable) that prevents or
impedes upward airflow, but does not include anything prescribed by regulation;
(b) wall
includes any structure or device (whether fixed or movable) that prevents or
impedes lateral airflow, but does not include anything prescribed by
regulation;
(c) the
total notional ceiling and wall area is the sum of—
(i) what
would be the total area of the wall surfaces if—
(A) the
walls were continuous, any gap in the walls being filled by a surface of the
minimum area required for the purpose; and
(B) the
walls were of a uniform height equal to the lowest height of the ceiling; and
(ii) what
would be the floor area of the space within the walls if the walls were
continuous as referred to in subparagraph (i).
After section 4 insert:
4A—Independent
Gambling Authority powers excluded
This Act operates to the exclusion of any power of the Independent
Gambling Authority to restrict the sale or consumption of tobacco products.
6—Amendment of section 9—Licence conditions
Section 9(2)—delete subsection (2) and
substitute:
(2) Without limiting subsection (1), the
conditions of a licence may include—
(a) a
condition under which the holder of the licence is prevented from selling
tobacco products except at a single place specified in the condition (with the
effect that a separate licence will be required by the person for any or each
other place at which the person sells tobacco products);
(b) a
condition that restricts the points of sale of tobacco products within the
place at which the holder of the licence may sell tobacco products under the
licence.
7—Substitution of heading to Part 3
Heading to Part 3—delete the heading and
substitute:
Part 3—Restrictions on supply or promotion
of tobacco products
Section 28—delete the section
Section 32—delete "for Human Services"
Section 33—delete the section
Section 36—delete the section and
substitute:
36—Products
designed to resemble tobacco products
A person must not sell by retail any
product (other than a tobacco product) that is designed to resemble a tobacco
product.
Maximum penalty: $5 000.
Section 37—delete the section and
substitute:
37—
A person must not sell cigarettes or any
other tobacco product by means of a vending machine unless—
(a) the
machine is situated in an area delineated under a gaming machine licence under
the Gaming Machines Act 1992 as the area in which gaming machines
may be operated pursuant to the licence; or
(b) the
machine is situated in some other part of premises in respect of which a licence
is in force under the Liquor Licensing Act 1997 and can only be
operated by obtaining a token from, or with some other assistance from, the
holder of the licence or an employee of the holder of the licence; or
(c) the machine is situated in a part of the
casino in which the public are permitted to engage in gambling activities under
the Casino Act 1997.
Maximum penalty: $5 000.
Section 38—delete the section and
substitute:
38—Carrying
tray etc of tobacco products for making of successive retail sales
(1) A person must not go amongst persons in
premises carrying tobacco products in a tray or container or otherwise on his
or her person for the purpose of making successive sales of tobacco products by
retail.
Maximum penalty: $5 000.
(2) A person must not cause or permit another
to engage in the practice referred to in subsection (1) in premises under
the person's control.
Maximum penalty: $5 000.
38A—
(1) If a tobacco product is sold or supplied to
a child, the responsible person is guilty of an offence, or if there is more
than one responsible person, each responsible person is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(2) It is a defence to a charge of an offence
against subsection (1) that was allegedly committed in the course of a
business to prove that—
(a) the
proprietor of the business or some person acting on behalf of the proprietor of
the business required the minor to produce evidence of age of a kind prescribed
by regulation; and
(b) the
minor made a false statement, or produced false evidence, in response to that
requirement; and
(c) in
consequence the person who served or assisted the minor reasonably assumed that
the minor was of or above the age of 18 years.
(3) It
is a defence to a charge of an offence against subsection (1) that was
allegedly committed otherwise than in the course of a business to prove that
the defendant had reasonable cause to believe that the child was of or above
the age of 18 years.
(4) The
defence under subsection (2) or (3) applies to the exclusion of the
general defence under section 79.
(5) A person who sells tobacco products by
retail or who occupies premises in which a vending machine that is designed to
sell tobacco products is situated must display a notice in the prescribed form
setting out the effect of, and the penalty for, an offence against
subsection (1) in a manner and position that is likely to attract the
attention of his or her customers or of persons using the machine.
Maximum penalty: $750.
Expiation fee: $105.
(6) In this section—
responsible person, in relation to the sale or supply of a
tobacco product to a child, means—
(a) if
the product is sold or supplied in the course of a business otherwise than by
means of a vending machine—
(i) the
proprietor of the business; or
(ii) a
person who sells or supplies the product on behalf of the proprietor; or
(b) if
the product is sold or supplied by means of a vending machine—
(i) the
proprietor of the business carried on in the premises where the machine is
situated; or
(ii) a
person who, on behalf of the proprietor, provides a token to, or other
assistance to, the child for the operation of the machine; or
(c) if
the product is sold or supplied otherwise than in the course of a business—the
person who sells or supplies the product.
14—Amendment of section 39—Power to require evidence of age
(1) Section
39(1)—delete "or prescribed product"
(2) Section
39(3)(ab)—delete paragraph (ab)
15—Amendment of section 40—Certain advertising prohibited
(1) Section 40(1)—delete subsection (1) and
substitute:
(1) A person must not advertise tobacco
products in the course of a business or for any direct or indirect pecuniary
benefit.
Maximum penalty: $5 000.
(2) Section 40(3)(a), (b), (c) and (d)—delete
paragraphs(a), (b), (c) and (d) and substitute:
(a) the
display, in accordance with the regulations, of signs outside premises where
tobacco products are sold by retail; or
(b) the
provision of assistance to customers or potential customers by sales assistants
in premises where tobacco products are sold by retail; or
(c) action
of a kind prescribed by regulation; or
16—Substitution of sections 44 to 47
Sections 44 to 47—delete the sections and
substitute:
45—Business
promotions to attract smokers
A person must not display signs, or engage
in a practice of any kind, designed to promote a business as welcoming or
permitting smoking on its premises.
Maximum penalty: $5 000.
Part
4—Restrictions on smoking
46—Smoking
banned in enclosed public places, workplaces and shared areas
(1) Smoking
is banned in an enclosed public place, workplace or shared area.
(2) If a person smokes in contravention of
subsection (1), the person is guilty of an offence.
Maximum penalty: $200.
Expiation fee: $75.
(3) If smoking occurs in an enclosed public place
in contravention of subsection (1), the occupier of the place is guilty of
an offence.
Maximum penalty: $1 250.
Expiation fee: $160.
(4) If smoking occurs in an enclosed workplace
in contravention of subsection (1), the employer with responsibility for
the workplace under the Occupational Health, Safety and Welfare
Act 1986 is guilty of an offence.
Maximum penalty: $1 250.
Expiation fee: $160.
(5) It is a defence to an offence against
subsection (3) or (4) if the defendant proves—
(a) that
he or she did not provide an ashtray, matches, a lighter or any other thing
designed to facilitate smoking where the contravention occurred; and
(b) that—
(i) he
or she was not aware, and could not reasonably be expected to have been aware,
that the contravention was occurring; or
(ii) he
or she requested the person smoking to stop smoking and informed the person
that the person was committing an offence.
47—Temporary
exceptions to smoking ban
(1) Until the end of October 2007, there are
exceptions to the smoking ban in bars and lounge areas as follows:
(a) in
licensed premises (other than the casino) with multiple separate bars, the ban
does not apply in separate bars designated in the prescribed manner by the licensee
as smoking areas or in separate lounge areas designated in the prescribed
manner by the licensee as smoking areas if—
(i) the
prescribed area is excluded in the prescribed manner from any designated
smoking area; and
(ii) at
least 1 of the separate bars in the premises is not a designated smoking area;
and
(iii) no
more than 1 of the designated smoking areas consists of or includes a dining
area;
(b) in
licensed premises (other than the casino) with a single separate bar, the ban
does not apply in an area of the bar designated in the prescribed manner by the
licensee as a smoking area or in separate lounge areas designated in the
prescribed manner by the licensee as smoking areas if—
(i) the
prescribed area is excluded in the prescribed manner from any designated
smoking area; and
(ii) any
designated smoking area in the bar does not exceed 50 per cent of the total
area of the bar and is not alongside more than 50 per cent of the length of the
drinks service counter in the bar; and
(iii) any
dining area in the bar consists of or includes the part of the bar not within
the designated smoking area; and
(iv) no
more than 1 of the designated smoking areas consists of or includes a dining
area;
(c) in
the casino, the ban does not apply in bars designated in the prescribed manner
by the licensee as smoking areas or in lounge areas designated in the
prescribed manner by the licensee as smoking areas if—
(i) the
prescribed area is excluded in the prescribed manner from any designated
smoking area; and
(ii) no
more than half of the bars in the casino are designated as smoking areas; and
(iii) no
more than 1 of the designated smoking areas consists of or includes a dining
area.
(2) Until the end of October 2005, in a gaming
area, the smoking ban does not apply in an area designated in the prescribed
manner by the licensee as a smoking area if —
(a) the
area within 1 metre of any service area is excluded in the prescribed manner
from the designated smoking area; and
(b) in
the case of a gaming area in which gaming machines may be operated (not being
the casino)—
(i) the
designated smoking area contains no more than 75 per cent of the gaming
machines in the gaming area; and
(ii) the
gaming machines not in the designated smoking area consist of a single row or
grouping of machines separated from the designated smoking area by not less
than 1 metre; and
(c) in
any other case—the designated smoking area does not exceed 75 per cent of the
total area of the gaming area.
(3) From the end of October 2005 until the end
of October 2007, in a gaming area, the smoking ban does not apply in an area
designated in the prescribed manner by the licensee as a smoking area if—
(a) the
area within 1 metre of any service area is excluded in the prescribed manner
from the designated smoking area; and
(b) in
the case of a gaming area in which gaming machines may be operated (not being
the casino)—
(i) the
designated smoking area contains no more than 50 per cent of the gaming
machines in the gaming area; and
(ii) the
gaming machines not in the designated smoking area consist of a single row or
grouping of machines separated from the designated smoking area by not less
than 1 metre; and
(c) in
any other case—the designated smoking area does not exceed 50 per cent of the
total area of the gaming area.
(4) In this section—
bar
means an enclosed public area in licensed premises that has 1 or more drinks
service counters and is used solely or mainly for the consumption of alcoholic drinks
rather than meals, but does not include a gaming area or functions area;
casino has the same meaning as in the Casino Act 1997;
dining area means an enclosed public area in licensed premises used (whether
or not exclusively) for the consumption of meals;
drinks service counter means a fixed counter across which
alcoholic drinks are supplied directly to customers and at which, or in the
immediate vicinity of which, customers may remain and consume the drinks
supplied;
functions area means an enclosed public area in licensed premises while it is
given over under a special arrangement to the exclusive use of members of a
group;
gaming area means—
(a) an
enclosed public area in licensed premises delineated under a gaming machine
licence under the Gaming Machines Act 1992 as the area in which
gaming machines may be operated pursuant to the licence; or
(b) an
enclosed public area of the casino in which the public are permitted to engage
in gambling activities under the Casino Act 1997; or
(c) an
enclosed public area in which a bingo session is being conducted under a
licence or exemption under the Lottery and Gaming Regulations 1993;
licensed premises means premises that are the subject of a single licence in
force under the Liquor Licensing Act 1997;
licensee includes a person conducting a bingo session under an exemption
under the Lottery and Gaming Regulations 1993;
lounge area means an enclosed public area in licensed premises that does not
have a drinks service counter but is used solely or mainly for the consumption
of alcoholic drinks rather than meals, but does not include a gaming area;
meal means a genuine meal eaten by a person seated at a table;
service area means a drinks service counter or any other part of licensed premises
at which an employee of the licensee is stationed to provide services to
customers;
smoking ban means the ban on smoking under section 46.
(5) For
the purposes of this section, public areas in premises are separate
if separated by a fixed wall surface that is unbroken or has a total surface
area not less than 50 per cent of the area of the interface between the public
areas.
(5a) For
the purposes of subsection (1), the prescribed area is the area
within 1 metre of any service area.
(5b) However, if a bar has a continuous fixed
wall surface (whether or not including doors or windows) that, within 3 metres
of the drinks service counter, borders the public area alongside not less than
75 per cent of the length of the drinks service counter in the bar—
(a) subsection (5a)
does not apply in relation to the bar; and
(b) if
the bar is a bar referred to in subsection (1)(a) or (c), the prescribed
area in the bar is an area that is not less than 25 per cent of the
total area of the bar and adjoins not less than 25 per cent of the length of
the drinks service counter in the bar.
(6) This
section will expire at the end of October 2007.
17—Amendment of section 71—Exemptions
(1) Section
71(3)(c)—delete "for Human Services"
(2) Section
71(4)(a)—delete "for Human Services"
18—Amendment of section 81—Vicarious liability
Section 81—after its present contents (now
to be designated as subsection (1)) insert:
(2) If
an employee or agent is convicted of an offence against this Act, the employer
or principal is, subject to the general defence under this Part, guilty of an
offence and liable to the same penalty as may be imposed for the principal
offence.
(3) If
an offence is committed against this Act in relation to a sale, any person who
has derived or would, if the sale were completed, expect to derive a direct or
indirect pecuniary benefit from the transaction is, subject to the general
defence under this Part, guilty of an offence and liable to the same penalty as
may be imposed for the principal offence.
19—Amendment of section 87—Regulations
(1) Section
87(2)(d)—delete "for Human Services"
(2) Section
87(2)(e)—delete "for Human Services"
(3) Section 87(2)—after paragraph (f) insert:
(fa) prescribe 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;