Tasmanian Bills Clause Notes Tasmanian Bills Clause Notes[Index] [Search] [Download] [Bill] [Help]
CLAUSE NOTES
Public Health Amendment Bill 2011
Page 1 of 8
Clause 1 Short title
Clause 2 The provisions of the Bill will commence on 1 March 2012.
Upon passage of the Bill through Parliament, the Department
will embark upon an education campaign. From 1 March 2012
enforcement officers will take an education first approach to
enforcement of the new provisions, with full compliance to be
enforced from 1 May 2012.
Clause 3 The Bill amends the Public Health Act 1997.
Clause 4 This clause amends the Act's interpretation section to include
new and amended definitions, and existing definitions moved
from other areas of the Act.
The term tobacco product has been amended to include all
forms of tobacco, so that the Act will, instead of referring to
`tobacco or tobacco products', simply refer to `tobacco
products'.
More information on the use of these terms appears where they
are referred to in the Bill.
Clause 5 The meaning of outdoor smoking area has been amended to
clarify that all eating establishments, whether or not they hold a
liquor licence, must, if providing an outdoor smoking area,
ensure that area complies with the Act's rules for outdoor
smoking areas (ie not serviced and no roof unless no more
than 50 percent of the perimeter consists of walls and windows,
in which case a roof is permitted).
Clause 6 Amends a heading
Clause 7 The definition of a nominated officer has been moved from the
interpretation into a new section. The Director will now have
the ability to approve classes of persons (and not just individuals)
as nominated officers and limit powers or attach conditions to
approvals. For example the Director could approve all hospital
security staff, to exercise only the power to issue an
infringement notice for smoking in a smoke-free area, on
hospital grounds, during employment hours.
Clause 8 Section 63 has been amended to provide that, in addition to not
smoking or using a tobacco product, a child must not possess a
tobacco product (unless in the course of employment with the
holder of a tobacco seller's licence).
Page 2 of 8
Clause 9 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 10 Section 66 is amended so that a nominated officer will not only
be able to seize tobacco products being smoked or used by a
child, but also those that are simply in a child's possession.
However, in doing so, a nominated officer is not permitted to
use force against a child or conduct a personal search of a child
or a child's possessions. Section 67 of the Act already provides
that a nominated officer may give a warning and educative
information to a child.
Clause 11 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 12 Section 67B of the Act is amended to include new smoke-free
areas, as follows:
New clause Anywhere within 20 metres of the specified areas at any venue
67B(1)(d) where organised sport is being played must be smoke-free.
This will apply to all sports that are planned in advance and
conducted in accordance with established rules, by an
established professional or amateur sporting body or by an
educational institution, whether as a one-off event or as part of a
round of events. It does not include informal or impromptu
sporting events (provided for in new subsection (3)).
The smoke-free area will apply during the game and for the
period 30 minutes before and 30 minutes after to cover the
period where patrons are entering and exiting the venue.
All sports are included from netball, to rugby, to little athletics,
to football every sport, regardless of league and regardless of
where it is played, is included.
This offers protection to all competitors, spectators and officials.
New clause Anywhere within 10 metres of children's playgrounds must be
67B(1)(g) smoke-free. This applies to all playgrounds to which the public
has access.
New clause Between the flags at beaches patrolled by surf lifesaving must be
67B(1)(h) smoke-free.
New clause Anywhere at a public swimming pool must be smoke-free.
67B(1)(i)
New clause The Director will have the ability to designate particular, or
Page 3 of 8
67B(1)(j) classes, of public events as smoke-free. Discussions with
relevant event organisers will commence during 2012 and
sufficient notice to implement the change will be given. The
events that are likely to be first considered are those at which
children are frequent attendees (eg regattas, music festivals).
New clause The 50 percent smoke-free dining provisions are extended so
67B(1)(k) that 100 percent of outdoor dining areas must be smoke-free.
An outdoor dining area is an area provided by an occupier for
patrons to consume food and beverages.
Once the occupier stops offering the service of food outside, the
area may, if the occupier chooses, be used an outdoor smoking
area and beverages may be consumed. However, in that case
the area must satisfy the rules for outdoor smoking areas
contained in the Act (ie the area cannot be serviced, and cannot
have a roof, unless no more than 50 percent of the perimeter
consists of walls and windows, in which case a roof is
permitted).
New clause Anywhere within 3 metres of an outdoor dining area must be
67B(1)(l) smoke-free, unless there is a screen surrounding the outdoor
dining area that is at least 2.1 metres high and impervious to
smoke.
New clauses Anywhere in a pedestrian and bus mall, and anywhere within
67B(1)(m), (n), three-metres of a bus shelter, must be smoke-free.
(o)
Clause 13 It will no longer be a defence to the section 67C(1) offence of
`smoking in a smoke-free area' for a person to simply stop
smoking when requested to do so.
Clause 14 The amenity of smoke-free areas must not be of inferior amenity
to any outdoor smoking area provided by an occupier. This
obligation already appears at section 67F of the Act and has been
amended to reflect that outdoor dining will be 100 percent
smoke-free (rather than only 50 percent).
Clause 15 These words are not longer necessary.
Clause 16 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 17 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Page 4 of 8
Clause 18 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 19 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 20 The existing sections of the Act that provide for the holding of
tobacco products for retail and the display of tobacco products
have been repealed and organised into a new structure, with
new obligations attaching to specialist tobacconist premises (as
noted below).
New section 71 This clause replicates the existing holding provisions attaching to
general tobacco retailers and applies them now to specialist
tobacconists.
The effect of this section is that tobacco products may only be
kept on the premises in plain sales units or concealed storage
facilities. A person is not in breach of this obligation in the
fleeting and incidental handling of tobacco products reasonably
attaching to the specified activities.
The existing ban on the use of `bells and whistles' on sales units
has been incorporated into the definition of a plain sales unit.
The Director of Public Health will, prior 1 March 2012, amend
the existing Guidelines for the Sale of Tobacco to extend the rules
applying to information on sales units to ensure information is
kept to a minimum (guidelines are tabled before Parliament
when issued).
The existing requirements as to the placement of a sales unit
remain it can only be located in the service area; not within
75 centimetres of confectionary or products marketed at
children; it cannot be directly facing a window or store entrance;
and it can't be located near any part of the premises colour
coded to match tobacco packets.
These requirements are consistent with the ban on tobacco
advertising and ensure that attention is not drawn to tobacco
products.
Vending machines are permitted in licensed premises only and
only one is permitted per premise. It must be located in the
service area in an area in which children are not permitted to
enter.
Electronic dispensing units are permitted in the service area of
any retail premise. They are operated by staff through an
electronic keypad at the point of sale. These units are more
Page 5 of 8
secure than traditional sales units yet relatively new so there is
not the same association between their visual look and the
products they contain as there is with traditional vending
machines. This is less likely to develop with EDU given the ban
on the display of tobacco products.
New section 72 This section replicates the existing provisions that impose a ban
on the permanent display of tobacco products in general retail
premises that are not specialist tobacconists.
The fleeting incidental display of tobacco products is permitted
in specified circumstances up to a maximum of one square
metre.
A person visiting or working at the store in possession of a
personal quantity of tobacco product and accoutrements is not
in breach of this section.
New section 72A This section introduces a ban on the permanent display of
ancillary tobacco products in specialist tobacconist premises.
This covers tobacco/cigar packets and cartons and loose
tobacco.
The fleeting incidental display of ancillary tobacco products is
permitted in the same circumstances as for general retailers (up
to one square metre).
Other tobacco products can continue to be displayed in a single
area, to a maximum of 4 square metres (this replicates the
existing display area applying to specialist tobacconists). That
display cannot be enhanced and only one example of each
product line may be on display.
As for general retailers, a person visiting or working at the store
in possession of a personal quantity of tobacco product and
accoutrements is not in breach of this section.
Clause 21 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 22 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 23 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 24 The licensing provisions at section 74A are amended to clarify
that only an employee of a licence holder is permitted to act
under that licence. If somebody new buys the business they are
Page 6 of 8
not entitled to sell tobacco products under the previous owners
licence. They must apply for a licence in their own name.
Clause 25 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 26 The licensing provisions at section 74C are amended to require
the Director, in determining a licence application, not only be
satisfied that the licence applicant is 18 years or older and is
likely to comply with the Act, but also to be satisfied of any
matters provided for in guidelines.
It is through this mechanism that the Director will implement
the policy not to issue licences to retail tobacco at temporary
public events (such as regattas, music festivals, sporting events).
This section is also amended to enable the Director to include
as a licence condition, if appropriate, the requirement that a
tobacco seller's licence be displayed. This reflects that this will
not otherwise be a mandatory obligation (see clause 34).
Clause 27 The licensing provisions at section 74D are amended to refer to
the address of the premises to which the licence relates, as
opposed to `all the premises' as a licence will only ever relate to
one premise.
Clause 28 The licensing provisions at section 74F are amended to clarify
that there is one licence that issues per premise, as distinct from
one licence with multiple premises listed.
This will not result in a change to the existing fee structure that
applies here, as is already a requirement for a notice of
additional premises to be accompanied by the same fee as a
licence application.
Clause 29 A new section is introduced here to clarify that a tobacco
seller's licence is not capable of being transferred to another
person. This supports the clarification made in section 74A that
only an employee is entitled to act on behalf of a licence holder
and not, for example, a person who has purchased the
business/premises from a licence holder.
It also supports the changes to section 74F that clarify that one
licence will issue in relation to one premise.
Clause 30 The circumstances in which the Director may cancel a licence,
set out in section 74H, are amended to include circumstances
where a licence holder has purported to transfer the licence to
Page 7 of 8
another person.
Clause 31 Reflects the changed terminology (from `tobacco or tobacco
product' to `tobacco product').
Clause 32 The requirement to make the tobacco seller's licence register
publicly available will be removed. This will prevent tobacco
companies from viewing the register with the aim of targeting
licence holders and potential licence holders with a view to
promoting/selling tobacco products.
Clause 33 In line with the one licence per premise approach, section 74K
providing for notification of additional premises is no longer
needed. Licence holders acquiring new premises at which they
want to retail tobacco will be required to apply for a new licence
prior to selling tobacco.
Clause 34 Section 74L is amended to remove the obligation on a retailer to
display a tobacco seller's licence. This is not considered
necessary as it is another piece of information at the point of
sale that draws attention to the fact tobacco is sold at the
premises. In case it is appropriate in some circumstances to
display the licence, the Director has the ability to attach the
obligation as a licence condition (see clause 26).
Clause 35 A new section is introduced to prohibit tobacco products from
being included in shopper loyalty programs.
Clause 36 Standard repeal clause.
Page 8 of 8