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Tobacco (Amendment) Bill
As Sent Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill.
Clause 2 is the commencement provision. The Bill, except for Part 3
and section 28, is to commence on 1 March 2006. Part 3 and
section 28 are to come into operation on 1 July 2007.
PART 2--GENERAL AMENDMENTS TO TOBACCO
ACT 1987
Clause 3 inserts new definitions and amends other definitions in the
Tobacco Act 1987 ("the Act").
The new definition of "substantially enclosed" inserted by
paragraph (a) clarifies that the new definition of "enclosed"
substituted by paragraph (c) includes completely enclosed.
The new definition of "evidence of age document" inserted by
paragraph (d) states that all such documents must contain a
photograph of the bearer.
Clause 4 inserts a new section 3B in the Act which contains a new
definition of "tobacco advertisement". The new definition
extends the previous definition of "tobacco advertisement" that
was contained in section 3 of the Act.
New section 3B(2) clarifies that the definition of "tobacco
advertisement" includes an image or design consisting of a colour
or a scheme of colours.
New section 3B(3) states that the definition of "tobacco
advertisement" includes the advertisement of cigarette papers.
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551291 BILL LA AS SENT 22/7/2005
Clause 5 repeals the specific offences in the Act of smoking in enclosed
restaurants and cafes, retail shopping centres, bingo areas and
centres and inserts a new offence of smoking in an enclosed
workplace (new section 5A). The new offence will apply to
these premises and areas as well as other enclosed workplaces.
New section 5A(2) includes a number of exemptions from the
new offence of smoking in an enclosed workplace.
New section 5B creates a new offence for the occupier of an
enclosed workplace where smoking occurs in that enclosed
workplace.
New section 5C re-enacts the offence of smoking in a dining area
which is currently in section 5A.
New section 5D re-enacts the offence by an occupier of a dining
area in which smoking occurs which is currently in section 5B.
New sections 5E, 5F, 5G and 5H re-enact requirements currently
in the Act which require the display of "no smoking" signs.
All no smoking signs must now meet the requirements of the
definition of "acceptable no smoking sign" inserted into section 3
of the Act by clause 3 of this Bill.
Clause 6 re-enacts requirements currently in section 5K which require the
display of "no smoking" signs. No smoking signs in casinos
must now meet the requirements of the definition of "acceptable
no smoking sign" inserted into section 3 of the Act by clause 3 of
this Bill.
Clause 7 clarifies that when sections 5L and 5M of the Act refer to a
"room" or "gaming room" they mean "enclosed room" or
"enclosed gaming room". This amendment is made because the
definition of "room" has been removed from section 3 of the Act
by this Bill.
Clause 8 re-enacts existing section 5N of the Act requiring no smoking
signs in approved venues except that all no smoking signs must
meet the definition of "acceptable no smoking sign" in section 3.
Clause 9 clarifies that when section 5O of the Act refers to a "room" it
means "enclosed room". This amendment is made because the
definition of "room" has been removed from section 3 of the Act
by this Bill.
Clause 10 re-enacts existing section 5R of the Act requiring no smoking
signs in licensed premises except that all no smoking signs must
meet the definition of "acceptable no smoking sign" in section 3.
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Clause 11 amends the penalties for the offences contained in section 6(1),
(2), (2A) and (2B) of the Act regarding tobacco advertisements.
The new maximum penalty for each offence is 60 penalty units.
Sub-clause (2) inserts a new offence for a tobacco company
which intentionally or recklessly contravenes section 6(1), (2),
(2A) or (2B), or causes another person to contravene one of those
sections. The new offence is an indictable offence. A definition
of "tobacco company" is included in section 3 of the Act by this
Bill.
Sub-clause (3) repeals section 6(3)(d) because non-branded
tobacco advertising is now included in the definition of "tobacco
advertisement" in new section 3B of the Act.
Clause 12 amends the penalty for the offence contained in section 7(1) of
the Act prohibiting competitions that promote smoking. The new
maximum penalty for the offence is 60 penalty units.
Sub-clause (2) inserts a new section 7(4) in the Act which
clarifies that section 7(1) applies to tobacco companies or any
person carrying on a tobacco wholesaling business who does
anything referred to in section 7(1)(a) or (b).
Sub-clause (2) also inserts a new offence for a tobacco company
which intentionally or recklessly contravenes section 7(1), or
causes another person to contravene that section. The new
offence is an indictable offence. A definition of "tobacco
company" is included in section 3 of the Act by this Bill.
Clause 13 sub-clause (1) amends the penalty for the offence contained in
section 8(1) of the Act prohibiting the offering of free samples.
The new maximum penalty for the offence is 60 penalty units.
Sub-clause (2) inserts a new offence for a tobacco company
which intentionally or recklessly contravenes section 8(1), or
causes another person to contravene that section. The new
offence is an indictable offence. A definition of "tobacco
company" is included in section 3 of the Act by this Bill.
Clause 14 amends the penalty for the offences contained in section 9(1)
and (2) of the Act prohibiting tobacco sponsorships. The new
maximum penalty for the offence is 60 penalty units.
Sub-clause (2) inserts a new offence for a tobacco company
which intentionally or recklessly contravenes section 9(1) or (2),
or causes another person to contravene one of those sections.
The new offence is an indictable offence. A definition of
"tobacco company" is included in section 3 of the Act by this
Bill.
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Clause 15 Sub-clause (1) amends the penalty for the offence contained in
section 12(2) of the Act regarding purchasing tobacco for minors.
The new maximum penalty for the offence is 20 penalty units.
Sub-clause (2) substitutes section 12(3A) and (3B) of the Act
to clarify that a manager can commit an offence under
section 12(3A) if a person authorised by the manager commits
an offence against section 12(1).
Sub-clause (4) repeals section 12(4)(a) and(b), limiting the
defences available to a person prosecuted under section 12 to
that contained in section 12(4)(c) (sighting an evidence of age
document), or if the person prosecuted is a manager, to that
contained in the new section 12(4)(d) substituted by sub-
clause (4)(b).
Sub-clause (5) inserts new definitions for the purposes of
section 12. A new definition of "manager" is inserted to replace
the definition formerly in section 12(3D).
Sub-clause (5) also inserts a new definition of "prevention
measures" for the purposes of the defence in section 12(4)(d).
Clause 16 substitutes existing section 13 of the Act concerning vending
machines. New section 13 provides that it is an offence to place
vending machines in premises unless it is--
· in the bar area of licensed premises in line of sight of a
bar; or
· in an approved venue or in a casino in line of sight of a
service counter; or
· in a bottle shop immediately adjacent to the service
counter.
New section 13(3) includes a number of new definitions for the
purposes of the offence in new section 13.
Clause 17 amends the penalties for the offences contained in sections
13A(1), 13A(2) and 14 of the Act. The new maximum penalty
for each offence is 100 penalty units.
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Clause 18 inserts a new Division 3 in Part 2 of the Act concerning underage
music/dance events.
New section 15E includes a definition of an "underage
music/dance event".
New section 15F provides that it is an offence for a person to
smoke in any area or premises while an underage music/dance
event is taking place there.
New section 15G states that an occupier of the area or premises
where an underage music/dance event is taking place is guilty of
an offence if smoking occurs there.
New section 15H provides that the occupier of an area or
premises where an underage music/dance event is taking place
commits an offence if no smoking signs are not displayed.
New section 15I provides that the occupier of an area or premises
where an underage music/dance event is taking place commits an
offence if a vending machine, tobacco advertisement or a display
of tobacco products is left uncovered.
New section 15J provides that it is an offence for a person to sell
a tobacco product to another person in any area or premises while
an underage music/dance event is taking place.
New section 15K provides that a person under the age of 18 years
does not commit an offence if he or she contravenes a provision
of the new Division 3.
Clause 19 substitutes section 38(1) and (2) of the Act to provide that
infringement notices may be issued by police members as well as
inspectors.
New section 38(1A) provides that infringement notices must
contain prescribed information, replacing the requirement in the
existing section 38(1) for an infringement notice to be in a
prescribed form.
Sub-clause (2) repeals section 39(3) because it is a spent
transitional provision.
Sub-clause (3) clarifies that the general provision concerning
offences by a body corporate in section 41 of the Act does not
apply to the new offences in sections 6(2D), 7(5), 8(3) and 9(5)
which specifically apply to tobacco companies.
Clause 20 replaces the existing Schedule to the Act, and includes further
offences for which infringement notices may be issued.
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PART 3--LICENSED PREMISES, CASINOS AND OUTDOOR
DINING OR DRINKING AREAS
Clause 21 repeals definitions in the Act which are no longer necessary upon
the commencement of operation of this Part (which will be 1 July
2007).
Clause 22 inserts a new section 3E into the Act which re-enacts current
sections 5I(4), (5) and (6), in relation to high roller rooms in
casinos only.
Clause 23 sub-clause (1) removes, from 1 July 2007, the exemption of
licensed premises from the operation of the offence of smoking
in enclosed workplaces contained in section 5A(1) of the Act
(which offence commences operation on 1 March 2006).
Sub-clause (2) limits the casinos exemption to declared smoking
areas in casinos from the offence in new section 5A.
Clause 24 repeals the separate offences for smoking in dining areas as, from
1 July 2007, all licensed premises including dining areas will be
subject to the enclosed workplace offence in section 5A of the
Act.
Clause 24 substitutes new sections 5C, 5D and 5E of the Act
from 1 July 2007.
New section 5C provides that it is an offence for a person to
smoke in an outdoor dining or drinking area if--
· the area has a roof and walls in place; and
· the total actual area of the wall surfaces exceeds 75% of
the total notional wall area.
New section 5D provides that the occupier of an outdoor dining
or drinking area commits an offence if smoking occurs in an
outdoor dining or drinking area in contravention of new
section 5C.
New section 5E provides that the occupier of an outdoor dining
or drinking area commits an offence if acceptable no smoking
signs are not displayed.
Clause 25 makes a number of consequential amendments to the Act
concerning casinos and licensed premises (including approved
venues) which are to apply once clause 23 removes the
exemption for licensed premises from the offence in new
section 5A and limits the casinos exemption to declared smoking
areas in casinos.
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PART 4--AMENDMENTS TO TRANSPORT ACT 1983
Clause 26 repeals the existing smoking offences in section 222(1) of the
Transport Act 1983 because they are to be re-enacted in new
section 222A being inserted by clause 26.
Clause 27 inserts a new section 222A in the Transport Act 1983.
New section 222A(1) re-enacts the existing smoking offences in
section 222(1) and extends them to include an offence of
smoking in or on any public transport property that is a covered
train platform, tram stop or bus stop.
New section 222A(2) sets out a new offence where the occupier
of public transport property that is a covered train platform, tram
stop or bus stop is liable if, without reasonable excuse, acceptable
no smoking signs are not displayed in accordance with new
section 222A(3).
New section 222A(3) requires the display of acceptable no
smoking signs so that they can be seen on entering, or from
within, the covered train platform, tram stop or bus stop.
New section 222A(4) includes definitions necessary for the new
offences in sections 222A(1) to (3).
PART 5--CONSEQUENTIAL AMENDMENT OF OTHER
ACTS
Clause 28 repeals section 10.1.36 of the Gambling Regulation Act 2003.
This section, which reflects section 42AA of the Tobacco Act
1987, concerns the provision of information to the Secretary to
the Department of Human Services about gaming machine areas.
Both provisions are to be repealed from 1 July 2007 when the
offence concerning smoking in enclosed workplaces extends to
licensed premises, including gaming machine areas and approved
venues.
Clause 29 amends Schedule 4 of the Magistrates' Court Act 1989 to
provide that the new indictable offences contained in sections
6(2D), 7(5), 8(3) and 9(5) inserted into the Tobacco Act 1987 by
this Bill may be heard and determined summarily.
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