victoria_tobacco amendment-protection of children-act

8/9/2019 Victoria_Tobacco Amendment-Protection of Children-Act

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i

Tobacco Amendment (Protection of Children) Act

2009

No. 49 of 2009

TABLE OF PROVISIONS

Section Page

PART 1PRELIMINARY 1

1 Purpose 12 Commencement 23 Principal Act 2

PART 2TOBACCO ADVERTISEMENTS IN RETAIL OUTLETS 3

4 Certain advertising prohibited 35 Point of sale advertisements 56 Removal of advertisements 5

PART 3MISCELLANEOUS AMENDMENTS 6

7 Purpose of Principal Act amended 68 Definitions 69 Tobacco advertisements 710 Enclosed workplaces: offence by occupier 711 Outdoor dining or drinking areas: offence by occupier 712 Outdoor dining or drinking areas: no smoking signs 713 Enclosed restaurants and cafes: no smoking signs 714 Retail shopping centres: no smoking signs 715 Bingo areas and centres: no smoking signs 816 Casinos: no smoking signs 817 Approved venues: no smoking signs 818 Licensed premises: no smoking signs 819 New Division 1A inserted in Part 2 8

Division 1ASmoking in motor vehicles 8

5S Offence to smoke in motor vehicle if person under 18is present 8

5T Power to require driver to stop 95U Evidential burden regarding age 9

20 Certain advertising prohibited: penalties 1021 Point of sale advertisements: references to Commonwealth

Regulations 10


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Section Page

ii

22 Competitions 1123 Free samples 1124 Prohibition of certain sponsorships 1125 Packing of tobacco 1226 Offence to possess certain tobacco products 1227 Supplying tobacco to person under 18 years 1228 Vending machines 1329 Mobile selling of tobacco products 1330 Packages of cigarettes 1431 Smokeless tobacco 1432 Retail outlets: signage 1433 Prohibition of retailing at premises where offences have been

committed 1534 Offence by occupier 1535 No smoking signs 1536 Covering vending machines, tobacco advertisements etc. 1537 Prohibition on supplying tobacco at underage music/dance

events 1638 New Divisions 4 and 5 inserted in Part 2 16

Division 4Sales of tobacco products from temporary

outlets 16

15L Offence to sell tobacco products from temporary outlet 1615M Offence for tobacco company to sell tobacco products

from temporary outlet 17Division 5Prohibited products 17

15N Ban orders 1715O Secretary may recommend ban order 1815P Operation of ban order 1915Q Amendment or revocation of ban order 1915R Notice of order 1915S Offence to breach a ban order 20

39 New Part 2A inserted 21

PART 2ASPECIALIST TOBACCONISTS 21

15T Application for certification as specialist tobacconist 21

15U Determination of application 2115V Certification holder to notify Secretary ofcommencement of tobacco retailing business 23

15W Duration of certification 2315X Cancellation of certification 2415Y Notice of determination or cancellation 2515Z Replacement certificates 2515ZA Offence to provide false or misleading information to

Secretary 2615ZB Specialist tobacconist must display certificate 26


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Section Page

iii

40 Entry or search with consent 2741 Search warrants 2742 Seizure of things not mentioned in warrant 2743 Magistrate's Court may extend 3 month period 2744 Requirement to assist inspector during entry 2745 Infringement notices 2746 Proceedings 2847 Section 41 substituted 28

41 Offences by a body corporate 2848 New section 41AA inserted 29

41AA Conduct by officers, employees or agents 2949 Power to require names of persons supplied with tobacco 3050 New section 46 inserted 31

46 Section 3: definition ofoccupier 3151 Schedule substituted 32

SCHEDULEInfringement Offences 32

PART 4REPEAL 35

52 Repeal of amending Act 35

ENDNOTES 36


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1

Tobacco Amendment (Protection of

Children) Act 2009

No. 49 of 2009

[Assented to 18 August 2009]

The Parliament of Victoria enacts:

PART 1PRELIMINARY

1 Purpose

The purpose of this Act is to amend the Tobacco

Act 1987(a) to provide that only retailers that are on-

airport duty free shops or that have been

certified as specialist tobacconists may

display tobacco advertising;

(b) to ban the sale of tobacco products from

temporary outlets;

Victoria


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Part 1Preliminary

Tobacco Amendment (Protection of Children) Act 2009

No. 49 of 2009

2

(c) to ban smoking in cars in which a person

under the age of 18 years is present;

(d) to enable the Minister to ban the sale of

youth-oriented tobacco products and certain

other products;

(e) to create new offences in relation to smoking

and the sale of tobacco products;

(f) to amend the penalty and enforcement

provisions and to introduce new offences forbodies corporate;

(g) to make minor miscellaneous amendments.

2 Commencement

(1) This Act, except Part 2, comes into operation on

1 January 2010.

(2) Part 2 comes into operation on 1 January 2011.

3 Principal Act

In this Act, the Tobacco Act 1987 is called thePrincipal Act.

__________________

s. 2

See:

Act No.81/1987.Reprint No. 6as at1 March 2006andamendingAct Nos45/2005,32/2006,69/2006,80/2006 and46/2008.LawToday:www.legislation.

vic.gov.au


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Part 2Tobacco Advertisements in Retail Outlets


No. 49 of 2009

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PART 2TOBACCO ADVERTISEMENTS IN RETAIL

OUTLETS

4 Certain advertising prohibited

(1) After section 6(2) of the Principal Act insert

"(2AA) If there is a tobacco advertisement at a retail

outlet (other than a specialist tobacconist or

an on-airport duty free shop), the person

carrying on the tobacco retailing business atthat retail outlet is guilty of an offence and

liable to a penalty not exceeding 60 penalty

units, in the case of a natural person, or

300 penalty units, in the case of a body

corporate.

Note

See the definition oftobacco advertisementin

section 3B.".

(2) In section 6(2A) of the Principal Act, for "retail

outlet or" substitute "specialist tobacconist or anon-airport duty free shop or at a".

(3) In section 6(2B) of the Principal Act, for "tobacco

retailing business or" substitute "tobacco retailing

business at a specialist tobacconist or an on-

airport duty free shop or a".

(4) In section 6(2D) of the Principal Act, after "(2),"

(wherever occurring) insert "(2AA),".

(5) After section 6(3)(b) of the Principal Act insert

"(ba) the temporary display of tobacco products orimmediate packages of tobacco products in a

retail outlet in response to a request by a

customer wishing to purchase a specified

tobacco product; or".

(6) In section 6(3)(c) of the Principal Act, for "retail

outlet or" substitute "specialist tobacconist, an

on-airport duty free shop or a".

s. 4


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No. 49 of 2009

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(7) In section 6(3)(ca) of the Principal Act, for "retail

outlet or" substitute "specialist tobacconist, an

on-airport duty free shop or a".

(8) After section 6(3)(ca) of the Principal Act

insert

"(cab) one notice about tobacco products at one

point of sale at a retail outlet (other than a

specialist tobacconist or an on-airport duty

free shop) that complies with the prescribed

requirements as to size, information

contained in it and the manner in which the

information is set out or the notice is

displayed; or".

(9) In section 6(3)(cb) of the Principal Act, for

"products displaying retail prices, being tickets or

labels that" substitute "products in a specialist

tobacconist or an on-airport duty free shop if the

tickets or labels display retail prices and".

(10) In section 6(3)(cc) of the Principal Act, for

"tickets or labels on, or adjacent to,

representations of immediate packages of tobacco

products in vending machines displaying retail

prices, being tickets or labels" substitute "tickets

or labels on or in vending machines".

(11) After section 6(3)(cc) of the Principal Act

insert

"(d) one notice at a retail outlet or a wholesale

outlet to the effect that tobacco products are

available for sale at the outlet, being a notice

that does not exceed the prescribed

maximum size and complies with the

prescribed requirements as to information

contained in it and the manner in which the

information is set out or displayed; or".

s. 4


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No. 49 of 2009

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5 Point of sale advertisements

(1) In section 6A(1) of the Principal Act, for "retail

outlet" substitute "specialist tobacconist or an on-

airport duty free shop".

(2) Section 6A(1)(c) of the Principal Act is repealed.




(4) In section 6A(4) of the Principal Act, for "retailoutlet" substitute "specialist tobacconist or an on-





(6) Section 6A(8) of the Principal Act is repealed.

6 Removal of advertisements

In section 37(2) of the Principal Act, for "or (2A)"

substitute ", (2AA) or (2A)".

__________________

s. 5


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Part 3Miscellaneous Amendments


No. 49 of 2009

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PART 3MISCELLANEOUS AMENDMENTS

7 Purpose of Principal Act amended

In section 1 of the Principal Act, after "products"

insert "and certain non-tobacco products, to create

offences in relation to smoking and the possession

of tobacco products".

8 Definitions

(1) In section 3 of the Principal Act insert the

following definitions

"ban ordermeans an order made by the Minister

under section 15N(1);

driverhas the same meaning as in the Road

Safety Act 1986;

highway has the same meaning as in the Road

Safety Act 1986;

motor vehicle has the same meaning as in the

Road Safety Act 1986;

specialist tobacconistmeans a retail outlet that is

certified by the Secretary as a specialist

tobacconist under section 15U;".

(2) In section 3 of the Principal Act, for the definition

ofoccupiersubstitute

"occupier, in relation to an area or premises,

means

(a) a person who appears to be of or over

the age of 16 years and who is or

appears to be in control of the area or

premises, whether or not the person is

present in the area or on the premises;

or

(b) a body corporate that is or appears to be

in control of the area or premises;".

s. 7


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No. 49 of 2009

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9 Tobacco advertisements

In section 3B(4) of the Principal Act, omit ", of a

tobacco product, of the packaging of a tobacco

product, or".

10 Enclosed workplaces: offence by occupier

In section 5B(1) of the Principal Act, for

"5 penalty units" substitute "10 penalty units, in

the case of a natural person, or 50 penalty units, in

the case of a body corporate".11 Outdoor dining or drinking areas: offence by

occupier

In section 5D(1) of the Principal Act, for



the case of a body corporate".

12 Outdoor dining or drinking areas: no smoking signs

In section 5E(1) of the Principal Act, for

"5 penalty units" substitute "10 penalty units, inthe case of a natural person, or 50 penalty units, in


13 Enclosed restaurants and cafes: no smoking signs

In section 5F(1) of the Principal Act, for




14 Retail shopping centres: no smoking signs

In section 5G(3) of the Principal Act(a) for "5 penalty units" substitute "10 penalty

units"; and

s. 9


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(b) for "10 penalty units in any other case"

substitute "50 penalty units in the case of a

body corporate".

15 Bingo areas and centres: no smoking signs

In section 5H(1) of the Principal Act, for




16 Casinos: no smoking signsIn section 5K(1) of the Principal Act, for




17 Approved venues: no smoking signs

In section 5N(1) of the Principal Act, for




18 Licensed premises: no smoking signs

In section 5R(1) of the Principal Act, for




19 New Division 1A inserted in Part 2

After Division 1 of Part 2 of the Principal Act

insert

"Division 1ASmoking in motor vehicles

5S Offence to smoke in motor vehicle if

person under 18 is present

Despite anything to the contrary in this Act,

a person must not smoke in a motor vehicle,

whether or not the motor vehicle is in

s. 15


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motion, if another person is present in the

motor vehicle and the other person is under

the age of 18 years.

Penalty: 5 penalty units.5T Power to require driver to stop

(1) A police member may require a driver or

person in charge of a motor vehicle on a

highway to stop the motor vehicle if the

police member believes on reasonablegrounds that a person in the vehicle has

committed or is about to commit an offence

against section 5S.

(2) Subject to subsection (3), a person must not

fail to stop a motor vehicle when required to

do so under subsection (1).

Penalty: 10 penalty units.(3) Subsection (2) is not contravened if

(a) the person making the requirement tostop is not in uniform; and

(b) the driver or person in charge of the

motor vehicle believed that that person

was not a police member.

5U Evidential burden regarding age

In proceedings for an offence against

section 5S, evidence that a person present in

the relevant motor vehicle appeared to be

under the age of 18 years is, in the absence

of evidence to the contrary, proof that theperson was under the age of 18 years.".

s. 19


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20 Certain advertising prohibited: penalties

(1) For the penalty at the foot of section 6(1) of the

Principal Act substitute

"Penalty: In the case of a natural person,60 penalty units;

In the case of a body corporate,

300 penalty units.".

(2) In section 6(2A) of the Principal Act, after "guilty

of an offence" insert "and liable to a penalty notexceeding 60 penalty units, in the case of a natural

person, or 300 penalty units, in the case of a body

corporate".

(3) The penalty at the foot of section 6(2A) of the

Principal Act is repealed.

(4) For the penalty at the foot of section 6(2B) of the


"Penalty: In the case of a natural person,60 penalty units;In the case of a body corporate,


21 Point of sale advertisements: references to

Commonwealth Regulations

(1) In section 6A(1)(b)(i)(C) of the Principal Act, for

"Trade Practices (Consumer Product Information

Standards) (Tobacco) Regulations 1994"

substitute "Trade Practices (Consumer Product

Information Standards) (Tobacco) Regulations

2004".

(2) In section 6A(2)(a)(ii) of the Principal Act, for

"Trade Practices (Consumer Product Information

Standards) (Tobacco) Regulations 1994"

substitute "Trade Practices (Consumer Product

Information Standards) (Tobacco) Regulations

2004".

s. 20


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22 Competitions

For the penalty at the foot of section 7(1) of the





23 Free samples






24 Prohibition of certain sponsorships


Principal Act substitute"Penalty: In the case of a natural person,

60 penalty units;






In the case of a body corporate,300 penalty units.".

s. 22


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25 Packing of tobacco

For the penalty at the foot of section 11 of the





26 Offence to possess certain tobacco products

For the penalty at the foot of section 11A of the





27 Supplying tobacco to person under 18 years


Principal Act substitute"Penalty: In the case of a natural person,

120 penalty units;







s. 25


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(3) For section 12(3) of the Principal Act

substitute

"(3) The occupier of premises on which a

vending machine is situated must not permit

a person under the age of 18 years to obtain a

tobacco product from that vending machine.

Penalty: In the case of a natural person,60 penalty units;


28 Vending machines






29 Mobile selling of tobacco products

(1) In section 13A(1) of the Principal Act, for

"100 penalty units" substitute "120 penalty

units".

(2) For the penalty at the foot of section 13A(2) of the





(3) After section 13A(2) of the Principal Act insert

"(2A) A tobacco company is guilty of an offence

against this subsection, and liable to a

penalty not exceeding 5000 penalty units, if

the tobacco company intentionally or

recklessly

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(a) contravenes subsection (2); or

(b) causes another person to contravene

subsection (1) or (2).

(2B) An offence against subsection (2A) is an

indictable offence.".

30 Packages of cigarettes

For the penalty at the foot of section 14 of the





31 Smokeless tobacco



"Penalty: In the case of a natural person,120 penalty units;In the case of a body corporate,


32 Retail outlets: signage

(1) For the penalty at the foot of section 15C(1) of the




50 penalty units.".

(2) For the penalty at the foot of section 15C(3) of the




50 penalty units.".

s. 30


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33 Prohibition of retailing at premises where offences

have been committed

(1) For the penalty at the foot of section 15D(2) of the





(2) For the penalty at the foot of section 15D(3) of thePrincipal Act substitute




34 Offence by occupier

In section 15G(1) of the Principal Act, for


the case of a natural person, or 50 penalty units, inthe case of a body corporate".

35 No smoking signs

In section 15H(1) of the Principal Act, for




36 Covering vending machines, tobacco advertisements

etc.

For the penalty at the foot of section 15I(1) of thePrincipal Act substitute




s. 33


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37 Prohibition on supplying tobacco at underage

music/dance events

For the penalty at the foot of section 15J of the





38 New Divisions 4 and 5 inserted in Part 2

After Division 3 of Part 2 of the Principal Act

insert

"Division 4Sales of tobacco products from

temporary outlets

15L Offence to sell tobacco products from

temporary outlet

(1) A person must not sell tobacco products

from a point of sale that is located in atemporary display stand, booth or tent or

other temporary or mobile structure or

enclosure, whether or not a part of that

display stand, booth, tent, structure or

enclosure is permanent.



300 penalty units.

s. 37


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(2) A person must not sell tobacco products

from a point of sale that is in a retail outlet

established in an area or premises for the

duration of a specific sports, music or arts-

related function or event in the area or

premises.



300 penalty units.

15M Offence for tobacco company to sell

tobacco products from temporary outlet

(1) A tobacco company is guilty of an offence

against this subsection, and liable to a

penalty not exceeding 5000 penalty units, if

the tobacco company intentionally or

recklessly contravenes section 15L(1) or

15L(2) or causes another person to

contravene section 15L(1) or 15L(2).

(2) An offence against subsection (1) is an

indictable offence.

Division 5Prohibited products

15N Ban orders

(1) The Minister, by order published in the

Government Gazette, may ban a product or a

class of products if

(a) the Secretary recommends the makingof the order to the Minister under

section 15O; or

(b) the product or the class of products has

been prohibited or restricted by or

under a law of the Commonwealth or

another State or Territory on the ground

that the product or the class of products

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meets one or more criteria that

substantially correspond to the criteria

set out in section 15O(2)(a).

(2) A ban order must

(a) if the ban order is made on the

recommendation of the Secretary,

specify that fact and set out the grounds

for the recommendation; or

(b) if a ban order is made on the basis of aprohibition or restriction by the

Commonwealth or another State or

Territory, specify that fact and the law

or subordinate instrument containing

the prohibition or restriction.

(3) A ban order may apply, adopt or incorporate,

wholly or partially or as amended by the

order, any matter contained in any document

as existing

(a) from time to time; or(b) at a particular time.

15O Secretary may recommend ban order

(1) The Secretary may recommend to the

Minister that a ban order be made in respect

of a specified product or a specified class of

products.

(2) The Secretary must not make a

recommendation under subsection (1) unless

the Secretary has fully investigated thematter and is satisfied that

(a) the product

(i) is a tobacco product and the

product or its smoke possesses a

distinctive fruity, sweet or

confectionery-like character; or

s. 38


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(ii) is a tobacco product and has

packaging that appeals to children

or young people; or

(iii) is not a tobacco product but

resembles a tobacco product; or

(iv) is of a nature or is advertised in a

way that may encourage children

or young people to smoke; and

(b) the supply of the product should beprohibited, having regard to the objects

of this Act.

(3) A recommendation by the Secretary must set

out the grounds for the recommendation.

15P Operation of ban order

A ban order takes effect on the date specified

in the ban order or 7 days after the ban order

is published in the Government Gazette,

whichever is the later.

15Q Amendment or revocation of ban order

The Minister, by order published in the

Government Gazette, may amend or revoke a

ban order.

15R Notice of order

(1) The Secretary must cause a copy of a ban

order, or a copy of an order amending or

revoking a ban order

(a) to be given to each person who, to theknowledge of the Minister, supplies the

product or class of products in respect

of which the ban order was made; and

(b) to be published in a newspaper

circulating generally throughout the

State.

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(2) A copy of a ban order or a copy of an order

amending or revoking a ban order must be

given and published under subsection (1)

within 2 days after the publication of the

order in the Government Gazette, or if that is

not practicable, as soon as possible after the

end of that period.

(3) A failure to comply with subsection (1) or

(2) in relation to a ban order or an order

amending or revoking a ban order does notinvalidate the order.

15S Offence to breach a ban order

(1) A person must not sell by retail or wholesale

a product in respect of which a ban order

under section 15N is in force.



600 penalty units.(2) A tobacco company is guilty of an offence

against this subsection and liable to a penalty

not exceeding 5000 penalty units, if the

tobacco company intentionally or

recklessly

(a) contravenes subsection (1); or

(b) causes another person to contravene

subsection (1).

(3) An offence against subsection (2) is anindictable offence.".

s. 38


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39 New Part 2A inserted

After Part 2 of the Principal Act insert

"PART 2ASPECIALIST TOBACCONISTS

15T Application for certification as specialist

tobacconist

(1) A person carrying on or proposing to carry

on a tobacco retailing business at premises

may apply to the Secretary for certificationthat the premises are a specialist tobacconist.

(2) An application for certification must

(a) be in or to the like effect of the form

approved by the Secretary; and

(b) specify the premises in respect of which

the application is made; and

(c) include any information specified in the

approved form; and

(d) be accompanied by the prescribed fee,

if any.

15U Determination of application

(1) On application under section 15T, the

Secretary must determine the application

by

(a) certifying that the premises are a

specialist tobacconist; or

(b) refusing to so certify.

(2) The Secretary may certify that premises are a

specialist tobacconist if the Secretary is

satisfied that

(a) a tobacco retailing business is carried

on or proposed to be carried on at the

premises; and

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(b) the gross turnover of tobacco products

at the premises

(i) if the tobacco retailing business is

carried on at the premises at the

time of the application, constitutes

80 per cent or more of the gross

turnover of all products sold at the

premises in the 12 months

immediately preceding the

application or the applicant'speriod of trading at the premises,

whichever is shorter; or

(ii) if the tobacco retailing business is

proposed to be carried on at the

premises at the time of the

application, is projected to

constitute 80 per cent or more of

the projected gross turnover of all

products to be sold at the premises

in the 12 months immediatelyfollowing the commencement of

trading by the applicant at the

premises; and

(c) certification of the premises is

consistent with the objects of this Act;

and

(d) certification of the premises is

consistent with any strategic plan,

policy statement, code or guideline

relating to specialist tobacconists thathas been adopted by the Minister; and

(e) the premises are separated from other

retail premises by a wall and that any

doorway or entrance to or exit from the

premises does not open directly intoany other retail premises.

s. 39


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(3) The Secretary may refuse to certify premises

as a specialist tobacconist if

(a) the applicant does not comply with any

requirement of this Act or the

regulations; or

(b) the Secretary is not satisfied as required

by subsection (2).

(4) For the purposes of determining an

application, the Secretary, by written noticeto the applicant, may require the applicant to

provide within a reasonable period

information relating to the application that is

specified in the notice.

(5) Before refusing to certify premises, the

Secretary must give the applicant an

opportunity to make a written submission.

(6) If the Secretary certifies that premises are a

specialist tobacconist, the Secretary must

issue the applicant with a certificate to thateffect.

15V Certification holder to notify Secretary of

commencement of tobacco retailing

business

A certification holder who proposes to carry

on a tobacco retailing business at premises

certified as a specialist tobacconist must

notify the Secretary within 7 days after the

business commences at those premises.

15W Duration of certification

(1) The certification of premises remains in

force until

(a) the tobacco retailing business carried

on at the premises ceases or moves to

different premises; or

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(b) the tobacco retailing business carried

on at the premises is no longer carried

on by the applicant, whether solely or

with any other person; or

(c) the Secretary cancels the certification

under section 15X(1) or (4).

(2) If the certification of premises ceases to be in

force by reason of subsection (1)(a) or (1)(b),

the certification holder must notify the

Secretary of that fact within 7 days after the

certification ceases to be in force.

15X Cancellation of certification

(1) The Secretary may cancel a certification

under section 15U for premises if

(a) the certification holder does not comply

with a requirement of this Act or the

regulations; or

(b) the premises no longer satisfy the

criteria set out in section 15U(2).

(2) For the purposes of determining whether to

cancel a certification, the Secretary, by

written notice to the certification holder, may

require the certification holder to provide

within a reasonable period information

relating to the certification that is specified in

the notice.

(3) Before cancelling a certification under

subsection (1), the Secretary must give the

certification holder an opportunity to be

heard.

(4) The Secretary may cancel a certification at

the request of the certification holder.

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(5) If premises are certified to be a specialist

tobacconist and the certification holder does

not commence carrying on a tobacco

retailing business at the premises within

12 months after the premises being certified,

the certification holder must request the

Secretary to cancel the certification under

subsection (4).

(6) If a certification is cancelled, the certification

holder must return the certificate issuedunder section 15U(6) within a reasonable

period unless the certification holder satisfies

the Secretary that the original certificate is

lost, stolen or destroyed.

15Y Notice of determination or cancellation

(1) Within 7 days after determining an

application under section 15U, the Secretary

must notify the applicant in writing of the

determination and, if the application is

refused, the grounds for the determination.

(2) Within 7 days after cancelling a certification

under section 15X, the Secretary must notify

the certification holder in writing of the

cancellation, the grounds for the cancellation

and the date of cancellation.

15Z Replacement certificates

The Secretary may issue a replacement

certificate to a certification holder who

satisfies the Secretary that the original

certificate is lost, stolen or destroyed.

s. 39


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15ZA Offence to provide false or misleading

information to Secretary

(1) A person must not give information to the

Secretary under this Part that the person

knows to be false or misleading in any

material particular.


In the case of a body corporate,300 penalty units.

(2) A person must not produce a document to

the Secretary under this Part that the person

knows to be false or misleading in any

material particular without indicating the

respect in which it is false or misleading and,

if practicable, providing correct information.


In the case of a body corporate,300 penalty units.

15ZB Specialist tobacconist must display

certificate

A person who carries on business at a retail

outlet that is certified to be a specialist

tobacconist must display the certificate

issued under section 15U(6) in a conspicuous

place at the retail outlet in a manner that

invites attention.



50 penalty units.

__________________".

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40 Entry or search with consent

In section 36D(1) of the Principal Act, after "this

Act" insert ", other than Division 1A of Part 2,".

41 Search warrants

(1) In section 36F(1) of the Principal Act, after "this


(2) In section 36F(2) of the Principal Act, after "this


42 Seizure of things not mentioned in warrant

In section 36I of the Principal Act, after "this Act"

(wherever occurring) insert ", other than

Division 1A of Part 2,".

43 Magistrate's Court may extend 3 month period

In section 36L(2) of the Principal Act, after "this

Act" (where first and secondly occurring) insert

", other than Division 1A of Part 2,".

44 Requirement to assist inspector during entryIn section 36M of the Principal Act, after "this


45 Infringement notices

(1) For section 38(1) of the Principal Act

substitute

"(1) An inspector or a police member may serve

an infringement notice on a person who the

inspector or police member believes has

committed an infringement offence referredto in an item in the Schedule requiring the

person to pay

(a) in the case of a natural person, the

infringement penalty specified in

column A of the Schedule for that

infringement offence;

s. 40


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No. 49 of 2009

28

(b) in the case of a body corporate, the

infringement penalty specified in

column B of the Schedule for that

infringement offence.".


"(1A) A police member may serve an infringement

notice on a person if the police member has

reason to believe that the person has

committed an offence against section 5S.

(1B) The infringement penalty for an offence

against section 5S is 2 penalty units.".

(3) In section 38(2) of the Principal Act, for

"subsection (1)" substitute "subsection (1)

or (1A)".


"subsection (1)" substitute "subsections (1)

and (1A)".

46 Proceedings


"Proceedings" substitute "Subject to

subsection (1A), proceedings".


"(1A) Proceedings for an offence under

Division 1A of Part 2 may not be brought by

an inspector.".

47 Section 41 substituted

For section 41 of the Principal Act substitute"41 Offences by a body corporate

(1) If a body corporate contravenes any

provision of this Act, each officer (within the

meaning of section 9 of the Corporations

Act) of the body corporate who knowingly

authorised or permitted the contravention is

s. 46


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No. 49 of 2009

29

taken to have contravened the same

provision.

(2) Subsection (1) does not apply to an offence

against section 6(2D), 7(5), 8(3), 9(5),

13A(2A), 15M(1) or 15S(2).

(3) A person may be proceeded against and

convicted under a provision in accordance

with subsection (1), whether or not the body

corporate has been proceeded against or

convicted under that provision.

(4) Nothing in this section affects any liability

imposed on a body corporate for an offence

committed by the body corporate against this

Act.".

48 New section 41AA inserted

After section 41 of the Principal Act insert

"41AA Conduct by officers, employees or agents

(1) For the purposes of any proceedings underthis Act, any conduct engaged in on behalf of

a body corporate is deemed to have been

engaged in also by the body corporate if the

conduct was engaged in by an employee,

agent or officer (within the meaning of

section 9 of the Corporations Act) of the

body corporate within the scope of the actual

or apparent authority of the employee, agent

or officer.

(2) If, in any proceedings under this Act, it is

necessary to establish the state of mind of a

body corporate in relation to particular

conduct, it is sufficient to show

(a) that the conduct was engaged in by an

officer of the body corporate within the

scope of the officer's actual or apparent

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No. 49 of 2009

30

authority and the officer had that state

of mind; or

(b) that the conduct was engaged in by an

agent of the body corporate and

(i) the agent acted at the specific

direction or with the specific

consent or agreement of the body

corporate; or

(ii) the agent had that state of mind; or(iii) the body corporate was aware of

the agent's state of mind when the

conduct was engaged in.

(3) A reference in this section to the state of

mind of a person includes a reference to the

knowledge, intention, opinion, belief or

purpose of the person and the person's

reasons for the intention, opinion, belief or

purpose.".

49 Power to require names of persons supplied with

tobacco

(1) For section 42A(1) of the Principal Act

substitute

"(1) The Secretary may, in writing addressed to a

person who manufactures tobacco products

or sells tobacco products by wholesale,

require the person to provide to the Secretary

within a reasonable period, being not less

than one month after the requirement is

made

(a) the names and addresses of persons

carrying on a tobacco retailing business

in Victoria to whom the person has

supplied tobacco products in Victoria

within the preceding 12 months; and

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No. 49 of 2009

31

(b) the addresses of retail outlets in

Victoria that the person knows

(i) sell tobacco products

manufactured by the person; or

(ii) sell tobacco products purchased at

wholesale from the person,

whether directly or indirectly.

(1A) Information provided to the Secretary in

response to a request under subsection (1)must be in or to the effect of the form

(including electronic form) approved by the

Secretary.".

(2) For the penalty at the foot of section 42A(2) of the





50 New section 46 inserted

After section 45 of the Principal Act insert

"46 Section 3: definition ofoccupier

(1) The definition ofoccupierinserted in

section 3 by section 8(2) of the Tobacco

Amendment (Protection of Children) Act

2009 applies to

(a) offences alleged to have been

committed; and(b) the exercise of powers under Part 3A

on or after 1 January 2010.

(2) For the purposes of subsection (1), if an

offence is alleged to have been committed

between 2 dates of which one is before and

one is on or after 1 January 2010, the offence

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No. 49 of 2009

32

is alleged to have been committed before

1 January 2010.".

51 Schedule substituted

For the Schedule to the Principal Act substitute

"SCHEDULE

Section 38

INFRINGEMENT OFFENCES

Column A Column B

ItemInfringementoffence

Infringementpenalty(naturalperson)

Infringementpenalty (bodycorporate)

1 An offence against

section 5A(1)

1 penalty

unit

Not

applicable


section 5B(1)

2 penalty

units

Not

applicable

3 An offence againstsection 5C(1)

1 penaltyunit

Notapplicable


section 5D(1)

2 penalty

units

Not

applicable


section 5E(1)

2 penalty

units

5 penalty

units


section 5F(1)

2 penalty

units

5 penalty

units


section 5G(1)

2 penalty

units

5 penalty

units

8 An offence againstsection 5H(1)

2 penaltyunits

5 penaltyunits


section 5K(1)

2 penalty

units

5 penalty

units


section 5N(1)

2 penalty

units

5 penalty

units


section 5R(1)

2 penalty

units

5 penalty

units

s. 51


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No. 49 of 2009

33

Column A Column B





section 6(2AA)

3 penalty

units

30 penalty

units


section 6(2A)

3 penalty

units

30 penalty

units

14 An offence againstsection 6(2B)

3 penaltyunits

30 penaltyunits


section 12(1)

4 penalty

units

60 penalty

units


section 12(2)

2 penalty

units

12 penalty

units


section 12(3)

3 penalty

units

30 penalty

units


section 13(1)

3 penalty

units

30 penalty

units

19 An offence againstsection 13A(1)

4 penaltyunits

Notapplicable

20 An offence againstsection 13A(2)

4 penaltyunits

60 penaltyunits


section 14

3 penalty

units

60 penalty

units


section 15C(1)

2 penalty

units

5 penalty

units


section 15C(3)

2 penalty

units

5 penalty

units

24 An offence againstsection 15F(1) 1 penaltyunit Notapplicable


section 15G(1)

2 penalty

units

Not

applicable


section 15H(1)

2 penalty

units

5 penalty

units


section 15I(1)

3 penalty

units

30 penalty

units

s. 51


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No. 49 of 2009

34

Column A Column B





section 15J

3 penalty

units

30 penalty

units


section 15L(1)

3 penalty

units

30 penalty

units

30 An offence againstsection 15L(2)

3 penaltyunits

30 penaltyunits


section 15S(1)

4 penalty

units

60 penalty

units


section 15ZB

1 penalty

unit

5 penalty

units


section 36C(3)

1 penalty

unit

Not

applicable

".

__________________

s. 51


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Part 4Repeal


No. 49 of 2009

35

PART 4REPEAL

52 Repeal of amending Act

This Act is repealed on 1 January 2012.

Note

The repeal of this Act does not affect the continuing operation of

the amendments made by it (see section 15(1) of the

Interpretation of Legislation Act 1984).

s. 52


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No. 49 of 2009

36

ENDNOTES

Minister's second reading speech

Legislative Assembly: 25 June 2009

Legislative Council: 30 July 2009

The long title for the Bill for this Act was "A Bill for an Act to amend theTobacco Act 1987 and for other purposes."

Endnotes

victoria_tobacco amendment-protection of children-act

Documents