Smoke-free Environment Amendment Act 2018 (NSW)

An Act to amend the Smoke-free Environment Act 2000 and the Public Health (Tobacco) Act 2008 to regulate the sale and smoking of e-cigarettes, heat-not-burn tobacco products and other products restricted under the Public Health (Tobacco) Act 2008; and for other purposes.

1Name of Act

This Act is the Smoke-free Environment Amendment Act 2018.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

Schedule 1Amendment of Smoke-free Environment Act 2000 No 69[1]Section 3 Object of Act

Insert “, as well as aerosol or vapour (whether or not containing nicotine) generated by e-cigarettes,” after “other smoke”.

[2]Section 4 Definitions

Omit the definitions of smoke and smoking product.

Insert in alphabetical order:

e-cigarette, non-tobacco smoking product and tobacco product have the same meanings as in the Public Health (Tobacco) Act 2008.

smoke means use, consume, hold or otherwise have control over a tobacco product, non-tobacco smoking product or e-cigarette that is generating (whether or not by burning) smoke or an aerosol or vapour.

[3]Section 19A

Insert before section 20:

19AExemption relating to premises of e-cigarette retailers(1)

This section applies to the premises of e-cigarette retailers who notify the Secretary under section 39 of the Public Health (Tobacco) Act 2008 (as substituted by the Smoke-free Environment Amendment Act 2018) of an intention to engage in e-cigarette retailing.

(2)

The Secretary may, by order in writing, exempt persons from sections 7 and 8 in relation to the smoking of e-cigarettes on the premises of an e-cigarette retailer.

(3)

An exemption may be subject to such conditions, including requiring the display of the order, as may be specified in the order.

(4)

An exemption does not apply unless the person complies with all applicable conditions of the exemption.

(5)

In this section, e-cigarette retailer means a person who engages in e-cigarette retailing, but does not engage in tobacco retailing, within the meaning of those terms in Part 5 of the Public Health (Tobacco) Act 2008.

Schedule 2Amendment of Public Health (Tobacco) Act 2008 No 94[1]Part 5, heading

Insert “and e-cigarette retailing” after “retailing”.

[2]Section 31A

Insert after section 31:

31AMeaning of “engaging in e-cigarette retailing”

For the purposes of this Part, a person engages in e-cigarette retailing when:

• (a)

  e-cigarettes or e-cigarette accessories are sold by retail in the course of the carrying on of a business that is owned, managed, conducted or operated by the person, or

• (b)

  the person is the owner or lessee of an e-cigarette vending machine that is situated on premises for the purpose of the sale of e-cigarettes or e-cigarette accessories, or

• (c)

  the person is the occupier of premises on which an e-cigarette vending machine is situated for the purpose of the sale of e-cigarettes or e-cigarette accessories (whether or not the vending machine was placed there by the person).

[3]Part 5, Division 3, heading

Insert “and e-cigarette retailers” after “retailers”.

[4]Section 39

Omit the section. Insert instead:

39Notification by person engaging in tobacco retailing or e-cigarette retailing(1)

A person must not engage in tobacco retailing or e-cigarette retailing, or both, unless the person has notified the Secretary, in accordance with this section, that the person intends to engage in retailing of a type so notified.

Maximum penalty: 100 penalty units.

(2)

A notice must be provided in the manner prescribed by the regulations and contain the following information:

• (a)

  the business address of the person intending to engage in tobacco retailing or e-cigarette retailing,

• (b)

  the address of the premises at which the person intends to engage in tobacco retailing or e-cigarette retailing,

• (c)

  the registered business name (if any) of the relevant business and, if the business is incorporated, the ACN,

• (d)

  the names and addresses of the owners and directors of the relevant business,

• (e)

  whether the person is intending to engage in tobacco retailing or e-cigarette retailing, or both types of retailing.

(3)

A person engaged in tobacco retailing or e-cigarette retailing (but not both) must, before engaging in the other type of retailing, notify the Secretary of the intention to engage in that other type of retailing.

(4)

A person engaged in tobacco retailing or e-cigarette retailing, or both, must notify the Secretary of any of the following events within 28 days after becoming aware of the event:

• (a)

  a change in the person’s business address,

• (b)

  a change in the address of the premises at which the person engages in that retailing,

• (c)

  a change in the name or address of any owner or director of the retailing business,

• (d)

  a change in the ownership of the retailing business.

(5)

The Secretary is, as soon as practicable after being notified that a person intends to engage in tobacco retailing, e-cigarette retailing or both, to ensure that the person:

• (a)

  has a retailer identification number, or

• (b)

  if the person does not have a retailer identification number—is issued a retailer identification number.

[5]Section 39A Restriction on obtaining or selling tobacco, e-cigarettes or e-cigarette accessories by wholesale without retailer identification number

Insert “, e-cigarette or e-cigarette accessory” after “tobacco product” wherever occurring.

[6]Section 39A

Omit “tobacco retailer notification number” wherever occurring.

Insert instead “retailer identification number”.

[7]Schedule 1 Savings, transitional and other provisions

Insert at the end of clause 1 (1):

any other Act that amends this Act

[8]Schedule 1, Part 3

Insert after Part 2:

Part 3Provisions consequent on enactment of Smoke-free Environment Amendment Act 20189Definition

In this Part:

amending Act means the Smoke-free Environment Amendment Act 2018.

10Existing tobacco retailers and e-cigarette retailers(1)

A person who, immediately before the substitution of section 39 by the amending Act, had been issued a tobacco retailer notification number by the Secretary is taken to have notified the Secretary of an intention to engage in tobacco retailing under that section as so substituted.

(2)

A tobacco retailer notification number issued under section 39 before the substitution of that section is taken to be a retailer identification number for the purposes of that section.

(3)

A person who was engaged in e-cigarette retailing immediately before the substitution of section 39 by the amending Act does not commit an offence against section 39 if the person gives notice of the intention to engage in e-cigarette retailing within the period of 3 months after the day of that substitution.

Schedule 3Consequential amendment of Passenger Transport (General) Regulation 2017[1]Clause 3 Definitions

Omit the definition of smoke from clause 3 (1).

[2]Clause 51 No smoking

Omit clause 51 (3). Insert instead:

(3)

In this clause, smoke has the same meaning as in the Smoke-free Environment Act 2000.