Tobacco and Other Smoking Products Act 1998 (Qld)

Tobacco and Other Smoking Products Act 1998

An Act to restrict the supply of tobacco and other smoking products to children, to restrict advertising and promotion of tobacco and other smoking products and illicit nicotine products, to prohibit smoking in certain places, to restrict supply and possession of illicit nicotine products, and for other purposes

Part 1    Preliminary

1   Short title

This Act may be cited as the Tobacco and Other Smoking Products Act 1998.

2   Commencement

(1)This Act (other than section 75) commences on a day to be fixed by proclamation.

(2)Section 75 commences 6 months after the day fixed under subsection (1).

3   Object of Act

The object of this Act is to improve the health of members of the public by reducing their exposure to tobacco, other smoking products and illicit nicotine products.

4   How object is to be achieved

The object is to be achieved mainly by—

(a)restricting the supply of tobacco and other smoking products to children; and

(b)restricting the supply and possession of illicit tobacco and illicit nicotine products; and

(c)restricting the advertising and promotion of tobacco, other smoking products and illicit nicotine products; and

(d)reducing public exposure to smoke from tobacco, other smoking products and illicit nicotine products; and

(e)establishing a framework for monitoring, investigative and enforcement activities; and

(f)establishing a licensing scheme for the sale of smoking products, including a disciplinary scheme for licensees.

5   Definitions

The dictionary in the schedule 1 defines particular words used in this Act.

6   Who is a responsible adult

A responsible adult, for a child, is an adult who—

(a)is the child’s parent, step-parent or guardian; or

(b)has parental rights and responsibilities for the child.

Example of responsible adult under paragraph (b)—

an adult who is an aunt or uncle of a child, living with the child

7    Meaning of vaping-related terms

(1)In this Act—

vaping accessory means a cartridge, capsule, pod or other vessel—

(a)that is for use in, or with, a vaping device; and

(b)whether or not the cartridge, capsule, pod or other vessel—

(i)contains a vaping substance; or

(ii)is designed or intended to be refilled.

vaping device—

(a)means—

(i)a device, whether or not filled with a vaping substance, that generates or releases, or is designed or intended to generate or release, using a heating element and by electronic means, an aerosol, vapour or mist for direct inhalation by its user; or

(ii)a device to which subparagraph (i) would apply if the device were not temporarily or permanently inoperable, incomplete, damaged or unfinished; and

(b)does not include—

(i)a device included in the register under the Therapeutic Goods Act 1989 (Cwlth), other than a device designed for use by a person for smoking cessation or management of nicotine dependence; or

(ii)a device designed to be used to deliver oxygen into an individual’s body; or

(iii)a bong, hookah or ice pipe; or

(iv)a device prescribed by regulation not to be a vaping device.

vaping goods—

(a)means any of the following goods—

(i)a vaping substance;

(ii)a vaping accessory;

(iii)a vaping device;

(iv)goods the presentation of which includes an express or implied representation that the goods are of a type mentioned in subparagraph (i), (ii) or (iii);

Note—

See also subsection (2) in relation to the presentation of goods.

(v)goods that are, or are included in a class of goods that are, prescribed by regulation under subsection (3) to be vaping goods; and

(b) does not include goods that are, or are included in a class of goods that are, prescribed by regulation under subsection (3) not to be vaping goods.

vaping substance—

(a)means—

(i)nicotine in solution in any concentration, including in a salt or base form; or

(ii)any liquid or other substance for use in, or with, a vaping device; and

(b)includes a container or part of a container, other than a vaping accessory or vaping device, in which a liquid or other substance mentioned in paragraph (a)(i) or (ii) is present.

(2)For subsection (1), definition vaping goods, paragraph (a)(iv)—

(a)the presentation of goods includes matters relating to—

(i)the name of the goods; and

(ii)the labelling and packaging of the goods; and

(iii)any advertising or informational material associated with the use or supply of the goods; and

(b)goods are taken to be presented as being a particular type of goods even if the presentation—

(i)is capable of being misleading or confusing as to the content or proper use or identification of the goods; or

(ii)suggests that the goods have ingredients, components or characteristics that they do not have.

(3)A regulation may prescribe that stated goods or stated classes of goods—

(a)are or are not vaping goods; or

(b)when used, advertised, or presented for use or supply in a stated way, are or are not vaping goods.

8   Meaning of retail outlet

(1)A retail outlet is premises at which smoking products are available for sale by retail.

(2)Each of the premises mentioned in subsection (1) is taken to be a separate retail outlet regardless of ownership, any trading name or franchise agreements relating to the premises.

9   Meaning of wholesale outlet

(1)A wholesale outlet is premises from which smoking products are available for sale by wholesale.

(2)Each of the premises mentioned in subsection (1) is taken to be a separate wholesale outlet regardless of ownership, any trading name or franchise agreements relating to the premises.

10   Acceptable evidence of age

For this Act, acceptable evidence of the age of a person is a document that—

(a)is a driver licence, proof of age card, an Australian or foreign passport or an Australia Post Keypass; and

(b)bears a photograph of the person; and

(c)indicates by reference to the person’s date of birth or otherwise that the person has attained a particular age.

11   Act binds all persons

This Act binds all persons.

Part 2    Retail and wholesale licences

Division 1 Preliminary

12   Definitions for part

In this part—

information notice, for a decision, means a notice stating the following information—

(a)the decision;

(b)the reasons for the decision;

Note—

See the Acts Interpretation Act 1954, section 27B for matters that must be included with the reasons.

(c)that the person to whom the notice is given may ask for a review of the decision under this Act;

(d)how, and the period within which, the review may be started;

(e)if the person may apply for a stay of the operation of the decision under this Act—how the person may apply for the stay.

licensed retailer means a retailer that holds a retail licence.

online sale means a sale transacted over the internet.

retailer means a business that, as part of a business activity, sells smoking products to the public by way of retail sale.

retail licence means a licence granted under this Act that authorises the sale of smoking products to the public by retail sale.

retail licence (liquor) means a retail licence under which the authorisation is limited to selling smoking products to customers at liquor licensed premises.

specific conditions see section 15(1).

wholesale licence means a licence granted under this Act that authorises the sale of smoking products to licensed retailers by wholesale.

Division 2 General information about licences

13   Retail licence

(1)A retail licence authorises the licensee to sell smoking products to the public by retail from 1 retail outlet or 1 online shop.

Note—

Selling smoking products from more than 1 retail outlet or online shop requires additional retail licences.

(2)However—

(a)if an online shop is for online sales of smoking products from 1 retail outlet, a retail licence authorises the licensee to sell smoking products by retail from both the online shop and the retail outlet; and

(b)the authorisation under a retail licence (liquor) is limited to selling smoking products to customers at 1 liquor licensed premises.

(3)The authorisation under a retail licence may be expanded by a specific condition authorising the licensee to sell limited quantities of smoking products by wholesale to smaller licensed retailers (a limited wholesale condition).

14   Wholesale licence

(1)A wholesale licence authorises the licensee to sell smoking products by wholesale to licensed retailers from 1 wholesale outlet or 1 online shop.

Note—

Selling smoking products from more than 1 wholesale outlet or online shop requires additional wholesale licences.

(2)However, if an online shop is for online sales of smoking products from 1 wholesale outlet, a wholesale licence authorises the licensee to sell smoking products by wholesale from both the online shop and the wholesale outlet.

15   Conditions of retail or wholesale licences

(1)A retail or wholesale licence is subject to conditions imposed on the licence by the chief executive under this part (the specific conditions).

(2)A retail or wholesale licence is also subject to the conditions prescribed by regulation (the general conditions).

16   When retail or wholesale licence ceases to have effect

(1)A retail or wholesale licence ceases to have effect if—

(a)the licence is cancelled or surrendered; or

(b)the business for the licence is sold.

(2)A retail or wholesale licence does not have effect during any period of suspension of the licence.

(3)A retail licence (liquor) also—

(a)ceases to have effect if the related liquor licence is cancelled or surrendered; and

(b)does not have effect during any period of suspension of the related liquor licence.

Division 3 Application and grant

17   Who may apply for retail or wholesale licence

(1)The following entities may apply to the chief executive for a retail or wholesale licence—

(a)the owner of a business that proposes to sell smoking products;

(b)an adult individual, corporation or partnership that proposes to establish a business that is intended to sell smoking products;

(c)an adult individual, corporation or partnership that proposes to purchase a business that sells smoking products.

(2)However, if smoking products are proposed to be sold at liquor licensed premises—

(a)the application must be for a retail licence (liquor); and

(b)only the liquor licensee for liquor licensed premises may apply to the chief executive for the licence.

(3)If the applicant is a partnership, the partners must jointly make the application under subsection (1).

(4)In this section—

owner, of a business, means the adult individual, corporation or partnership that owns and controls the business.

18   Requirements for application

(1)An application for a retail or wholesale licence must—

(a)be made in the approved form; and

(b)if the applicant is a corporation—include sufficient information to identify the directors of the corporation; and

(c)be accompanied by the proof of identification required by the approved form; and

(d)if the application relates to a retail or wholesale outlet—identify the location of the retail or wholesale outlet; and

(e)if the application relates to an online shop—state the website address of the online shop; and

(f)if the application relates to the sale of smoking products at liquor licensed premises—be accompanied by a copy of the liquor licence for the premises; and

(g)be accompanied by sufficient information to identify all licences to supply a smoking product by retail or wholesale, if any, held by the applicant under a law of the Commonwealth or another State; and

(h)be accompanied by the fee, if any, prescribed by regulation.

(2)The application must be made for either a retail or wholesale licence.

Note—

Two separate applications are required if a person intends to apply for a retail licence and a wholesale licence.

(3)Also, if the application relates to the sale of smoking products at liquor licensed premises, the application must be for a retail licence (liquor).

(4)If the application is made by a partnership, the application must—

(a)nominate either of the following for the partnership—

(i)the firm-name;

(ii)the Australian registered body number; and

(b)include identifying information for each partner; and

(c)identify any limited partners.

(5)In this section—

Australian registered body number means the number given by ASIC to a registrable body on registration under the Corporations Act, part 5B.2.

firm-name see the Partnership Act 1891, schedule.

limited partner see the Partnership Act 1891, schedule.

registrable body see the Corporations Act, section 9.

19   Rejection of particular applications

(1)The chief executive must reject an application for a retail or wholesale licence if—

(a)the applicant applied for a retail or wholesale licence in the previous 6 months and the application was refused; or

(b)the applicant held a retail or wholesale licence that was cancelled within the previous 6 months.

(2)Any fee paid for an application rejected under subsection (1) must be returned to the applicant.

20   Criteria for grant

(1)The chief executive may grant an application for a retail or wholesale licence only if satisfied—

(a)if the application is made by a partnership—each partner is a fit and proper person to be a licensee; or

(b)otherwise—the applicant is a fit and proper person to be a licensee.

(2)However, the chief executive must grant an application for a retail licence (liquor) if the applicant is the liquor licensee for the liquor licensed premises at which smoking products are proposed to be sold.

(3)Subsection (2) does not apply if—

(a)a retail licence (liquor) for the liquor licensed premises has ever been cancelled; or

(b)the liquor licence for the liquor licensee is suspended.

(4)The chief executive must refuse to grant an application for a retail licence (liquor) if—

(a)the applicant is not the liquor licensee for the liquor licensed premises at which smoking products are proposed to be sold; or

(b)the liquor licence for the liquor licensee is not in force when the application is considered.

(5)A limited wholesale condition may only be granted for a retail licence if—

(a)retail sales are the primary activity of the business to which the licence relates; and

(b)the retail outlet for the licence is not a liquor licensed premises.

21   Deciding application

(1)After considering an application for a retail or wholesale licence, the chief executive must decide to—

(a)grant the application; or

(b)refuse to grant the application.

(2)Also, if the applicant is not yet the owner of the business to which the application relates, the chief executive may grant the application on the condition that the applicant becomes the owner of the business.

Example—

If the applicant is a corporation that proposes to purchase a business that sells smoking products, the chief executive may grant the application subject to the condition that the applicant completes the purchase.

(3)In granting the application, the chief executive may impose conditions on the licence that the chief executive considers appropriate for the purpose of ensuring compliance with this Act or mitigating the health risks associated with the sale of smoking products.

(4)In this section—

owner, of a business, means the adult individual, corporation or partnership that owns and controls the business.

22   Notice of decision

(1)As soon as practicable after deciding an application for a retail or wholesale licence, the chief executive must give the applicant notice of the decision.

(2)The notice of the decision must be an information notice if the decision is to—

(a)grant the licence with specific conditions; or

(b)refuse to grant the licence.

23   Term of retail or wholesale licence

A retail or wholesale licence—

(a)is granted for the term of 1 year or the shorter period stated in the licence and agreed to by the licensee; and

(b)takes effect on the day stated in the licence.

Division 4 Renewal and restoration

24   Application for renewal of retail or wholesale licence

(1)Before a retail or wholesale licence expires, the licensee may apply to the chief executive to renew the licence.

(2)The application must be—

(a)made in the approved form; and

(b)accompanied by the fee prescribed by regulation.

(3)If the term of the retail or wholesale licence ends before the application is decided, the licence continues in effect under this section until the day the chief executive gives the licensee notice of the decision under section 28 or the application is withdrawn, whichever happens first.

(4)Nothing in subsection (3) prevents the retail or wholesale licence being suspended or cancelled during the period the licence is continued under that subsection.

25   Application for restoration of expired retail or wholesale licence

(1)If a retail or wholesale licence expires, the licensee may, within 28 days after the expiry, apply to the chief executive to restore the licence.

(2)The application must be—

(a)made in the approved form; and

(b)accompanied by the fee prescribed by regulation.

(3)The retail or wholesale licence is taken to have continued in effect under this section from the day of expiry until the day the chief executive gives the licensee notice of the decision under section 28 or the application is withdrawn, whichever happens first.

(4)Nothing in subsection (3) prevents the retail or wholesale licence being suspended or cancelled during the period the licence is continued under that subsection.

26   Criteria for grant

(1)The chief executive may grant an application for the renewal or restoration of a retail or wholesale licence only if satisfied—

(a)if the application is made by a partnership—each partner is a fit and proper person to be a licensee; or

(b)otherwise—the applicant is a fit and proper person to be a licensee.

(2)However, subsection (3) applies if the application is for the renewal or restoration of a retail licence (liquor).

(3)Section 20(2) to (4) applies to the application as if a reference to an application for a retail licence (liquor) in that section were a reference to an application for renewal or restoration of a retail licence (liquor).

26CA   [Repealed]

26CB   [Repealed]

26F   [Repealed]

26G   [Repealed]

26H   [Repealed]

26I   [Repealed]

26IB   [Repealed]

26IC   [Repealed]

26RA   [Expired]

26T   [Repealed]

26VA   [Repealed]

26VI   [Repealed]

26VM   [Repealed]

26VP   [Repealed]

26VR   [Repealed]

26VT   [Repealed]

26VV   [Repealed]

26VX   [Repealed]

26ZGB    [Repealed]

26ZGC    [Repealed]

26ZGD    [Repealed]

26ZGE    [Repealed]

26ZGF   [Repealed]

26ZL   [Repealed]

26ZM   [Repealed]

26ZN   [Repealed]

26ZO   [Repealed]

26ZP   [Repealed]

26ZPE    [Repealed]

27   Deciding application

After considering an application for the renewal or restoration of a retail or wholesale licence, the chief executive must decide to—

(a)grant the application; or

(b)refuse to grant the application.

28   Notice of decision

(1)As soon as practicable after deciding an application for the renewal or restoration of a retail or wholesale licence, the chief executive must give the applicant notice of the decision.

(2)The notice of the decision must be an information notice if the decision is to refuse to grant the application.

29   Term of retail or wholesale licence if renewed or restored

The renewal or restoration of a retail or wholesale licence extends the term of the licence—

(a)by 1 year or the shorter period agreed to by the licensee; and

(b)starting on the day after the licence would have expired but for the renewal or restoration.

Division 5 Changes to licences

Subdivision 1 Changes requested by licensee

30   Application for change requested by licensee

(1)A licensee may apply to the chief executive to change a specific condition of the retail or wholesale licence, including, for example, applying for the inclusion of a limited wholesale condition.

(2)The application must be—

(a)made in the approved form; and

(b)accompanied by the fee, if any, prescribed by regulation.

31   Deciding application

(1)After considering an application to change a specific condition, the chief executive may decide to—

(a)grant the application; or

(b)refuse to grant the application.

(2)In granting the application, the chief executive may amend or remove a specific condition of the licence to the extent it is necessary to grant the application.

(3)However, a limited wholesale condition may only be applied to a retail licence if retail sales are the primary activity of the business to which the licence relates.

(4)The change to a specific condition takes effect on the day stated in the notice of the decision.

(5)If the decision is to grant the application, the chief executive must give the applicant a replacement copy of the licence incorporating the granted changes.

32   Notice of decision

(1)As soon as practicable after deciding an application to change a specific condition, the chief executive must give the applicant notice of the decision.

(2)The notice of the decision must be an information notice if the decision is to refuse to change all the specific conditions as requested in the application.

Subdivision 2 Changes made by chief executive

33   Application of subdivision

This subdivision applies if the chief executive—

(a)reasonably suspects a ground exists for suspending a licence under section 36 or cancelling a licence under section 37; and

(b)reasonably believes it is necessary in the circumstances, to ensure the health and wellbeing of customers of the licensee, to take the following action instead of suspending or cancelling the licence—

(i)impose a new specific condition on the licence;

(ii)change a specific condition of the licence.

34   Show cause notice before changing specific conditions

(1)This section applies if, because of a suspicion and belief mentioned in section 33, the chief executive proposes making either of the following changes for a retail or wholesale licence—

(a)imposing a new specific condition on the licence;

(b)changing a specific condition of the licence.

(2)Before making the change to the retail or wholesale licence, the chief executive must give the licensee a notice (a show cause notice) stating—

(a)the chief executive proposes to make the change; and

(b)the details of the proposed change; and

(c)the reasons for the proposed change; and

(d)that the holder may, within 28 days after the notice is given, give the chief executive a written response to the proposed change.

35   Decision about changing conditions

(1)This section applies if the chief executive gives a licensee a show cause notice under section 34.

(2)The chief executive must consider all responses complying with section 34(2)(d) before deciding whether to make the change proposed in the show cause notice.

(3)After considering the responses under subsection (2), the chief executive must—

(a)decide whether to make any of the changes proposed in the show cause notice; and

(b)give the licensee notice of the decision.

(4)If the decision is to make all or some of the changes proposed in the show cause notice—

(a)the notice of the decision given to the licensee must be an information notice; and

(b)the chief executive must give the licensee a replacement copy of the licence incorporating the changes.

(5)A new or changed specific condition takes effect on the day stated in the information notice.

(6)The day stated in the information notice must be after the day the notice is given to the licensee.

Division 6 Suspension, cancellation and surrender

36   Suspension

(1)The chief executive may suspend a retail or wholesale licence if the chief executive reasonably believes any of the following disciplinary grounds apply—

(a)the licence was granted, renewed or restored because of materially incorrect, false or misleading information;

(b)the licensee has contravened a condition of the licence;

(c)the licensee, or an employee of the licensee, has contravened this Act, whether or not the licensee has been convicted of an offence for the contravention;

(d)the licensee attempted to obstruct an authorised person in the exercise of a power under this Act;

(e)the licensee failed to comply with a request to make premises available for inspection made under section 43;

(f)the licensee held another retail or wholesale licence that was suspended or cancelled under this Act;

(g)if the licensee is a partnership—a partner held a retail or wholesale licence that was suspended or cancelled under this Act.

(2)Before suspending the retail or wholesale licence, the chief executive must give the licensee a notice (a show cause notice) stating—

(a)the chief executive proposes to suspend the licence; and

(b)the disciplinary grounds for the proposed suspension; and

(c)the acts, omissions or circumstances that constitute the stated disciplinary grounds; and

(d)that the licensee may, within 28 days after being given the notice, give the chief executive a written response to the notice.

(3)After considering all responses to the show cause notice complying with subsection (2)(d), the chief executive must—

(a)decide to—

(i)take no further action; or

(ii)suspend the retail or wholesale licence; and

(b)give the licensee notice of the decision.

(4)If the decision is to suspend the retail or wholesale licence, the notice must be an information notice.

(5)The suspension—

(a)takes effect on the day stated in the information notice; and

(b)continues for the period of not more than 90 days as stated in the information notice.

(6)The day stated in the information notice must be after the day the notice is given to the licensee.

37   Cancellation

(1)The chief executive may cancel a retail or wholesale licence if the chief executive reasonably believes—

(a)any of the disciplinary grounds mentioned in section 36(1)(a) to (g) apply in relation to the licence; or

(b)the licensee is not a fit and proper person to be a licensee; or

(c)if the licensee is a partnership—1 or more partners is not a fit and proper person to be a licensee; or

(d)the licensee is placed in administration, is wound up or is deregistered under the Corporations Act.

(2)Before cancelling the retail or wholesale licence, the chief executive must give the licensee a notice (a show cause notice) stating—

(a)the chief executive proposes to cancel the retail or wholesale licence; and

(b)the grounds for the proposed cancellation; and

(c)the acts, omissions or circumstances that constitute the grounds; and

(d)that the licensee may, within 28 days after being given the notice, give the chief executive a written response to the notice.

(3)After considering all responses to the show cause notice complying with subsection (2)(d), the chief executive must—

(a)decide to—

(i)take no further action; or

(ii)suspend or cancel the retail or wholesale licence; and

(b)give the licensee notice of the decision.

(4)If the decision is to suspend or cancel the retail or wholesale licence, the notice must be an information notice.

(5)The suspension or cancellation—

(a)takes effect on the day stated in the information notice; and

(b)for a suspension—continues for the period of not more than 90 days as stated in the information notice.

(6)The day stated in the information notice must be after the day the notice is given to the licensee.

38    Immediate suspension without show cause notice

(1)This section applies if the chief executive reasonably believes—

(a)a ground exists for suspending or cancelling a retail or wholesale licence under section 36 or 37; and

(b)carrying on the business to which the retail or wholesale licence relates is an unacceptable risk to public health.

(2)The chief executive may, without giving the licensee a show cause notice under section 36 or 37, immediately suspend the retail or wholesale licence by giving the licensee an information notice for the decision.

(3)The suspension—

(a)takes effect on the day stated in the information notice; and

(b)continues for the period of not more than 90 days as stated in the information notice.

39    Surrender

(1)A licensee may surrender a retail or wholesale licence by written notice (a surrender notice) given to the chief executive.

(2)A retail or wholesale licence surrendered under subsection (1) ceases to have effect on the day the surrender notice is given to the chief executive or any later day stated in the notice.

Division 7 Other matters affecting licences

Subdivision 1 Fit and proper persons

40    Deciding whether person is fit and proper

(1)In deciding whether a person is a fit and proper person to be a licensee, the chief executive must have regard to the following matters—

(a)whether the person holds or has previously held a retail or wholesale licence;

(b)the specific conditions of any retail or wholesale licence held or previously held by the person;

(c)whether a retail or wholesale licence held or previously held by the person is or has been suspended or cancelled;

(d)whether or not the person has contravened this Act, regardless of whether the person has been convicted of an offence for the contravention;

(e)whether or not the person has contravened a corresponding law;

(f)whether the person has been convicted of an indictable offence relating to fraud, dishonesty, or tax or customs evasion;

(g)if the person is an individual—whether the person—

(i)is, or has been, an insolvent under administration under the Corporations Act, section 9; or

(ii)is, or has been, disqualified from managing corporations under the Corporations Act, part 2D.6;

(h)if the person is a corporation—whether the corporation is, or has been, placed into administration, receivership or liquidation.

(2)Also, in deciding whether a person is a fit and proper person to be a licensee, the chief executive may have regard to—

(a)if the licensee is a corporation—

(i)whether or not a director of the corporation has contravened this Act, regardless of whether the person has been convicted of an offence for the contravention; and

(ii)whether or not a director of the corporation has contravened a corresponding law; and

(b)any other matter the chief executive considers relevant.

(3)However, a liquor licensee is taken to be a fit and proper person to be a licensee for a retail licence (liquor) unless the liquor licence is suspended.

41   Criminal history report

(1)This section applies if the chief executive is considering whether a person is a fit and proper person to be a licensee.

(2)The chief executive may ask the commissioner of the police service for a criminal history report about—

(a)the person being considered; and

(b)if the person being considered is a corporation—a person who is a director of the corporation.

(3)However, the chief executive may make the request only if the person has given the chief executive written consent for the request.

(4)The commissioner of the police service must comply with the request.

(5)However, the duty to comply applies only to information in the possession of the commissioner of the police service or to which the commissioner has access.

(6)The chief executive must ensure any information received under this section—

(a)is destroyed as soon as practicable after the information is no longer needed for the purpose for which it was requested; and

(b)is not used for any purpose other than the purpose for which it was requested.

Example—

Reusing the information for another matter involving the person to which the information relates.

(7)For subsection (6)(a), information in an electronic document may be destroyed in a way that complies with a disposal authorisation given by the archivist under the Public Records Act 2023 for the disposal of public records of the department.

Subdivision 2 Additional information and inspections of premises

42    Requesting further information or documents

(1)This section applies if any of the following applications are made—

(a)an application for a retail or wholesale licence under section 17;

(b)an application to renew a retail or wholesale licence under section 24;

(c)an application to restore a retail or wholesale licence under section 25;

(d)an application to change a specific condition of a retail or wholesale licence under section 30.

(2)The chief executive may, by written notice given to the applicant, ask the applicant for further information or a document the chief executive needs to decide the application.

(3)The notice must be given to the applicant within 30 days after the application is made.

(4)Information or documents given to the chief executive by the applicant under this section are taken to be part of the application and must be considered by the chief executive before deciding the application.

(5)If the applicant does not give the chief executive requested information or documents within 14 days after receiving the notice, or the later day agreed to by the applicant and the chief executive, the application is taken to have been withdrawn.

43   Requesting inspection of premises

(1)This section applies if—

(a)any of the following applications is made—

(i)an application for a retail or wholesale licence made under section 17;

(ii)an application to renew a retail or wholesale licence made under section 24;

(iii)an application to restore a retail or wholesale licence made under section 25;

(iv)an application to change a specific condition of a retail or wholesale licence made under section 30; or

(b)a licensee notifies the chief executive of a change of premises for a retail or wholesale outlet.

(2)The chief executive may, by written notice given to the applicant or licensee, ask the applicant or licensee to ensure premises mentioned in the application or notice given to the chief executive are made available for inspection by the chief executive on—

(a)the day stated in the written notice; or

(b)a day to be agreed between the applicant and the chief executive.

(3)The written notice must be given to the applicant or licensee within 30 days after the application is made or notice is given to the chief executive.

(4)The day on which the premises are requested to be made available for inspection by the chief executive must be within 14 days after the day the written notice is given to the applicant or licensee.

(5)If the premises are not made available for inspection by the chief executive on the stated or agreed day, the application is taken to have been withdrawn.

Note—

Failure of a licensee to make premises available for inspection in compliance with a request under this section is grounds for suspending or cancelling a retail or wholesale licence under section 36 or 37.

Subdivision 3 Executors, administrators and trustees as licensees

44    Death of licensee

(1)This section applies if a licensee, who is an individual, dies (the deceased).

(2)The executor of the deceased’s estate may carry on the business conducted under the retail or wholesale licence as the licensee.

Note—

Under section 47, the executor must notify the chief executive if the executor, administrator or trustee becomes the licensee.

(3)If the executor carries on the business conducted under the retail or wholesale licence, the executor—

(a)is taken to be the licensee; and

(b)is taken to be a fit and proper person to be a licensee despite section 40.

(4)However, the executor may, as licensee, apply to renew or restore the retail or wholesale licence only if the chief executive is satisfied the renewal or restoration is necessary for the proper administration of the deceased’s estate.

(5)To remove any doubt, it is declared that the retail or wholesale licence continues to be subject to all limitations applying to the licence, including, for example, the term of the licence and all conditions applying to the licence.

(6)Nothing in this section prevents the retail or wholesale licence being suspended or cancelled while the executor is licensee under this section.

(7)In this section—

executor, of a deceased’s estate, means the executor, administrator or trustee of the deceased’s estate.

45    Licensee is placed into administration, receivership or liquidation

(1)This section applies if a licensee is a corporation and is placed into administration, receivership or liquidation.

(2)The administrator of the corporation may carry on the business conducted under the retail or wholesale licence as the licensee.

Note—

Under section 47, the administrator must notify the chief executive if the administrator becomes the licensee.

(3)If the administrator of the corporation decides to carry on the business conducted under the retail or wholesale licence, the administrator—

(a)is taken to be the licensee; and

(b)is taken to be a fit and proper person to be a licensee despite section 40.

(4)However, the administrator may, as licensee, apply to renew or restore the retail or wholesale licence only if the chief executive is satisfied the renewal or restoration is necessary for the administration, receivership or liquidation.

(5)To remove any doubt, it is declared that the retail or wholesale licence continues to be subject to all limitations applying to the licence, including, for example, the term of the licence and all conditions applying to the licence.

(6)Nothing in this section prevents the retail or wholesale licence being suspended or cancelled while the administrator is licensee under this section.

Division 8 Obligations of licensees

46    Notification of convictions

(1)This section applies if a licensee is convicted of any of the following offences during the term of the retail or wholesale licence—

(a)an offence against this Act;

(b)an offence against a corresponding law;

(c)an offence relating to fraud, dishonesty, or tax or customs evasion;

(d)an indictable offence.

(2)The licensee must, within 14 days after being convicted of the offence, give notice of the conviction to the chief executive, unless the licensee has a reasonable excuse.

Maximum penalty—140 penalty units.

(3)The notice must state—

(a)the date of the conviction; and

(b)details adequate to identify the relevant offence for the conviction and when the offence was committed; and

(c)the sentence imposed, if any, for the conviction.

47    Notification of particular events

(1)This section applies if any of the following events happen in relation to a licence—

(a)if the licensee is an individual—

(i)the licensee is an insolvent under administration under the Corporations Act, section 9; or

(ii)the licensee is disqualified from managing corporations under the Corporations Act, part 2D.6;

(b)an executor, administrator or trustee becomes the licensee under section 44;

(c)if the licensee is a corporation—

(i)the corporation is placed into administration, receivership or liquidation; or

(ii)there is a change of directors for the corporation;

(d)an administrator becomes the licensee under section 45;

(e)if the licensee sells smoking products at liquor licensed premises—the liquor licence for the premises is suspended, cancelled or otherwise ceases to have effect;

(f)there is a change in the ownership of the business for the retail or wholesale licence;

(g)the premises for a retail or wholesale outlet of the licensee changes;

(h)the name, or business name, of the licensee changes.

(2)The licensee must, within 14 days after the event happens, give notice of the event to the chief executive, unless the licensee has a reasonable excuse.

Maximum penalty—140 penalty units.

(3)The notice must state sufficient details to identify the event and when the event happened.

48    Licence to be displayed

(1)A licensee must display an approved copy of the retail or wholesale licence at the retail or wholesale outlet for the licence so that the copy can be easily read by customers at the outlet at all times the outlet is open.

Maximum penalty—50 penalty units.

(2)If a licensee sells smoking products by online sale, the licensee must display an approved copy of the retail or wholesale licence on the website for the relevant online shop.

Maximum penalty—50 penalty units.

(3)If requested by an authorised person, a licensee must produce the retail or wholesale licence for inspection by the authorised person.

Maximum penalty—50 penalty units.

(4)As soon as practicable after a retail or wholesale licence ceases to have effect under section 16, the licensee must remove any display of the licence at a retail outlet, wholesale outlet or online shop.

Maximum penalty—50 penalty units.

(5)In this section—

approved copy, of a retail or wholesale licence, means a copy of the licence that—

(a)complies with the requirements prescribed by regulation; and

(b)contains the information about the licence prescribed by regulation.

49    Invoices for supply to retailers

(1)This section applies if either of the following licensees supplies a smoking product to a retailer—

(a)a licensee for a wholesale licence;

(b)a licensee for a retail licence to which a limited wholesale condition applies.

(2)The licensee must give the retailer an invoice for the sale that is in English and that otherwise complies with the requirements prescribed by regulation.

Maximum penalty—140 penalty units.

(3)The retailer must keep a copy of the invoice for at least 2 years after being given the invoice.

Maximum penalty—140 penalty units.

50    Chief executive may require licensee to give particular information

(1)This section applies to information in the possession or control of a licensee that the chief executive—

(a)requires to determine whether the licensee is a fit and proper person to be a licensee under section 40; or

(b)considers necessary for the administration of this Act.

(2)The chief executive may, by written notice given to the licensee, require the licensee to give the chief executive the information stated in the notice within a reasonable period of at least 14 days as stated in the notice.

(3)The licensee must comply with the notice, unless the licensee has a reasonable excuse.

Maximum penalty—50 penalty units.

Division 9 Other offences

51    Wholesale to only be made to licensed retailers

(1)The licensee for a wholesale licence must not sell a smoking product to a retailer unless the retailer holds a retail licence.

Maximum penalty—1,000 penalty units.

(2)For subsection (1), a licensee sells a smoking product if—

(a)the licensee sells the product; or

(b)an employee of the licensee sells the product in the course of the employee’s employment.

(3)It is a defence to a charge under subsection (1) for the licensee to prove that—

(a)an employee sold the smoking product to the retailer; and

(b)before the employee sold the smoking product, the licensee had taken prevention measures in relation to the employee.

(4)This section also applies to a licensee for a retail licence to which a limited wholesale condition applies as if a reference to a wholesale licence were a reference to the retail licence.

(5)In this section—

prevention measures see section 63.

51B   [Repealed]

52    Particular dealings with licences prohibited

The licensee for a retail or wholesale licence must not—

(a)purport to sell or transfer the licence to someone else; or

(b)notify or advertise that the licence is available for sale or transfer; or

(c)permit or allow someone else to hold out that the person is the holder of the licence.

Maximum penalty—200 penalty units.

53    False or misleading information

(1)A person must not, in relation to a retail or wholesale licence or an application under this Act—

(a)state anything to the chief executive that the person knows is false or misleading in a material particular; or

(b)give the chief executive information or a document the person knows is false or misleading in a material particular.

Maximum penalty—50 penalty units.

(2)Subsection (1) does not apply to a person if the person, when making the statement or giving the information or document—

(a)tells the chief executive, to the best of the person’s ability, how the statement, information or document is false or misleading; and

(b)if the person has, or can reasonably obtain, the correct information—gives the correct information to the chief executive.

Division 10 Register of licences

54    Chief executive must keep register

(1)The chief executive must keep a register of all retail licences and wholesale licences.

(2)The register must contain the following information for each retail or wholesale licence—

(a)the business name for the retail or wholesale outlet for the licence;

(b)the address of the retail or wholesale outlet for the licence.

(3)The register may contain other information the chief executive considers appropriate.

(4)The register is to be kept in the way the chief executive considers appropriate, including, for example, in an electronic form.

(5)The chief executive may publish information contained in the register, other than personal information, on the department’s website.

(6)In this section—

personal information means personal information within the meaning of the Information Privacy Act 2009, section 12, other than—

(a)the name of a licensee; or

(b)information that is lawfully available to the public.

Division 11 Review of decisions

Subdivision 1 Preliminary

55   Definitions for division

In this division—

affected person, for a decision, means—

(a)if the decision is an original decision—a person who must be given an information notice for the decision under this part; or

(b)if the decision is an internal review decision—the person who applied for the internal review.

internal review, of an original decision, see section 57(1).

internal review decision means a decision made, or taken to have been made, under section 59 on an application for an internal review of an original decision.

original decision means a decision for which an information notice must be given under this part.

QCAT information notice, for a decision, means a notice complying with the QCAT Act, section 157(2).

Subdivision 2 Internal review

56    Review process must start with internal review

An affected person for an original decision may apply to QCAT for a review of the decision only if a decision on an application for an internal review of the decision has been made, or taken to have been made, under this subdivision.

57   Who may apply for internal review

(1)An affected person for an original decision may apply to the chief executive for a review of the decision under this subdivision (an internal review).

(2)If the affected person has not been given an information notice for the original decision, the affected person may ask the chief executive for an information notice for the decision.

(3)A failure by the chief executive to give the affected person an information notice for the original decision does not limit or otherwise affect the person’s right to apply for an internal review of the decision.

58    Requirements for application

(1)An application for an internal review of an original decision must—

(a)be made in the approved form; and

(b)for a person who has been given an information notice for the decision—include enough information to enable the chief executive to decide the application; and

(c)be made to the chief executive within—

(i)for a person who has been given an information notice for the decision—20 business days after the day the person is given the notice; or

(ii)for a person who has not been given an information notice for the decision—20 business days after the day the person becomes aware of the decision.

(2)The chief executive may, at any time, extend the period within which the application may be made.

(3)The application does not affect the operation of the original decision or prevent the decision being implemented.

Note—

Section 60 provides for a stay of the original decision.

59    Internal review

(1)The chief executive must, within 20 business days after receiving an application for an internal review of an original decision—

(a)review the original decision; and

(b)decide to—

(i)confirm the original decision; or

(ii)amend the original decision; or

(iii)substitute another decision for the original decision; and

(c)give the affected person for the original decision a QCAT information notice for the decision made under paragraph (b).

(2)The chief executive and the affected person may, before the period stated in subsection (1) ends, agree to a longer period for the chief executive to comply with the subsection.

(3)For the purpose of delegating the power under this section, the application may be dealt with only by a person who—

(a)did not make the original decision; and

(b)holds a more senior office than the person who made the original decision.

(4)Subsection (3) does not apply to an original decision made by the chief executive personally.

(5)If the chief executive does not give the affected person a QCAT information notice within the period required under subsection (1) or a longer period agreed under subsection (2), the chief executive is taken to confirm the original decision.

Subdivision 3 Stays

60    QCAT may stay operation of original decision

(1)If an application is made for an internal review of an original decision under subdivision 2, the applicant may immediately apply, as provided under the QCAT Act, to QCAT for a stay of the decision.

(2)QCAT may make an order staying the operation of the original decision to secure the effectiveness of the internal review and any later review by QCAT.

(3)A stay by QCAT under this section—

(a)may be given on conditions QCAT considers appropriate; and

(b)operates for the period fixed by QCAT; and

(c)may be amended or revoked by QCAT.

(4)The period of a stay by QCAT under this section must not extend past the end of the period within which an application for a review of the internal review decision may be made under the QCAT Act.

Subdivision 4 External review

61    Applying for external review

(1)This section applies to a person who must be given a QCAT information notice for an internal review decision under section 59.

(2)The person may apply to QCAT, as provided under the QCAT Act, for a review of the internal review decision.

Note—

The QCAT Act, section 22(3) enables QCAT to stay the operation of the internal review decision, either on application by a person or on its own initiative.

Part 3    Supply of smoking products

Division 1 Suppliers and employees

62   Application of div 1

This division does not apply to the supply of smoking products from coin operated vending machines.

63   Meaning of prevention measures for div 1

In this division—

prevention measures, by a supplier in relation to an employee of the supplier, means—

(a)instructing the employee—

(i)not to supply smoking products to children in any circumstances, even if the supply is for, or claimed to be for, an adult; and

(ii)to sight acceptable evidence of age for a person before supplying a smoking product to the person, unless satisfied the person is an adult; and

(iii)if the employee is a child—not to supply smoking products to anyone in any circumstances; and

(iv)to only supply smoking products as authorised under a retail or wholesale licence applying to the supplier, including all the conditions applying to the licence; and

(b)warning the employee that if the employee supplies a smoking product to a person in disregard of the instructions mentioned in paragraph (a), the employee commits an offence against this Act; and

(c)obtaining written acknowledgement by the employee that the employee received the instructions and warning mentioned in paragraphs (a) and (b).

64   Supplier must take prevention measures

(1)A supplier must take prevention measures in relation to employees of the supplier.

Maximum penalty—40 penalty units.

(2)In this section—

employee, of a supplier, means a person who supplies, or may supply, smoking products in the course of the person’s employment.

65   Supplier must not sell smoking products without licence

(1)A supplier must not sell a smoking product unless the supplier holds a retail or wholesale licence that authorises that type of sale.

Maximum penalty—1,000 penalty units.

Note—

If a corporation commits an offence against this provision, an executive officer of the corporation may be taken to have committed an offence against section 230A(1).

(2)This section does not apply to—

(a)a person selling smoking products as an employee of another person; or

(b)a supplier that is a pharmacist if—

(i)the smoking product is a regulated substance; and

(ii)the supply is made because of a prescription.

(3)In this section—

supplier includes a person who, as part of a business activity, supplies smoking products to retailers.

66   Supplier must not supply smoking products to children

(1)A supplier must not supply a smoking product to a child.

Maximum penalty—

(a)for a first offence—140 penalty units; or

(b)for a second offence—280 penalty units; or

(c)for a third or later offence—420 penalty units.

Note—

If a corporation commits an offence against this provision, an executive officer of the corporation may be taken to have committed an offence against section 230A(1).

(2)However, this section does not apply if the supply is by an employee of the supplier.

67   Supplier must ensure employees do not supply smoking products to children

(1)A supplier must ensure an employee of the supplier does not supply a smoking product to a child.

Maximum penalty—

(a)for a first offence—140 penalty units; or

(b)for a second offence—280 penalty units; or

(c)for a third or later offence—420 penalty units.

Note—

If a corporation commits an offence against this provision, an executive officer of the corporation may be taken to have committed an offence against section 230A(1).

(2)However, a supplier does not commit an offence against subsection (1) if, before the supply, the supplier took the prevention measures in relation to the employee.

68   Supplier must ensure child employees do not supply or handle smoking products

(1)A supplier must ensure a child employee of the supplier does not—

(a)supply a smoking product to a person in the course of the child’s employment; or

(b)handle a smoking product in the course of the child’s employment.

Maximum penalty—

(a)for a first offence—140 penalty units; or

(b)for a second offence—280 penalty units; or

(c)for a third or later offence—420 penalty units.

Note—

See section 241 for the application of this section to a small business.

(2)Subsection (1) does not apply to the supply or handling of a smoking product if—

(a)the supplier is a pharmacist; and

(b)the smoking product is a regulated substance; and

(c)the supplier only supplies the smoking product to persons under a prescription.

(3)Also, subsection (1) does not apply to the handling of a smoking product if the purpose of the handling is to—

(a)deliver smoking products to premises; or

(b)load smoking products into, or unload smoking products from, a vehicle; or

(c)warehouse smoking products.

(4)It is a defence to a charge under subsection (1) for the supplier to prove that, before the supply, the supplier took the prevention measures in relation to the child employee.

(5)In this section—

child employee means an employee who is a child.

69   When employee of supplier liable

(1)This section applies if a supplier has, in relation to an employee of the supplier, taken the prevention measures.

(2)After the prevention measures have been taken, the employee of the supplier must not, in the course of the employee’s employment—

(a)supply a smoking product to a child; or

(b)sell a smoking product unless the supplier holds a retail or wholesale licence that authorises that type of sale.

Maximum penalty—

(a)for a first offence—20 penalty units; or

(b)for a second or later offence—40 penalty units.

(3)This section does not apply to—

(a)an employee who is a child; or

(b)the sale of a smoking product if—

(i)the supplier is a pharmacist; and

(ii)the smoking product is a regulated substance; and

(iii)the sale is made under a prescription.

70   Order prohibiting or restricting sale of smoking products

(1)This section applies if a supplier is convicted of an offence against section 66 or 67.

(2)The court sentencing the supplier for the offence may, on its own initiative or the application of the prosecutor, make an order—

(a)prohibiting the supply of all or stated smoking products by the supplier; or

(b)imposing conditions or restrictions on the supply of smoking products by the supplier.

(3)The period of the order must not be more than—

(a)for a first offence—6 months; or

(b)for a second offence—1 year; or

(c)for a third or later offence—3 years.

(4)If, when the offence happened, the supplier supplied smoking products at more than 1 outlet, the order may apply only to an outlet where the offence happened.

(5)The court may make the order in addition to imposing another penalty to which the supplier is liable because of the conviction.

(6)A person must not contravene an order under this section.

Maximum penalty—420 penalty units.

(7)A conviction under subsection (6) for contravening an order does not affect the continuation of the order.

71   Power to require details of retail suppliers

(1)This section applies if the chief executive reasonably believes a manufacturer or wholesaler of smoking products has supplied smoking products to suppliers for sale at retail outlets or online shops.

(2)The chief executive may, by written notice given to the manufacturer or wholesaler, require the manufacturer or wholesaler to give all or any of the following information (the supplier information) to the chief executive for each supplier to which the manufacturer or wholesaler has supplied smoking products—

(a)the name of the supplier;

(b)if a supplier trades under a business name, that business name;

(c)the address of the supplier’s retail outlet;

(d)the website address of the supplier’s online shop;

(e)the supplier’s postal address;

(f)the supplier’s phone number;

(g)the supplier’s fax number and email address;

(h)the chemical composition of the smoking products;

(i)the number, type or quantity of smoking products.

(3)The notice must state—

(a)the period before the date of the notice, not exceeding 12 months, for which the supplier information is required; and

(b)a date, not less than 28 days from the date of the notice, by which the supplier information must be given to the chief executive; and

(c)the way the supplier information must be given to the chief executive.

Example—

The notice may require the supplier information to be given by fax or email.

(4)The manufacturer or wholesaler must comply with the notice, unless the manufacturer or wholesaler has a reasonable excuse.

Maximum penalty—70 penalty units.

(5)The chief executive may use supplier information or disclose supplier information to a person only for the following purposes—

(a)compiling and keeping a list of suppliers so that the suppliers may be advised about matters relating to this Act, including the requirements applying to suppliers;

(b)monitoring or enforcing compliance with this Act.

Division 2 Particular restrictions on sales by suppliers

72   Number of points of sale

A supplier must not sell smoking products at more than 1 point of sale at a retail outlet.

Maximum penalty—140 penalty units.

73   Supplier must not sell smoking products from temporary retail store

(1)A supplier must not sell smoking products from a temporary retail store.

Maximum penalty—140 penalty units.

(2)In this section—

temporary retail store means—

(a)a temporary structure, regardless of whether any part of the structure is permanent; or

Examples of temporary structures—

a booth, tent, market stall or stand

(b)a vehicle or mobile structure, including a trailer, caravan or other similar thing designed or modified to be easily attached to a vehicle for transportation.

Division 3 Tobacco product vending machines

74   Definitions for div 3

In this division—

bar ...

bar area ...

employee, of a person in charge of a tobacco product vending machine, means an employee of the person—

(a)whose employment requires the employee to work near the vending machine; and

(b)who, in performing the employee’s duties, can observe the use of the vending machine.

gaming machine area has the meaning given by the Gaming Machine Act 1991, schedule 2.

liquor has the meaning given by the Liquor Act 1992, section 4B.

prevention measures, by a person in charge of a tobacco product vending machine, means, for the person’s employees—

(a)instructing the employees to—

(i)take reasonable steps to ensure that a child does not obtain a tobacco product from the vending machine, even if the product is for, or claimed to be for, an adult; and

(ii)sight acceptable evidence of age for a person before allowing the person to obtain a tobacco product from the vending machine, unless satisfied the person is an adult; and

(b)obtaining written acknowledgement by each employee that the employee received the instructions mentioned in paragraph (a).

75   Restriction on location of tobacco product vending machines

(1)An occupier of premises must not have a tobacco product vending machine in the premises.

Maximum penalty—70 penalty units.

(2)Subsection (1) does not apply to—

(a)liquor licensed premises if—

(i)the liquor licensee for the premises holds a retail licence (liquor); and

(ii)the tobacco product vending machine in the premises can be accessed only by the employees of the person in charge of the tobacco product vending machine; or

(b)a tobacco product vending machine while it is not being used by anyone to supply tobacco products.

Example for paragraph (b)—

A tobacco product vending machine being stored, transported or repaired.

(3)For subsection (2)(a)(ii), a tobacco product vending machine in liquor licensed premises can be accessed only by the employees of the person in charge of the machine if the machine is in a part of the premises that—

(a)can not be accessed by customers; or

Example—

a locked storage area

(b)the liquor licensee restricts to employees only.

Example—

behind a bar or counter and out of reach of customers

(4)In a prosecution for an offence against subsection (1), proof that a tobacco product vending machine was capable of being used to supply tobacco products is evidence that the vending machine was being used to supply tobacco products at the relevant time.

76   Person in charge of tobacco product vending machine in liquor licensed premises must instruct employees

A person in charge of a tobacco product vending machine in liquor licensed premises must take prevention measures in relation to the person’s employees.

Maximum penalty—40 penalty units.

77   Supply of tobacco products from vending machines

(1)A person in charge of a tobacco product vending machine in liquor licensed premises must not allow a child to obtain a tobacco product from the vending machine.

Maximum penalty—

(a)for a first offence—70 penalty units; or

(b)for a second or later offence—140 penalty units.

(2)However, the person does not commit an offence against subsection (1) if, before the child obtained the tobacco product, the person had taken the prevention measures.

78   Supply of smoking products at liquor licensed premises from tobacco product vending machines

(1)This section applies if—

(a)tobacco products may be purchased from a tobacco product vending machine at liquor licensed premises; and

(b)an employee of the person in charge of the tobacco product vending machine must purchase the tobacco product from the machine on behalf of a customer.

(2)The employee must not supply the tobacco product to the customer at any part of the liquor licensed premises other than a point of sale for the premises.

Maximum penalty—140 penalty units.

79   Persons in charge of tobacco product vending machines may be prohibited from possessing tobacco product vending machines

(1)This section applies if—

(a)a person in charge of a tobacco product vending machine is convicted of an offence against section 77; and

(b)within 2 years after the conviction, the person is again convicted of an offence against the section (the subsequent offence).

(2)The court sentencing the person for the subsequent offence may, on its own initiative or the application of the prosecutor, make an order against the person under subsection (3).

(3)The court may make an order applying for a stated period, of at least 2 months but not longer than 1 year—

(a)prohibiting the person from possessing tobacco product vending machines; or

(b)imposing conditions or restrictions on the possession or use of tobacco product vending machines by the person.

(4)However, if the person is in charge of a tobacco product vending machine at more than 1 liquor licensed premises, the order may apply only to the liquor licensed premises where the offences happened.

(5)A person must not contravene an order under subsection (3).

Maximum penalty for subsection (5)—200 penalty units.

Division 4 Supply of particular smoking products from coin operated vending machines

80   Prohibition on use of vending machine to supply herbal cigarettes and loose smoking blends

(1)A person in possession of a coin operated vending machine must not use the machine to supply herbal cigarettes or a loose smoking blend to another person.

Maximum penalty—

(a)for a first offence—70 penalty units; or

(b)for a second or later offence—140 penalty units.

(2)In this section—

possession, of a coin operated vending machine, includes having control of the machine.

Division 5 Supply of smoking products by adults to children

81   Application of div 5

This division does not apply to—

(a)the supply of smoking products by—

(i)suppliers; or

(ii)employees of suppliers in the course of the employees’ employment; or

(b)the supply of smoking products from coin operated vending machines.

82   Supply to children prohibited

(1)An adult must not supply a smoking product to a child (the relevant person).

Maximum penalty—140 penalty units.

(2)It is a defence to a charge under subsection (1) for the defendant to prove that at the time of the offence the defendant honestly and reasonably believed that the relevant person was an adult.

Division 6 False representation of age

83   Person must not falsely represent age

A person must not falsely represent himself or herself to have attained 18 years for the purpose of being supplied with a smoking product.

Maximum penalty—20 penalty units.

Division 7 Minimum saleable quantities of smoking products

84   Cigarettes and herbal cigarettes must be sold in packages

(1)A supplier must sell cigarettes or herbal cigarettes only in a package.

Maximum penalty—140 penalty units.

(2)A supplier must not sell cigarettes or herbal cigarettes in a package containing less than 20 cigarettes.

Maximum penalty—140 penalty units.

85   Loose tobacco must be sold in packages

(1)A supplier must not sell loose tobacco except in a package.

Maximum penalty—140 penalty units.

(2)A supplier must not sell loose tobacco in a package containing less than 25g of loose tobacco.

Maximum penalty—140 penalty units.

86   Loose smoking blend must be sold in packages

(1)A supplier must not sell loose smoking blend except in a package.

Maximum penalty—140 penalty units.

(2)A supplier must not sell loose smoking blend in a package containing less than 15g of loose smoking blend.

Maximum penalty—140 penalty units.

Division 8 Defence to charges for offences if age material

87   Defence to charge if age material

(1)This section applies to a charge for an offence against section 66, 67, 69 or 77 in which the age of a person (the relevant person) is material to the charge.

(2)It is a defence to the charge for the defendant to prove that at the time of the offence the defendant or the defendant’s employee honestly and reasonably believed the relevant person was an adult.

(3)Proof that the defendant or the defendant’s employee did not ask the relevant person to produce acceptable evidence of age is evidence that any belief that the relevant person was an adult was not reasonable.

Part 4    Advertising, display and promotion of smoking products

Division 1 Definitions

88   Definitions for pt 4

In this part—

humidified room means a room in which the humidity is controlled to preserve the quality of cigars in the room.

humidified container ...

relevant point of sale, of a supplier, means the point of sale at a retail outlet at which the supplier sells smoking products.

Note—

Section 72 provides that smoking products may be sold by a supplier at not more than 1 point of sale at a retail outlet.

smoking product means—

(a)a tobacco product, herbal cigarette, loose smoking blend, a thing that is intended to be smoked in a hookah or smoking related product; or

(b)a package or carton of a thing mentioned in paragraph (a).

smoking related product means a product, prescribed under a regulation, that is used primarily in the consumption of a tobacco product, herbal cigarette or loose smoking blend.

Division 2 Retail advertising and display

89   Application of division

(1)This division applies to the display and advertisement of smoking products by suppliers.

(2)To remove any doubt, it is declared that if a supplier displays or advertises a smoking product, it is irrelevant that the display or advertisement uses a description or colloquialism for the smoking product instead of the ordinary name of the product.

Examples—

smoke-less products, tobacco-free products, vapes

(3)This division does not apply to a tobacco product vending machine.

90   Prohibition on display, and restrictions on advertising, of smoking products

(1)A supplier must not display a smoking product.

Maximum penalty—140 penalty units.

(2)A supplier must not advertise a smoking product other than at a retail outlet or on an online shop.

Maximum penalty—140 penalty units.

(3)A supplier must not advertise a smoking product at a retail outlet or on an online shop in any way other than a way specifically provided for in another section of this division.

Maximum penalty—140 penalty units.

(4)If a smoking product is kept by a supplier at a retail outlet in compliance with this division, the supplier does not contravene this section merely because the smoking product is seen by another person.

91   Location of smoking products at retail outlet

Smoking products may be kept at a retail outlet only at or in the following places—

(a)at or near the supplier’s relevant point of sale, only if the smoking products are kept either—

(i)on the seller’s side of the point of sale; or

(ii)above or below a counter, but not on a counter, where customers are served, in a way that the smoking products can not be accessed by customers;

(b)for cigars—in a humidified room where the cigars can be accessed by customers only if, while a customer is in the room, the customer is accompanied by the supplier or an employee of the supplier;

(c)in a room or other place, if the smoking products are kept in a way that they can not be accessed by customers.

Example—

a locked storage room used to store products not for immediate sale

92   Smoking products must be kept out of sight of customers

(1)Smoking products kept at a retail outlet must be kept in a way that they are not visible to customers.

(2)Also, if smoking products are kept at or near the supplier’s relevant point of sale, the smoking products must be concealed by a covering that—

(a)is opaque; and

(b)is of a colour or design that does not make a feature of the covering as distinct from its surrounds.

(3)Despite subsections (1) and (2), the fleeting incidental view by a customer of an area of no more than 1m² of smoking products is permitted only to the extent required to carry out activities in the ordinary course of the supplier’s business.

Example of activities carried out in the ordinary course of the supplier’s business—

removing smoking products as part of a transaction

93   Smoking products must not constitute advertisement

An arrangement of smoking products must not—

(a)constitute a tobacco advertisement itself; or

(b)create a composite picture or other meaningful visual image whose component parts are printed on individual cartons or packages.

94   Display of retail prices of smoking products

(1)This section applies if smoking products are kept at or near a supplier’s relevant point of sale.

(2)The retail price of smoking products available, or usually available, for sale at the retail outlet may be displayed only by a price ticket or other indicator of price—

(a)fixed at the place where the smoking products are kept; and

(b)in the form prescribed under a regulation.

(3)A display of the retail price of smoking products must not include anything else about the price of a smoking product, including, for example, a thing that states the price is discounted.

(4)A supplier does not advertise a smoking product merely by displaying the retail price of the product in compliance with this section.

95   Certain business names allowed

(1)A supplier does not advertise or display a smoking product merely by using a business name that includes a reference to a smoking product.

(2)However, a supplier is taken to advertise or display a smoking product if—

(a)the supplier advertises or displays a business name that includes anything about the price of smoking products; or

Example—

Discount Cigs and Tobacco

(b)the supplier advertises or displays more than 1 business name mentioned in subsection (1) in relation to a single business.

(3)For subsection (2), advertising includes using all mediums of communication, whether alone or in any combination.

Example—

radio advertisements using different business names for each advertisement to target or attract specific consumer groups

96   Use of ‘tobacconist’ in advertising

(1)A supplier who is a tobacconist does not advertise or display a smoking product merely by using the word ‘tobacconist’ in an advertisement or display for the tobacconist’s business.

(2)In this section—

tobacconist means a person who conducts a business selling smoking products by retail if—

(a)80% or more of average gross turnover is derived from the sale of smoking products by retail; and

(b)the business is conducted separately from, not in conjunction with, and not within the premises of, any other business.

97    Display of signage at supplier’s relevant point of sale

(1)A supplier must display a mandatory sign at the supplier’s relevant point of sale.

Maximum penalty—20 penalty units.

(2)A supplier must not display more than 1 mandatory sign at the supplier’s relevant point of sale.

Maximum penalty—20 penalty units.

(3)A supplier may display a permitted sign at the supplier’s relevant point of sale.

(4)However, a supplier must not display more than 1 permitted sign at the supplier’s relevant point of sale.

Maximum penalty—20 penalty units.

(5)In this section—

mandatory sign means a sign prescribed under a regulation as a mandatory sign.

permitted sign means a sign prescribed under a regulation as a permitted sign.

Division 3 Tobacco product vending machines

98   Prohibition on display, and restrictions on advertising, of smoking products

A person in charge of a tobacco product vending machine must not—

(a)display a smoking product in or on the machine; or

(b)advertise a smoking product in or on the machine other than as allowed under this division.

Maximum penalty—140 penalty units.

99   Display of retail prices of tobacco product

(1)If a tobacco product is available or usually available for sale in a tobacco product vending machine, the retail price of the tobacco product may be displayed only by a price ticket, or other indicator of price, as prescribed under a regulation.

(2)A display of the prices of tobacco products must not include anything else about the price of a tobacco product including, for example, a thing that states the price is discounted.

(3)A person in charge of a tobacco product vending machine does not advertise a tobacco product merely by displaying the retail price of the product in compliance with this section.

100   Certain business names allowed

(1)A person in charge of a tobacco product vending machine does not advertise or display a smoking product merely by using a business name that includes a reference to a smoking product.

(2)However, a person in charge of a tobacco product vending machine is taken to advertise or display a smoking product if the person advertises or displays a business name that includes anything about the price of smoking products.

Example of a business name for subsection (2)—

Discount Cigs and Tobacco

101   Person in charge of tobacco product vending machine must attach particular signs

A person in charge of a tobacco product vending machine must attach a sign prescribed under a regulation as a mandatory sign to, or near, the vending machine, as prescribed under a regulation.

Maximum penalty—20 penalty units.

Division 4 Promotions of smoking products

102   Definitions for div 4

In this division—

entitlement means an entitlement to goods or services, or to a reduced price for goods or services.

object includes a document and does not include a smoking product.

103   When division does not apply

This division does not prevent a promotion of a smoking product by a manufacturer or distributor if the promotion is only to a supplier.

104   Supply of object or entitlement that promotes smoking product etc.

(1)A person must not supply an object or entitlement that promotes—

(a)a smoking product; or

(b)a trademark or brand name, or part of a trademark or brand name, of a smoking product; or

(c)the name or interests of a manufacturer or distributor of a smoking product in association, whether directly or indirectly, with the smoking product.

Maximum penalty—140 penalty units.

(2)In a prosecution for an offence against subsection (1), to establish whether an object or entitlement promotes a matter—

(a)it is enough to prove—

(i)that material published by the defendant relating to the object or entitlement would be likely to cause a reasonable person to believe the object or entitlement promoted, or was intended to promote, the matter; or

(ii)that there are other reasonable grounds for believing the object or entitlement promoted, or was intended to promote, the matter; and

(b)the matter may be found to be promoted by the object or entitlement irrespective of the actual belief of the defendant.

(3)Subsection (1) does not apply to an object if—

(a)the primary purpose of the object is not to promote a thing mentioned in subsection (1); and

(b)the object was—

(i)lawfully available for supply in Queensland on or after 31 May 2002 and before 31 December 2005; or

(ii)substantially the same, and made by the same person, as an object under subparagraph (i).

(4)In this section—

promotes, in relation to the promotion of a matter by an object that is a sound recording, video recording or a computer storage device, includes the promotion of the matter by aural or visible material that the object is reasonably capable of producing, or causing to be produced, in its normal use.

105   Supply of object or entitlement in association with smoking product sale or consumption

(1)A person must not supply an object or entitlement if the supply is in direct or indirect association with the sale or consumption of a smoking product, or of smoking products generally.

Maximum penalty—140 penalty units.

(2)In a prosecution for an offence against subsection (1), to establish whether an object or entitlement is supplied in direct or indirect association with a matter—

(a)it is enough to prove—

(i)that material published by the defendant relating to the object or entitlement would be likely to cause a reasonable person to believe the supply to be in that association, or intended to be in that association; or

(ii)that there are other reasonable grounds for believing the supply to be in that association, or intended to be in that association; and

(b)the supply may be found to be in that association irrespective of the actual belief of the defendant.

(3)It is a defence to a charge under subsection (1) for the defendant to prove that the person receiving the object or entitlement would have received the same object or entitlement if the person had bought goods of whatever kind other than a smoking product to the same value as the smoking product.

(4)However, subsection (3) does not apply if the object or entitlement would have been received by the person only if the person had bought the goods from the defendant or from a supplier nominated by the defendant.

106   Smoking product giveaways

(1)A person must not supply a smoking product for free or a nominal fee if the supply promotes the sale of a smoking product.

Maximum penalty—140 penalty units.

(2)In a prosecution for an offence against subsection (1), to establish whether the supply of a smoking product for free or a nominal fee promotes the sale of a smoking product—

(a)it is enough to prove—

(i)that material published by the defendant relating to the supply would be likely to cause a reasonable person to believe the supply promoted, or was intended to promote, the sale; or

(ii)that there are other reasonable grounds for believing the supply promoted, or was intended to promote, the sale; and

(b)the sale may be found to be promoted by the supply irrespective of the actual belief of the defendant.

(3)In this section—

nominal fee, for a smoking product, means an amount for the product that—

214   Failure to certify copy of acknowledgement

A person of whom an acknowledgement certification requirement is made must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

215   Power to require information

(1)This section applies if an authorised person reasonably believes—

(a)an offence against this Act has been committed; and

(b)a person may be able to give information about the offence.

(2)The authorised person may, by written notice given to the person, require the person to give information about the offence to the authorised person at a stated reasonable time and place.

(3)The person must comply with a requirement under subsection (2), unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

(4)It is a reasonable excuse for an individual to fail to give information if giving the information might tend to incriminate the individual.

216   False or misleading information

(1)A person must not state anything to an authorised person the person knows is false or misleading in a material particular.

Maximum penalty—100 penalty units.

(2)It is enough for a complaint for an offence against subsection (1) to state the statement made was false or misleading to the person’s knowledge.

217   False, misleading or incomplete documents

(1)A person must not give to an authorised person a document containing information the person knows is false, misleading or incomplete in a material particular.

Maximum penalty—50 penalty units.

(2)Subsection (1) does not apply to a person if the person, when giving the document—

(a)informs the authorised person, to the best of the person’s ability, how it is false, misleading or incomplete; and

(b)if the person has, or can reasonably obtain, the correct information—gives the correct information.

(3)It is enough for a complaint against a person for an offence against subsection (1) to state that the statement made was false, misleading or incomplete to the person’s knowledge.

218   Notice of damage

(1)This section applies if—

(a)an authorised person damages something when exercising or purporting to exercise a power under this part; or

(b)a person (the other person) acting under the direction of an authorised person damages something when exercising or purporting to exercise a power under this part.

(2)The authorised person must promptly give written notice of particulars of the damage to the person who appears to be the owner of the thing.

(3)If the authorised person believes the damage was caused by a latent defect in the thing or circumstances beyond the authorised person’s or other person’s control, the authorised person may state it in the notice.

(4)If, for any reason, it is impracticable to comply with subsection (2), the authorised person must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened.

(5)This section does not apply to damage the authorised person reasonably believes is trivial.

(6)In this section—

owner, of a thing, includes the person in possession or control of it.

219   Compensation

(1)If a person incurs loss or expense because of the exercise or purported exercise of a power under this part the person may claim compensation—

(a)for the exercise or purported exercise of a power by or for the State—from the State; or

(b)for the exercise or purported exercise of a power by or for a local government—from the local government.

(2)Without limiting subsection (1), compensation may be claimed for loss or expense incurred in complying with a requirement made of the person under this part.

(3)Compensation may be claimed and ordered to be paid in a proceeding—

(a)brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or

(b)for an offence against this Act brought against the person claiming compensation.

(4)A court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.

220   Impersonation of authorised person

A person must not pretend to be an authorised person.

Maximum penalty—50 penalty units.

221   Obstructing authorised persons

(1)A person must not obstruct an authorised person in the exercise of a power, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)If a person has obstructed an authorised person and the authorised person decides to proceed with the exercise of the power, the authorised person must warn the person that—

(a)it is an offence to obstruct the authorised person, unless the person has a reasonable excuse; and

(b)the authorised person considers the person’s conduct is an obstruction.

222    Person smoking may be directed to stop

If a person (the smoker) is smoking in contravention of a section 112(1), 122(1), 125(1), 133(1) or (2) or 141(1), the following persons may direct the smoker to stop smoking—

(a)for a contravention of section 112(1) at an enclosed place—

(i)an occupier of the place; or

(ii)an employee or agent of the occupier;

(b)for a contravention of section 122(1) at a major sports facility—

(i)an occupier of the facility; or

(ii)an occupier of the part of the facility where the contravention is happening; or

(iii)an employee or agent of an occupier mentioned in subparagraph (i) or (ii);

(c)for a contravention of section 125(1) at a major event facility—

(i)the major event organiser for the facility; or

(ii)the major event organiser for the part of the facility where the contravention is happening; or

(iii)an employee or agent of a major event organiser mentioned in subparagraph (i) or (ii);

(d)for a contravention of section 133(1) or (2) at an outdoor eating or drinking place—

(i)an occupier of the place; or

(ii)an employee or agent of the occupier;

(e)for a contravention of section 141(1) at an outdoor market—

(i)the organiser of the outdoor market; or

(ii)an employee or agent of the organiser.

Note—

An authorised person also has the power to direct the smoker to stop smoking under section 194.

223    Person smoking must stop when directed

(1)A person smoking in contravention of a smoking prohibition must comply with a direction to stop smoking made to the person by an authorised person or another person authorised under section 222.

Maximum penalty—20 penalty units.

(2)In this section—

smoking prohibition means section 112(1), 122(1), 125(1), 127(1) or (2), 128(1) or (2), 129(1), 130(1) or (2), 131(1) or (2), 133(1) or (2), 140(1), 142(1), 145(1), 146(1), 147(1), 148(1), 149(1), 150(1) or (2), 151(1), 152(1), (2) or (3) or 153(1).

223A    Recovery of costs from convicted person

(1)A court convicting a person of an offence against this Act may order the person to pay to the State costs reasonably incurred by the State because of the offence, including the following costs—

(a)the cost of testing, transporting, storing, dismantling, destroying or disposing of smoking products, ice pipes, bongs, illicit tobacco, illicit nicotine products or other evidence;

(b)the reasonable costs of investigating the offence;

(c)the reasonable costs of preparing for the prosecution of the offence.

(2)In deciding whether to make the order, the court may have regard to—

(a)the extent to which the person’s conduct during the investigation of the offence contributed to the costs being incurred; and

(b)whether the offence was committed, wholly or partly, for a commercial purpose; and

(c)any other relevant matter.

(3)An amount ordered to be paid under subsection (1) is a debt owing to the State.

(4)The power of the court under subsection (1) is in addition to any other power of the court under this Act or another law.

Division 6 Appeals for particular forfeiture decisions

224    Definition for division

In this division—

forfeiture decision means—

(a)a decision of the chief executive to forfeit a relevant product under section 205; or

(b)a decision of the chief executive to forfeit a bong or ice pipe under section 205A.

225    Appealing forfeiture decision

(1)This section applies to a person who must be given written notice of a forfeiture decision.

(2)The person may appeal to a Magistrates Court (the court) against the forfeiture decision by filing a notice of appeal with the registrar of the court.

(3)The notice of appeal must state fully the grounds of the appeal.

(4)The person must file the notice of appeal within 28 days after written notice of the forfeiture decision is given to the person or the person otherwise becomes aware of the decision.

(5)However, the court may, on application and at any time, extend the time for filing the notice of appeal.

(6)The person must serve a copy of the notice of appeal, and any application to extend the time for filing the notice of appeal, on the chief executive.

(7)The appeal does not affect the operation of the forfeiture decision or prevent the forfeiture decision being implemented.

226    Staying operation of decision

(1)A person mentioned in section 225(1) may apply to the court for a stay of the operation of the forfeiture decision.

(2)The court may, by order, stay the operation of the forfeiture decision to secure the effectiveness of the appeal.

(3)The court may stay the operation of the forfeiture decision on conditions the court considers appropriate.

(4)The stay operates for the period decided by the court.

(5)However, the period of the stay must not extend past the time when the court decides the appeal.

227    Powers of court on appeal

(1)When deciding the appeal against a forfeiture decision, the court—

(a)has the same powers as the chief executive in making the forfeiture decision; and

(b)is not bound by the rules of evidence; and

(c)must comply with natural justice.

(2)An appeal is by way of rehearing.

(3)The court may—

(a)confirm the forfeiture decision; or

(b)substitute another decision for the forfeiture decision; or

(c)set aside the forfeiture decision and return the matter to the chief executive with directions the court considers appropriate.

228    Effect of court’s decision on appeal

(1)If the court substitutes another decision for the forfeiture decision—

(a)the substituted decision is taken to be a decision of the chief executive; and

(b)the chief executive may give effect to the substituted decision as if—

(i)the substituted decision were the forfeiture decision made by the chief executive; and

(ii)no application for appeal of the forfeiture decision had been made.

(2)If the court sets aside the forfeiture decision and returns the matter to the chief executive with directions, any decision made by the chief executive in accordance with the directions may not be appealed against under this division.

Part 12    Miscellaneous

229   Evidence that a thing is labelled as a particular product

(1)Evidence that a thing is labelled as a tobacco product, or labelled in a way a reasonable person would take to be labelled as a tobacco product, is evidence the thing is or contains a tobacco product.

(2)Evidence that a thing is labelled as a smokeless tobacco product, or labelled in a way a reasonable person would take to be labelled as a smokeless tobacco product, is evidence the thing is or contains a smokeless tobacco product.

(3)Evidence that a thing is labelled as a herbal cigarette, or labelled in a way a reasonable person would take to be labelled as a herbal cigarette, is evidence the thing is or contains a herbal cigarette.

(4)Evidence that a thing is labelled as a loose smoking blend, or labelled in a way a reasonable person would take to be labelled as a loose smoking blend, is evidence the thing is or contains a loose smoking blend.

230   Responsibility for acts or omissions of representatives

(1)This section applies in a proceeding for an offence against this Act.

(2)If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show—

(a)the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and

(b)the representative had the state of mind.

(3)An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.

(4)In this section—

representative means—

(a)for a corporation—an executive officer, employee or agent of the corporation; or

(b)for an individual—an employee or agent of the individual.

state of mind, of a person, includes—

(a)the person’s knowledge, intention, opinion, belief or purpose; and

(b)the person’s reasons for the intention, opinion, belief or purpose.

230A    Liability of executive officer—offence committed by corporation against executive liability provision

(1)An executive officer of a corporation commits an offence if—

(a)the corporation commits an offence against an executive liability provision; and

(b)the officer did not take all reasonable steps to ensure the corporation did not engage in the conduct constituting the offence.

Maximum penalty—the penalty for a contravention of the executive liability provision by an individual.

(2)In deciding whether things done or omitted to be done by the executive officer constitute reasonable steps for subsection (1)(b), a court must have regard to—

(a)whether the officer knew, or ought reasonably to have known, of the corporation’s conduct constituting the offence against the executive liability provision; and

(b)whether the officer was in a position to influence the corporation’s conduct in relation to the offence against the executive liability provision; and

(c)any other relevant matter.

(3)The executive officer may be proceeded against for, and convicted of, an offence against subsection (1) whether or not the corporation has been proceeded against for, or convicted of, the offence against the executive liability provision.

(4)This section does not affect—

(a)the liability of the corporation for the offence against the executive liability provision; or

(b)the liability, under the Criminal Code, chapter 2, of any person, whether or not the person is an executive officer of the corporation, for the offence against the executive liability provision.

(5)In this section—

executive liability provision means any of the following provisions—

(a)section 65;

(b)section 66;

(c)section 67;

(d)section 161;

(e)section 161A.

231   Act does not create or preserve right to smoke

(1)To remove any doubt, it is declared that this Act does not create or preserve a right for a person to smoke in or at any place.

(2)Also, nothing in this Act affects the operation of another Act to the extent that the other Act prohibits smoking at any place.

232   Confidentiality of information

(1)This section applies to confidential information that an administrator—

(a)obtains in performing a function under this Act; or

(b)obtains access to, whether directly or indirectly, from a person performing a function under this Act.

(2)The administrator must not, directly or indirectly, disclose the confidential information to another person unless the disclosure is permitted under subsection (3).

Maximum penalty—50 penalty units.

(3)An administrator is permitted to disclose confidential information to another person if—

(a)the person to whom the information relates consents to the disclosure; or

(b)the disclosure is made for the administration of this Act; or

(c)the disclosure is necessary for the performance of a function or exercise of a power under this Act; or

(d)the disclosure is required or permitted by law; or

(e)the disclosure is in a form that does not identify the person to whom the information relates.

(4)In this section—

administrator means—

(a)the chief executive; or

(b)an authorised person; or

(c)another person who is, or was, employed in the department in which this Act is, or was, administered.

confidential information—

(a)means personal information within the meaning of the Information Privacy Act 2009, section 12; but

(b)does not include information that is lawfully available to the public.

233    Disclosure of information to entities performing relevant functions

(1)This section applies to information a person obtains in performing a function or exercising a power under this Act.

(2)The chief executive may disclose the information to—

(a)an entity of the Commonwealth or a State, for performing the entity’s functions relating to the regulation or prohibition of the supply of smoking products or illicit nicotine products; or

(b)a law enforcement agency, for the purposes of detecting, investigating, preventing or prosecuting an offence in relation to a regulated substance under the Medicines and Poisons Act 2019, section 17; or

(c)another entity, for a purpose prescribed by regulation.

(3)However, the chief executive may disclose the information to an entity under subsection (2) only if satisfied—

(a)the disclosure is reasonably necessary for the entity to exercise its functions; and

(b)the information will be collected, stored and used by the entity in a way that protects the privacy of the persons to whom the information relates from unjustified intrusion.

234    Only chief executive may commence particular proceedings

(1)This section applies to a proceeding for an offence against this Act arising from a police officer exercising a power under this Act as an authorised person.

(2)Only the chief executive may commence the proceeding for the offence.

(3)The commissioner of the police service must comply with a written request made by the chief executive for a report about the following—

(a)the exercise of the power by the police officer;

(b)the evidence of the offence that the police officer obtained from exercising the power.

(4)To remove any doubt, it is declared that this section does not prevent a police officer performing a function mentioned in section 170(7).

235    Approved forms

The chief executive may approve forms for use under this Act.

236    Delegation

(1)The chief executive may delegate the chief executive’s functions under this Act to an appropriately qualified person.

(2)A delegation of a function under subsection (1) may not permit the subdelegation of the function.

(3)In this section—

functions includes powers.

237   Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may impose requirements about signs for part 8.

(3)A regulation may provide for a maximum penalty of not more than 20 penalty units for a contravention of a regulation.

(4)A regulation may prescribe general conditions for retail or wholesale licences.

(5)A regulation may prescribe a general condition that requires a licensee to provide employees with particular training about supplying smoking products.

(6)A regulation may be made about fees for applications and other matters under part 2.

(7)Without limiting subsection (6), a regulation may—

(a)be made about the refund or waiver of all or part of a fee; or

(b)prescribe that a fee for an application under part 2 may be charged on a pro rata basis relating to the term of a retail or wholesale licence.

(8)In this section—

general conditions see section 15(2).

Part 13    Transitional

Division 1 Transitional provision for Tobacco and Other Smoking Products Amendment Act 2004

238   Transitional—court order under s 70

Section 70 applies only to an offence committed after the commencement of the Tobacco and Other Smoking Products Amendment Act 2004, section 8.

Division 2 Transitional provisions for Tobacco and Other Smoking Products Amendment Act 2023

239   Staged implementation for particular business names allowed

(1)This section applies if a supplier uses more than 1 business name that—

(a)includes a reference to a smoking product; and

(b)was registered before the commencement.

(2)Section 95(2)(b) does not apply to the supplier until—

(a)the supplier renews the registration of more than 1 of the business names under the Business Names Registration Act 2011 (Cwlth); or

(b)the registration of the business names is cancelled or otherwise ends under the Business Names Registration Act 2011 (Cwlth).

240   [Expired]

241   Staged implementation for small businesses

(1)Section 68 does not apply to a small business until the day that is 1 year after the commencement of that section.

(2)The additional preventative measure stated in section 63, definition prevention measures, paragraph (a)(iii) does not apply to a small business until the day that is 1 year after the commencement of that section.

(3)In this section—

small business means a supplier that employs less than 20 employees.

242   Sections 65 and 69 do not apply while particular applications undecided

(1)This section applies if—

(a)a person or partnership applies for a retail or wholesale licence under part 2 before the commencement of section 65 (each a proposed licensee); and

(b)the application has not been decided or withdrawn before the commencement of section 65.

(2)Section 65 does not apply to the proposed licensee until the application is decided or withdrawn, whichever occur first.

(3)Section 69(2)(b) does not apply to an employee of the proposed licensee until the application is decided or withdrawn, whichever occur first.

Division 3 Transitional provisions for Tobacco and Other Smoking Products (Vaping) and Other Legislation Amendment Act 2024

242A   Forfeiture of bongs and ice pipes

Section 205A applies in relation to a bong or ice pipe whether it was seized before or after the commencement.

242B   Application of amended s 208

Section 208, as amended by the Tobacco and Other Smoking Products (Vaping) and Other Legislation Amendment Act 2024, applies in relation to a seized thing whether the thing was seized before or after the commencement.

Schedule 1 Dictionary

section 5

acceptable evidence of age see section 10.

acknowledgement certification requirement see section 212(5).

acknowledgement production requirement see section 212(6).

administering executive means—

(a)for a person appointed under this Act as an authorised person by the chief executive—the chief executive; or

(b)for a person appointed under this Act as an authorised person by a chief executive officer—the chief executive officer; or

(c)for a person appointed under this Act as an authorised person by 2 or more chief executive officers—the chief executive officers; or

(d)for a person appointed under this Act as an authorised person by a health service chief executive—the health service chief executive; or

(e)for a conservation officer, as an authorised person under section 170(6)—the chief executive of the department administering the Nature Conservation Act 1992; or

(f)for a police officer, as an authorised person under section 170(7)—the commissioner of the police service.

advertise includes cause, permit or authorise to be advertised.

affected person, for part 2, division 11, see section 55.

approved form means a form approved by the chief executive under section 235.

assisted mobility device means a device that is—

(a)designed to transport a person who is unable to walk or has difficulty in walking; and

(b)powered by a motor; and

(c)capable of being controlled by the person using it.

authorised person means a person appointed, or holding office, under section 170 as an authorised person.

bar ...

bar area ...

bong see section 159.

business premises means—

(a)means premises used, or intended to be used, for a commercial or industrial activity; and

(b)includes land on which premises mentioned in paragraph (a) may lawfully be built.

carton means a package containing, or designed to contain, immediate packages of a smoking product.

casino has the meaning given by the Casino Control Act 1982, schedule.

chief executive officer means the chief executive officer of a local government.

child means an individual who is under 18.

cigar includes tobacco leaf rolled into a cylinder with a conical end for smoking.

cigarette means a roll of cut tobacco for smoking enclosed in paper, bark, leaf or something else, whether or not the tobacco is mixed with another substance, but does not include a cigar.

coin operated vending machine means a machine or device operated by money, token, debit card or credit card.

common area ...

community titles scheme has the meaning given by the Body Corporate and Community Management Act 1997, section 10.

consent acknowledgement see section 182.

consumption, of a smoking product, includes smoking, inhaling or chewing the smoking product.

conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded.

corresponding law means a law of the Commonwealth or a State that regulates or prohibits the supply of any of the following—

(a)smoking products;

(b)substances used in smoking products;

(c)illicit nicotine products.

dangerous drug see the Drugs Misuse Act 1986, section 4.

designated outdoor smoking area see section 137.

dining area ...

display includes cause, permit or authorise to be displayed.

driver licence includes a licence, permit or other authority issued under a law of the State or another State that authorises a person to drive or ride a motor vehicle on public roads.

duty free shop ...

employee, for part 3, division 3, see section 74.

enclosed means—

(a)for a place other than a vehicle or part of a vehicle—having a ceiling or roof and, except for doors and passageways, completely or substantially enclosed, whether permanently or temporarily; or

(b)for a place that is a vehicle, or part of a vehicle—having a ceiling or roof and, except for doors and exits, completely or substantially enclosed, whether permanently or temporarily.

engage in conduct ...

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

exempt vehicle ...

face, for an immediate package, means the surface (or if 2 surfaces have the same area, either of the surfaces) of the package whose area is greater than the area of each of its other surfaces.

food service means a business, or an enterprise of a commercial, charitable or community nature, that sells food or drink.

forfeiture decision, for part 11, division 6, see section 224.

gaming machine has the meaning given by the Gaming Machine Act 1991, schedule 2.

gaming machine area, for part 3, division 3, see section 74.

gaming table area ...

health facility land ...

health service ...

health service authorised person see section 170(4).

health service chief executive see the Hospital and Health Boards Act 2011, schedule 2.

health service employee see the Hospital and Health Boards Act 2011, schedule 2.

health warning requirement means a requirement to include a health warning under the Public Health (Tobacco and Other Products) Act 2023 (Cwlth), section 8.

herbal cigarette means a preparation for smoking that—

(a)is made from a herb or other plant, or a blend of herbs or other plants, whether or not the herb, plant or blend is mixed with another substance; and

(b)is enclosed in paper, bark, leaf or something else; and

(c)does not contain tobacco.

hookah means a fully assembled device—

(a)for smoking tobacco or another thing by the drawing of smoke, fumes or vapour, resulting from heating or burning the tobacco or other thing in the device, through water or another liquid in the device; and

(b)that has—

(i)1 or more openings; and

(ii)1 or more flexible hoses, each with a mouthpiece, through which the smoke or fumes are drawn.

Example of a hookah—

humidified container ...

humidified room, for part 4, see section 88.

ice pipe see section 158.

illicit nicotine product means—

(a)vaping goods; or

(b)another product containing nicotine or another substance detrimental to health prescribed by regulation for this definition.

illicit tobacco means a smoking product that does not comply with any of the following requirements applying to the product—

(a)a tobacco product requirement;

(b)a health warning requirement;

(c)another requirement under a law of the Commonwealth prescribed by regulation.

immediate package, for a smoking product, means a package containing the product but does not include a package containing a further package or packages of the product.

information notice, for part 2, see section 12.

inhale, for an individual, means draw a vapour or gas into the individual’s lungs.

internal review, for part 2, division 11, see section 57(1).

internal review decision, for part 2, division 11, see section 55.

licensed premises ...

licensed premises ...

licensed retailer, for part 2, see section 12.

licensee means the holder of a retail or wholesale licence.

licensee ...

limited wholesale condition see section 13(3).

liquor, for part 3, division 3, see section 74.

liquor licensed premises means—

(a)licensed premises under the Liquor Act 1992; or

(b)a place with a permit under the Liquor Act 1992; or

(c)licensed premises under the Wine Industry Act 1994; or

(d)a place with a permit under the Wine Industry Act 1994.

liquor licensee means a person who, under the Liquor Act 1992 or the Wine Industry Act 1994, holds a licence or permit for liquor licensed premises.

loose smoking blend means a preparation for smoking that does not contain tobacco and is made from a herb or other plant, or a blend of herbs or other plants, and is prepared for retail sale, but does not include a herbal cigarette.

loose tobacco means a tobacco product for smoking that is cut for retail sale, but does not include a cigarette or a cigar.

Example—

tobacco product commonly called ‘roll your own tobacco’ or ‘pipe tobacco’

lot see the Body Corporate and Community Management Act 1997, schedule 6.

major event facility, for part 7, division 3, see section 124.

major event organiser, for part 7, division 3, see section 124.

major sports facility, for part 7, division 2, see section 121.

meal ...

motor vehicle means a motor vehicle within the meaning of the Transport Operations (Road Use Management) Act 1995, schedule 4 other than the following—

(a)a trailer attached to the motor vehicle;

(b)an aircraft;

(c)a boat;

(d)a train.

mouthpiece, in relation to a flexible hose of a hookah, means a device or part of a device—

(a)of a type usually attached to the end of the hose; and

(b)designed particularly for the purpose of being held in the human mouth for inhaling smoke or fumes drawn through the hose.

multi-unit residential accommodation means hotels, motels, hostels, boarding houses, residential accommodation comprising lots in a community titles scheme and other similar accommodation.

non-State school ...

obstruct includes hinder, resist and attempt to obstruct.

occupier, of a place or part of a place—

(a)for part 11, division 2, see section 180; or

(b)otherwise, means a person having the management or control, or otherwise being in charge, of the place or part.

online sale, for part 2, see section 12.

online shop means a website for a business that enables customers to purchase products or services from the business.

on-site food service, in relation to a place, means a food service at, or adjacent to, the place.

original decision, for part 2, division 11, see section 55.

outdoor area, of premises, means any area at the premises that is not enclosed.

outdoor eating or drinking place, for part 8, division 1, see section 132.

package means—

(a)for cigarettes—a package containing cigarettes packed by the manufacturer, or importer, of the cigarettes; or

(b)for herbal cigarettes—a package containing herbal cigarettes packed by the manufacturer, or importer, of the herbal cigarettes; or

(c)for loose tobacco—a package containing loose tobacco packed by the manufacturer, or importer, of the loose tobacco; or

(d)for loose smoking blend—a package containing loose smoking blend packed by the manufacturer, or importer, of the loose smoking blend; or

(e)for cigarette papers—a package containing cigarette papers packed by the manufacturer, or importer, of the papers; or

(f)for cigars—a package containing cigars packed by the manufacturer, or importer, of the cigars.

patrolled beach see section 145(2).

patrolled beach area see section 145(2).

personal transport means a bicycle, scooter, skateboard or assisted mobility device.

personal vaporiser ...

personal vaporiser related product ...

person in charge, of a tobacco product vending machine, means the liquor licensee of liquor licensed premises in which the vending machine is located.

place includes premises and vacant land.

point of sale means a place where there is a counter or similar fixture where smoking products are sold within a retail outlet, but does not include a tobacco product vending machine.

premises includes—

(a)a building or other structure; and

(b)a part of a building or other structure; and

(c)land where a building or other structure is situated; and

(d)a vehicle.

premium gaming room, for part 5, see section 111.

prepackaged loose smoking blend ...

prepackaged loose tobacco ...

prescribed outdoor swimming area see section 146(2).

prescription see the Medicines and Poisons Act 2019, schedule 1.

prevention measures—

(a)for part 3, division 1, see section 63; and

(b)for part 3, division 3, see section 74.

private health facility ...

product line means a kind of smoking product distinguishable from other kinds by 1 or more of the following characteristics—

(a)trademark;

(b)brand name;

(c)nicotine or tar content;

(d)flavour;

(e)the number of items in the immediate package in which it is sold.

prohibition sign ...

proof of age card means a card mentioned in the Liquor Act 1992, section 6(1)(a)(i) or (ii).

public place means a place that the public is entitled to use, is open to the public or is used by the public (whether or not on payment of money).

publish includes cause, permit or authorise to be published.

QCAT information notice, for part 2, division 11, see section 55.

quit smoking sign ...

regulated substance means—

(a)a regulated substance under the Medicines and Poisons Act 2019, section 17; or

(b)another substance prescribed by regulation.

relevant point of sale, for part 4, see section 88.

relevant provisions, for part 10, see section 165(1).

representative ...

residential land means land on which residential premises may lawfully be built.

residential premises means premises used, or intended to be used, as a place of residence or mainly as a place of residence.

responsible adult see section 6.

retailer see section 12.

retail licence see section 12.

retail licence (liquor) see section 12.

retail outlet see section 8.

road see the Transport Operations (Road Use Management) Act 1995, schedule 4.

road-related area, for part 6, see the Transport Operations (Road Use Management—Road Rules) Regulation 2009, section 13.

school land ...

sell means sell by retail, wholesale or auction, and includes—

(a)offer or agree to sell; and

(b)invite to treat or expose for sale; and

(c)attempt to sell; and

(d)cause or permit to be sold.

Service means a Hospital and Health Service established under the Hospital and Health Boards Act 2011, section 17.

shop includes—

(a)any part of a building or place that is used for the sale, or supply as part of a business activity, of goods; and

(b)a stall or other structure used for the sale, or supply as part of a business activity, of goods at a market or elsewhere.

smoke means—

(a)for a smoking product other than a hookah—smoke, hold or otherwise have control over the smoking product when it is ignited; or

(b)for a hookah—inhale through the hookah; or

(c)for a vaping device—inhale through the device.

smokeless tobacco product means tobacco, or something containing tobacco, prepared for consumption other than by being smoked.

Examples—

snuff, chewing tobacco

smoking product—

(a)for parts 1, 3 and 11—means a tobacco product, herbal cigarette or loose smoking blend; or

(b)for part 4—see section 88; or

(c)otherwise—

(i)except for a hookah—means a tobacco product, herbal cigarette or loose smoking blend; or

(ii)for a hookah—means tobacco or another thing that may be smoked in the hookah.

smoking related product, for part 4, see section 88.

specific conditions, for part 2, see section 15(1).

state of mind ...

State school ...

supplier means a person who, as part of a business activity, supplies smoking products to the public, but does not include a person who supplies smoking products to the public as an employee of another person.

supply includes—

(a)distribute, give or sell; and

(b)offer or agree to supply; and

(c)expose for supply; and

(d)attempt to supply; and

(e)cause or permit to be supplied.

tobacconist ...

tobacco product means tobacco prepared for consumption or something containing tobacco for consumption, and includes a cigarette, cigar and loose tobacco but does not include a smokeless tobacco product or vaping goods.

tobacco product package means a package—

(a)of a type commonly used for tobacco products; and

(b)depicting a symbol, design or words that show the package contains a tobacco product.

tobacco product requirement means a tobacco product requirement under the Public Health (Tobacco and Other Products) Act 2023 (Cwlth), section 8.

tobacco product supplier ...

tobacco product vending machine means a coin operated vending machine used, or intended for use, for selling tobacco products, whether or not it is also used, or intended for use, for selling other products.

vaping accessory see section 7(1).

vaping device see section 7(1).

vaping goods see section 7(1).

vaping substance see section 7(1).

vehicle includes an aircraft, boat and train.

wholesale licence see section 12.

wholesale outlet see section 9.