Enclosed restaurants and cafes and dining areas: no
smoking signs
4
9.
New sections 5E to 5R inserted
5
5E.
Retail shopping centres: no smoking signs
5
5F.
Bingo areas and centres: offence by smoker
6
5G.
Bingo areas and centres: offence by occupier
6
5H.
Bingo areas and centres: no smoking signs
7
5I.
Casinos: offence by smoker
8
5J.
Casinos: offence by occupier
8
5K.
Casinos: no smoking signs
9
5L.
Approved venues: offence by smoker
10
5M.
Approved venues: offence by occupier
11
5N.
Approved venues: no smoking signs
12
5O.
Licensed premises: non-smoking rooms
13
5P.
Licensed premises: offence by smokers
13
5Q.
Licensed premises: offence by occupier
14
5R.
Licensed premises: no smoking signs
15
10.
Consequential amendments to Part 2
15
11.
New section 41A inserted
16
41A.
No double jeopardy
16
12.
New section 42AA inserted
16
42AA.
Victorian Casino and Gaming Authority and Director
of Gaming and Betting to supply Secretary with certain
information
16
13.
Supreme Court—limitation of jurisdiction
18
i
Section
Page
14.
Infringement notices
18
15.
Amendment of Gaming Machine Control Act 1991
19
═══════════════
ENDNOTES
21
ii
Victoria
No. 31 of 2002
Tobacco (Miscellaneous Amendments)
Act 2002†
[Assented to 12 June 2002]
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to amend the Tobacco
Act 1987—
(a)
to prohibit smoking in places where bingo is played;
(b)
to limit smoking in licensed premises, gaming venues and the casino;
(c) for other minor purposes.
Tobacco (Miscellaneous Amendments) Act 2002
s. 2
Act No. 31/2002
2. Commencement
(1) Section 1, this section and sections 3, 4(3), 5, 12
and 15 come into operation on the day after the day on which this Act receives the Royal Assent.
(2) The remaining provisions of this Act come into operation on 1 September 2002.
3. Principal Act
See:
Act No.
In this Act, the Tobacco Act 1987 is called the
81/1987.
Principal Act.
Reprint No. 4 as at 1 January
2002.
LawToday:
4. Definitions
(1) In section 3 of the Principal Act, insert the
following definitions—
' "approved venue" has the same meaning as in
the Gaming Machine Control Act 1991;
"bar area", in relation to a casino, means an area
in the casino that is used predominantly for the serving and consumption of alcoholic drinks;
"bingo" has the same meaning as in the Gaming No. 2 Act 1997;
"bingo area" has the meaning given by
section 3C;
"bingo centre" has the same meaning as in the
Gaming No. 2 Act 1997;
"casino" has the same meaning as in the Casino Control Act 1991;
Tobacco (Miscellaneous Amendments) Act 2002
Act No. 31/2002
s. 4
"declared smoking area", in relation to a casino, means an area declared under section 5I(4); "designated non-smoking room", in relation to
licensed premises, means a room designated
under section 5O(1);
"gaming machine" has the same meaning as in the Gaming Machine Control Act 1991;
"gaming machine area" has the same meaning
as in the Gaming Machine Control Act 1991;
"gaming room" means a room in an approved
venue in which gaming machines available
for gaming are installed;
"high roller room" means a room in a casino that
is used substantially for gaming by international visitors to the casino;
"licensed premises" means premises in respect of which a general licence, an on-premises licence or a club licence within the meaning
of the Liquor Control Reform Act 1998 is in force, other than premises that are a restaurant or cafe or a bingo centre;
"minor gaming permit" means a permit issued under section 15 of the Gaming No. 2 Act 1997;
"room" means an enclosed room;
"TAB area", in relation to a casino, means an
area in the casino in which wagering or approved betting competitions (within the meaning of the Gaming and Betting Act 1994) or both are conducted in accordance with the wagering licence granted under Part 2 of that Act;'.
Tobacco (Miscellaneous Amendments) Act 2002
s. 5
Act No. 31/2002
(2) In section 3 of the Principal Act, in the definition of "enclosed"—
(a)
after "area" (where first occurring) insert ", room"; and
(b)
after "area" (where secondly occurring) insert "or room".
(3) In section 3 of the Principal Act, in the definition of "product line", paragraph (a) is repealed.
5. Agents and employees of tobacco retailers
Section 3B of the Principal Act is repealed.
6. New section 3C inserted
Before section 3D of the Principal Act insert—
"3C. Bingo area
For the purposes of this Act, an area (other than an outdoor area) is a bingo area at any time when the predominant activity in that area is the conducting of a session of bingo under a minor gaming permit.".
7. Controls relating to tobacco products
After the heading to Part 2 of the Principal Act insert—
"Division 1—No Smoking Areas".
8. New section 5BA inserted
After section 5B of the Principal Act insert—
"5BA. Enclosed restaurants and cafes and dining areas: no smoking signs
(1) The occupier of an enclosed restaurant or
cafe, or of a dining area, is guilty of an offence if, without reasonable excuse, no smoking signs that comply with sub-
Tobacco (Miscellaneous Amendments) Act 2002
Act No. 31/2002
s. 9
section (2) are not displayed, or are not displayed in the prescribed manner (if any).
Penalty: 5 penalty units.
(2) A sign referred to in sub-section (1) must
comply with any prescribed requirements as to size and the information contained in it.".
9. New sections 5E to 5R inserted
After section 5D of the Principal Act insert—
'5E. Retail shopping centres: no smoking signs
(1) The owner of a retail shopping centre or, if there is more than one owner, each owner must cause no smoking signs that comply with sub-section (2) to be displayed in such
prominent positions at entrances to any enclosed areas of the centre as would reasonably identify those areas of the centre as no smoking areas for persons entering
them. Penalty:
5 penalty units in the case of a natural person. 10 penalty units in any other case.
(2) A sign referred to in sub-section (1) must
comply with any prescribed requirements as to size and the information contained in it.
(3) In this section—
"owner" includes a person who is, or is
entitled to be registered under the proprietor of an estate in fee simple in the land, or any part of the land, on which the retail shopping centre is situated.
Tobacco (Miscellaneous Amendments) Act 2002
s. 9
Act No. 31/2002
5F. Bingo areas and centres: offence by smoker
(1) A person must not smoke in a bingo area or
bingo centre. Penalty: 5 penalty units.
(2) If an inspector believes on reasonable
grounds that a person is committing or has committed an offence against sub-section (1), the inspector, on producing his or her identity card, may direct the person to cease
the contravention.
(3) A person who is contravening sub-section
(1) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention.
Penalty: 5 penalty units.
5G. Bingo areas and centres: offence by
occupier
(1) If smoking occurs in a bingo area or bingo
centre in contravention of section 5F(1), the occupier of the bingo area or bingo centre is guilty of an offence.
Penalty: 5 penalty units.
(2) It is a defence to a prosecution under sub- section (1) if the defendant proves that the defendant did not provide an ashtray,
matches, a lighter or any other thing designed to facilitate smoking where the
contravention occurred and that—
(a)
the defendant was not aware, and could not reasonably be expected to have been aware, that the contravention was occurring; or
Tobacco (Miscellaneous Amendments) Act 2002
Act No. 31/2002
s. 9
(b) the defendant—
(i)
requested the person contravening to stop smoking; and
(ii)
informed the person that the offence.
5H. Bingo areas and centres: no smoking signs
(1) The occupier of a bingo area or bingo centre is guilty of an offence if, without reasonable excuse, no smoking signs that comply with
sub-section (2) are not displayed in accordance with that sub-section.
Penalty: 5 penalty units.
(2) Signs referred to in sub-section (1)—
(a) must contain—
(i) a no smoking symbol in the form of a circle and diagonal line printed in red over a depiction of a cigarette and smoke printed in black, or other symbol that clearly indicates that smoking is not permitted, with the symbol being at least 70mm in height; and
(ii)
"Smoking Prohibited", or other wording that clearly indicates that
the phrase "No Smoking" or letters that are at least 20mm in height; and
(b)
must be displayed in a manner that ensures that a person is reasonably likely to see one or more of them either
on entering the bingo area or bingo
Tobacco (Miscellaneous Amendments) Act 2002
s. 9
Act No. 31/2002
centre or from within the bingo area or bingo centre.
5I. Casinos: offence by smoker
(1) A person must not smoke in a casino, except
in a declared smoking area. Penalty: 5 penalty units.
(2) If an inspector believes on reasonable
grounds that a person is committing or has committed an offence against sub-section (1), the inspector, on producing his or her identity card, may direct the person to cease
the contravention.
(3) A person who is contravening sub-section
(1) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention.
Penalty: 5 penalty units.
(4) For the purpose of this section, the Minister,
Gazette, may declare an area in a casino that, in the Minister's opinion, is a bar area, a
by notice published in the Government declared smoking area.
(5) The Minister, by notice published in the
Government Gazette, may revoke or vary a declaration under sub-section (4).
(6) The Minister must consult the Minister
5J. Casinos: offence by occupier
administering Part 2 of the Casino Control varying a declaration under this section.
(1) If smoking occurs in an area of a casino in contravention of section 5I(1), the occupier of the area is guilty of an offence.
Tobacco (Miscellaneous Amendments) Act 2002
Act No. 31/2002
s. 9
Penalty: 5 penalty units.
(2) It is a defence to a prosecution under sub- section (1) if the defendant proves that the defendant did not provide an ashtray,
matches, a lighter or any other thing designed to facilitate smoking where the
contravention occurred and that—
(a)
the defendant was not aware, and could not reasonably be expected to have been aware, that the contravention was occurring; or
(b) the defendant—
(i)
requested the person contravening to stop smoking; and
(ii)
informed the person that the offence.
5K. Casinos: no smoking signs
(1) The occupier of an area of a casino, other
than a declared smoking area, is guilty of an offence if, without reasonable excuse, no smoking signs that comply with sub- section (2) are not displayed in accordance with that sub-section. Penalty: 5 penalty units.
(2) Signs referred to in sub-section (1)—
(a) must contain—
(i) a no smoking symbol in the form of a circle and diagonal line printed in red over a depiction of a cigarette and smoke printed in black, or other symbol that clearly indicates that smoking is not
Tobacco (Miscellaneous Amendments) Act 2002
s. 9
Act No. 31/2002
permitted, with the symbol being
at least 70mm in height; and
(ii)
"Smoking Prohibited", or other wording that clearly indicates that
the phrase "No Smoking" or letters that are at least 20mm in height; and
(b)
must be displayed in a manner that ensures that a person is reasonably likely to see one or more of them either
on entering the area or from within the area.
5L. Approved venues: offence by smoker
(1) A person must not smoke in a gaming
machine area in an approved venue that consists of only one room (not including a toilet, bathroom, hallway, foyer, storeroom
or similar room) that—
(a)
in the case of a club—is regularly open to members of the club or members of the public; or
(b)
in any other case—is regularly open to members of the public.
Penalty: 5 penalty units.
(2) A person must not smoke in a gaming room in an approved venue that consists of two or more rooms (not including a toilet,
bathroom, hallway, foyer, storeroom or
similar room) that—
(a)
in the case of a club—are regularly open to members of the club or members of the public; or
(b)
in any other case—are regularly open to members of the public.
Tobacco (Miscellaneous Amendments) Act 2002
Act No. 31/2002
s. 9
Penalty: 5 penalty units.
(3) If an inspector believes on reasonable
grounds that a person is committing or has committed an offence against sub-section (1) or (2), the inspector, on producing his or her identity card, may direct the person to cease the contravention.
(4) A person who is contravening sub-section
(1) or (2) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention. Penalty: 5 penalty units.
5M. Approved venues: offence by occupier
(1) If smoking occurs in a gaming machine area
or gaming room in contravention of section 5L, the occupier of the area or room is guilty of an offence. Penalty: 5 penalty units.
(2) It is a defence to a prosecution under sub- section (1) if the defendant proves that the defendant did not provide an ashtray,
matches, a lighter or any other thing designed to facilitate smoking where the
contravention occurred and that—
(a)
the defendant was not aware, and could not reasonably be expected to have been aware, that the contravention was occurring; or
(b) the defendant—
(i)
requested the person contravening to stop smoking; and
Tobacco (Miscellaneous Amendments) Act 2002
s. 9
Act No. 31/2002
(ii)
informed the person that the offence.
5N. Approved venues: no smoking signs
(1) The occupier of a gaming machine area or
gaming room in which smoking is prohibited by section 5L is guilty of an offence if, without reasonable excuse, no smoking signs that comply with sub-section (2) are not displayed in accordance with that sub- section. Penalty: 5 penalty units.
(2) Signs referred to in sub-section (1)—
(a) must contain—
(i) a no smoking symbol in the form of a circle and diagonal line printed in red over a depiction of a cigarette and smoke printed in black, or other symbol that clearly indicates that smoking is not permitted, with the symbol being at least 70mm in height; and
(ii)
"Smoking Prohibited", or other wording that clearly indicates that
the phrase "No Smoking" or letters that are at least 20mm in height; and
(b)
must be displayed in a manner that ensures that a person is reasonably likely to see one or more of them either
on entering the gaming machine area or gaming room or from within the area or room.
Tobacco (Miscellaneous Amendments) Act 2002
Act No. 31/2002
s. 9
5O. Licensed premises: non-smoking rooms
(1) If licensed premises at any time have two or more rooms in operation, the occupier of the licensed premises must designate
one of those rooms to be a non-smoking room.
Penalty: 5 penalty units.
(2) For the purposes of sub-section (1)—
(a) a room does not include—
(i) a gaming room; or
(ii)
a toilet, bathroom, hallway, foyer, and
(b) a room is in operation when—
(i) in the case of a club—it is open to, and available for use by, members of the club or members of the
public; or
(ii) in any other case—it is open to, and available for use by, members of the public.
(3) Nothing in this section is to be taken as
limiting the requirements of section 5A, 5B or 5BA in relation to dining areas.
5P. Licensed premises: offence by smokers
(1) A person must not smoke in a
designated non-smoking room of licensed premises.
Tobacco (Miscellaneous Amendments) Act 2002
s. 9
Act No. 31/2002
Penalty: 5 penalty units.
(2) If an inspector believes on reasonable
grounds that a person is committing or has committed an offence against sub-section (1), the inspector, on producing his or her identity card, may direct the person to cease
the contravention.
(3) A person who is contravening sub-section
(1) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention.
Penalty: 5 penalty units.
5Q. Licensed premises: offence by occupier
(1) If smoking occurs in a designated non-
smoking room in contravention of section 5P(1), the occupier of the room is guilty of an offence.
Penalty: 5 penalty units.
(2) It is a defence to a prosecution under sub- section (1) if the defendant proves that the defendant did not provide an ashtray,
matches, a lighter or any other thing designed to facilitate smoking where the
contravention occurred and that—
(a)
the defendant was not aware, and could not reasonably be expected to have been aware, that the contravention was occurring; or
(b) the defendant—
(i)
requested the person contravening to stop smoking; and
(ii)
informed the person that the offence.
Tobacco (Miscellaneous Amendments) Act 2002
Act No. 31/2002
s. 10
5R. Licensed premises: no smoking signs
(1) The occupier of a designated non-smoking
room is guilty of an offence if, without reasonable excuse, no smoking signs that comply with sub-section (2) are not displayed in accordance with that sub- section. Penalty: 5 penalty units.
(2) Signs referred to in sub-section (1)—
(a) must contain—
(i) a no smoking symbol in the form of a circle and diagonal line printed in red over a depiction of a cigarette and smoke printed in black, or other symbol that clearly indicates that smoking is not permitted, with the symbol being at least 70mm in height; and
(ii)
"Smoking Prohibited", or other wording that clearly indicates that
the phrase "No Smoking" or letters that are at least 20mm in height; and
(b)
must be displayed in a manner that ensures that a person is reasonably likely to see one or more of them either
on entering the designated non-smoking room or from within the room.'.
10. Consequential amendments to Part 2
In the Principal Act—
(a)
in section 5C(4), for "section 15B" substitute "section 5E";
(b) before section 6 insert—
Tobacco (Miscellaneous Amendments) Act 2002
s. 11
Act No. 31/2002
"Division 2—Advertising and Other
Controls";
(c) sections 15A and 15B are repealed.
11. New section 41A inserted
After section 41 of the Principal Act insert—
"41A. No double jeopardy
If an act or omission constitutes more than one offence against this Act, the offender is liable to be prosecuted for any or all of those
offences but is not liable to be punished
more than once for the same act or
omission.".
12. New section 42AA inserted
After section 42 of the Principal Act insert—
'42AA. Victorian Casino and Gaming Authority
and Director of Gaming and Betting to supply Secretary with certain information
(1) In this section—
"Authority" means the Victorian Casino
and Gaming Authority established under the Gaming and Betting Act
1994;
"commencement day" means the
commencement of section 12 of the Tobacco (Miscellaneous
Amendments) Act 2002;
"Director" means the Director of Gaming
and Betting appointed under the Gaming and Betting Act 1994;
Tobacco (Miscellaneous Amendments) Act 2002
Act No. 31/2002
s. 12
"relevant approved venue" means an
approved venue of a kind referred to in
section 5L(1).
(2) As soon as practicable after the
commencement day, the Authority must provide to the Secretary a plan of a relevant approved venue showing any gaming machine area in that venue as at the
commencement day.
(3) If at any time after the commencement day
the Authority, under Part 2A of the Gaming approval of a gaming machine area in a relevant approved venue, the Authority must provide to the Secretary, as soon as practicable after making that variation, a revised plan of the approved venue showing any gaming machine area in that venue as at that time.
(4) If at any time after the commencement day
the Director, under section 29 of the Gaming modification of a gaming machine area in a relevant approved venue, the Director must provide to the Secretary, as soon as practicable after granting that approval, details of the modification.
(5) If at any time after the commencement day
the Authority, under Part 2A of the Gaming gaming machine area in a relevant approved venue, the Authority must provide to the Secretary, as soon as practicable after the granting of that approval, a plan of the approved venue showing any gaming machine area in that venue as at that time.
Tobacco (Miscellaneous Amendments) Act 2002
s. 13
Act No. 31/2002
(6) If at any time after the commencement day the approval of a gaming machine area in a relevant approved venue is, under Part 2A of
the Gaming Machine Control Act 1991, soon as practicable after that event, details of the cancellation, revocation or surrender.
cancelled, revoked or surrendered, the
(7) The Secretary may provide to an inspector
any plan, revised plan or information provided to the Secretary in accordance with this section, despite anything to the contrary in the Gaming Machine Control Act 1991 or any other Act.'.
13. Supreme Court—limitation of jurisdiction
In section 42B of the Principal Act, after sub- section (2) insert—
"(3) It is the intention of section 42, as it has
effect on and after the commencement of sections 8 and 9 of the Tobacco (Miscellaneous Amendments) Act 2002, to alter or vary section 85 of the Constitution Act 1975.".
14. Infringement notices
In the Schedule to the Principal Act—
(a)
after item 2 insert—
"2A.
An offence against
1 penalty unit";
section 5BA(1)
(b)
after item 3A insert—
"3B.
An offence against
1 penalty unit
section 5E(1)
3C.
An offence against
1 penalty unit
section 5F(1)
3D.
An offence against
1 penalty unit
section 5G(1)
Tobacco (Miscellaneous Amendments) Act 2002
Act No. 31/2002
s. 15
3E.
An offence against
1 penalty unit
section 5H(1)
3F.
An offence against
1 penalty unit
section 5I(1)
3G.
An offence against
1 penalty unit
section 5J(1)
3H.
An offence against
1 penalty unit
section 5K(1)
3I.
An offence against
1 penalty unit
section 5L(1) or (2)
3J.
An offence against
1 penalty unit
section 5M(1)
3K.
An offence against
1 penalty unit
section 5N(1)
3L.
An offence against
1 penalty unit
section 5O(1)
3M.
An offence against
1 penalty unit
section 5P(1)
3N.
An offence against
1 penalty unit
section 5Q(1)
3O.
An offence against
1 penalty unit";
section 5R(1)
(c) items 9 and 10 are repealed.
15. Amendment of Gaming Machine Control Act 1991
See:
In section 139 of the Gaming Machine Control
Act No.
Act 1991, before sub-section (5) insert—
53/1991. Reprint No. 8
"(4D) Nothing in this section applies to prohibit or restrict the provision of—
as at 28 August
2001 and
(a) a plan or revised plan of; or
amending Act Nos
(b) details of the cancellation, revocation or surrender of the approval of a gaming
117/1993, 90/1997,
88/2000 and
machine area in; or
11/2002. LawToday:
(c) details of the approval of a modification of a gaming machine area in—