Untitled document
Tobacco Amendment (Protection of Children) Act 2009
No. 49 of 2009
table of provisions
Section Page
Part 1—Preliminary
1Purpose
2Commencement
3Principal Act
Part 2—Tobacco Advertisements in Retail Outlets
4Certain advertising prohibited
5Point of sale advertisements
6Removal of advertisements
Part 3—Miscellaneous Amendments
7Purpose of Principal Act amended
8Definitions
9Tobacco advertisements
10Enclosed workplaces: offence by occupier
11Outdoor dining or drinking areas: offence by occupier
12Outdoor dining or drinking areas: no smoking signs
13Enclosed restaurants and cafes: no smoking signs
14Retail shopping centres: no smoking signs
15Bingo areas and centres: no smoking signs
16Casinos: no smoking signs
17Approved venues: no smoking signs
18Licensed premises: no smoking signs
19New Division 1A inserted in Part 2
Division 1A—Smoking in motor vehicles
5SOffence to smoke in motor vehicle if person under 18
is present5TPower to require driver to stop
5UEvidential burden regarding age
20Certain advertising prohibited: penalties
21Point of sale advertisements: references to Commonwealth Regulations
22Competitions
23Free samples
24Prohibition of certain sponsorships
25Packing of tobacco
26Offence to possess certain tobacco products
27Supplying tobacco to person under 18 years
28Vending machines
29Mobile selling of tobacco products
30Packages of cigarettes
31Smokeless tobacco
32Retail outlets: signage
33Prohibition of retailing at premises where offences have been committed
34Offence by occupier
35No smoking signs
36Covering vending machines, tobacco advertisements etc.
37Prohibition on supplying tobacco at underage music/dance
events38New Divisions 4 and 5 inserted in Part 2
Division 4—Sales of tobacco products from temporary
outlets15LOffence to sell tobacco products from temporary outlet
15MOffence for tobacco company to sell tobacco products from temporary outlet
Division 5—Prohibited products
15NBan orders
15OSecretary may recommend ban order
15POperation of ban order
15QAmendment or revocation of ban order
15RNotice of order
15SOffence to breach a ban order
39New Part 2A inserted
Part 2A—Specialist tobacconists
15TApplication for certification as specialist tobacconist
15UDetermination of application
15VCertification holder to notify Secretary of commencement of tobacco retailing business
15WDuration of certification
15XCancellation of certification
15YNotice of determination or cancellation
15ZReplacement certificates
15ZAOffence to provide false or misleading information to Secretary
15ZBSpecialist tobacconist must display certificate
40Entry or search with consent
41Search warrants
42Seizure of things not mentioned in warrant
43Magistrate's Court may extend 3 month period
44Requirement to assist inspector during entry
45Infringement notices
46Proceedings
47Section 41 substituted
41Offences by a body corporate
48New section 41AA inserted
41AAConduct by officers, employees or agents
49Power to require names of persons supplied with tobacco
50New section 46 inserted
46Section 3: definition of occupier
51Schedule substituted
SCHEDULE—Infringement Offences
Part 4—Repeal
52Repeal of amending Act
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Endnotes
Tobacco Amendment (Protection of Children) Act 2009
No. 49 of 2009
[Assented to 18 August 2009]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
The purpose of this Act is to amend the Tobacco Act 1987—
(a)to provide that only retailers that are on-airport duty free shops or that have been certified as specialist tobacconists may display tobacco advertising;
(b)to ban the sale of tobacco products from temporary outlets;
(c)to ban smoking in cars in which a person under the age of 18 years is present;
(d)to enable the Minister to ban the sale of youth-oriented tobacco products and certain other products;
(e)to create new offences in relation to smoking and the sale of tobacco products;
(f)to amend the penalty and enforcement provisions and to introduce new offences for bodies corporate;
(g)to make minor miscellaneous amendments.
2Commencement
(1)This Act, except Part 2, comes into operation on 1 January 2010.
(2)Part 2 comes into operation on 1 January 2011.
3Principal Act
In this Act, the Tobacco Act 1987 is called the Principal Act.
__________________
Part 2—Tobacco Advertisements in Retail Outlets
4Certain advertising prohibited
(1)After section 6(2) of the Principal Act insert—
"(2AA)If there is a tobacco advertisement at a retail outlet (other than a specialist tobacconist or an on-airport duty free shop), the person carrying on the tobacco retailing business at that retail outlet is guilty of an offence and liable to a penalty not exceeding 60 penalty units, in the case of a natural person, or 300 penalty units, in the case of a body corporate.
Note
See the definition of tobacco advertisement in section 3B.".
(2)In section 6(2A) of the Principal Act, for "retail outlet or" substitute "specialist tobacconist or an on-airport duty free shop or at a".
(3)In section 6(2B) of the Principal Act, for "tobacco retailing business or" substitute "tobacco retailing business at a specialist tobacconist or an on-airport duty free shop or a".
(4)In section 6(2D) of the Principal Act, after "(2)," (wherever occurring) insert "(2AA),".
(5)After section 6(3)(b) of the Principal Act insert—
"(ba)the temporary display of tobacco products or immediate packages of tobacco products in a retail outlet in response to a request by a customer wishing to purchase a specified tobacco product; or".
(6)In section 6(3)(c) of the Principal Act, for "retail outlet or" substitute "specialist tobacconist, an on-airport duty free shop or a".
(7)In section 6(3)(ca) of the Principal Act, for "retail outlet or" substitute "specialist tobacconist, an on-airport duty free shop or a".
(8)After section 6(3)(ca) of the Principal Act insert—
"(cab)one notice about tobacco products at one point of sale at a retail outlet (other than a specialist tobacconist or an on-airport duty free shop) that complies with the prescribed requirements as to size, information contained in it and the manner in which the information is set out or the notice is displayed; or".
(9)In section 6(3)(cb) of the Principal Act, for "products displaying retail prices, being tickets or labels that" substitute "products in a specialist tobacconist or an on-airport duty free shop if the tickets or labels display retail prices and".
(10)In section 6(3)(cc) of the Principal Act, for "tickets or labels on, or adjacent to, representations of immediate packages of tobacco products in vending machines displaying retail prices, being tickets or labels" substitute "tickets or labels on or in vending machines".
(11)After section 6(3)(cc) of the Principal Act insert—
"(d)one notice at a retail outlet or a wholesale outlet to the effect that tobacco products are available for sale at the outlet, being a notice that does not exceed the prescribed maximum size and complies with the prescribed requirements as to information contained in it and the manner in which the information is set out or displayed; or".
5Point of sale advertisements
(1)In section 6A(1) of the Principal Act, for "retail outlet" substitute "specialist tobacconist or an on-airport duty free shop".
(2)Section 6A(1)(c) of the Principal Act is repealed.
(3)In section 6A(2) of the Principal Act, for "retail outlet" substitute "specialist tobacconist or an on-airport duty free shop".
(4)In section 6A(4) of the Principal Act, for "retail outlet" substitute "specialist tobacconist or an on-airport duty free shop".
(5)In section 6A(7) of the Principal Act, for "retail outlet" substitute "specialist tobacconist or an on-airport duty free shop".
(6)Section 6A(8) of the Principal Act is repealed.
6Removal of advertisements
In section 37(2) of the Principal Act, for "or (2A)" substitute ", (2AA) or (2A)".
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Part 3—Miscellaneous Amendments
7Purpose of Principal Act amended
In section 1 of the Principal Act, after "products" insert "and certain non-tobacco products, to create offences in relation to smoking and the possession of tobacco products".
8Definitions
(1)In section 3 of the Principal Act insert the following definitions—
"ban order means an order made by the Minister under section 15N(1);
driver has the same meaning as in the Road Safety Act 1986;
highway has the same meaning as in the Road Safety Act 1986;
motor vehicle has the same meaning as in the Road Safety Act 1986;
specialist tobacconist means a retail outlet that is certified by the Secretary as a specialist tobacconist under section 15U;".
(2)In section 3 of the Principal Act, for the definition of occupier substitute—
"occupier, in relation to an area or premises, means—
(a)a person who appears to be of or over the age of 16 years and who is or appears to be in control of the area or premises, whether or not the person is present in the area or on the premises; or
(b)a body corporate that is or appears to be in control of the area or premises;".
9Tobacco advertisements
In section 3B(4) of the Principal Act, omit ", of a tobacco product, of the packaging of a tobacco product, or".
10Enclosed workplaces: offence by occupier
In section 5B(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
11Outdoor dining or drinking areas: offence by occupier
In section 5D(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
12Outdoor dining or drinking areas: no smoking signs
In section 5E(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
13Enclosed restaurants and cafes: no smoking signs
In section 5F(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
14Retail shopping centres: no smoking signs
In section 5G(3) of the Principal Act—
(a)for "5 penalty units" substitute "10 penalty units"; and
(b)for "10 penalty units in any other case" substitute "50 penalty units in the case of a body corporate".
15Bingo areas and centres: no smoking signs
In section 5H(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
16Casinos: no smoking signs
In section 5K(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
17Approved venues: no smoking signs
In section 5N(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
18Licensed premises: no smoking signs
In section 5R(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
19New Division 1A inserted in Part 2
After Division 1 of Part 2 of the Principal Act insert—
"Division 1A—Smoking in motor vehicles
5SOffence to smoke in motor vehicle if person under 18 is present
Despite anything to the contrary in this Act, a person must not smoke in a motor vehicle, whether or not the motor vehicle is in motion, if another person is present in the motor vehicle and the other person is under the age of 18 years.
Penalty:5 penalty units.
5TPower to require driver to stop
(1)A police member may require a driver or person in charge of a motor vehicle on a highway to stop the motor vehicle if the police member believes on reasonable grounds that a person in the vehicle has committed or is about to commit an offence against section 5S.
(2)Subject to subsection (3), a person must not fail to stop a motor vehicle when required to do so under subsection (1).
Penalty:10 penalty units.
(3)Subsection (2) is not contravened if—
(a)the person making the requirement to stop is not in uniform; and
(b)the driver or person in charge of the motor vehicle believed that that person was not a police member.
5UEvidential burden regarding age
In proceedings for an offence against section 5S, evidence that a person present in the relevant motor vehicle appeared to be under the age of 18 years is, in the absence of evidence to the contrary, proof that the person was under the age of 18 years.".
20Certain advertising prohibited: penalties
(1)For the penalty at the foot of section 6(1) of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
(2)In section 6(2A) of the Principal Act, after "guilty of an offence" insert "and liable to a penalty not exceeding 60 penalty units, in the case of a natural person, or 300 penalty units, in the case of a body corporate".
(3)The penalty at the foot of section 6(2A) of the Principal Act is repealed.
(4)For the penalty at the foot of section 6(2B) of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
21Point of sale advertisements: references to Commonwealth Regulations
(1)In section 6A(1)(b)(i)(C) of the Principal Act, for "Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 1994" substitute "Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004".
(2)In section 6A(2)(a)(ii) of the Principal Act, for "Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 1994" substitute "Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004".
22Competitions
For the penalty at the foot of section 7(1) of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
23Free samples
For the penalty at the foot of section 8(1) of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
24Prohibition of certain sponsorships
(1)For the penalty at the foot of section 9(1) of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
(2)For the penalty at the foot of section 9(2) of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
25Packing of tobacco
For the penalty at the foot of section 11 of the Principal Act substitute—
"Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.".
26Offence to possess certain tobacco products
For the penalty at the foot of section 11A of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
27Supplying tobacco to person under 18 years
(1)For the penalty at the foot of section 12(1) of the Principal Act substitute—
"Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.".
(2)For the penalty at the foot of section 12(2) of the Principal Act substitute—
"Penalty:In the case of a natural person, 20 penalty units;
In the case of a body corporate, 100 penalty units.".
(3)For section 12(3) of the Principal Act substitute—
"(3)The occupier of premises on which a vending machine is situated must not permit a person under the age of 18 years to obtain a tobacco product from that vending machine.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
28Vending machines
For the penalty at the foot of section 13(1) of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
29Mobile selling of tobacco products
(1)In section 13A(1) of the Principal Act, for "100 penalty units" substitute "120 penalty units".
(2)For the penalty at the foot of section 13A(2) of the Principal Act substitute—
"Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.".
(3)After section 13A(2) of the Principal Act insert—
"(2A)A tobacco company is guilty of an offence against this subsection, and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly—
(a)contravenes subsection (2); or
(b)causes another person to contravene subsection (1) or (2).
(2B)An offence against subsection (2A) is an indictable offence.".
30Packages of cigarettes
For the penalty at the foot of section 14 of the Principal Act substitute—
"Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.".
31Smokeless tobacco
For the penalty at the foot of section 15(1) of the Principal Act substitute—
"Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.".
32Retail outlets: signage
(1)For the penalty at the foot of section 15C(1) of the Principal Act substitute—
"Penalty:In the case of a natural person, 10 penalty units;
In the case of a body corporate, 50 penalty units.".
(2)For the penalty at the foot of section 15C(3) of the Principal Act substitute—
"Penalty:In the case of a natural person, 10 penalty units;
In the case of a body corporate, 50 penalty units.".
33Prohibition of retailing at premises where offences have been committed
(1)For the penalty at the foot of section 15D(2) of the Principal Act substitute—
"Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.".
(2)For the penalty at the foot of section 15D(3) of the Principal Act substitute—
"Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.".
34Offence by occupier
In section 15G(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
35No smoking signs
In section 15H(1) of the Principal Act, for "5 penalty units" substitute "10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate".
36Covering vending machines, tobacco advertisements etc.
For the penalty at the foot of section 15I(1) of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
37Prohibition on supplying tobacco at underage music/dance events
For the penalty at the foot of section 15J of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
38New Divisions 4 and 5 inserted in Part 2
After Division 3 of Part 2 of the Principal Act insert—
"Division 4—Sales of tobacco products from temporary outlets
15LOffence to sell tobacco products from temporary outlet
(1)A person must not sell tobacco products from a point of sale that is located in a temporary display stand, booth or tent or other temporary or mobile structure or enclosure, whether or not a part of that display stand, booth, tent, structure or enclosure is permanent.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.
(2)A person must not sell tobacco products from a point of sale that is in a retail outlet established in an area or premises for the duration of a specific sports, music or arts-related function or event in the area or premises.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.
15MOffence for tobacco company to sell tobacco products from temporary outlet
(1)A tobacco company is guilty of an offence against this subsection, and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly contravenes section 15L(1) or 15L(2) or causes another person to contravene section 15L(1) or 15L(2).
(2)An offence against subsection (1) is an indictable offence.
Division 5—Prohibited products
15NBan orders
(1)The Minister, by order published in the Government Gazette, may ban a product or a class of products if—
(a)the Secretary recommends the making of the order to the Minister under section 15O; or
(b)the product or the class of products has been prohibited or restricted by or under a law of the Commonwealth or another State or Territory on the ground that the product or the class of products meets one or more criteria that substantially correspond to the criteria set out in section 15O(2)(a).
(2)A ban order must—
(a)if the ban order is made on the recommendation of the Secretary, specify that fact and set out the grounds for the recommendation; or
(b)if a ban order is made on the basis of a prohibition or restriction by the Commonwealth or another State or Territory, specify that fact and the law or subordinate instrument containing the prohibition or restriction.
(3)A ban order may apply, adopt or incorporate, wholly or partially or as amended by the order, any matter contained in any document as existing—
(a)from time to time; or
(b)at a particular time.
15OSecretary may recommend ban order
(1)The Secretary may recommend to the Minister that a ban order be made in respect of a specified product or a specified class of products.
(2)The Secretary must not make a recommendation under subsection (1) unless the Secretary has fully investigated the matter and is satisfied that—
(a)the product—
(i)is a tobacco product and the product or its smoke possesses a distinctive fruity, sweet or confectionery-like character; or
(ii)is a tobacco product and has packaging that appeals to children or young people; or
(iii)is not a tobacco product but resembles a tobacco product; or
(iv)is of a nature or is advertised in a way that may encourage children or young people to smoke; and
(b)the supply of the product should be prohibited, having regard to the objects of this Act.
(3)A recommendation by the Secretary must set out the grounds for the recommendation.
15POperation of ban order
A ban order takes effect on the date specified in the ban order or 7 days after the ban order is published in the Government Gazette, whichever is the later.
15QAmendment or revocation of ban order
The Minister, by order published in the Government Gazette, may amend or revoke a ban order.
15RNotice of order
(1)The Secretary must cause a copy of a ban order, or a copy of an order amending or revoking a ban order—
(a)to be given to each person who, to the knowledge of the Minister, supplies the product or class of products in respect of which the ban order was made; and
(b)to be published in a newspaper circulating generally throughout the State.
(2)A copy of a ban order or a copy of an order amending or revoking a ban order must be given and published under subsection (1) within 2 days after the publication of the order in the Government Gazette, or if that is not practicable, as soon as possible after the end of that period.
(3)A failure to comply with subsection (1) or (2) in relation to a ban order or an order amending or revoking a ban order does not invalidate the order.
15SOffence to breach a ban order
(1)A person must not sell by retail or wholesale a product in respect of which a ban order under section 15N is in force.
Penalty:In the case of a natural person, 120 penalty units;
In the case of a body corporate, 600 penalty units.
(2)A tobacco company is guilty of an offence against this subsection and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly—
(a)contravenes subsection (1); or
(b)causes another person to contravene subsection (1).
(3)An offence against subsection (2) is an indictable offence.".
39New Part 2A inserted
After Part 2 of the Principal Act insert—
"Part 2A—Specialist tobacconists
15TApplication for certification as specialist tobacconist
(1)A person carrying on or proposing to carry on a tobacco retailing business at premises may apply to the Secretary for certification that the premises are a specialist tobacconist.
(2)An application for certification must—
(a)be in or to the like effect of the form approved by the Secretary; and
(b)specify the premises in respect of which the application is made; and
(c)include any information specified in the approved form; and
(d)be accompanied by the prescribed fee, if any.
15UDetermination of application
(1)On application under section 15T, the Secretary must determine the application by—
(a)certifying that the premises are a specialist tobacconist; or
(b)refusing to so certify.
(2)The Secretary may certify that premises are a specialist tobacconist if the Secretary is satisfied that—
(a)a tobacco retailing business is carried on or proposed to be carried on at the premises; and
(b)the gross turnover of tobacco products at the premises—
(i)if the tobacco retailing business is carried on at the premises at the time of the application, constitutes 80 per cent or more of the gross turnover of all products sold at the premises in the 12 months immediately preceding the application or the applicant's period of trading at the premises, whichever is shorter; or
(ii)if the tobacco retailing business is proposed to be carried on at the premises at the time of the application, is projected to constitute 80 per cent or more of the projected gross turnover of all products to be sold at the premises in the 12 months immediately following the commencement of trading by the applicant at the premises; and
(c)certification of the premises is consistent with the objects of this Act; and
(d)certification of the premises is consistent with any strategic plan, policy statement, code or guideline relating to specialist tobacconists that has been adopted by the Minister; and
(e)the premises are separated from other retail premises by a wall and that any doorway or entrance to or exit from the premises does not open directly into any other retail premises.
(3)The Secretary may refuse to certify premises as a specialist tobacconist if—
(a)the applicant does not comply with any requirement of this Act or the regulations; or
(b)the Secretary is not satisfied as required by subsection (2).
(4)For the purposes of determining an application, the Secretary, by written notice to the applicant, may require the applicant to provide within a reasonable period information relating to the application that is specified in the notice.
(5)Before refusing to certify premises, the Secretary must give the applicant an opportunity to make a written submission.
(6)If the Secretary certifies that premises are a specialist tobacconist, the Secretary must issue the applicant with a certificate to that effect.
15VCertification holder to notify Secretary of commencement of tobacco retailing business
A certification holder who proposes to carry on a tobacco retailing business at premises certified as a specialist tobacconist must notify the Secretary within 7 days after the business commences at those premises.
15WDuration of certification
(1)The certification of premises remains in force until—
(a)the tobacco retailing business carried on at the premises ceases or moves to different premises; or
(b)the tobacco retailing business carried on at the premises is no longer carried on by the applicant, whether solely or with any other person; or
(c)the Secretary cancels the certification under section 15X(1) or (4).
(2)If the certification of premises ceases to be in force by reason of subsection (1)(a) or (1)(b), the certification holder must notify the Secretary of that fact within 7 days after the certification ceases to be in force.
15XCancellation of certification
(1)The Secretary may cancel a certification under section 15U for premises if—
(a)the certification holder does not comply with a requirement of this Act or the regulations; or
(b)the premises no longer satisfy the criteria set out in section 15U(2).
(2)For the purposes of determining whether to cancel a certification, the Secretary, by written notice to the certification holder, may require the certification holder to provide within a reasonable period information relating to the certification that is specified in the notice.
(3)Before cancelling a certification under subsection (1), the Secretary must give the certification holder an opportunity to be heard.
(4)The Secretary may cancel a certification at the request of the certification holder.
(5)If premises are certified to be a specialist tobacconist and the certification holder does not commence carrying on a tobacco retailing business at the premises within 12 months after the premises being certified, the certification holder must request the Secretary to cancel the certification under subsection (4).
(6)If a certification is cancelled, the certification holder must return the certificate issued under section 15U(6) within a reasonable period unless the certification holder satisfies the Secretary that the original certificate is lost, stolen or destroyed.
15YNotice of determination or cancellation
(1)Within 7 days after determining an application under section 15U, the Secretary must notify the applicant in writing of the determination and, if the application is refused, the grounds for the determination.
(2)Within 7 days after cancelling a certification under section 15X, the Secretary must notify the certification holder in writing of the cancellation, the grounds for the cancellation and the date of cancellation.
15ZReplacement certificates
The Secretary may issue a replacement certificate to a certification holder who satisfies the Secretary that the original certificate is lost, stolen or destroyed.
15ZAOffence to provide false or misleading information to Secretary
(1)A person must not give information to the Secretary under this Part that the person knows to be false or misleading in any material particular.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.
(2)A person must not produce a document to the Secretary under this Part that the person knows to be false or misleading in any material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.
Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.
15ZBSpecialist tobacconist must display certificate
A person who carries on business at a retail outlet that is certified to be a specialist tobacconist must display the certificate issued under section 15U(6) in a conspicuous place at the retail outlet in a manner that invites attention.
Penalty:In the case of a natural person, 10 penalty units;
In the case of a body corporate, 50 penalty units.
__________________".
40Entry or search with consent
In section 36D(1) of the Principal Act, after "this Act" insert ", other than Division 1A of Part 2,".
41Search warrants
(1)In section 36F(1) of the Principal Act, after "this Act" insert ", other than Division 1A of Part 2,".
(2)In section 36F(2) of the Principal Act, after "this Act" insert ", other than Division 1A of Part 2,".
42Seizure of things not mentioned in warrant
In section 36I of the Principal Act, after "this Act" (wherever occurring) insert ", other than Division 1A of Part 2,".
43Magistrate's Court may extend 3 month period
In section 36L(2) of the Principal Act, after "this Act" (where first and secondly occurring) insert ", other than Division 1A of Part 2,".
44Requirement to assist inspector during entry
In section 36M of the Principal Act, after "this Act" insert ", other than Division 1A of Part 2,".
45Infringement notices
(1)For section 38(1) of the Principal Act substitute—
"(1)An inspector or a police member may serve an infringement notice on a person who the inspector or police member believes has committed an infringement offence referred to in an item in the Schedule requiring the person to pay—
(a)in the case of a natural person, the infringement penalty specified in column A of the Schedule for that infringement offence;
(b)in the case of a body corporate, the infringement penalty specified in column B of the Schedule for that infringement offence.".
(2)After section 38(1) of the Principal Act insert—
"(1A)A police member may serve an infringement notice on a person if the police member has reason to believe that the person has committed an offence against section 5S.
(1B)The infringement penalty for an offence against section 5S is 2 penalty units.".
(3)In section 38(2) of the Principal Act, for "subsection (1)" substitute "subsection (1) or (1A)".
(4)In section 38(3) of the Principal Act, for "subsection (1)" substitute "subsections (1) and (1A)".
46Proceedings
(1)In section 39(1) of the Principal Act, for "Proceedings" substitute "Subject to subsection (1A), proceedings".
(2)After section 39(1) of the Principal Act insert—
"(1A)Proceedings for an offence under Division 1A of Part 2 may not be brought by an inspector.".
47Section 41 substituted
For section 41 of the Principal Act substitute—
"41 Offences by a body corporate
(1)If a body corporate contravenes any provision of this Act, each officer (within the meaning of section 9 of the Corporations Act) of the body corporate who knowingly authorised or permitted the contravention is taken to have contravened the same provision.
(2)Subsection (1) does not apply to an offence against section 6(2D), 7(5), 8(3), 9(5), 13A(2A), 15M(1) or 15S(2).
(3)A person may be proceeded against and convicted under a provision in accordance with subsection (1), whether or not the body corporate has been proceeded against or convicted under that provision.
(4)Nothing in this section affects any liability imposed on a body corporate for an offence committed by the body corporate against this Act.".
48New section 41AA inserted
After section 41 of the Principal Act insert—
"41AA Conduct by officers, employees or agents
(1)For the purposes of any proceedings under this Act, any conduct engaged in on behalf of a body corporate is deemed to have been engaged in also by the body corporate if the conduct was engaged in by an employee, agent or officer (within the meaning of section 9 of the Corporations Act) of the body corporate within the scope of the actual or apparent authority of the employee, agent or officer.
(2)If, in any proceedings under this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show—
(a)that the conduct was engaged in by an officer of the body corporate within the scope of the officer's actual or apparent authority and the officer had that state of mind; or
(b)that the conduct was engaged in by an agent of the body corporate and—
(i)the agent acted at the specific direction or with the specific consent or agreement of the body corporate; or
(ii)the agent had that state of mind; or
(iii)the body corporate was aware of the agent's state of mind when the conduct was engaged in.
(3)A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.".
49Power to require names of persons supplied with tobacco
(1)For section 42A(1) of the Principal Act substitute—
"(1)The Secretary may, in writing addressed to a person who manufactures tobacco products or sells tobacco products by wholesale, require the person to provide to the Secretary within a reasonable period, being not less than one month after the requirement is made—
(a)the names and addresses of persons carrying on a tobacco retailing business in Victoria to whom the person has supplied tobacco products in Victoria within the preceding 12 months; and
(b)the addresses of retail outlets in Victoria that the person knows—
(i)sell tobacco products manufactured by the person; or
(ii)sell tobacco products purchased at wholesale from the person, whether directly or indirectly.
(1A)Information provided to the Secretary in response to a request under subsection (1) must be in or to the effect of the form (including electronic form) approved by the Secretary.".
(2)For the penalty at the foot of section 42A(2) of the Principal Act substitute—
"Penalty:In the case of a natural person, 60 penalty units;
In the case of a body corporate, 300 penalty units.".
50New section 46 inserted
After section 45 of the Principal Act insert—
"46 Section 3: definition of occupier
(1)The definition of occupier inserted in section 3 by section 8(2) of the Tobacco Amendment (Protection of Children) Act 2009 applies to—
(a)offences alleged to have been committed; and
(b)the exercise of powers under Part 3A—
on or after 1 January 2010.
(2)For the purposes of subsection (1), if an offence is alleged to have been committed between 2 dates of which one is before and one is on or after 1 January 2010, the offence is alleged to have been committed before 1 January 2010.".
51Schedule substituted
For the Schedule to the Principal Act substitute—
"SCHEDULE
Section 38
Infringement Offences
| Column A | Column B | ||
| Item | Infringement offence | Infringement penalty (natural person) | Infringement penalty (body corporate) |
| 1 | An offence against section 5A(1) | 1 penalty unit | Not applicable |
| 2 | An offence against section 5B(1) | 2 penalty units | Not applicable |
| 3 | An offence against section 5C(1) | 1 penalty unit | Not applicable |
| 4 | An offence against section 5D(1) | 2 penalty units | Not applicable |
| 5 | An offence against section 5E(1) | 2 penalty units | 5 penalty units |
| 6 | An offence against section 5F(1) | 2 penalty units | 5 penalty units |
| 7 | An offence against section 5G(1) | 2 penalty units | 5 penalty units |
| 8 | An offence against section 5H(1) | 2 penalty units | 5 penalty units |
| 9 | An offence against section 5K(1) | 2 penalty units | 5 penalty units |
| 10 | An offence against section 5N(1) | 2 penalty units | 5 penalty units |
| 11 | An offence against section 5R(1) | 2 penalty units | 5 penalty units |
| 12 | An offence against section 6(2AA) | 3 penalty units | 30 penalty units |
| 13 | An offence against section 6(2A) | 3 penalty units | 30 penalty units |
| 14 | An offence against section 6(2B) | 3 penalty units | 30 penalty units |
| 15 | An offence against section 12(1) | 4 penalty units | 60 penalty units |
| 16 | An offence against section 12(2) | 2 penalty units | 12 penalty units |
| 17 | An offence against section 12(3) | 3 penalty units | 30 penalty units |
| 18 | An offence against section 13(1) | 3 penalty units | 30 penalty units |
| 19 | An offence against section 13A(1) | 4 penalty units | Not applicable |
| 20 | An offence against section 13A(2) | 4 penalty units | 60 penalty units |
| 21 | An offence against section 14 | 3 penalty units | 60 penalty units |
| 22 | An offence against section 15C(1) | 2 penalty units | 5 penalty units |
| 23 | An offence against section 15C(3) | 2 penalty units | 5 penalty units |
| 24 | An offence against section 15F(1) | 1 penalty unit | Not applicable |
| 25 | An offence against section 15G(1) | 2 penalty units | Not applicable |
| 26 | An offence against section 15H(1) | 2 penalty units | 5 penalty units |
| 27 | An offence against section 15I(1) | 3 penalty units | 30 penalty units |
| Column A | Column B | ||
| Item | Infringement offence | Infringement penalty (natural person) | Infringement penalty (body corporate) |
| 28 | An offence against section 15J | 3 penalty units | 30 penalty units |
| 29 | An offence against section 15L(1) | 3 penalty units | 30 penalty units |
| 30 | An offence against section 15L(2) | 3 penalty units | 30 penalty units |
| 31 | An offence against section 15S(1) | 4 penalty units | 60 penalty units |
| 32 | An offence against section 15ZB | 1 penalty unit | 5 penalty units |
| 33 | An offence against section 36C(3) | 1 penalty unit | Not applicable |
".
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Part 4—Repeal
52Repeal of amending Act
This Act is repealed on 1 January 2012.
Note
The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).
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Endnotes
Minister's second reading speech—
Legislative Assembly: 25 June 2009
Legislative Council: 30 July 2009
The long title for the Bill for this Act was "A Bill for an Act to amend the Tobacco Act 1987 and for other purposes."
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