Untitled document
Tobacco (Amendment) Act 2000
Act No. 43/2000
TABLE OF PROVISIONS
Section Page
1. Purpose 1 2. Commencement 2 3. Principal Act 2 4. Definitions 2 5. New sections 3A to 3D inserted 7
3A. Vending machines 7 3B. Agents and employees of tobacco retailers 7 3C. Controlled shopping centres 7 3D. Dining area 8
6. Heading to Part 2 8 7. New sections 5A to 5D inserted 9
5A. Enclosed restaurants and cafes and dining areas: offence
by smoker 9 5B. Enclosed restaurants and cafes and dining areas: offence
by occupier 9 5C.
Controlled shopping centres: offence by smoker 10 5D.
Controlled shopping centres: offence by occupiers 11
8. Point of sale advertising 11 9. New section 6A inserted 12
6A. Point of sale advertisements 12
10. Amendment of section 10 16 11. New section 11A inserted 16
11A. Offence to possess certain tobacco products 16
12. Amendment of section 12 16 13. New sections 15A to 15C inserted 18
15A. Enclosed restaurants and cafes and dining areas: no
smoking signs 18 15B.
Controlled shopping centres: no smoking signs 19 15C.
Retail outlets: signage 19
14. New section 15D inserted 19
15D. Prohibition of retailing at premises where offences have
been committed 20
15. New Part 3A inserted 24
i
Section Page PART 3A—INSPECTORS AND POWERS OF
INSPECTORS 24
36. Appointment of persons as inspectors 24 36A. Inspector's identity card 25 36B. Production of identity card 25 36C. Power to require names and addresses 25 36D. Entry or search with consent 26 36E. Entry of premises open to the public 28 36F. Search warrants 29 36G. Announcement before entry 30 36H. Details of warrant to be given to occupier 31 36I. Seizure of things not mentioned in the warrant 31 36J. Copies of seized documents 32 36K. Retention and return of seized documents or things 32 36L. Magistrates' Court may extend 3 month period 33 36M. Requirement to assist inspector during entry 34 36N. Refusal or failure to comply with requirement 34 36O. Protection against self-incrimination 34 36P. Offence to give false or misleading information 35 36Q. Offence to hinder or obstruct inspector 35 36R. Offence to impersonate inspector 36 36S. Service of documents 36 36T. Confidentiality 36
16. Amendment of sections 37, 38 and 39 37 17. Application of penalties 38 18. New section 42A inserted 38
42A. Power to require names of persons supplied with tobacco 38
19. New section 42B inserted 39
42B. Supreme Court—limitation of jurisdiction 39
20. New Part 5 inserted 39 PART 5—TRANSITIONAL 40
44. Proceedings under section 6(2) 40 45. Section 15D 40
21. New Schedule substituted 40 22. Statute law revision 41
═══════════════
NOTES 43
ii
Victoria
No. 43 of 2000
Tobacco (Amendment) Act 2000†
[Assented to 6 June 2000]
The Parliament of Victoria enacts as follows:
1. Purpose
The main purpose of this Act is to amend the
Tobacco Act 1987—
(a) to make provision for smoke-free dining; and
(b)
to make further provision regulating advertising of tobacco products; and
(c)
to increase penalties for selling tobacco products to minors.
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 2
2. Commencement
(1) Section 1 and this section come into operation on
the day after the day on which this Act receives
the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on
1 November 2000.(3) Sections 7(1), 8, 9, 10, 13(1) and (3) and 16(1)(b) come into operation on 1 July 2001.
3. Principal Act
In this Act, the Tobacco Act 1987 is called the
No. 81/1987 Reprint No. 3
Principal Act. as at 14 May
1998.Subsequently amended by
Nos 46/1998 and 56/1998.
4. Definitions
(1) In section 3 of the Principal Act insert—
' "carton" means a package containing packages of a tobacco product, or a package designed to contain packages of a tobacco product, but
does not include a package containing
individually-wrapped cigars (unless the
package contains a further package orpackages of the cigars);
"controlled shopping centre" means any
enclosed area that is, or is part of, a retail
shopping centre in respect of which an Order
in Council under section 3C is in force butdoes not include—
(a)
any part of that centre that is not used by the public, or a section of the public; or
Tobacco (Amendment) Act 2000
| s. 4 | Act No. 43/2000 |
(b) any part of that centre that is an enclosed restaurant or cafe; or (c) which a general licence or a club
any part of that centre in respect of Liquor Control Reform Act 1998 is in force;
"dining area" has the meaning given by
section 3D;
"display", in relation to a tobacco product at a
retail outlet or a wholesale outlet, means
display to the customers of the retail outlet or
wholesale outlet;
"driver licence" means a driver licence issued under the Road Safety Act 1986;
"enclosed", in relation to an area or premises,
means an area that is, or premises that are,
except for doorways, passageways and
internal wall openings, completely or
substantially enclosed by a solid permanent
ceiling or roof and solid permanent walls or
windows, whether the ceiling, roof, walls or
windows are fixed or movable and open or
closed;
"evidence of age document" means—
(a)
a proof of age card or a card issued in another State or a Territory that is the equivalent of a proof of age card; or
(b)
a driver licence or a licence issued in another State or a Territory that is the equivalent of a driver licence; or
(c) an Australian or foreign passport; or
(d) a document issued—
(i) by a person; or
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 4 (ii) on behalf of a government department or an agency—
approved by the Minister that bears a
photograph of the person to whom it is
issued and enables that person's age to
be determined;"immediate package", in relation to a tobacco
product, means a package containing the
product—
(a)
in the case of a tobacco product other than cigars, not including a package containing a further package or packages of the product; and
(b) in the case of cigars—
(i) including a package constituted by the individual wrapping of a cigar, and a package containing
individually wrapped or
unwrapped cigars; but(ii) not including any other package containing a further package or packages of cigars (whether
wrapped or unwrapped);
"inspector" means a person—
(a)
who is an environmental health officer appointed by a council (within the meaning of section 3(1) of the Local Government Act 1989) for the purposes of the Health Act 1958; or
(b)
who is appointed under this Act to be an inspector for the purposes of this Act;
Tobacco (Amendment) Act 2000
| s. 4 | Act No. 43/2000 |
"occupier", in relation to an area or premises,
means a person who appears to be of or over 16 years of age and who is, or appears to be, in control of the area or premises;
"package" does not include a transparent
wrapping, unless the wrapping has a tobacco
advertisement printed on it;
"point of sale" means a place where tobacco products are sold within a retail outlet or wholesale outlet, and includes a vending machine from which tobacco products are
sold;
"premises" includes any part of premises and
includes a vehicle or vessel and a permanent
or temporary structure;
"product line" means a kind of tobacco product
distinguishable from other kinds by one or
more of the following characteristics—
(a) trademark;
(b) brand name;
(c) nicotine or tar content;(d) flavour—
but not by the size of the package containing
the tobacco product;"proof of age card" means a document issued by
the Director of Liquor Licensing under
section 176 of the Liquor Control Reform
Act 1998;
"restaurant or cafe" means premises that are, or
an area in premises that is, used by the
public, or a section of the public,
predominantly for the consumption of food
or non-alcoholic drinks purchased on the
premises (whether or not food or non-
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 4 alcoholic drinks are also sold on the
premises for consumption off the premises)and—
(a) in the case of a restaurant or cafe that is an area in premises, includes any abutting area in those premises that is not separately enclosed from that area, irrespective of the purpose or purposes for which the abutting area is used; but (b) which a general licence or a club
does not include premises in respect of Liquor Control Reform Act 1998 is in force;
"retail outlet" means premises where tobacco products are available for sale by retail;
"retail shopping centre" has the same meaning
as in section 3 of the Retail Tenancies
Reform Act 19981;
"Secretary" means Secretary to the Department of Human Services;
"tobacco retailing business" means the business of selling tobacco by retail, either alone or in conjunction with any other merchandise, and includes—
(a)
any such business carried on as part of, or in conjunction with, any other business; and
(b)
any business that consists of, or involves, management of a retail outlet where tobacco products are available for sale by means of a vending machine;
Tobacco (Amendment) Act 2000
| s. 5 | Act No. 43/2000 |
"tobacco wholesaling business" means the
business of selling tobacco for the purposes of resale, either alone or in conjunction with any other merchandise, and includes any
such business carried on as part of, or in
conjunction with, any other business;
"wholesale outlet" means premises where tobacco products are available for sale exclusively by wholesale.'.
(2) In section 3 of the Principal Act, in the definition
of "tobacco advertisement", at the end of
paragraph (b) insert—
"—
and includes the display of an immediate package
of a tobacco product;".
5. New sections 3A to 3D inserted
After section 3 of the Principal Act insert—
'3A. Vending machinesThe presence on any premises of a vending machine is deemed to constitute the carrying on on those premises of a tobacco retailing business.
3B. Agents and employees of tobacco retailers
A reference in this Act to a person who sells tobacco or carries on a tobacco retailing business does not include a reference to a person who, as an agent or employee of the first-mentioned person, sells tobacco or carries on such a business.
3C. Controlled shopping centres
(1) The Governor in Council, by Order
published in the Government Gazette, may
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 6 declare a retail shopping centre to be a
shopping centre to which this Act applies.(2) A declaration under sub-section (1) must not
be made unless the owner of the retail
shopping centre has given consent in writing
to the retail shopping centre being a
controlled shopping centre for the purposes
of this Act and has not, by writing given to
the Minister, withdrawn that consent.
(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 on which the retail shopping centre is situated.
3D. Dining area
For the purposes of this Act, an area (other than an outdoor area) used by the public or a section of the public in premises in respect of which a general licence or a club licence within the meaning of the Liquor Control Reform Act 1998 is in force is a dining area at any time when the predominant activity in that area is the consumption of food or non- alcoholic drinks.'.
6. Heading to Part 2
For the heading to Part 2 of the Principal Act substitute—
"PART 2—CONTROLS RELATING TO
TOBACCO PRODUCTS".
Tobacco (Amendment) Act 2000
| s. 7 | Act No. 43/2000 |
7. New sections 5A to 5D inserted
(1) In Part 2 of the Principal Act, after the heading
insert—
"5A. Enclosed restaurants and cafes and dining
areas: offence by smoker
(1) A person must not smoke in an enclosed
restaurant or cafe or in a dining 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 ceasethe 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 applying to this sub-section:
5 penalty units.5B. Enclosed restaurants and cafes and dining areas: offence by occupier
(1) If smoking occurs in an enclosed restaurant or cafe or in a dining area, in contravention of section 5A, the occupier of the enclosed restaurant or cafe or dining area 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—
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 7
(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.".
(2) In Part 2 of the Principal Act, before section 6
insert—
"5C. Controlled shopping centres: offence by
smoker
(1) A person must not smoke in a controlled
shopping 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 ceasethe 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) It is a defence to a prosecution under sub-
section (1) if the defendant proves that, at the
time of the contravention, a sign in
accordance with section 15B was not
displayed in the controlled shopping centre
in accordance with that section.
Tobacco (Amendment) Act 2000
| s. 8 | Act No. 43/2000 |
5D. Controlled shopping centres: offence by
occupiers
(1) If smoking occurs in any part of a controlled
shopping centre, in contravention of
section 5C, the occupier of the part 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 thecontravention 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.".
8. Point of sale advertising
(1) After section 6(2) of the Principal Act insert—
"(2A) If there is a tobacco advertisement of a
product line of a tobacco product at a point of sale at a retail outlet or wholesale outlet that is not in accordance with section 6A, the
person carrying on the tobacco retailing
business or the tobacco wholesaling businessat that outlet is guilty of an offence.
Penalty: For a first offence: 10 penalty
units.
Tobacco (Amendment) Act 2000
s. 8
s. 9
Act No. 43/2000
For a second or subsequent
offence: 100 penalty units.".
(2) In section 6(3) of the Principal Act—
(a)
in paragraph (a)(iii), after "product" insert ", other than a package at a point of sale";
(b)
after paragraph (a) insert— "(ab) a tobacco advertisement that is the
display of an immediate package of a
tobacco product, other than at a point ofsale; or".
(3) In section 6(3) of the Principal Act, for
paragraph (c) substitute—
"(c) a tobacco advertisement at a point of sale
that is in accordance with section 6A and is
inside a retail outlet or a wholesale outlet; or(ca) a notice about tobacco products at a point of sale at a retail outlet or wholesale outlet that complies with the prescribed requirements as to size, information contained in it and the
manner in which the information is set out;
or
(cb) tickets or labels on, or adjacent to,
immediate packages of tobacco products
displaying retail prices, being tickets or
labels that comply with the prescribed
requirements as to size, information
contained in them and the manner in whichthe information is set out;".
9. New section 6A inserted
After section 6 of the Principal Act insert—
'6A. Point of sale advertisements
Tobacco (Amendment) Act 2000
Act No. 43/2000
(1) A tobacco advertisement at a point of sale at
a retail outlet or a wholesale outlet may
advertise a product line of a tobacco product
(other than cigars) in one only of the
following ways—
(a) by the display of a single immediate package of the product line in the form in which the package is available for sale at that point of sale (including the display of an immediate package if only cartons are available for sale); (b) by means of a stack dispenser for immediate packages of the product line in the form in which the package is available for sale at that point of sale if— (i) in the case of packages stacked directly behind each other (from the point of view of the customer's side of the customer service area) ("angled stack"), the most that is displayed at the front of the stack is the face, or any part, of a single package; and
(ii) in the case of an angled stack, only all or any part of the tops, sides and bottoms of the other packages in the stack are
displayed; and
(iii) in the case of packages stacked on top of each other, no part of a package other than a part of the package on the top of the stack is displayed;
(c)
if the point of sale is a vending machine, by a single representation of
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 9 an immediate package of the product
line in the form in which the package is
available, or usually available, for sale
at that point of sale no larger than the
actual size of the package, with the
same appearance as the package.(2) A tobacco advertisement at a point of sale at
a retail outlet or a wholesale outlet may
advertise a product line of cigars in one only
of the following ways—
(a) by the display of a single immediate package of the product line in the form in which the package is available for sale at that point of sale (including the display of an immediate package if only cartons are available for sale); (b) by means of a stack dispenser for immediate packages of the product line in the form in which the package is available at that point of sale if— (i) in the case of packages stacked directly behind each other (from the point of view of the customer's side of the customer service area) ("angled stack"), the most that is displayed at the front of the stack is the face, or any part, of a single package; and
(ii) in the case of an angled stack, only all or any part of the tops, sides and bottoms of the other packages in the stack are
displayed; and
(iii) in the case of packages stacked on top of each other, no part of a package other than a part of the
Tobacco (Amendment) Act 2000
| s. 9 | Act No. 43/2000 |
package on the top of the stack is
displayed;
(c) by the display of either or both of the following— (i) up to 13 cigars of the product line in an open box, or in any other manner;
(ii) a single closed box full of the product line in the form in which the box is available for sale at that point of sale.
(3) A display of tobacco products at a point of
sale may not consist of the display of the
products, packages of the products or
representations of the products or packages
so as to constitute a tobacco advertisement
itself as distinct from the display of each
product, package or representation.
(4) A display of a product line at a point of sale at a retail outlet may not include the display of a carton of the product line, or any part of the carton, whether or not the carton is
empty or partly empty.
(5) A display of a product line at a point of sale at a wholesale outlet—
(a)
may include the display of one or more cartons of the product line, but only with the smallest (or one of the smallest) sides of the carton (or cartons) facing the customer service area; and
(b)
must otherwise comply with this section.
Tobacco (Amendment) Act 2000
s. 10
s. 12
Act No. 43/2000
(6) At a retail outlet, there may be only one area of display of tobacco products, being an area not exceeding the prescribed area.
(7) A display of tobacco products on a vending
machine may include a display of one packet
only of each product line available, or
usually available, from the machine and must
not include the display of any other product
lines.'.
10. Amendment of section 10
In section 10(1) of the Principal Act, after "6(2)" insert "or (2A)".
11. New section 11A inserted
After section 11 of the Principal Act insert—
"11A. Offence to possess certain tobacco products
A person who carries on a tobacco retailing business or a tobacco wholesaling business must not, without reasonable excuse, have in
the person's possession or under the person's control, any tobacco products that the person knows or ought reasonably to know—
(a) are smuggled goods or prohibited imports within the meaning of the Customs Act 1901 of the Commonwealth; or
(b) of the Excise Act 1901 of the
are excisable goods within the meaning duty has not been paid.
Penalty: 50 penalty units.".
12. Amendment of section 12
(1) In section 12 of the Principal Act—
Tobacco (Amendment) Act 2000
Act No. 43/2000
(a) for the penalty at the foot of sub-section (1), "Penalty: 50 penalty units.";
(b) for the penalty at the foot of sub-section (3), "Penalty: 50 penalty units.".
(2) After section 12(3) of the Principal Act insert—
'(3A) If an employee commits an offence against
sub-section (1), each manager is deemed tohave committed an offence against the sub-
section, whether or not the employee
committed the offence without the manager's
authority or contrary to the manager's ordersor instructions.
(3B) Proceedings under this section may be
brought against a manager whether or not proceedings have been brought against the employee and whether or not the employee has been convicted.
(3C) If an offence is committed against sub-
section (1) on premises at which a business
is carried on, it must be presumed, unless the
contrary is established, that the offence was
committed in the course of the carrying on of
that business.
(3D) In this section—
"manager" means—
(a) the employer of the employee;
(b) person who committed the offence
a person who authorised the person's agent;
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 13 (c) committed in the course of the
carrying on of a business, a person
who owns, manages, controls,in the case of an offence business.'.
(3) After section 12(4)(b) of the Principal Act
insert—
"; or
(c)
at the time of the alleged offence, had seen an evidence of age document of the person whose age is material to the offence,
indicating that the person is of or over the
age of 18 years; or(d)
in the case of a prosecution against a manager for an offence under sub-section (1)—
(i) had no knowledge of the offence; and
(ii) could not, by the exercise of due commission of the offence.".
13. New sections 15A to 15C inserted
(1) After section 15 of the Principal Act insert—
"15A. Enclosed restaurants and cafes and dining areas: no smoking signs
If, within an enclosed restaurant or cafe or a dining area, the prescribed no smoking signs are not displayed, or are not displayed in the prescribed manner (if any), without
reasonable excuse, the occupier of the
enclosed restaurant or cafe, or of the dining
area, is guilty of an offence.
Penalty: 5 penalty units.".
Tobacco (Amendment) Act 2000
s. 13
| s. 14 | Act No. 43/2000 |
(2) Before Part 3 of the Principal Act, insert in
Part 2—
"15B. Controlled shopping centres: no smoking
signs
The owner of a controlled shopping centre must cause prescribed no smoking signs to be displayed in such prominent positions at entrances to the centre as would reasonably identify the centre as a no smoking area for persons entering the centre.
Penalty: 5 penalty units in the case of a
natural person.
10 penalty units in any other
case.".
(3) After section 15B of the Principal Act insert—
"15C. Retail outlets: signage
The occupier of premises on which a tobacco retailing business is carried on must cause to be displayed on those premises in
accordance with the regulations—
(a) a prescribed health warning sign; or
(b)
a prescribed sign relating to programs assisting in the cessation of smoking.
Penalty: 10 penalty units.".
14. New section 15D inserted
Before Part 3 of the Principal Act, insert in
Part 2—
Tobacco (Amendment) Act 2000
Act No. 43/2000
'15D. Prohibition of retailing at premises where offences have been committed
(1) If—
(a) a person ("the retailer") carries on a tobacco retailing business at premises that are a retail outlet; and (b) that person, or an associate of that person, is found guilty of a relevant offence in respect of, or relating to, the carrying on of that business at those premises; and (c) the offence is a first relevant offence committed in respect of those premises by any of the retailer and the associates of the retailer— the court, in addition to imposing any other penalty, may order that the retailer not carry on a tobacco retailing business at those
premises or, if the court so determines, at any new premises within 5 kilometres of those premises, for such period, not
exceeding 3 months, and commencing onsuch date, as the court determines.
(2) If—
(a)
a person ("the retailer") carries on a tobacco retailing business at premises that are a retail outlet; and
(b)
one relevant offence in respect of, or relating to, the carrying on of that business at those premises has been committed by any of the retailer and the associates of the retailer and there has been a finding of guilt; and
(c)
the retailer, or an associate of the retailer, is found guilty of another
Tobacco (Amendment) Act 2000
| s. 14 | Act No. 43/2000 |
| relevant offence in respect of, or relating to, the carrying on of that business at those premises— |
the retailer, or any associate of the retailer,
must not carry on a tobacco retailing
business at those premises or, if the court so
determines, at any new premises within
5 kilometres of those premises, during the
period of 3 months or, if the court which
makes the finding of guilt specifies a longer
period not exceeding 12 months, during that
specified period, and commencing on suchdate, as the court determines.
Penalty: 50 penalty units and, for a
continuing offence, an additional
penalty of 2 penalty units for each
day on which the offence
continues—
(a) contravention by an
after service of a notice of carrying on the business; or
(b) has been served, after the
if no notice of contravention period.
(3) If—
(a)
a person ("the retailer") carries on a tobacco retailing business at premises that are a retail outlet; and
(b)
two or more relevant offences in respect of, or relating to, the carrying on of that business at those premises have been committed by any one or more of the retailer and the associates
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 14 of the retailer, and there has been a
finding of guilt for each such offence;
and
(c)
the retailer, or an associate of the retailer, is found guilty of another relevant offence in respect of, or
relating to, the carrying on of that
business at those premises—the retailer, or any associate of the retailer,
must not carry on a tobacco retailing
business at those premises or, if the court so
determines, at any new premises within
5 kilometres of those premises, during the
period of 5 years commencing on such dateas the court determines.
Penalty: 50 penalty units and, for a
continuing offence, an additional
penalty of 2 penalty units for each
day on which the offence
continues—
(a) contravention by an
after service of a notice of carrying on the business; or
(b) has been served, after the
if no notice of contravention period.
(4) A person is not prohibited from carrying on a tobacco retailing business at any premises by reason of sub-section (2) or (3) if the court
referred to in that sub-section—
(a)
is satisfied that there are exceptional circumstances and that it is reasonable that the tobacco retailing business
Tobacco (Amendment) Act 2000
| s. 14 | Act No. 43/2000 |
| continue to be carried on at those premises; and |
(b) makes an order to that effect.
(5) An offence is not to be taken into account for
the purposes of this section while an appeal is pending against a finding of guilt for the offence.
(6) If two or more persons are found guilty of an offence arising from the sale or possession of the same tobacco products, there is deemed
to be only one offence for the purposes of
this section.(7) If a retailer and an associate of a retailer are
prohibited from carrying on a tobacco
retailing business for 2 or more periods that
overlap, those periods are, to the extent that
they apply to the same premises, to apply
consecutively.
(8) In this section—
"associate", in relation to a person, means—
(a) retailing business in partnership
if the person carries on a tobacco person;
(b) if the person is a corporation—
(i) a director or person
concerned in the
management of the
corporation; or(ii) a person who is entitled to more than 25% of the shares in the corporation;
"new premises", in relation to an offence by a person in relation to premises, does
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 15 not include premises at which the
person carried on a tobacco retailing
business before the offence was
committed;
"relevant offence" means—
(a) an offence against section 12; or
(b) an offence against section 11A; or
(c) Act 1901 of the Commonwealth in
respect of the possession of
tobacco products that are
smuggled goods or prohibitedan offence against the Customs Act; or
(d) 1901 of the Commonwealth in
respect of the possession of
tobacco products that are
excisable goods within thean offence against the Excise Act excise duty had not been paid.'.
15. New Part 3A inserted
After Part 3 of the Principal Act insert—
"PART 3A—INSPECTORS AND POWERS OF
INSPECTORS
36. Appointment of persons as inspectors an inspector—
(a)
a person nominated by the Chief Executive Officer of a council within the meaning of the Local Government Act 1989 and employed by, or providing services to, that council;
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| s. 15 | Act No. 43/2000 |
(b)
an employee or member of a class of employees employed under Part 3 of the Public Sector Management and Employment Act 1998.
36A. Inspector's identity card
(1) The Secretary must issue an identity card to each inspector.
(2) An identity card must contain a photograph of the inspector to whom it is issued.
36B. Production of identity card
(1) An inspector must produce his or her identity card for inspection—
(a) before exercising a power under this
Part other than a requirement made by post; and
(b) at any time during the exercise of a
power under this Part, if asked to do so. Penalty: 10 penalty units.
(2) This section does not apply to the exercise of a power under section 36E.
36C. Power to require names and addresses
(1) An inspector may request a person to state
his or her name and address if the inspector
believes on reasonable grounds that the
person has committed, or is about to commit,
an offence against a provision of this Act
referred to in the Schedule.
(2) An inspector who makes a request under
sub-section (1) must inform the person of the
grounds for his or her belief in sufficient
detail to allow the person to understand the
nature of the offence or suspected offence.
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 15 (3) A person must not, in response to a request
made by an inspector in accordance with this
section—
(a)
refuse or fail to comply with the request; or
(b)
state a name that is false in a material particular; or
(c)
state an address other than the full and correct address of his or her ordinary place of residence or business.
Penalty: 5 penalty units.
(4) A person who is requested by an inspector to
state his or her name and address may
request the inspector to state, orally or in
writing, his or her name and to produce his
or her identity card.
(5) An inspector must not, in response to a request under sub-section (4)—
(a)
refuse or fail to comply with the request; or
(b)
state a name that is false in a material particular; or
(c)
refuse to comply with the request in writing if requested to do so.
Penalty: 5 penalty units.
36D. Entry or search with consent
(1) If an inspector believes, on reasonable
grounds, that a person has contravened this consent of the occupier of the premises—
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| s. 15 | Act No. 43/2000 |
(a) may enter and search any premises;
(b) may seize anything found on thepremises which the inspector believes, on reasonable grounds, to be connected with the alleged contravention;
(c) may inspect and make copies of, or take extracts from, any document found on the premises. (2) An inspector must not enter and search any
premises with the consent of the occupier
unless, before the occupier consents to that
entry, the inspector—
(a) has produced his or her identity card for inspection; and
(b) has informed the occupier—
(i) of the purpose of the search; and
(ii) that the occupier may refuse to
give consent to the entry and
search or to the seizure of
anything found during the search;and
(iii) that the occupier may refuse to
consent to the taking of any copy or extract from a document found on the premises during the search; and
(iv) that anything seized or taken
during the search with the consent
of the occupier may be used inevidence in proceedings.
(3) If an occupier consents to an entry and
search, the inspector who requested consent
must before entering the premises ask the
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 15 occupier to sign an acknowledgment in the
prescribed form stating—(a) that the occupier has been informed of
the purpose of the search and that
anything seized or taken in the search
with the consent of the occupier may be
used in evidence in proceedings; and
(b) that the occupier has been informed that
he or she may refuse to give consent to
the entry and search; and
(c) that the occupier has consented to such an entry and search; and
(d) the date and time that the occupier
consented.
(4) If an occupier consents to the seizure or
taking of any thing during a search under this
section, the inspector must before seizing or
taking the thing ask the occupier to sign an
acknowledgment stating—
(a) that the occupier has consented to the
seizure or taking of the thing; and
(b) the date and time that the occupier
consented.
(5) An occupier who signs an acknowledgment
must be given a copy of the signed
acknowledgment before the inspector leaves
the premises.
(6) If, in any proceeding, an acknowledgment is
not produced to the court or a tribunal, it
must be presumed, until the contrary is
proved, that the occupier did not consent to
the entry and search or to the seizure or the
taking of the thing.
36E. Entry of premises open to the public
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| s. 15 | Act No. 43/2000 |
An inspector may enter and inspect any part of premises that, at the time of the entry and inspection, are open to the public and—
(a) may take photographs; and
(b) tobacco advertisement placed or
may direct the occupier to remove any contravention of this Act.
36F. Search warrants
(1) An inspector, with the written approval of
environmental health officer of a council or a
person employed by, or providing services
to, a council, with the written approval of thethe Secretary or, if the inspector is an apply to a magistrate for the issue of a search warrant in relation to particular premises, if the inspector believes on reasonable grounds that there is on the premises evidence that a person or persons may have contravened this Act or the regulations. (2) If a magistrate is satisfied, by the evidence, on oath or by affidavit, of the inspector that there are reasonable grounds to believe that there is a thing or things of a particular kind connected with a contravention of this Act or
the regulations on any premises, the
magistrate may issue a search warrant, in
accordance with the Magistrates' Court Act
1989, authorising an inspector named in the
warrant, together with any other person or
persons named or otherwise identified in the
warrant and with any necessary equipment—(a) to enter the premises specified in the warrant, if necessary by force; and
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 15 (b) to do all or any of the following—
(i) search for;
(ii) seize;
(iii) secure against interference;
(iv) inspect and make copies of, or take extracts from—
a thing or things of a particular kind
named or described in the warrant and
which the inspector believes, on
reasonable grounds, to be connected
with the alleged contravention.(3) A search warrant issued under this section must state—
(a) the purpose for which the search is
required and the nature of the alleged
contravention; and
(b) any conditions to which the warrant is
subject; and
(c) whether entry is authorised to be made
at any time of the day or night or during
stated hours of the day or night; and
(d) a day, not later than 28 days after the
issue of the warrant, on which the
warrant ceases to have effect.
(4) Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989
extend and apply to warrants under this
section.
36G. Announcement before entry
(1) On executing a search warrant, the inspector executing the warrant—
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| s. 15 | Act No. 43/2000 |
(a) must announce that he or she is
authorised by the warrant to enter the
premises; and
(b) if the inspector has been unable to
obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.
(2) An inspector need not comply with sub-
section (1) if he or she believes, on
reasonable grounds, that immediate entry to
the premises is required to ensure that the
effective execution of the search warrant is
not frustrated.
36H. Details of warrant to be given to occupier
(1) If the occupier is present at premises where a
search warrant is being executed, the
inspector must—
(a) identify himself or herself to the occupier; and
(b) give to the occupier a copy of the
warrant.
(2) If the occupier is not present at premises
where a search warrant is being executed, the
inspector must—
(a) identify himself or herself to a person at the premises; and
(b) give to the person a copy of the
warrant.
36I. Seizure of things not mentioned in the
warrant
A search warrant under section 36F authorises an inspector executing the search warrant, in addition to the seizure of any thing of the kind described in the warrant, to
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 15 seize any thing which is not of the kind
described in the warrant if—(a) the inspector believes, on reasonable
grounds, that the thing is of a kind
which could have been included in a
search warrant issued under that section
and will afford evidence about the
contravention of this Act or the
regulations; and
(b) the inspector believes, on reasonable grounds, that it is necessary to seize that thing in order to prevent its
concealment, loss or destruction or its use in the contravention of this Act or the regulations.
36J. Copies of seized documents
(1) If an inspector retains possession of a
(2) A copy of a document certified under sub- document seized from a person under this within 21 days after the seizure, a copy of the document certified as correct by the inspector.
section (1) shall be received in all courts and
tribunals to be evidence of equal validity to
the original.
36K. Retention and return of seized documents
or things
(1) If an inspector seizes a document or other
thing under this Part, the inspector must take
reasonable steps to return the document or
thing to the person from whom it was seized
if the reason for its seizure no longer exists.
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| s. 15 | Act No. 43/2000 |
(2) If the document or thing seized has not been returned within 3 months after it was seized, the inspector must take reasonable steps to
return it unless—
(a) the document or thing was retained
have commenced within that 3 month
period and those proceedingsproceedings for the purpose for which completed; or
(b)
the Magistrates' Court makes an order under section 36L extending the period during which the document or thing may be retained.
36L. Magistrates' Court may extend 3 month
period
(1) An inspector may apply to the Magistrates' Court within 3 months after seizing a document or other thing under this Part for an extension of the period for which the inspector may retain the document or thing.
(2) The Magistrates' Court may order such an
extension if it is satisfied that retention of the
document or other thing is necessary—
(a) for the purposes of an investigation into whether a contravention of this Act or the regulations has occurred; or (b) to enable evidence of a contravention of this Act or the regulations to be obtained for the purposes of a proceeding under this Act. (3) The Magistrates' Court may adjourn an
application to enable notice of the
application to be given to any person.
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 15 36M. Requirement to assist inspector during
entry
To the extent that it is reasonably necessary to determine compliance with this Act or the regulations, an inspector exercising a power of entry under this Part who produces his or her identity card for inspection by the
occupier of the premises or an agent or
employee of the occupier may require thatperson—
(a)
to give information to the inspector, orally or in writing; and
(b)
to produce documents to the inspector; and
(c)
to give reasonable assistance to the inspector.
36N. Refusal or failure to comply with
requirement
A person must not, without reasonable excuse, refuse or fail to comply with a requirement of an inspector under this Part.
Penalty: 60 penalty units.
36O. Protection against self-incrimination
(1) It is a reasonable excuse for a natural person to refuse or fail to give information or do any other thing that the person is required to do
by or under this Part, if the giving of the
information or the doing of that other thing
would tend to incriminate the person.(2) Despite sub-section (1), it is not a reasonable
excuse for a natural person to refuse or fail
to produce a document that the person is
required to produce by or under this Part, if
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| s. 15 | Act No. 43/2000 |
the production of the document would tend
to incriminate the person.
(3) If—
(a) before producing a document that the person is required to produce by or under this Part, the person claims that the document would tend to incriminate the person; and (b) the document would in fact tend to incriminate the person— the document is not admissible in evidence against the person in a criminal proceeding other than a proceeding in respect of an
offence against this Act or the regulations.
36P. Offence to give false or misleading
information
A person must not—
(a)
give information to an inspector under this Part that the person knows to be false or misleading in any material particular; or
(b)
produce a document to an inspector under this Part that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.
Penalty: 60 penalty units.
36Q. Offence to hinder or obstruct inspector
Tobacco (Amendment) Act 2000
s. 15
s. 15
Act No. 43/2000
A person must not, without reasonable excuse, hinder or obstruct an inspector who is exercising a power under this Part. Penalty: 60 penalty units.
36R. Offence to impersonate inspector
A person who is not an inspector must not, in any way, hold himself or herself out to be an inspector.
Penalty: 60 penalty units.
36S. Service of documents
(1) A written requirement by an inspector under
this Part may be given personally or by
registered post to a person—
(a)
at the last known place of business, employment or residence of the person; or
(b)
in the case of a body corporate, at the registered office of the body corporate.
(2) A person who provides a document or
information in response to a requirement of
an inspector under this Part may send that
document or information to the inspector byregistered post.
36T. Confidentiality
(1) An inspector must not, except to the extent
necessary to carry out the inspector's
functions under this Part, give to any other
person, whether directly or indirectly, any
Tobacco (Amendment) Act 2000
| s. 16 | Act No. 43/2000 |
information acquired by the inspector in
carrying out those functions.
Penalty: 60 penalty units.(2) Sub-section (1) does not apply to the giving of information—
(a)
to a court or tribunal in the course of legal proceedings; or
(b)
pursuant to an order of a court or tribunal; or
(c)
to the extent reasonably required to enable the investigation or the enforcement of a law of this State or of any other State or Territory or of the Commonwealth; or
(d)
with the written authority of the Secretary or, if the inspector is an environmental health officer of a council or a person employed by, or providing services to, a council, with the written authority of the Chief Executive Officer of the council; or
(e)
with the written authority of the person to whom the information relates.".
16. Amendment of sections 37, 38 and 39
(1) In section 37 of the Principal Act—
(a) sub-section (1) is repealed;
(b)
in sub-section (2), after "6(2)" insert "or (2A)";
(c)
in sub-section (2)(a) and (b), for "authorised officer" substitute "inspector";
(d) sub-section (4) is repealed.
Tobacco (Amendment) Act 2000
Act No. 43/2000
(2) In section 38 of the Principal Act—
(a)
in sub-sections (1), (2), (4) and (5), for "authorised officer" substitute "inspector";
(b)
in sub-section (1), for "the officer" substitute "the inspector";
(c) sub-section (8) is repealed.
(3) In section 39(1) of the Principal Act, for
"authorised officer within the meaning of
section 37" substitute "inspector".
17. Application of penalties
In section 40(2) of the Principal Act, after "municipality" insert "or in respect of infringement notices served by an inspector who is an environmental health officer of a council or who is employed by, or provides services to, a council".
18. New section 42A inserted
After section 42 of the Principal Act insert—
"42A. Power to require names of persons supplied
with tobacco
(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 tobacco products in Victoria within the preceding 12 months.
within a reasonable period, being not less
than one month after the requirement is
made, the names and addresses of persons
carrying on a tobacco retailing business in(2) If a person to whom a requirement under
sub-section (1) is addressed refuses or fails to respond or provides information that the
Tobacco (Amendment) Act 2000
| s. 18 | Act No. 43/2000 |
person knows to be false or misleading in
any material particular, the person is guiltyof an offence.
Penalty: For a first offence: 10 penalty
units.
For a second or subsequent
offence: 100 penalty units.(3) The Secretary must not give to any other
person, whether directly or indirectly, any
information acquired by the Secretary under
this section except to the extent necessary to
enable an inspector to carry out functions
under this Act.
Penalty: 60 penalty units.
(4) Sub-section (3) does not apply to the giving of information—
(a)
to a court or tribunal in the course of legal proceedings; or
(b)
pursuant to an order of a court or tribunal; or
(c)
with the written authority of the person to whom the information relates.".
19. New section 42B inserted
Before section 43 of the Principal Act insert—
"42B. Supreme Court—limitation of jurisdiction
It is the intention of section 42, as it has
effect on and after the commencement of
section 19 of the Tobacco (Amendment)
Act 2000, to alter or vary section 85 of theConstitution Act 1975.".
20. New Part 5 inserted
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 21 After Part 4 of the Principal Act insert—
"PART 5—TRANSITIONAL
44. Despite the repeal of sub-section (1) of
section 37 by section 16 of the Tobacco
(Amendment) Act 2000, that sub-section, asProceedings under section 6(2) commencement of that section, continues to apply in respect of an offence committed before that commencement if a notice under that sub-section in respect of that offence was given before that commencement.
45. Section 15D does not include a reference to an offence committed before the commencement of section 14 of the Tobacco (Amendment) Act 2000.".
21. New Schedule substituted
For the Schedule to the Principal Act substitute—
Section 38
"SCHEDULE
INFRINGEMENTS
Infringements Penalty 1. An offence against section 5A(1) 1 penalty unit 2. An offence against section 5B(1) 1 penalty unit 3. An offence against section 5C(1) 1 penalty unit Tobacco (Amendment) Act 2000
Act No. 43/2000
3A. An offence against section 5D(1) 1 penalty unit 4. An offence against section 6(2A) 1 penalty unit 5. An offence against section 12(1) 2 penalty units 6. An offence against section 12(2) 1 penalty unit 7. An offence against section 12(3) 2 penalty units 8. An offence against section 13 1 penalty unit 9. An offence against section 15A 1 penalty unit 10. An offence against section 15B 1 penalty unit 11. An offence against section 15C 1 penalty unit 12. An offence against section 36C(3) 1 penalty
unit.".
22. Statute law revision
(1) In the Principal Act—
(a) in section 13(1)(a), for "Liquor Control Act 1987" substitute "Liquor Control Reform Act 1998"; (b) in section 18(g), for "relevent" substitute "relevant".
(2) In section 20 of the Principal Act, for sub-sections
(2) and (3) substitute—
"(2) Section 15 of the Subordinate Legislation
Act 1994 applies to a guideline of which notice is published under sub-section (1) as if the guideline were a statutory rule within the meaning of that Act notice of which had been published in the Government Gazette on the day on which the notice under sub- section (1) was published.
(3) A guideline notice of which is published
disallowance by a House of the Parliament
and sections 23, 24 and 25 of theunder sub-section (1) is subject to if the guideline were a statutory rule notice of which had been published in the
Tobacco (Amendment) Act 2000
Act No. 43/2000 s. 22 Government Gazette on the day on which the notice under sub-section (1) was published.".
(3) In section 27 of the Principal Act, omit "(1)".
(4) In section 43 of the Principal Act, for sub-section
(3) substitute—
"(3) The regulations are subject to disallowance
by a House of the Parliament.".
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Tobacco (Amendment) Act 2000
| Notes | Act No. 43/2000 |
NOTES
†
Minister's second reading speech—
Legislative Assembly: 4 May 2000
Legislative Council: 30 May 2000
The long title for the Bill for this Act was "to amend the Tobacco Act
1987 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 11 May 2000
Legislative Council: 30 May 2000
Absolute majorities:
Legislative Assembly: 25 May 2000
Legislative Council: 31 May 2000
1 S. 4 def. of "retail shopping centre": The definition of "retail shopping
centre" in the Retail Tenancies Reform Act 1998 (as at 1 May 2000)
was—
' "retail shopping centre" means a cluster of premises—
(a) 5 or more of which are retail premises; and
(b)
all of which have, or if leased would have, a common head landlord—
but does not include a building with more than one storey except
in relation to each storey of the building on which is situated a
cluster of premises in respect of which paragraphs (a) and (b)
apply;'.
0
0
0