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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Public Health Amendment (Tobacco
Control) Bill 1999
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Public Health Act 1991 No 10 2
Schedule 1 Amendments 3
New South Wales
Public Health Amendment (Tobacco
Control) Bill 1999
No , 1999
A Bill for
An Act to amend the Public Health Act 1991 to make further provision for the
enforcement of controls on the sale and advertising of tobacco; and for other
purposes.
Clause 1 Public Health Amendment (Tobacco Control) Bill 1999
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Public Health Amendment (Tobacco Control) Act 1999. 3
2 Commencement 4
This Act commences on a day or days to be appointed by 5
proclamation. 6
3 Amendment of Public Health Act 1991 No 10 7
The Public Health Act 1991 is amended as set out in Schedule 1. 8
Page 2
Public Health Amendment (Tobacco Control) Bill 1999
Amendments Schedule 1
Schedule 1 Amendments 1
(Section 3) 2
[1] Section 3 Definitions 3
Insert after section 3 (2): 4
(3) Notes included in this Act do not form part of this Act. 5
[2] Section 53 Definitions 6
Omit "or expose" from paragraph (b) of the definition of sell. 7
[3] Section 53, definition of "sell" 8
Insert after paragraph (c): 9
(c1) expose for sale, exhibit for sale or display for sale, and 10
[4] Section 59A Liability of employers 11
Insert at the end of section 59A (4): 12
(b) if the contravention occurs in the course of the carrying 13
on of a business--any person who owns, manages, 14
controls, conducts or operates that business. 15
(5) If a contravention of section 59 occurs on the premises on 16
which a business is carried on, it is to be presumed, unless the 17
contrary is established, that the contravention occurred in the 18
course of the carrying on of that business. 19
[5] Part 6, Division 4 heading 20
Omit the heading. Insert instead: 21
Division 4 Advertising and marketing of tobacco 22
products 23
Page 3
Public Health Amendment (Tobacco Control) Bill 1999
Schedule 1 Amendments
[6] Section 61F Tobacco vending machines 1
Insert "(including that Act as it applies to or in respect of the casino under 2
section 89 of the Casino Control Act 1992)" after "Liquor Act 1982" in 3
section 61F (1) (a). 4
[7] Section 61F (1) (d) 5
Insert at the end of section 61F (1) (c): 6
, or 7
(d) the casino under the Casino Control Act 1992. 8
[8] Sections 61FA- 61FC 9
Insert after section 61F: 10
61FA Responsibilities of occupiers for vending machines 11
(1) If a person sells tobacco products in contravention of a 12
provision of this Part and the sale was by means of a tobacco 13
vending machine, the occupier of the premises on which the 14
tobacco vending machine was placed at the time of the sale is 15
taken to have contravened the same provision unless the 16
occupier proves that: 17
(a) the tobacco vending machine was placed on the 18
premises in compliance with section 61F and the 19
occupier could not by the exercise of due diligence have 20
prevented the contravention, or 21
(b) the tobacco vending machine was placed and retained 22
on the premises without the occupier's knowledge or 23
consent. 24
(2) The occupier of premises may be proceeded against and 25
convicted under a provision of this Part by virtue of this 26
section whether or not the person who sold the tobacco 27
products has been proceeded against or convicted under the 28
provision. 29
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Public Health Amendment (Tobacco Control) Bill 1999
Amendments Schedule 1
(3) This section is not affected by the terms of any agreement or 1
other arrangement with respect to the use or operation of the 2
tobacco vending machine or the sale of tobacco products by 3
means of the machine (including an agreement or other 4
arrangement entered into before the commencement of this 5
section). 6
(4) In this section, tobacco vending machine has the same 7
meaning as in section 61F. 8
61FB Restrictions on where tobacco products can be sold 9
(1) A person must not go from house to house selling tobacco 10
products. 11
Maximum penalty: 50 penalty units. 12
(2) A person must not sell a tobacco product while in a public 13
place or a place prescribed by the regulations, except in the 14
tobacco service area of premises that comprise a shop, retail 15
premises, licensed premises or such other premises as may be 16
prescribed by the regulations for the purposes of this 17
subsection. 18
Maximum penalty: 50 penalty units. 19
(3) This section does not apply to the sale of tobacco products by 20
means of a tobacco vending machine (within the meaning of 21
section 61F). 22
(4) In this section: 23
house means any premises where people reside, whether 24
permanently or not. 25
licensed premises means: 26
(a) licensed premises under the Liquor Act 1982 (including 27
that Act as it applies to or in respect of the casino under 28
section 89 of the Casino Control Act 1992), or 29
(b) the defined premises of a registered club under the 30
Registered Clubs Act 1976, or 31
(c) the casino under the Casino Control Act 1992. 32
public place includes any place to which the public or a 33
section of the public ordinarily has access, whether or not by 34
payment or by invitation. 35
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Public Health Amendment (Tobacco Control) Bill 1999
Schedule 1 Amendments
tobacco service area of premises means an area of the 1
premises to which members of the public do not ordinarily 2
have access and from where sales of tobacco products are 3
ordinarily effected. 4
61FC Liability of employers and others 5
(1) If an employee contravenes section 61FB, the employer is 6
taken to have contravened that section (whether or not the 7
employee contravened the provision without the employer's 8
authority or contrary to the employer's orders or instructions). 9
(2) It is a defence to a prosecution against an employer for such a 10
contravention if it is established: 11
(a) that the employer had no knowledge of the 12
contravention, and 13
(b) that the employer could not, by the exercise of due 14
diligence, have prevented the contravention. 15
(3) An employer may be proceeded against and convicted under 16
section 61FB by virtue of this section whether or not the 17
employee has been proceeded against or convicted under that 18
provision. 19
(4) For the purposes of this section, the following additional 20
persons are taken to be employers of persons who contravene 21
section 61FB: 22
(a) any person who authorised a person who contravenes 23
section 61FB to sell tobacco as the person's agent, or 24
(b) if the contravention occurs in the course of the carrying 25
on of a business--any person who owns, manages, 26
controls, conducts or operates that business. 27
(5) If a contravention of section 61FB occurs on the premises on 28
which a business is carried on, it is to be presumed unless the 29
contrary is established that the contravention occurred in the 30
course of the carrying on of that business. 31
[9] Sections 61I, 61J and 61M 32
Omit the sections. 33
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Public Health Amendment (Tobacco Control) Bill 1999
Amendments Schedule 1
[10] Section 61P Regulations 1
Omit section 61P (1) (g). 2
[11] Part 6, Divisions 5, 6 and 7 3
Insert after Division 4 of Part 6: 4
Division 5 Tobacco sales--enforcement provisions 5
61Q Interpretation 6
(1) For the purposes of this Division, a person engages in tobacco 7
retailing when tobacco products are sold by retail in the course 8
of the carrying on of a business operated by the person. 9
Note. Section 53 gives sell a wide definition. It includes, among other 10
things, offer to sell. 11
(2) If a sale of tobacco products occurs on premises on which a 12
business is carried on, it is to be presumed for the purposes of 13
this Division, unless the contrary is established, that the sale 14
occurred in the course of the carrying on of that business. 15
(3) For the purposes of this Division, a person is considered to 16
operate a business if the person: 17
(a) owns, manages, controls, conducts or operates the 18
business, or 19
(b) has (within the meaning of section 61W) a management 20
role or substantial interest in a body corporate that 21
operates the business or a substantial interest in a trust 22
under which the business is operated. 23
(4) For the purposes of this Division: 24
(a) every sale that is not a sale by wholesale or otherwise 25
for the purposes of resale is taken to be a sale by retail, 26
and 27
(b) a sale is presumed to be a sale by retail unless it is 28
established that the sale is a sale by wholesale or 29
otherwise for the purposes of resale. 30
Note. Every sale that is not by wholesale or otherwise for resale is a retail 31
sale. This includes sales in restaurants, motels and duty free shops. 32
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Public Health Amendment (Tobacco Control) Bill 1999
Schedule 1 Amendments
61R Prohibition against tobacco retailing for multiple offences 1
(1) A person who has been convicted of 2 offences against the 2
same provision of this Part or the regulations under this Part 3
committed within any 3 year period is prohibited from 4
engaging in tobacco retailing for a 2 month period beginning 21 5
days after the day of the later of the 2 convictions. 6
(2) A person who has been convicted of 3 offences against the 7
same provision of this Part or the regulations under this Part 8
committed within any 3 year period is prohibited from 9
engaging in tobacco retailing for a 12 month period beginning 10
21 days after the day of the latest of the 3 convictions. 11
(3) If a person is convicted of 2 or more offences committed on the 12
same day against the same provision of this Part or the 13
regulations under this Part, those convictions are together to be 14
counted for the purposes of this Division as one conviction 15
only, except as provided by subsection (4). 16
(4) In the case of offences against section 59 (Sale of tobacco 17
products to minors) subsection (3) applies only to require 18
convictions for offences committed at the same premises to be 19
counted together as one conviction. In this subsection, 20
premises means the premises of a shop, restaurant, licensed 21
premises (within the meaning of section 61FB) or other retail 22
outlet. 23
Note. Offences under section 59 committed by a person at particular 24
premises are treated separately under subsection (3) from other offences 25
committed by the person under that section on that day but at different 26
premises. 27
(5) For the purposes of this section, a retail outlet that is adjacent 28
to and forms part of the operations of another retail outlet is 29
taken to be a part of that other retail outlet. 30
(6) The Director-General may in a particular case from time to 31
time increase (or further increase) the period of 21 days 32
referred to in subsection (1) or (2) by notice in writing given to 33
the person concerned. 34
(7) This section does not apply to an offence under any of the 35
following provisions of this Part: 36
(a) section 55 (Packing of tobacco product without health 37
warning prohibited), 38
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Public Health Amendment (Tobacco Control) Bill 1999
Amendments Schedule 1
(b) section 57 (1) (a) (concerning packaging of tobacco 1
products), 2
(c) section 61G (3) (concerning the sale of confectionary 3
and toys). 4
(8) When a court convicts a person for an offence under this Part, 5
the clerk or other proper officer of the court must notify the 6
Director-General in writing of the conviction. 7
61S Prohibition applicable to certain premises only 8
(1) A prohibition under section 61R applies only to prohibit a 9
person from engaging in tobacco retailing at the following 10
premises (which are referred to in this Division as the 11
prohibited premises): 12
(a) the premises at which the triggering offence was 13
committed, and 14
(b) any premises within 5 kilometres of the premises at 15
which the triggering offence was committed except 16
premises at which the person engaged in tobacco 17
retailing before the triggering offence was committed. 18
(2) The Director-General may in a particular case direct by 19
instrument in writing that a prohibition under section 61R does 20
not apply to specified premises that are premises to which 21
subsection (1) (b) applies, and those premises are then not 22
prohibited premises for the purposes of the prohibition under 23
that section. 24
Note. The premises where the triggering offence was committed will still 25
be prohibited premises. 26
(3) In this section: 27
premises means the premises of a shop, restaurant, licensed 28
premises (within the meaning of section 61FB) or other retail 29
outlet. 30
triggering offence means: 31
(a) in the case of a 2 month prohibition period, the second 32
of the 2 offences that resulted in the prohibition, or 33
(b) in the case of a 12 month prohibition period, the third of 34
the 3 offences that resulted in the prohibition. 35
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Public Health Amendment (Tobacco Control) Bill 1999
Schedule 1 Amendments
(4) For the purposes of this section, a retail outlet that is adjacent 1
to and forms part of the operations of another retail outlet is 2
taken to be a part of that other retail outlet. 3
61T Offence of engaging in tobacco retailing while prohibited 4
(1) A person who is prohibited under this Division from engaging 5
in tobacco retailing for any period is guilty of an offence if the 6
person engages in tobacco retailing during that period at the 7
prohibited premises. 8
(2) If a person is prohibited from engaging in tobacco retailing for 9
2 or more periods that overlap, those periods are, to the extent 10
that they apply to the same premises, to apply consecutively. 11
(3) A person who is guilty of an offence under this section is 12
liable: 13
(a) in the case of an individual, to a penalty of not more 14
than 200 penalty units for a first offence or 400 penalty 15
units for a second or subsequent offence, or 16
(b) in the case of a body corporate, to a penalty of not more 17
than 400 penalty units for a first offence or 800 penalty 18
units for a second or subsequent offence. 19
(4) If a continuing state of affairs is created by an offence under 20
this section the offender is liable to a penalty of not more than: 21
(a) 50 penalty units in the case of an individual, or 22
(b) 100 penalty units in the case of a body corporate, 23
in respect of each day on which that offence continues, in 24
addition to the penalty specified in subsection (3). 25
61U Offence of displaying tobacco products while prohibited 26
(1) When a person is prohibited under this Division from engaging 27
in tobacco retailing, the person is guilty of an offence if any 28
tobacco products are displayed on the prohibited premises 29
when the person is operating a business there. 30
Note. This section does not require that the display be display for sale. 31
Mere display is sufficient. 32
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Amendments Schedule 1
(2) A person who is guilty of an offence under this section is 1
liable: 2
(a) in the case of an individual, to a penalty of not more 3
than 200 penalty units for a first offence or 400 penalty 4
units for a second or subsequent offence, or 5
(b) in the case of a body corporate, to a penalty of not more 6
than 400 penalty units for a first offence or 800 penalty 7
units for a second or subsequent offence. 8
(3) If a continuing state of affairs is created by an offence under 9
this section the offender is liable to a penalty of not more than: 10
(a) 50 penalty units in the case of an individual, or 11
(b) 100 penalty units in the case of a body corporate, 12
in respect of each day on which that offence continues, in 13
addition to the penalty specified in subsection (2). 14
(4) Tobacco products in a tobacco vending machine (within the 15
meaning of section 61F) on prohibited premises are for the 16
purposes of this section taken to be displayed on those 17
premises. 18
(5) This section does not apply to: 19
(a) the display of tobacco products by customers, or 20
(b) the display of tobacco products in such other 21
circumstances as may be prescribed by the regulations 22
as exempt from this section. 23
61V Effect of appeal against conviction 24
(1) An offence is not to be taken into account for the purposes of 25
this Division while an appeal against the conviction for the 26
offence is pending. 27
(2) If the conviction stands following determination or withdrawal 28
of the appeal: 29
(a) the conviction is then taken into account as provided by 30
this Division, and 31
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Public Health Amendment (Tobacco Control) Bill 1999
Schedule 1 Amendments
(b) any period for which a person is prohibited from 1
engaging in tobacco retailing that would (were it not for 2
this section) have commenced before the appeal is 3
determined or withdrawn instead commences 21 days 4
after the appeal is determined or withdrawn. 5
(3) The Director-General may in a particular case from time to 6
time increase (or further increase) the period of 21 days 7
referred to in subsection (2) by notice in writing given to the 8
person concerned. 9
61W Business interests--effect of convictions 10
(1) When a body corporate or the trustee of a trust is convicted of 11
an offence under this Part in connection with the carrying on of 12
a business operated by the body corporate or under the trust: 13
(a) each person who has a management role or substantial 14
interest in the body corporate or a substantial interest in 15
the trust is for the purposes of this Division taken to 16
have been convicted of the offence also, and 17
(b) each body corporate in which a person referred to in 18
paragraph (a) has a management role or substantial 19
interest is for the purposes of this Division taken to 20
have been convicted of the offence also (whether or not 21
the body corporate was in existence at the date of the 22
offence), and 23
(c) the trustee and any manager of a trust in which a person 24
referred to in paragraph (a) has a substantial interest is 25
for the purposes of this Division taken to have been 26
convicted of the offence also (whether or not the trust 27
was in existence at the date of the offence). 28
(2) A person is considered to have a management role or 29
substantial interest in a body corporate if: 30
(a) the person is a director, secretary or executive officer 31
(as defined in the Corporations Law) of the body 32
corporate, or 33
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Public Health Amendment (Tobacco Control) Bill 1999
Amendments Schedule 1
(b) the person is entitled to more than 10% of the issued 1
share capital of the body corporate (with the shares to 2
which a person is entitled including shares to which the 3
person is entitled in accordance with section 609 of the 4
Corporations Law). 5
(3) A person is considered to have a substantial interest in a trust 6
if the person (whether or not as the trustee of another trust) is 7
the beneficiary in respect of more than 10% of the value of the 8
interests in the trust. 9
(4) The Director-General may in a particular case direct by 10
instrument in writing that: 11
(a) subsection (1) (b) does not apply to a body corporate in 12
respect of a particular offence, but only if the body 13
corporate is not a related body corporate (within the 14
meaning of the Corporations Law) of the body 15
corporate convicted of the offence, or 16
(b) subsection (1) (c) does not apply in respect of a trust in 17
respect of a particular offence. 18
(5) The regulations may create exceptions to this section. 19
61X Power to require information from convicted persons and others 20
(1) When a body corporate or the trustee of a trust is convicted of 21
an offence under this Part in connection with the carrying on of 22
a business operated by the body corporate or under the trust the 23
Director-General may require certain persons to provide 24
specified information to the Director-General, as provided by 25
this section. 26
(2) The body corporate or trustee may be required to provide 27
information that the Director-General may reasonably require 28
to ascertain the identity of each person who has a management 29
role or substantial interest in the body or a substantial interest 30
in the trust. 31
(3) A person whom the Director-General reasonably believes has 32
a management role or substantial interest in the body corporate 33
or a substantial interest in the trust may be required to provide 34
information that the Director-General may reasonably require 35
to ascertain: 36
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Schedule 1 Amendments
(a) the identity of each body corporate in which that person 1
has a management role or substantial interest, or 2
(b) the identity of the trustee and any manager of a trust in 3
which that person has a substantial interest. 4
(4) A requirement to provide information is to be imposed by 5
direction in writing served on the person, body or trustee 6
concerned. The direction must specify a period of not less than 7
7 days as the period within which the required information 8
must be provided. 9
(5) A person who fails without reasonable excuse to comply with 10
a requirement of a direction under this section is guilty of an 11
offence. 12
Maximum penalty: 13
(a) in the case of an individual, 200 penalty units for a first 14
offence or 400 penalty units for a second or subsequent 15
offence, or 16
(b) in the case of a body corporate, 400 penalty units for a 17
first offence or 800 penalty units for a second or 18
subsequent offence. 19
(6) A person who in purported compliance with a requirement of 20
a direction under this section provides information that is false 21
or misleading in a material particular is guilty of an offence 22
unless the person satisfies the court that he or she did not know 23
and could not reasonably be expected to have known that the 24
information was false or misleading. 25
Maximum penalty: 26
(a) in the case of an individual, 200 penalty units for a first 27
offence or 400 penalty units for a second or subsequent 28
offence, or 29
(b) in the case of a body corporate, 400 penalty units for a 30
first offence or 800 penalty units for a second or 31
subsequent offence. 32
61Y Offences only to be taken into account once 33
(1) An offence may only be taken into account once under section 34
61R (1) in respect of a particular person and once under section 35
61R (2) in respect of that person. 36
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(2) An offence that has been taken into account under section 61R 1
(1) in respect of a particular person may also be taken into 2
account under section 61R (2) in respect of that person. 3
Note. If 3 offences are committed within a 3 year period, the first 2 4
offences give rise to a 2 month prohibition and the third offence (taken into 5
account with the first 2) results in a further 12 month prohibition. However 6
the second and third offences do not give rise to another 2 month 7
prohibition. Further offences cannot be taken into account with offences 8
that have already been taken into account. 9
61Z Order under s 556A treated as conviction 10
For the purposes of this Division, the making of an order under 11
section 556A of the Crimes Act 1900 in respect of an offence 12
is taken to be a conviction for the offence. 13
61ZA Evidentiary certificate 14
(1) The Director-General may issue a certificate to the effect that 15
a person specified in the certificate is or was prohibited under 16
this Division from engaging in tobacco retailing for a period 17
and in respect of premises specified in the certificate. 18
(2) Such a certificate is evidence of the matters certified. 19
(3) A certificate purporting to be a certificate issued by the 20
Director-General under this section is presumed to have been 21
so issued unless the contrary is established. 22
Division 6 Seizure and forfeiture of tobacco products 23
61ZB Seizure of tobacco products for contravention of retailing 24
prohibition 25
(1) An authorised officer may seize any tobacco product that the 26
authorised officer believes on reasonable grounds is in a 27
person's possession, custody or control in the course of 28
committing, or for the purposes of committing, an offence 29
under section 61T (Offence of engaging in tobacco retailing 30
while prohibited) or 61U (Offence of displaying tobacco 31
products while prohibited). 32
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Public Health Amendment (Tobacco Control) Bill 1999
Schedule 1 Amendments
(2) Any tobacco product seized under this section may, at the 1
option of the authorised officer who made the seizure or of any 2
authorised officer acting in his or her place, be detained in the 3
place or vehicle where it was found or be removed to another 4
place and detained there. 5
(3) If the tobacco product is to be detained in the place or vehicle 6
where it was found, the authorised officer may: 7
(a) place it in a room, compartment or cabinet in that place 8
or vehicle, and 9
(b) mark, fasten and seal the door or opening providing 10
access to that room, compartment or cabinet. 11
(4) A person who, without lawful authority, retakes or attempts to 12
retake any tobacco products seized under this section or resists 13
or attempts to prevent such a seizure is guilty of an offence. 14
Maximum penalty: 15
(a) in the case of an individual, 200 penalty units for a first 16
offence or 400 penalty units for a second or subsequent 17
offence, or 18
(b) in the case of a body corporate, 400 penalty units for a 19
first offence or 800 penalty units for a second or 20
subsequent offence. 21
(5) The seizure of tobacco products under this section for which 22
there was reasonable cause does not subject the State, the 23
Minister, the Director-General, an authorised officer or any 24
other person to any action, liability, claim or demand. 25
61ZC Forfeiture of tobacco on conviction 26
(1) If a court that convicts a person for an offence under section 27
61T or 61U finds that any tobacco product seized under this 28
Division was in any person's possession, custody or control in 29
the course of committing, or for the purposes of committing, 30
the offence, the court is to order the tobacco product to be 31
forfeited to the Crown unless the court is of the opinion that 32
exceptional circumstances justify the court not ordering the 33
tobacco product to be forfeited. 34
(2) The court's order operates to forfeit the tobacco products to the 35
Crown. 36
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61ZD Destruction of forfeited tobacco 1
(1) The Director-General is to cause all tobacco products forfeited 2
under this Division to be destroyed. 3
(2) The person convicted of the offence that resulted in forfeiture 4
of tobacco products is liable to pay to the Director-General the 5
reasonable costs incurred in destroying the tobacco products, 6
and any such costs may be recovered by the Director-General 7
in a court of competent jurisdiction as a debt due to the Crown. 8
(3) In proceedings for recovery of the costs of destroying tobacco 9
products, a certificate signed by the Director-General certifying 10
the amount of those costs and the manner in which they were 11
incurred is evidence of the matters certified. 12
61ZE Return of seized tobacco 13
Any tobacco products seized under this Division must be 14
returned to the person from whom they were seized (or to such 15
other person as appears to the Director-General to be entitled 16
to them) if: 17
(a) proceedings for an offence under section 61T or 61U 18
have not been commenced against the person from 19
whom they were seized within 42 days after seizure, or 20
(b) proceedings for such an offence against the person have 21
been commenced within that 42 days but the court that 22
disposes of the proceedings does not convict the person 23
or does not make an order for forfeiture of the tobacco 24
products, or 25
(c) the Director-General becomes satisfied that the tobacco 26
products were not, at the time they were seized, in a 27
person's possession, custody or control in the course of 28
committing, or for the purposes of committing, an 29
offence under section 61T or 61U. 30
61ZF Order under s 556A treated as conviction 31
For the purposes of this Division, the making of an order under 32
section 556A of the Crimes Act 1900 in respect of an offence 33
is taken to be a conviction for the offence. 34
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Schedule 1 Amendments
Division 7 General 1
61ZG Offences by corporations 2
(1) If a corporation commits an offence under this Part or the 3
regulations under this Part, each person who is a director of the 4
corporation, or who is concerned in the management of the 5
corporation, is taken to have committed the same offence 6
unless he or she proves that: 7
(a) the offence was committed without his or her 8
knowledge, and 9
(b) he or she exercised all such due diligence to prevent the 10
commission of that offence as he or she ought to have 11
exercised, having regard to the nature of his or her 12
functions in that capacity and to all the circumstances. 13
(2) A person may be proceeded against and convicted under a 14
provision pursuant to this section whether or not the 15
corporation has been proceeded against or convicted under that 16
provision. 17
(3) Nothing in this section affects any liability imposed on a 18
corporation for an offence committed by the corporation under 19
this Part or the regulations under this Part. 20
(4) Section 78 (Offences by corporations) does not apply to an 21
offence under this Part or the regulations under this Part. 22
61ZH Powers of authorised officers 23
(1) For the purpose of ascertaining whether any of the provisions 24
of this Part or the regulations made under this Part are being or 25
have been complied with or contravened in any premises, an 26
authorised officer may, alone or with such police officers or 27
other persons as may be necessary, enter and inspect the 28
premises. 29
(2) On entering any premises, the authorised officer may do any of 30
the following: 31
(a) open and inspect any package on which a tobacco 32
advertisement is displayed or that the officer reasonably 33
believes contains any tobacco product, 34
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Public Health Amendment (Tobacco Control) Bill 1999
Amendments Schedule 1
(b) examine any labelling or advertising material that 1
appears to be intended for use in connection with the 2
sale of any tobacco product, 3
(c) open, or require the opening of, and examine any 4
appliance, cabinet, dispensing unit or other item that 5
appears to be used in connection with the sale of 6
tobacco products, 7
(d) take such photographs, or videotape or other films, as 8
the authorised officer considers necessary, 9
(e) inspect any invoice or record on the premises 10
(including any invoice or record stored electronically) 11
relating to tobacco products, advertising or promotional 12
material supplied to the occupier of the premises, the 13
ownership of any business conducted on the premises, 14
or the employment of persons in any such business, 15
(f) make copies of any such invoice or record or any part 16
of it and, for that purpose, take away and retain (for 17
such time as may, for that purpose, be reasonably 18
necessary) any such invoice or record, 19
(g) generally make such investigations and inquiries as may 20
be necessary to ascertain whether an offence under this 21
Part or any regulations made under this Part is being or 22
has been committed. 23
(3) This section does not authorise an authorised officer acting 24
without a search warrant to enter any premises or part of any 25
premises used as a dwelling without the consent of the 26
occupier. 27
61ZI Authorised officer may require information 28
(1) An authorised officer may at any time require a person by 29
whom the officer reasonably suspects any provision of this Part 30
or the regulations made under this Part is being or has been 31
contravened, or who is apparently in charge of premises where 32
such a contravention is occurring or evidently has occurred, to 33
state his or her name and address and (if the person is not the 34
occupier of the premises or the owner or operator of the 35
business conducted there) the name of the occupier of the 36
premises or of that owner or operator or of the person's 37
employer. 38
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Public Health Amendment (Tobacco Control) Bill 1999
Schedule 1 Amendments
(2) If the contravention concerns an advertisement or any object 1
containing an advertisement, the authorised officer may require 2
a person referred to in subsection (1) to produce for inspection 3
any invoice or record relating to the advertisement or object or 4
relating to any tobacco products in connection with which the 5
material for the advertisement, or the object, was obtained. 6
(3) A person who, without a reasonable excuse, refuses or fails to 7
comply with a requirement under this section is guilty of an 8
offence. 9
Maximum penalty: 200 penalty units for a first offence or 400 10
penalty units for a second or subsequent offence. 11
(4) A person who in purported compliance with a requirement 12
under this section provides information that is false or 13
misleading in a material particular is guilty of an offence unless 14
the person satisfies the court that he or she did not know and 15
could not reasonably be expected to have known that the 16
information was false or misleading. 17
Maximum penalty: 200 penalty units for a first offence or 400 18
penalty units for a second or subsequent offence. 19
(5) A person is not guilty of an offence under subsection (3) 20
unless, at the time at which the relevant requirement was made: 21
(a) the authorised officer had identified himself or herself 22
to the person as an authorised officer, and 23
(b) the person had been warned that a refusal or failure to 24
comply with the request constituted an offence. 25
61ZJ Proceedings for offences 26
(1) Proceedings for an offence under this Part or the regulations 27
made under this Part may be disposed of in a summary manner 28
before a Local Court constituted by a Magistrate sitting alone 29
or before the Supreme Court in its summary jurisdiction. 30
(2) The maximum pecuniary penalty that can be imposed by a 31
Local Court for any such offence is 100 penalty units or the 32
maximum pecuniary penalty elsewhere provided in this Part, 33
whichever is less. 34
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Public Health Amendment (Tobacco Control) Bill 1999
Amendments Schedule 1
(3) Proceedings for any such offence that are brought before a 1
Local Court may be brought at any time within 12 months after 2
the date on which the offence was committed. 3
61ZK Regulations 4
The regulations may make provision for or with respect to the 5
form of notices to be used in connection with the entry by 6
authorised officers on to any premises under this Division, and 7
the manner and occasion of use of such notices. 8
[12] Section 79 Proceedings for offences 9
Omit "61M" from section 79 (2). Insert instead "61ZJ". 10
[13] Schedule 4 Savings and transitional provisions 11
Insert at the end of clause 1 (2A): 12
Public Health Amendment (Tobacco Control) Act 1999 13
[14] Schedule 4, Part 6 14
Insert after Part 5: 15
Part 6 Provisions consequent on enactment of 16
Public Health Amendment (Tobacco Control) 17
Act 1999 18
19 Sales by vending machine 19
Section 61FA does not apply to a sale of tobacco products that 20
occurs before the commencement of that section. 21
20 Liability of employers 22
Section 59A (4) (b) does not apply to a contravention of section 23
59 that occurs before the commencement of the amendment of 24
that section by the Public Health Amendment (Tobacco 25
Control) Act 1999. 26
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Public Health Amendment (Tobacco Control) Bill 1999
Schedule 1 Amendments
21 Authorised officers 1
(1) Anything done or commenced under section 61I or 61J before 2
the repeal of those sections is taken to have been done or 3
commenced under section 61ZH or 61ZI, respectively. 4
(2) Sections 61ZH and 61ZI extend to offences committed before 5
the commencement of those sections. 6
22 Prior offences not counted 7
Section 61R (Prohibition against tobacco retailing for multiple 8
offences) does not apply in respect of an offence committed 9
before the commencement of that section. 10
23 Offences by corporations 11
Section 61ZG does not apply to an offence committed before 12
the commencement of that section. 13
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