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Tobacco Amendment Bill 2013
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purpose of the Bill.
The purpose of the Bill is to amend the Tobacco Act 1987--
· to prohibit smoking in certain public outdoor areas; and
· to restrict further the promotion and display of tobacco
products; and
· to make it an offence to threaten, assault or intimidate
an inspector who is exercising a power under Part 3A of
the Tobacco Act 1987; and
· to make other miscellaneous amendments.
It is intended that the smoking bans will further limit the
exposure of children and families to second hand smoke,
denormalise smoking, minimise the littering of cigarette butts and
improve amenity at public swimming pool complexes, children's
playgrounds, skate parks and outdoor sporting venues in Victoria.
Clause 2 is the commencement provision.
The provisions of the Bill will come into effect on a day or days
to be proclaimed, or on 1 October 2014 if not proclaimed before
that date.
Clause 3 provides that for the purposes of the Bill, the Principal Act is the
Tobacco Act 1987.
571376 1 BILL LA INTRODUCTION 17/9/2013
PART 2--CONTROLS RELATING TO TOBACCO
PRODUCTS
Clause 4 amends section 3 of the Principal Act to insert a definition for
road. The term road has the same meaning as in the Road
Safety Act 1986.
Clause 5 inserts 8 new sections into the Principal Act, namely
sections 5RC to 5RJ.
Section 5RC prohibits smoking in outdoor areas of public
swimming pool complexes.
Subsection (1) makes it an offence for a person to smoke in an
outdoor area of a swimming pool complex that is a public place.
The maximum penalty for this offence is 5 penalty units.
The term public place is defined in section 3 of the Principal Act
to include a place to which the public ordinarily has access,
whether by payment or not. The smoking ban applies in outdoor
areas of swimming pool complexes which are open to members
of the public. It does not apply to swimming pools situated on
residential land to which members of the public do not ordinarily
have access.
Subsection (2) empowers an inspector to direct a person to stop
smoking in an outdoor area of a public swimming pool complex.
In order to do so, the inspector must believe on reasonable
grounds that the person is contravening subsection (1) and must
also produce his or her identity card.
Subsection (3) makes it an offence for a person to fail to comply
with an inspector's direction to stop smoking. The maximum
penalty for this offence is 5 penalty units.
Subsection (4) deals with outdoor dining or drinking areas, such
as those connected to kiosks and cafes, that are situated at public
swimming pool complexes. Subsection (4) provides that despite
anything to the contrary in Part 2 of the Principal Act, a person
must not smoke in an outdoor dining or drinking area which is
situated within a public swimming pool complex.
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Subsection (5) provides that for the purposes of section 5RC,
the term outdoor area means an area within the external
perimeter of a public swimming pool complex that is not
enclosed. Section 5A of the Principal Act, which prohibits
smoking in enclosed workplaces, continues to apply to enclosed
areas of public swimming pool complexes.
Section 5RD provides that a person under the age of 18 years
does not commit an offence by smoking in an outdoor area of a
swimming pool complex that is a public place or by failing to
comply with an inspector's direction to stop smoking.
Section 5RE prohibits smoking at or in the vicinity of outdoor
public children's playground equipment.
Subsection (1) makes it an offence for a person to smoke at or
within 10 metres of children's playground equipment that is
situated in an outdoor public place. The maximum penalty for
this offence is 5 penalty units.
The smoking ban applies at and in the vicinity of outdoor
children's playground equipment to which the public ordinarily
has access, whether by payment or not. For example, it applies to
children's playground equipment which is located in public parks
and reserves. It does not apply to children's playground
equipment which is situated on residential land to which
members of the public do not ordinarily have access.
Section 5A of the Principal Act continues to apply to children's
playground equipment which is situated in enclosed workplaces,
such as indoor children's play centres.
Section 5RE(2)(a) provides that subsection (1) does not apply to
a person in a motor vehicle, unless the motor vehicle is
stationary. For example, a person would not commit an offence
by smoking while driving or being driven within 10 metres of
outdoor public children's playground equipment. However, a
person would commit an offence by smoking in a motor vehicle
which is parked within 10 metres of outdoor public children's
playground equipment.
Subsection (2)(b) provides that subsection (1) does not apply to a
person who smokes in an area that is separated from outdoor
public children's playground equipment by a road. For example,
a person who smokes while standing on a footpath on the other
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side of the road from outdoor public children's playground
equipment would not commit an offence.
Subsection (2)(c) provides that subsection (1) does not apply to a
person at residential premises or on land at which residential
premises are built or may lawfully be built. For example, a
person whose backyard is in the vicinity of children's playground
equipment that is situated in an outdoor public place would not
commit an offence by smoking in his or her backyard.
Subsection (3) empowers an inspector to direct a person to stop
smoking at or within 10 metres of children's playground
equipment that is situated in an outdoor public place. In order to
do so, the inspector must believe on reasonable grounds that the
person is contravening subsection (1) and must also produce his
or her identity card.
Subsection (4) makes it an offence for a person to fail to comply
with an inspector's direction to stop smoking. The maximum
penalty for this offence is 5 penalty units.
Subsection (5) deals with outdoor dining or drinking areas, such
as those connected to kiosks and cafes, that are in the vicinity of
children's playground equipment that is situated in an outdoor
public place. Subsection (5) provides that despite anything to the
contrary in Part 2 of the Principal Act, a person must not smoke
in an outdoor dining or drinking area which is situated within
10 metres of children's playground equipment.
Section 5RF provides that a person under the age of 18 years
does not commit an offence by smoking at or within 10 metres of
children's playground equipment that is situated in an outdoor
public place or by failing to comply with an inspector's direction
to stop smoking.
Section 5RG prohibits smoking at and in the vicinity of outdoor
public skate parks.
Subsection (1) makes it an offence for a person to smoke at or
within 10 metres of a skate park that is in an outdoor public
place. The maximum penalty for this offence is 5 penalty units.
The smoking ban applies at and in the vicinity of skate parks to
which the public ordinarily has access, whether by payment or
not. For example, it applies to skate parks which are located in
public parks and reserves.
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Section 5A of the Principal Act continues to apply to enclosed
workplaces which are equipped for skateboarding, rollerblading
or rollerskating, such as indoor skate parks and skating rinks.
Section 5RG(2)(a) provides that subsection (1) does not apply to
a person in a motor vehicle, unless the motor vehicle is
stationary. For example, a person would not commit an offence
by smoking while driving or being driven within 10 metres of an
outdoor public skate park. However, a person would commit an
offence by smoking in a motor vehicle which is parked within
10 metres of an outdoor public skate park.
Subsection (2)(b) provides that subsection (1) does not apply to a
person who smokes in an area that is separated from an outdoor
public skate park by a road. For example, a person who smokes
while standing on a footpath on the other side of the road from a
skate park that is situated in an outdoor public place would not
commit an offence.
Subsection (2)(c) provides that subsection (1) does not apply to a
person at residential premises or on land at which residential
premises are built or may lawfully be built. For example, a
person whose backyard is in the vicinity of a skate park that is
situated in an outdoor public place would not commit an offence
by smoking in his or her backyard.
Subsection (3) empowers an inspector to direct a person to stop
smoking at or within 10 metres of a skate park that is situated in
an outdoor public place. In order to do so, the inspector must
believe on reasonable grounds that the person is contravening
subsection (1) and must also produce his or her identity card.
Subsection (4) makes it an offence for a person to fail to comply
with an inspector's direction to stop smoking. The maximum
penalty for this offence is 5 penalty units.
Subsection (5) deals with outdoor dining or drinking areas, such
as those connected to kiosks and cafes, that are at or in the
vicinity of skate parks that are situated in outdoor public places.
Subsection (5) provides that despite anything to the contrary in
Part 2 of the Principal Act, a person must not smoke in an
outdoor dining or drinking area which is situated at or within
10 metres of a skate park in an outdoor public place.
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Subsection (6) provides that for the purposes of section 5RG, the
term skate park means an area specifically designed and
equipped with structures for rollerblading, rollerskating or
skateboarding or the use of BMX or non-motorised scooters.
Section 5RH provides that a person under the age of 18 years
does not commit an offence by smoking at or within 10 metres of
a skate park that is situated in an outdoor public place or by
failing to comply with an inspector's direction to stop smoking.
Section 5RI prohibits smoking at or in the vicinity of outdoor
public sporting venues during underage sporting events.
Subsection (1) makes it an offence for a person to smoke at or
within 10 metres of a sporting venue that is an outdoor public
place during--
· an organised underage sporting event; or
· a training or practice session to prepare for participation
in an organised underage sporting event; or
· any break or interval during the course of the organised
underage sporting event or training or practice session.
The maximum penalty for this offence is 5 penalty units.
The smoking ban applies at and in the vicinity of outdoor
sporting venues to which the public ordinarily has access,
whether by payment or not. For example, it applies to outdoor
public sporting venues, such as ovals, which are located in public
parks and reserves.
Section 5A of the Principal Act continues to apply to enclosed
workplaces where underage sporting events take place, such as
indoor netball and basketball courts.
Section 5RI(2)(a) provides that subsection (1) does not apply to a
person in a motor vehicle, unless the motor vehicle is stationary.
For example, a person would not commit an offence by smoking
while driving or being driven within 10 metres of an outdoor
public sporting venue during an underage sporting event.
However, a person would commit an offence by smoking in a
motor vehicle which is parked within 10 metres of an outdoor
public sporting venue during an underage sporting event.
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Subsection (2)(b) provides that subsection (1) does not apply to a
person who smokes in an area that is separated from an outdoor
sporting venue by a road. For example, a person who smokes
while standing on a footpath on the other side of the road from an
outdoor public sporting venue would not commit an offence.
Subsection (2)(c) provides that subsection (1) does not apply to a
person at residential premises or on land at which residential
premises are built or may lawfully be built. For example, a
person whose backyard is in the vicinity of an outdoor public
sporting venue would not commit an offence by smoking in his
or her backyard during an underage sporting event.
Subsection (3) empowers an inspector to direct a person to stop
smoking at or within 10 metres of an outdoor public sporting
venue during an underage sporting event. In order to do so, the
inspector must believe on reasonable grounds that the person is
contravening subsection (1) and must also produce his or her
identity card.
Subsection (4) makes it an offence for a person to fail to comply
with an inspector's direction to stop smoking. The maximum
penalty for this offence is 5 penalty units.
Subsection (5) deals with outdoor dining or drinking areas, such
as those connected to kiosks and cafes, that are at or in the
vicinity of sporting venues that are situated in outdoor public
places. Subsection (5) provides that despite anything to the
contrary in Part 2 of the Principal Act, during an underage
sporting event, a person must not smoke in an outdoor dining or
drinking area which is situated at or within 10 metres of a
sporting venue that is an outdoor public place.
Subsection (6) defines the terms organised underage sporting
event, sporting event and sporting venue for the purposes of
section 5RI.
Subsection (6) provides that the term organised underage
sporting event means a sporting event that--
· is planned in advance; and
· is organised or intended for, or predominantly
participated in by, persons under the age of 18 years;
and
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· is conducted according to established rules by a
professional or amateur sporting body or by an
educational institution; and
· may be a one-off event or part of a series of events.
For example, school sports carnivals are organised underage
sporting events for the purposes of section 5RI. An informal
sporting event organised by a parent for his or her child's
birthday party is not an organised underage sporting event for
the purposes of section 5RI. An inter-school sporting event
participated in by people in their final years of secondary school,
some of whom may be over the age of 18, is an organised
underage sporting event for the purposes of section 5RI.
An open age football match in which most players are over the
age of 18 is not an organised underage sporting event for the
purposes of section 5RI.
Subsection (6) provides that the term sporting event means a
match, game, tournament or other event that involves the playing
of, or participation in, sport.
Subsection (6) provides that the term sporting venue includes but
is not limited to--
· a playing field;
· a track;
· an arena;
· a court or rink;
· any permanently or temporarily erected public seating at
the venue;
· any seating, marshalling area, warm-up area, podium or
other part of the venue reserved for the use of
competitors or officials;
· any part of the venue used to conduct the actual
organised underage sporting event.
Section 5RJ provides that a person under the age of 18 years does
not commit an offence by smoking at or within 10 metres of a
sporting venue that is an outdoor public place during an underage
sporting event or by failing to comply with an inspector's
direction to stop smoking.
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Clause 6 amends section 6(3)(ca) and (cab) of the Principal Act.
Section 6(3)(ca) and (cab) of the Principal Act allow for tobacco
retailers, certified specialist tobacconists and on-airport duty free
shops to use one notice at each point-of-sale to inform customers
about the availability and price of tobacco products provided that
the notice complies with the prescribed requirements as to size,
content and the manner in which the content is set out or
displayed.
The effect of the amendment to section 6(3)(ca) and (cab) of
the Principal Act is to allow for requirements regarding the form
of notices to be prescribed by the regulations.
Clause 7 repeals section 11 of the Principal Act.
Section 11 of the Principal Act deals with the packaging of
tobacco products. This section is being repealed as a result of the
introduction of the Tobacco Plain Packaging Act 2011 of the
Commonwealth, which comprehensively regulates the packaging
and appearance of tobacco products.
Clause 8 inserts items 11C to 11J into the Schedule to the Principal Act.
These items provide that the offences contained in sections 5RC,
5RE, 5RG and 5RI are infringement offences of 1 penalty unit.
These infringement offences only apply to natural persons and
not to bodies corporate.
PART 3--MISCELLANEOUS AMENDMENTS
Clause 9 inserts section 15SA after the heading to Part 2A of the Principal
Act.
The effect of this amendment is that on and from the
commencement of section 15SA, despite anything to the contrary
in Part 2A of the Principal Act, a person is not able to make an
application under section 15T for the certification of tobacco
retailing premises.
Clause 10 inserts section 36QA into the Principal Act.
Section 36QA makes it an offence for a person, without
reasonable excuse, to intimidate, threaten or assault an inspector
who is exercising a power under Part 3A of the Principal Act.
The maximum penalty for this offence is 60 penalty units.
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Section 36QA complements section 36Q of the Principal Act,
which makes it an offence for a person, without reasonable
excuse, to hinder or obstruct an inspector who is exercising a
power under Part 3A of the Principal Act.
Clause 11 substitutes a new section 42A(3) into the Principal Act.
Section 42A(1) of the Principal Act empowers the Secretary to
the Department of Health to collect the names and addresses of
persons carrying on tobacco retailing businesses in Victoria from
tobacco manufacturers.
The new section 42A(3) makes it an offence for the Secretary to
give information acquired pursuant to subsection (1) to any other
person, whether directly or indirectly, except to the extent
necessary--
· to enable the Secretary to perform his or her duties or
functions or to exercise his or her powers under the
Principal Act or the regulations; or
· to enable an inspector to perform his or her duties or
functions or to exercise his or her powers under the
Principal Act or the regulations; or
· to enable the tobacco retailers identified by the
information to be informed about their obligations under
the Principal Act, regulations made under the Principal
Act, another Victorian law or a law of the
Commonwealth which deals with the sale of tobacco
products; or
· to further the purpose or objects of the Principal Act.
The maximum penalty for this offence is 60 penalty units.
The effect of this amendment is to broaden the Secretary's power
to disclose information acquired pursuant to subsection (1).
Clause 12 repeals section 43(1)(a), (aa), (b) and (4) of the Principal Act.
The repeal of these provisions is a direct result of the repeal of
section 11 of the Principal Act.
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PART 4--REPEAL OF AMENDING ACT
Clause 13 provides for the automatic repeal of this amending Act on
1 October 2015, one year after the default commencement date.
The repeal of this Act does not affect in any way the continuing
operation of the amendments made by this amending Act
(see section 15(1) of the Interpretation of Legislation Act
1984).
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