Tobacco and Other Smoking Products Act 1998

An Act to restrict the supply of tobacco and other smoking products to children, to restrict advertising and promotion of tobacco and other smoking products, to prohibit smoking in certain places, and for other purposes

Long title amd 1999 No. 61s 14

sub 2001 No. 20s 4

1Short title

This Act may be cited as the Tobacco and Other Smoking Products Act 1998.

s 1 amd 1999 No. 61s 15

sub 2001 No. 20s 5

2Commencement

(1)This Act (other than section 15) commences on a day to be fixed by proclamation.

(2)Section 15 commences 6 months after the day fixed under subsection (1).

3Object of Act

The object of this Act is to improve the health of members of the public by reducing their exposure to tobacco and other smoking products.

s 3 amd 1999 No. 61s 16

sub 2001 No. 20s 6

3AHow object is to be achieved

The object is to be achieved mainly by—

(a)restricting the supply of tobacco and other smoking products to children; and

(b)restricting the advertising and promotion of tobacco and other smoking products; and

(c)reducing public exposure to smoke from tobacco and other smoking products; and

(d)establishing a framework for monitoring, investigative and enforcement activities.

s 3A ins 2001 No. 20s 6

4Definitions

The dictionary in the schedule defines particular words used in this Act.

5Who is a responsible adult

A responsible adult, for a child, is an adult who—

(a)is the child’s parent, step-parent or guardian; or

(b)has parental rights and responsibilities for the child.

Example of responsible adult under paragraph (b)—

an adult who is an aunt or uncle of a child, living with the child

5AMeaning of personal vaporiser and personal vaporiser related product

(1)A personal vaporiser is a device that—

(a)is capable of being used to deliver a substance into an individual’s body when the individual inhales through the device; and

(b)has 1 or more of the following parts—

(i)a battery;

(ii)a cartridge or container to store a liquid, vapour or gas;

(iii)an electric heating element.

(2)However, a personal vaporiser does not include any of the following—

(a)a device included in the register under the Therapeutic Goods Act 1989 (Cwlth), other than a device designed for the purpose of helping a person to stop smoking;

(b)a device designed to be used to deliver oxygen into an individual’s body;

(c)a bong, hookah or ice pipe;

(d)a device prescribed under a regulation for this subsection.

(3)A personal vaporiser related product means any of the following—

(a)a device or other product that—

(i)is apparently intended to be part of a personal vaporiser; and

(ii)is not capable of being used to deliver a substance into an individual’s body without an adjustment, modification or addition;

Examples for paragraph (a)—

•an electric heating element, battery, cartridge, container or mouthpiece

•a product that combines an electric heating element and cartridge in a single unit

(b)a device or other product to which paragraph (a) does not apply that is apparently intended to be used in connection with a personal vaporiser.

Example for paragraph (b)

a liquid that is to be used in a personal vaporiser, whether or not the liquid is in a cartridge or container

(4)However, a personal vaporiser related product does not include any other device or product prescribed under a regulation for this subsection.

s 5A ins 2014 No. 65s 53

6Acceptable evidence of age

For this Act, acceptable evidence of the age of a person is a document that—

(a)is a driver licence, proof of age card or an Australian or foreign passport; and

(b)bears a photograph of the person; and

(c)indicates by reference to the person’s date of birth or otherwise that the person has attained a particular age.

s 6 amd 1999 No. 42s 54(3) sch pt 3

7Act binds all persons

This Act binds all persons.

pt hdg sub 1999 No. 61s 17

div hdg sub 1999 No. 61s 18

8Application of div 1

This division does not apply to the supply of smoking products from coin operated vending machines.

s 8 sub 1999 No. 61s 19

9Meaning of prevention measures for div 1

In this division—

prevention measures, by a supplier in relation to an employee of the supplier, means—

(a)instructing the employee—

(i)not to supply smoking products to children in any circumstances, even if the supply is for, or claimed to be for, an adult; and

(ii)to sight acceptable evidence of age for a person before supplying a smoking product to the person, unless satisfied the person is an adult; and

(b)warning the employee that if the employee supplies smoking products to children in disregard of the instructions mentioned in paragraph (a), the employee commits an offence against this Act; and

(c)obtaining written acknowledgement by the employee that the employee received the instructions and warning mentioned in paragraphs (a) and (b).

s 9 amd 1999 No. 61s 20

9ASupplier must take prevention measures

(1)A supplier must take prevention measures in relation to employees of the supplier.

Maximum penalty—40 penalty units.

(2)In this section—

employee, of a supplier, means a person who supplies, or may supply, smoking products in the course of the person’s employment.

s 9A ins 2001 No. 20s 7

amd 2004 No. 47s 4

10Supplier must not supply smoking products to children

(1)A supplier must not supply a smoking product to a child.

Maximum penalty—

(a)for a first offence—140 penalty units; or

(b)for a second offence—280 penalty units; or

(c)for a third or later offence—420 penalty units.

(2)However, this section does not apply if the supply is by an employee of the supplier.

s 10 amd 1999 No. 61s 21; 2001 No. 20s 8; 2004 No. 47s 5

11Supplier must ensure employees do not supply smoking products to children

(1)A supplier must ensure an employee of the supplier does not supply a smoking product to a child.

Maximum penalty—

(a)for a first offence—140 penalty units; or

(b)for a second offence—280 penalty units; or

(c)for a third or later offence—420 penalty units.

(2)However, a supplier does not commit an offence against subsection (1) if, before the supply, the supplier took the prevention measures in relation to the employee.

s 11 amd 1999 No. 61s 22; 2001 No. 20s 9; 2004 No. 47s 6

12When employee of supplier liable

(1)This section applies if a supplier has, in relation to an employee of the supplier, taken the prevention measures.

(2)After the prevention measures have been taken, the employee of the supplier must not, in the course of the employee’s employment, supply a smoking product to a child.

Maximum penalty—

(a)for a first offence—20 penalty units; or

(b)for a second or later offence—40 penalty units.

s 12 amd 1999 No. 61s 23; 2001 No. 20s 10; 2004 No. 47s 7

13Order prohibiting or restricting sale of smoking products

(1)This section applies if a supplier is convicted of an offence against section 10 or 11.

(2)The court sentencing the supplier for the offence may, on its own initiative or the application of the prosecutor, make an order—

(a)prohibiting the supply of all or stated smoking products by the supplier; or

(b)imposing conditions or restrictions on the supply of smoking products by the supplier.

(3)The period of the order must not be more than—

(a)for a first offence—6 months; or

(b)for a second offence—1 year; or

(c)for a third or later offence—3 years.

(4)If, when the offence happened, the supplier supplied smoking products at more than 1 outlet, the order may apply only to an outlet where the offence happened.

(5)The court may make the order in addition to imposing another penalty to which the supplier is liable because of the conviction.

(6)A person must not contravene an order under this section.

Maximum penalty—420 penalty units.

(7)A conviction under subsection (6) for contravening an order does not affect the continuation of the order.

s 13 amd 1999 No. 61s 24; 2001 No. 20s 11

sub 2004 No. 47s 8

13APower to require details of retail suppliers

(1)This section applies if the chief executive reasonably believes a manufacturer or wholesaler of smoking products has supplied smoking products to suppliers for sale at retail outlets.

(2)The chief executive may, by written notice given to the manufacturer or wholesaler, require the manufacturer or wholesaler to give all or any of the following information (the contact information) to the chief executive for each supplier to which the manufacturer or wholesaler has supplied smoking products—

(a)the name of the supplier;

(b)if a supplier trades under a business name, that business name;

(c)the address of the supplier’s retail outlet;

(d)the supplier’s postal address;

(e)the supplier’s phone number;

(f)the supplier’s fax number and email address.

(3)The notice must state—

(a)the period before the date of the notice, not exceeding 12 months, for which the contact information is required; and

(b)a date, not less than 28 days from the date of the notice, by which the contact information must be given to the chief executive; and

(c)the way the contact information must be given to the chief executive.

Example—

The notice may require the contact information to be given by fax or email.

(4)The manufacturer or wholesaler must comply with the notice, unless the manufacturer or wholesaler has a reasonable excuse.

Maximum penalty—70 penalty units.

(5)The chief executive may use contact information or disclose contact information to a person only for the following purposes—

(a)compiling and keeping a list of suppliers so that the suppliers may be advised about matters relating to this Act, including the requirements applying to suppliers;

(b)monitoring or enforcing compliance with this Act.

s 13A ins 2004 No. 47s 9

div hdg ins 2011 No. 32 s 321

sub 2016 No. 6 s 4

13BNumber of points of sale

A supplier must not sell smoking products at more than 1 point of sale at a retail outlet.

Maximum penalty—140 penalty units.

s 13B ins 2011 No. 32 s 321

13CSupplier must not sell smoking products from temporary retail store

(1)A supplier must not sell smoking products from a temporary retail store.

Maximum penalty—140 penalty units.

(2)In this section—

temporary retail store means—

(a)a temporary structure, regardless of whether any part of the structure is permanent; or

Examples of temporary structures—

a booth, tent, market stall or stand

(b)a vehicle or mobile structure, including a trailer, caravan or other similar thing designed or modified to be easily attached to a vehicle for transportation.

s 13C ins 2016 No. 6 s 5

14Definitions for div 2

In this division—

bar means a place in licensed premises that—

(a)is stocked with liquor of various types; and

(b)is used solely or mainly for the supply of liquor to customers; and

(c)has a counter—

(i)across which liquor is supplied directly to customers; and

(ii)at which, or in the immediate vicinity of which, customers may immediately consume the liquor supplied.

bar area, of licensed premises, means the area—

(a)in the immediate vicinity of a bar; and

(b)not more than 5m from the outer edge of the counter of the bar.

employee, of a person in charge of a tobacco product vending machine, means an employee of the person—

(a)whose employment requires the employee to work near the vending machine; and

(b)who, in performing the employee’s duties, can observe the use of the vending machine.

gaming machine area has the meaning given by the Gaming Machine Act 1991, schedule 2.

def gaming machine area amd 2002 No. 43s 112sch 2; 2012 No. 25s 195 sch

liquor has the meaning given by the Liquor Act 1992, section 4B.

prevention measures, by a person in charge of a tobacco product vending machine, means, for the person’s employees—

(a)instructing the employees to—

(i)take reasonable steps to ensure that a child does not obtain a tobacco product from the vending machine, even if the product is for, or claimed to be for, an adult; and

(ii)sight acceptable evidence of age for a person before allowing the person to obtain a tobacco product from the vending machine, unless satisfied the person is an adult; and

(b)obtaining written acknowledgement by each employee that the employee received the instructions mentioned in paragraph (a).

s 14 sub 2001 No. 20s 12

15Restriction on location of tobacco product vending machines

(1)An occupier of premises must not have a tobacco product vending machine in the premises.

Maximum penalty—70 penalty units.

(2)Subsection (1) does not apply to—

(a)a bar area of licensed premises if the use of each tobacco product vending machine in the area can be easily observed by persons working behind the bar; or

(b)a casino; or

(c)a gaming machine area, if each tobacco product vending machine in the area—

(i)can be easily observed by employees of the person in charge of the tobacco product vending machine; and

(ii)is not more than 1m from a gaming machine in the gaming machine area.

(3)Also, subsection (1) does not apply to a tobacco product vending machine while it is not being used by anyone to supply tobacco products.

Example—

Subsection (1) does not apply to a tobacco product vending machine while it is being stored, transported or repaired.

(4)In a prosecution for an offence against subsection (1), proof that a tobacco product vending machine was capable of being used to supply tobacco products is evidence that the vending machine was being used to supply tobacco products at the relevant time.

s 15 sub 2001 No. 20s 12

amd 2004 No. 47s 10

15APerson in charge of tobacco product vending machine in bar area or gaming machine area must instruct employees

A person in charge of a tobacco product vending machine in a bar area or gaming machine area must take prevention measures in relation to the person’s employees.

Maximum penalty—40 penalty units.

s 15A ins 2001 No. 20s 12

amd 2007 No. 54s 60

16Supply of tobacco products from vending machines

(1)A person in charge of a tobacco product vending machine in licensed premises must not allow a child to obtain a tobacco product from the vending machine.

Maximum penalty—

(a)for a first offence—70 penalty units; or

(b)for a second or later offence—140 penalty units.

(2)However, the person does not commit an offence against subsection (1) if, before the child obtained the tobacco product, the person had taken the prevention measures.

s 16 amd 2001 No. 20s 13

17Persons in charge of tobacco product vending machines may be prohibited from possessing tobacco product vending machines

(1)This section applies if—

(a)a person in charge of a tobacco product vending machine is convicted of an offence against section 16; and

(b)within 2 years after the conviction, the person is again convicted of an offence against the section (the subsequent offence).

(2)The court sentencing the person for the subsequent offence may, on its own initiative or the application of the prosecutor, make an order against the person under subsection (3).

(3)The court may make an order applying for a stated period, of at least 2 months but not longer than 1 year—

(a)prohibiting the person from possessing tobacco product vending machines; or

(b)imposing conditions or restrictions on the possession or use of tobacco product vending machines by the person.

(4)However, if the person is in charge of a tobacco product vending machine at more than 1 licensed premises, the order may apply only to the licensed premises where the offences happened.

(5)A person must not contravene an order under subsection (3).

Maximum penalty for subsection (5)—200 penalty units.

s 17 amd 2001 No. 20s 14

div hdg sub 1999 No. 61s 25; 2014 No. 65s 54

18Prohibition on use of vending machine to supply personal vaporisers and related products, herbal cigarettes and loose smoking blends

(1)A person in possession of a coin operated vending machine must not use the machine to supply personal vaporisers, personal vaporiser related products, herbal cigarettes or a loose smoking blend to another person.

Maximum penalty—

(a)for a first offence—70 penalty units; or

(b)for a second or later offence—140 penalty units.

(2)In this section—

possession, of a coin operated vending machine, includes having control of the machine.

s 18 sub 1999 No. 61s 25

amd 2001 No. 20s 15; 2014 No. 65s 55

div hdg ins 1999 No. 61s 25

18AApplication of div 3A

This division does not apply to—

(a)the supply of smoking products by—

(i)suppliers; or

(ii)employees of suppliers in the course of the employees’ employment; or

(b)the supply of smoking products from coin operated vending machines.

s 18A ins 1999 No. 61s 25

amd 2001 No. 20s 16

19Supply prohibited

(1)An adult must not supply a smoking product to a child (the relevant person).

Maximum penalty—140 penalty units.

(2)However, a responsible adult for a child does not commit an offence by supplying a smoking product to the child.

(3)It is a defence to a charge under subsection (1) for the defendant to prove that at the time of the offence the defendant honestly and reasonably believed that the relevant person was an adult.

s 19 amd 1999 No. 61s 26; 2001 No. 20s 17; 2004 No. 47s 11

div 3B (s 19A) ins 2004 No. 47s 12

19APerson must not falsely represent age

A person must not falsely represent himself or herself to have attained 18 years for the purpose of being supplied with a smoking product.

Maximum penalty—20 penalty units.

div 3B (s 19A) ins 2004 No. 47s 12

div hdg sub 1999 No. 61s 28

22Cigarettes and herbal cigarettes must be sold in packages

(1)A supplier must sell cigarettes or herbal cigarettes only in a package.

Maximum penalty—140 penalty units.

(2)A supplier must not sell cigarettes or herbal cigarettes in a package containing less than 20 cigarettes.

Maximum penalty—140 penalty units.

s 22 amd 1999 No. 61s 29; 2001 No. 20s 20; 2004 No. 47s 15

23Loose tobacco must be sold in packages

(1)A supplier must not sell loose tobacco except in a package.

Maximum penalty—140 penalty units.

(2)A supplier must not sell loose tobacco in a package containing less than 25g of loose tobacco.

Maximum penalty—140 penalty units.

s 23 amd 1999 No. 61s 30; 2001 No. 20s 21

sub 2004 No. 47s 16

23ALoose smoking blend must be sold in packages

(1)A supplier must not sell loose smoking blend except in a package.

Maximum penalty—140 penalty units.

(2)A supplier must not sell loose smoking blend in a package containing less than 15g of loose smoking blend.

Maximum penalty—140 penalty units.

s 23A ins 1999 No. 61s 31

amd 2001 No. 20s 22

sub 2004 No. 47s 16

div hdg prev div 6 hdg om 2006 No. 46s 272

pres div 6 hdg (prev div 7 hdg) sub 2001 No. 20s 24

renum 2006 No. 46s 274

24Defence to charge if age material

(1)This section applies to a charge for an offence against section 10, 11, 12 or 16 in which the age of a person (the relevant person) is material to the charge.

(2)It is a defence to the charge for the defendant to prove that at the time of the offence the defendant or the defendant’s employee honestly and reasonably believed the relevant person was an adult.

(3)Proof that the defendant or the defendant’s employee did not ask the relevant person to produce acceptable evidence of age is evidence that any belief that the relevant person was an adult was not reasonable.

s 24 (prev s 26) renum 2006 No. 46s 275

pt hdg ins 2001 No. 20s 26

div hdg ins 2004 No. 47s 18

25Definitions for pt 2A

In this part—

humidified room means a room in which the humidity is controlled to preserve the quality of cigars in the room.

humidified container ...

def humidified container om 2011 No. 32s 325(1)

relevant point of sale, of a supplier, means the point of sale at a retail outlet at which the supplier sells smoking products.

Note—

Section 13B provides that smoking products may be sold by a supplier at not more than 1 point of sale at a retail outlet.

def relevant point of sale ins 2011 No. 32s 325(2)

smoking product means—

(a)a tobacco product, herbal cigarette, loose smoking blend, personal vaporiser, personal vaporiser related product or smoking related product; or

(b)a package or carton of a thing mentioned in paragraph (a).

def smoking product amd 2009 No. 44s 175(1)

sub 2011 No. 32s 325(1)–(2)

amd 2014 No. 65s 56

smoking related product means a product, prescribed under a regulation, that is used primarily in the consumption of a tobacco product, herbal cigarette or loose smoking blend.

def smoking related product ins 2009 No. 44s 175(2)

s 25 prev s 25 amd 1999 No. 61s 32

om 2001 No. 20s 25

pres s 25 (prev s 26AA) ins 2004 No. 47s 18

renum 2006 No. 46s 276

div hdg ins 2001 No. 20s 26

26Application of div 1

This division does not apply to a tobacco product vending machine.

s 26 ins 2006 No. 46s 277

26AProhibition on display, and restrictions on advertising, of smoking products

(1)A supplier must not display a smoking product.

Maximum penalty—140 penalty units.

(2)A supplier must not advertise a smoking product other than at a retail outlet.

Maximum penalty—140 penalty units.

(3)A supplier must not advertise a smoking product at a retail outlet in any way other than a way specifically provided for in another section of this division.

Maximum penalty—140 penalty units.

(4)If a smoking product is kept by a supplier at a retail outlet in compliance with this division, the supplier does not contravene this section merely because the smoking product is seen by another person.

s 26A ins 2001 No. 20s 26

sub 2004 No. 47s 19; 2011 No. 32s 326

26BLocation of smoking products at retail outlet

Smoking products may be kept at a retail outlet only at or in the following places—

(a)at or near the supplier’s relevant point of sale, only if the smoking products are kept either—

(i)on the seller’s side of the point of sale; or

(ii)above or below a counter, but not on a counter, where customers are served, in a way that the smoking products can not be accessed by customers;

(b)for cigars—in a humidified room where the cigars can be accessed by customers only if, while a customer is in the room, the customer is accompanied by the supplier or an employee of the supplier;

(c)in a room or other place, if the smoking products are kept in a way that they can not be accessed by customers.

Example—

a locked storage room used to store products not for immediate sale

s 26B ins 2001 No. 20s 26

amd 2004 No. 47s 20; 2006 No. 46s 278

sub 2011 No. 32s 326

26CSmoking products must be kept out of sight of customers

(1)Smoking products kept at a retail outlet must be kept in a way that they are not visible to customers.

(2)Also, if smoking products are kept at or near the supplier’s relevant point of sale, the smoking products must be concealed by a covering that—

(a)is opaque; and

(b)is of a colour or design that does not make a feature of the covering as distinct from its surrounds.

(3)Despite subsections (1) and (2), the fleeting incidental view by a customer of an area of no more than 1m² of smoking products is permitted only to the extent required to carry out activities in the ordinary course of the supplier’s business.

Example of activities carried out in the ordinary course of the supplier’s business—

removing smoking products as part of a transaction

s 26C ins 2001 No. 20s 26

sub 2011 No. 32s 326

26DSmoking products must not constitute advertisement

An arrangement of smoking products must not—

(a)constitute a tobacco advertisement itself; or

(b)create a composite picture or other meaningful visual image whose component parts are printed on individual cartons or packages.

s 26D ins 2001 No. 20s 26

amd 2004 No. 47s 22; 2006 No. 46s 281

sub 2011 No. 32s 326

26EDisplay of retail prices of smoking products

(1)This section applies if smoking products are kept at or near a supplier’s relevant point of sale.

(2)The retail price of smoking products available, or usually available, for sale at the retail outlet may be displayed only by a price ticket or other indicator of price—

(a)fixed at the place where the smoking products are kept; and

(b)in the form prescribed under a regulation.

(3)A display of the retail price of smoking products must not include anything else about the price of a smoking product, including, for example, a thing that states the price is discounted.

(4)A supplier does not advertise a smoking product merely by displaying the retail price of the product in compliance with this section.

s 26E ins 2001 No. 20s 26

sub 2011 No. 32s 326

26HACertain business names allowed

(1)A supplier does not advertise or display a smoking product merely by using a business name that includes a reference to a smoking product.

(2)However, a supplier is taken to advertise or display a smoking product if the supplier advertises or displays a business name that includes anything about the price of smoking products.

Example of a business name for subsection (2)—

Discount Cigs and Tobacco

s 26HA ins 2004 No. 47s 25

amd 2006 No. 46s 284

26HBUse of ‘tobacconist’ in advertising

A supplier who is a tobacconist does not advertise or display a smoking product merely by using the word ‘tobacconist’ in an advertisement or display for the tobacconist’s business.

s 26HB ins 2004 No. 47s 25

26HCDisplay of signage at supplier’s relevant point of sale

(1)A supplier must display, at the supplier’s relevant point of sale, a sign prescribed under a regulation as a mandatory sign.

Maximum penalty—20 penalty units.

(2)A supplier may display, at the supplier’s relevant point of sale, a sign prescribed under a regulation as a permitted sign.

s 26HC (prev s 20) amd 1999 No. 61s 27

sub 2001 No. 20s 18

amd 2004 No. 47s 13; 2006 No. 46s 270; 2011 No. 32s 323

renum and reloc 2011 No. 32s 323(4)

div hdg ins 2001 No. 20s 26

sub 2006 No. 46s 285

26IAProhibition on display, and restrictions on advertising, of smoking products

A person in charge of a tobacco product vending machine must not—

(a)display a smoking product in or on the machine; or

(b)advertise a smoking product in or on the machine other than as allowed under this division.

Maximum penalty—140 penalty units.

s 26IA ins 2006 No. 46s 285

sub 2011 No. 32s 327

26IDDisplay of retail prices of tobacco product

(1)If a tobacco product is available or usually available for sale in a tobacco product vending machine, the retail price of the tobacco product may be displayed only by a price ticket, or other indicator of price, as prescribed under a regulation.

(2)A display of the prices of tobacco products must not include anything else about the price of a tobacco product including, for example, a thing that states the price is discounted.

(3)A person in charge of a tobacco product vending machine does not advertise a tobacco product merely by displaying the retail price of the product in compliance with this section.

s 26ID ins 2006 No. 46s 285

amd 2011 No. 32s 329

26IECertain business names allowed

(1)A person in charge of a tobacco product vending machine does not advertise or display a smoking product merely by using a business name that includes a reference to a smoking product.

(2)However, a person in charge of a tobacco product vending machine is taken to advertise or display a smoking product if the person advertises or displays a business name that includes anything about the price of smoking products.

Example of a business name for subsection (2)—

Discount Cigs and Tobacco

s 26IE ins 2006 No. 46s 285

amd 2011 No. 32s 330

26IFPerson in charge of tobacco product vending machine must attach particular signs

A person in charge of a tobacco product vending machine must attach a sign prescribed under a regulation as a mandatory sign to, or near, the vending machine, as prescribed under a regulation.

Maximum penalty—20 penalty units.

s 26IF (prev s 21) sub 2001 No. 20s 19

amd 2004 No. 47s 14; 2006 No. 46s 271; 2011 No. 32s 324(1)

renum and reloc 2011 No. 32s 324(2)

div hdg ins 2001 No. 20s 26

26JDefinitions for div 3

In this division—

entitlement means an entitlement to goods or services, or to a reduced price for goods or services.

object includes a document and does not include a smoking product.

s 26J ins 2001 No. 20s 26

26KWhen division does not apply

This division does not prevent a promotion of a smoking product by a manufacturer or distributor if the promotion is only to a supplier.

s 26K ins 2001 No. 20s 26

26LSupply of object or entitlement that promotes smoking product etc.

(1)A person must not supply an object or entitlement that promotes—

(a)a smoking product; or

(b)a trademark or brand name, or part of a trademark or brand name, of a smoking product; or

(c)the name or interests of a manufacturer or distributor of a smoking product in association, whether directly or indirectly, with the smoking product.

Maximum penalty—140 penalty units.

(2)In a prosecution for an offence against subsection (1), to establish whether an object or entitlement promotes a matter—

(a)it is enough to prove—

(i)that material published by the defendant relating to the object or entitlement would be likely to cause a reasonable person to believe the object or entitlement promoted, or was intended to promote, the matter; or

(ii)that there are other reasonable grounds for believing the object or entitlement promoted, or was intended to promote, the matter; and

(b)the matter may be found to be promoted by the object or entitlement irrespective of the actual belief of the defendant.

(3)Subsection (1) does not apply to an object if—

(a)the primary purpose of the object is not to promote a thing mentioned in subsection (1); and

(b)the object was—

(i)lawfully available for supply in Queensland on or after 31 May 2002 and before 31 December 2005; or

(ii)substantially the same, and made by the same person, as an object under subparagraph (i).

(4)In this section—

promotes, in relation to the promotion of a matter by an object that is a sound recording, video recording or a computer storage device, includes the promotion of the matter by aural or visible material that the object is reasonably capable of producing, or causing to be produced, in its normal use.

s 26L ins 2001 No. 20s 26

amd 2004 No. 47s 27; 2009 No. 44s 176

26MSupply of object or entitlement in association with smoking product sale or consumption

(1)A person must not supply an object or entitlement if the supply is in direct or indirect association with the sale or consumption of a smoking product, or of smoking products generally.

Maximum penalty—140 penalty units.

(2)In a prosecution for an offence against subsection (1), to establish whether an object or entitlement is supplied in direct or indirect association with a matter—

(a)it is enough to prove—

(i)that material published by the defendant relating to the object or entitlement would be likely to cause a reasonable person to believe the supply to be in that association, or intended to be in that association; or

(ii)that there are other reasonable grounds for believing the supply to be in that association, or intended to be in that association; and

(b)the supply may be found to be in that association irrespective of the actual belief of the defendant.

(3)It is a defence to a prosecution for an offence against subsection (1), if the defendant proves that the person receiving the object or entitlement would have received the same object or entitlement if the person had bought goods of whatever kind other than a smoking product to the same value as the smoking product.

(4)However, subsection (3) does not apply if the object or entitlement would have been received by the person only if the person had bought the goods from the defendant or from a supplier nominated by the defendant.

s 26M ins 2001 No. 20s 26

amd 2004 No. 47s 28

26NSmoking product giveaways

(1)A person must not supply a smoking product for free if the supply promotes the sale of a smoking product.

Maximum penalty—140 penalty units.

(2)In a prosecution for an offence against subsection (1), to establish whether the supply of a smoking product for free promotes the sale of a smoking product—

(a)it is enough to prove—

(i)that material published by the defendant relating to the supply would be likely to cause a reasonable person to believe the supply promoted, or was intended to promote, the sale; or

(ii)that there are other reasonable grounds for believing the supply promoted, or was intended to promote, the sale; and

(b)the sale may be found to be promoted by the supply irrespective of the actual belief of the defendant.

s 26N ins 2001 No. 20s 26

amd 2004 No. 47s 29

26OCompetition that promotes smoking product

(1)A person must not conduct a competition that promotes—

(a)a smoking product; or

(b)a trademark or brand name, or part of a trademark or brand name, of a smoking product; or

(c)the name or interests of a manufacturer or distributor of a smoking product in association, whether directly or indirectly, with the smoking product.

Maximum penalty—140 penalty units.

(2)In a prosecution for an offence against subsection (1), to establish whether a competition promotes a matter—

(a)it is enough to prove—

(i)that material published by the defendant relating to the competition would be likely to cause a reasonable person to believe the competition promoted, or was intended to promote, the matter; or

(ii)that there are other reasonable grounds for believing the competition promoted, or was intended to promote, the matter; and

(b)the matter may be found to be promoted by the competition irrespective of the actual belief of the defendant.

s 26O ins 2001 No. 20s 26

amd 2004 No. 47s 30

26PConduct of competition in association with smoking product sale or consumption

(1)A person must not conduct a competition that has a direct or indirect association with the sale or consumption of a smoking product, or of smoking products generally.

Maximum penalty—140 penalty units.

(2)In a prosecution for an offence against subsection (1), to establish whether a competition has a direct or indirect association with a matter—

(a)it is enough to prove—

(i)that material published by the defendant relating to the competition would be likely to cause a reasonable person to believe the competition to have that association, or to be intended to have that association; or

(ii)that there are other reasonable grounds for believing the competition to have that association, or to be intended to have that association; and

(b)the competition may be found to have that association irrespective of the actual belief of the defendant.

s 26P ins 2001 No. 20s 26

amd 2004 No. 47s 31

26PAImage of consumption of smoking product

(1)A supplier must not, at a retail outlet, display an image that promotes a person or thing consuming, using or being otherwise associated with, a smoking product.

Maximum penalty—140 penalty units.

(2)Subsection (1) does not apply to a trademark.

s 26PA ins 2004 No. 47s 32

pt hdg ins 2001 No. 20s 26

26PBApplication of pt 2B

This part does not apply to a motor vehicle under part 2BA.

s 26PB ins 2009 No. 44s 177

26QDefinitions for pt 2B

In this part—

bingo ...

def bingo om 2004 No. 47s 33(1)

bingo area ...

def bingo area om 2004 No. 47s 33(1)

bingo session ...

def bingo session om 2004 No. 47s 33(1)

common area ...

def common area om 2006 No. 46s 286

community titles scheme ...

def community titles scheme amd 2006 No. 25s 241(2)sch 4

om 2006 No. 46s 286

dining area ...

def dining area om 2004 No. 47s 33(1)

enclosed ...

def enclosed om 2004 No. 47s 33(1)

exempt vehicle ...

def exempt vehicle om 2009 No. 44s 178

gaming table area ...

def gaming table area om 2004 No. 47s 33(1)

licensed premises means—

(a)licensed premises under the Liquor Act 1992; or

(b)a place with a permit under the Liquor Act 1992; or

(c)licensed premises under the Wine Industry Act 1994; or

(d)a place with a permit under the Wine Industry Act 1994.

def licensed premises amd 2016 No. 6 s 6

licensee means a person who holds a licence or permit for licensed premises.

lot ...

def lot amd 2006 No. 25s 241(2)sch 4

om 2006 No. 46s 286

meal ...

def meal om 2004 No. 47s 33(1)

multi-unit residential accommodation ...

def multi-unit residential accommodation amd 2004 No. 47s 33(3)

om 2006 No. 46s 286

occupier ...

def occupier om 2004 No. 47s 33(2)

premium gaming room means a room of a casino where—

(a)minimum or maximum bets are generally higher than elsewhere in the casino; and

(b)food or drink is generally provided free to casino patrons.

residential premises ...

def residential premises om 2004 No. 47s 33(2)

smoke ...

def smoke om 2004 No. 47s 33(2)

s 26Q ins 2001 No. 20s 26 (amd 2002 No. 22s 3(1))

26RPerson must not smoke in enclosed place

(1)A person must not smoke in an enclosed place.

Maximum penalty—20 penalty units.

(2)Subsection (1) does not apply to the following—

(a)residential premises, other than a part of residential premises being used for carrying on a business while 1 or more persons who do not reside at the premises are present in the part of the premises;

Example of a person who does not reside at the premises—

a person employed in the business

(b)multi-unit residential accommodation, other than the common areas of the accommodation;

(c)a premium gaming room.

(3)A person who performs in a theatre or other enclosed place does not commit an offence under this section by smoking during the performance if smoking is part of the performance.

(4)In this section—

common area, of multi-unit residential accommodation, means an area accessible to all, or a specified class of, residents of, or persons employed at, the accommodation.

Example—

a TV room or cooking facilities shared by all, or a specified class of, residents

multi-unit residential accommodation means hotels, motels, hostels, boarding houses, residential accommodation comprising lots in a community titles scheme and other similar accommodation.

residential premises does not include multi-unit residential accommodation.

s 26R ins 2001 No. 20s 26 (amd 2002 No. 22s 3(2)–(3))

amd 2004 No. 47s 34; 2006 No. 29s 518sch 3; 2006 No. 46s 287; 2009 No. 44s 179; 2014 No. 65s 57; 2016 No. 6 s 7

26SNo smoking sign

(1)This section applies in relation to each public entrance from an outdoor area to an enclosed place at any of the following premises—

(a)premises to which a commercial hotel licence or community club licence under the Liquor Act 1992 applies;

(b)premises, to which a commercial special facility licence under the Liquor Act 1992 applies, that contain all or part of a casino.

(2)The licensee of the premises must display a no smoking sign at the entrance as prescribed under a regulation.

Maximum penalty—20 penalty units.

(3)In this section—

no smoking sign means a sign—

(a)indicating that smoking is not permitted; and

(b)complying with the requirements prescribed under a regulation.

outdoor area means an area that is not an enclosed place.

s 26S ins 2001 No. 20s 26 (amd 2002 No. 22s 3(4))

amd 2004 No. 47s 36; 2007 No. 54s 61; 2011 No. 41s 69; 2016 No. 6 s 8

26UPerson smoking must stop when directed

(1)A person contravening section 26R(1) must comply with a direction to stop the contravention by—

(a)an authorised person; or

Note—

See section 40A.

(b)an occupier of an enclosed place where the contravention is happening, or an employee or agent of the occupier.

Maximum penalty—20 penalty units.

(2)If a person (the first person) does not comply with a direction to stop the contravention and the first person is at a place where food or drink is provided, a person (the second person) conducting an on-site food service must not provide food or drink to the first person while the first person continues to contravene section 26R(1).

Maximum penalty—140 penalty units.

(3)However, for subsection (2), it is a defence for the second person to prove that the second person was not aware, and could not have reasonably been expected to be aware, that the contravention was happening.

s 26U ins 2001 No. 20s 26

amd 2004 No. 47s 38; 2006 No. 46s 288

26VOffence by occupier

(1)If a person contravenes section 26R(1), an occupier of the enclosed place where the contravention happens commits an offence.

Maximum penalty—140 penalty units.

(2)However, it is a defence for the occupier to prove—

(a)the occupier was not aware, and could not have reasonably been expected to be aware, that the contravention was happening; or

(b)the occupier, or an employee or agent of the occupier—

(i)directed the person to stop smoking; and

(ii)told the person it was an offence not to comply with a direction to stop smoking.

s 26V ins 2001 No. 20s 26

amd 2004 No. 47s 39; 2006 No. 46s 289

pt hdg ins 2009 No. 44s 180

26VBPerson must not smoke in motor vehicle being used for business use if anyone else in the vehicle

A person must not smoke in a motor vehicle if—

(a)the vehicle is on a road or road-related area; and

(b)the vehicle is being used for business use; and

(c)another person is in the vehicle.

Maximum penalty—20 penalty units.

s 26VB ins 2009 No. 44s 180

26VCPerson must not smoke in motor vehicle if person under 16 in the vehicle

A person must not smoke in a motor vehicle if—

(a)the vehicle is on a road or road-related area; and

(b)another person in the vehicle is under 16 years of age.

Maximum penalty—20 penalty units.

s 26VC ins 2009 No. 44s 180

26VDDefence for s 26VC

It is a defence to a charge for an offence against section 26VC for the defendant to prove that at the time of the offence the defendant honestly and reasonably believed that no person in the vehicle was under 16 years of age.

s 26VD ins 2009 No. 44s 180

26VEEvidentiary provisions

(1)This section applies to a proceeding for an offence under this part.

(2)A statement in a charge of any of the following, in relation to the time or date mentioned in the charge, is evidence of the matter—

(a)a person was under 16 years of age;

(b)a thing was a smoking product;

(c)a thing was a motor vehicle;

(d)a place was a road or road-related area.

(3)Subsection (4) applies if a defendant intends to challenge either of the following at the hearing of a charge under this part—

(a)a person was under 16 years of age;

(b)a thing was a smoking product.

(4)The defendant must, at least 14 days before the day fixed for the hearing, give notice of the challenge to the prosecution in the approved form signed by the defendant.

(5)Evidence by a police officer of his or her belief of any matter mentioned in subsection (6) must be accepted by the court as proof of the matter if —

(a)the court considers the belief to be reasonable; and

(b)there is no evidence to the contrary.

(6)The matters to which the previous subsection applies are—

(a)a person seen by the police officer in a motor vehicle was under 16 years of age; and

(b)a thing being smoked by someone in a motor vehicle was a smoking product.

s 26VE ins 2009 No. 44s 180

pt hdg ins 2016 No. 6 s 9

div hdg ins 2016 No. 6 s 9

26VFApplication of part

This part does not apply to an enclosed place, other than an enclosed place that is a vehicle or part of a vehicle.

s 26VF ins 2016 No. 6 s 9

div hdg ins 2016 No. 6 s 9

26VGMeaning of major sports facility

A major sports facility is a facility declared to be a major sports facility under the Major Sports Facilities Act 2001.

s 26VG ins 2016 No. 6 s 9

26VHPerson must not smoke at major sports facility

(1)A person must not smoke at a major sports facility.

Maximum penalty—20 penalty units.

(2)Subsection (1) does not apply to the following areas of a major sports facility—

(a)a road or carpark;

(b)a picnic area or area of parkland.

s 26VH ins 2016 No. 6 s 9

26VIPerson smoking must stop when directed

A person contravening section 26VH(1) must comply with a direction to stop the contravention by—

(a)an authorised person; or

(b)an occupier of the major sports facility, or the part of the facility, where the contravention is happening, or an employee or agent of the occupier.

Maximum penalty—20 penalty units.

s 26VI ins 2016 No. 6 s 9

26VJOffence by occupier

(1)If a person contravenes section 26VH(1), the occupier of the major sports facility, or of the part of the facility, where the contravention happened, commits an offence.

Maximum penalty—140 penalty units.

(2)However, it is a defence for the occupier to prove—

(a)the occupier was not aware, and could not have reasonably been expected to be aware, that the contravention was happening; or

(b)the occupier, or an employee or agent of the occupier—

(i)directed the person to stop smoking; and

(ii)told the person it was an offence not to comply with a direction to stop smoking.

s 26VJ ins 2016 No. 6 s 9

div hdg ins 2016 No. 6 s 9

26VKDefinitions for division

In this division—

major event facility means the major event area prescribed by regulation for a major event under the Major Events Act 2014, for the period the area is a major event area under that Act.

major event organiser has the meaning given in the Major Events Act 2014.

s 26VK ins 2016 No. 6 s 9

26VLPerson must not smoke at major event facility

(1)A person must not smoke at a major event facility.

Maximum penalty—20 penalty units.

(2)Subsection (1) does not apply if the person—

(a)is in a nominated outdoor smoking place; and

(b)is not consuming food or drink.

(3)In this section—

nominated outdoor smoking place means a clearly designated part, or parts, of an outdoor area of a major event facility—

(a)where smoking is not otherwise prohibited under this Act; and

(b)established by the major event organiser as an area where—

(i)smoking is permitted; and

(ii)food or drink is not to be consumed.

Example for paragraph (a)—

Smoking is prohibited within 10m of children’s playground equipment.

s 26VL ins 2016 No. 6 s 9

26VMPerson smoking must stop when directed

A person contravening section 26VL(1) must comply with a direction to stop the contravention by—

(a)an authorised person; or

(b)the major event organiser for the major event facility, or the part of the facility, where the contravention is happening, or an employee or agent of the major event organiser.

Maximum penalty—20 penalty units.

s 26VM ins 2016 No. 6 s 9

26VNOffence by major event organiser

(1)If a person contravenes section 26VL(1), the major event organiser of the major event facility, or the part of the facility, where the contravention happened, commits an offence.

Maximum penalty—140 penalty units.

(2)However, it is a defence for the major event organiser to prove—

(a)the major event organiser was not aware, and could not have reasonably been expected to be aware, that the contravention was happening; or

(b)the major event organiser, or an employee or agent of the major event organiser—

(i)directed the person to stop smoking; and

(ii)told the person it was an offence not to comply with a direction to stop smoking.

s 26VN ins 2016 No. 6 s 9

div hdg ins 2016 No. 6 s 9

26VOPerson must not smoke at or near health facility

(1)A person must not smoke at a health facility.

Maximum penalty—20 penalty units.

(2)A person must not smoke on land within 5m beyond the boundary of a health facility (the buffer zone).

Maximum penalty—20 penalty units.

(3)Subsection (2) does not apply to a person—

(a)in the buffer zone at residential premises or on land on which residential premises may lawfully be built; or

(b)in the buffer zone at business premises; or

(c)travelling through the buffer zone in a motor vehicle.

(4)In this section—

health facility means—

(a)land on which a private health facility is situated; or

(b)land on which a Service provides a health service.

health service means a service for maintaining, improving, restoring or managing people’s health and wellbeing, but does not include a service provided at a residential aged care facility.

private health facility see the Private Health Facilities Act 1999, section 8.

residential aged care facility see section 26VW(5).

s 26VO ins 2016 No. 6 s 9

26VPPerson smoking must stop when directed

A person contravening section 26VO(1) or (2) must comply with a direction to stop the contravention by an authorised person.

Maximum penalty—20 penalty units.

s 26VP ins 2016 No. 6 s 9

div hdg ins 2016 No. 6 s 9

26VQPerson must not smoke at or near school facility

(1)A person must not smoke at a school facility.

Maximum penalty—20 penalty units.

(2)A person must not smoke on land within 5m beyond the boundary of a school facility (the buffer zone).

Maximum penalty—20 penalty units.

(3)Subsection (2) does not apply to a person—

(a)in the buffer zone at residential premises or on land on which residential premises may lawfully be built; or

(b)in the buffer zone at business premises; or

(c)travelling through the buffer zone in a motor vehicle.

(4)In this section—

non-State school means an accredited school or a provisionally accredited school under the Education (Accreditation of Non-State Schools) Act 2001.

school facility means land on which—

(a)a State school provides an educational program under the Education (General Provisions) Act 2006; or

(b)a non-State school provides primary education, secondary education or special education under the Education (Accreditation of Non-State Schools) Act 2001; or

(c)a State school or non-State school provides other educational instruction or activities.

State school means a state educational institution within the meaning of the Education (General Provisions) Act 2006, schedule 4.

s 26VQ ins 2016 No. 6 s 9

26VRPerson smoking must stop when directed

A person contravening section 26VQ(1) or (2) must comply with a direction to stop the contravention by an authorised person.

Maximum penalty—20 penalty units.

s 26VR ins 2016 No. 6 s 9

div hdg ins 2016 No. 6 s 9

26VSPerson must not smoke at public swimming facility

(1)A person must not smoke at a public swimming facility.

Maximum penalty—20 penalty units.

(2)In this section—

associated area, for a swimming pool, means any of the following—

(a)an area rising from within the pool or a platform over the pool;

(b)an area providing access to the pool;

(c)an area adjacent to the pool provided for persons to observe swimmers in the pool, change their clothing or sunbathe;

(d)diving boards and water slides for the pool;

(e)a kiosk and seating area adjacent to the pool;

(f)if the area surrounding the pool is enclosed by a fence or wall—the entire area enclosed by the fence or wall.

public swimming facility—

(a)means a swimming pool that is owned or operated by a local government and is open to the public for swimming, whether or not on payment of money; and

(b)includes the associated area for the swimming pool.

s 26VS ins 2016 No. 6 s 9

26VTPerson smoking must stop when directed

A person contravening section 26VS(1) must comply with a direction to stop the contravention by an authorised person.

Maximum penalty—20 penalty units.

s 26VT ins 2016 No. 6 s 9

div hdg ins 2016 No. 6 s 9

26VUPerson must not smoke at or near early childhood education and care facility

(1)A person must not smoke at an early childhood education and care facility.

Maximum penalty—20 penalty units.

(2)A person must not smoke on land within 5m beyond the boundary of an early childhood education and care facility (the buffer zone).

Maximum penalty—20 penalty units.

(3)Subsections (1) and (2) do not apply to a person at an early childhood education and care facility if—

(a)the facility is also residential premises; and

(b)at the relevant time, the facility is not being used to provide an early childhood education and care service.

(4)Subsection (2) does not apply to a person—

(a)in the buffer zone at residential premises or on land on which residential premises may lawfully be built; or

(b)in the buffer zone at business premises; or

(c)travelling through the buffer zone in a motor vehicle.

(5)For an early childhood education and care facility that is also residential premises, it is a defence to subsection (1) or (2) for a person to prove that the person was not aware, and could not have reasonably been expected to be aware, that the premises were an early childhood education and care facility.

(6)In this section—

early childhood education and care facility means land on which an early childhood education and care service is provided.

early childhood education and care service means—

(a)a Queensland approved education and care service under the Education and Care Services Act 2013; or

(b)an approved education and care service under the Education and Care Services National Law (Queensland) Act 2011.

s 26VU ins 2016 No. 6 s 9

26VVPerson smoking must stop when directed

A person contravening section 26VU(1) or (2) must comply with a direction to stop the contravention by an authorised person.

Maximum penalty—20 penalty units.

s 26VV ins 2016 No. 6 s 9

div hdg ins 2016 No. 6 s 9

26VWPerson must not smoke at or near residential aged care facility

(1)A person must not smoke at a residential aged care facility.

Maximum penalty—20 penalty units.

(2)A person must not smoke on land within 5m beyond the boundary of a residential aged care facility (the buffer zone).

Maximum penalty—20 penalty units.

(3)Subsection (1) does not apply to a person within a nominated outdoor smoking place.

(4)Subsection (2) does not apply to a person—

(a)in the buffer zone at residential premises or on land on which residential premises may lawfully be built; or

(b)in the buffer zone at business premises; or

(c)travelling through the buffer zone in a motor vehicle.

(5)In this section—

home-based aged care means residential premises where aged care is provided to a person.

nominated outdoor smoking place means a clearly designated part, or parts, of an outdoor area of a residential aged care facility—

(a)where smoking is not otherwise prohibited under this Act; and

(b)established by the occupier of the facility as an area where smoking is permitted.

Example for paragraph (a)—

Smoking is prohibited within 10m of children’s playground equipment.

residential aged care facility—

(a)means land on which a facility used to provide aged care is situated; but

(b)does not include—

(i)a retirement village; or

(ii)home-based aged care.

retirement village means premises where older members of the community or retired persons reside, or are to reside, in independent living units or serviced units.

s 26VW ins 2016 No. 6 s 9

26VXPerson smoking must stop when directed

A person contravening section 26VW(1) or (2) must comply with a direction to stop the contravention by an authorised person.

Maximum penalty—20 penalty units.

s 26VX ins 2016 No. 6 s 9

pt hdg ins 2004 No. 47s 40

div hdg ins 2004 No. 47s 40

26WMeaning of outdoor eating or drinking place

(1)A place is an outdoor eating or drinking place if—

(a)the place is not an enclosed place or residential premises; and

(b)persons at the place may consume food or drink provided from an on-site food service; and

(c)any of the following apply—

(i)a person would reasonably expect the place has been provided for the purpose of consuming food or drink provided from an on-site food service;

Examples—

•an area on a footpath outside a cafe or takeaway food store containing tables and chairs

•an outdoor area at a shopping centre, surrounded by food outlets, apparently provided for patrons to use while consuming food or drink purchased from the outlets

(ii)the place is bounded by a fence;

Examples—

•a fenced sporting ground at which persons may consume food or drink purchased at the ground

•an area of a park, temporarily fenced off, at which a cultural festival is being conducted and where persons may eat food or drink purchased at the festival

(iii)the place is licensed premises.

(2)However, a place is an outdoor eating and drinking place only while—

(a)food or drink is being provided, or is available to be provided, from an on-site food service; or

(b)food or drink provided from an on-site food service is being consumed at the place.

(3)Food or drink is taken to be provided from an on-site food service whether it is—

(a)served to a person in the outdoor eating or drinking place by or for the person conducting the on-site food service; or

(b)taken by a person from the on-site food service for consumption in the outdoor eating or drinking place.

(4)If an area that would otherwise be within an outdoor eating or drinking place is clearly designated as an area where no food or drink may be consumed, the area is taken not to be part of the outdoor eating or drinking place.

(4A)For subsection (4), a place can not be designated if smoking at the place is otherwise prohibited under this Act.

Example of a place—

a place within 5m of an entrance to an enclosed place where smoking is prohibited under section 26ZJ

(5)In this section—

multi-unit residential accommodation means hotels, motels, hostels, boarding houses, residential accommodation comprising lots in a community titles scheme and other similar accommodation.

provide, food or drink, includes distribute, give or sell the food or drink.

residential premises does not include multi-unit residential accommodation.

s 26W ins 2004 No. 47s 40

sub 2006 No. 46s 290

amd 2007 No. 28s 45; 2016 No. 6 s 10

26XPerson must not smoke at outdoor eating or drinking place

(1)A person must not smoke at an outdoor eating or drinking place.

Maximum penalty—20 penalty units.

(2)Subsection (1) does not apply to a designated outdoor smoking area.

s 26X ins 2004 No. 47s 40

26YPerson smoking must stop when directed

(1)A person contravening section 26X(1) must comply with a direction to stop the contravention by—

(a)an authorised person; or

(b)an occupier of the outdoor eating or drinking place where the contravention is happening, or an employee or agent of the occupier.

Maximum penalty—20 penalty units.

(2)If a person (the first person) does not comply with a direction to stop the contravention, a person (the second person) conducting an on-site food service must not provide food or drink to the first person while the first person continues to contravene section 26X(1).

Maximum penalty—140 penalty units.

(3)However, for subsection (2), it is a defence for the second person to prove that the second person was not aware, and could not have reasonably been expected to be aware, that the contravention was happening.

s 26Y ins 2004 No. 47s 40

amd 2006 No. 46s 291

26ZOffence by occupier

(1)If a person contravenes section 26X(1), the occupier of the outdoor eating or drinking place where the contravention happens commits an offence.

Maximum penalty—140 penalty units.

(2)However, it is a defence for the occupier to prove—

(a)the occupier was not aware, and could not have reasonably been expected to be aware, that the contravention was happening; or

(b)the occupier, or an employee or agent of the occupier—

(i)directed the person to stop smoking; and

(ii)told the person it was an offence not to comply with a direction to stop smoking.

s 26Z ins 2004 No. 47s 40

26ZADesignating an outdoor smoking area

(1)This section applies to the licensee of—

(a)premises to which a commercial hotel licence or community club licence under the Liquor Act 1992 applies; or

(b)premises, to which a commercial special facility licence under the Liquor Act 1992 applies, that contain all or part of a casino.

(2)The licensee may designate a part of the licensed outdoor area of the premises as an area in which drinking and smoking is allowed (a designated outdoor smoking area) by posting a diagram or other notice clearly showing the limits of the area.

(3)There may be more than 1 designated outdoor smoking area at the premises.

(4)The licensee must not designate a part or parts of the licensed outdoor area of the premises under subsection (2) other than in compliance with this section.

Maximum penalty—140 penalty units.

(5)The total area of the designated outdoor smoking area or areas must not be more than 50% of the whole licensed outdoor area of the premises.

(6)Each designated outdoor smoking area must have buffers on its perimeter wherever it is adjacent to other parts of the outdoor area of the premises ordinarily accessed by patrons.

(7)Each buffer must be—

(a)a screen, impervious to smoke, at least 2.1m high; or

(b)an area, at least 2m wide, in which patrons are not permitted to eat, drink or smoke.

Examples—

•an artificial screen, 2.1m high

•a garden or pathway, 2m wide

(8)For subsection (7)(a), the height of a screen is to be measured as if the base of the screen were level with the highest point of the ground or floor within 1m on either side of the screen.

(9)For a buffer mentioned in subsection (7)(b), at least half of its area must be taken from the area that would otherwise form part of the designated outdoor smoking area.

(10)There may not be a designated outdoor smoking area at the premises if any part of the licensed outdoor area of the premises has been designated under section 26W(4) as an area where no food or drink may be consumed.

s 26ZA ins 2004 No. 47s 40

amd 2006 No. 46s 292; 2008 No. 48s 59(1)sch 1; 2011 No. 41s 70

26ZBObligations of licensee of premises with designated outdoor smoking area

(1)This section applies to the licensee of premises at which there is a designated outdoor smoking area.

(2)The licensee must ensure that, in the designated outdoor smoking area—

(a)no food or drink is served; and

(b)no food is consumed; and

(c)no entertainment is offered; and

(d)there are no gaming machines.

Maximum penalty—140 penalty units.

(3)The licensee must ensure the designated outdoor smoking area and its buffers comply with section 26ZA(5) to (8).

Maximum penalty—140 penalty units.

(4)The licensee must—

(a)prepare, and keep up-to-date, a smoking management plan complying with section 26ZC; and

(b)display a notice in or near the designated outdoor smoking area stating that the smoking management plan is available for perusal by patrons on request; and

(c)make the plan available for perusal on request by a patron; and

(d)produce the plan for inspection on request by an authorised person.

Maximum penalty—70 penalty units.

(5)The licensee must not allow anyone to smoke anywhere in the licensed outdoor area of the premises other than the designated outdoor smoking area.

Maximum penalty—140 penalty units.

s 26ZB ins 2004 No. 47s 40

amd 2006 No. 46s 293

26ZCSmoking management plans

(1)A smoking management plan is a document, prepared for premises at which there is a designated outdoor smoking area, stating how smoking is managed at the premises with the aim of reducing smoking at the premises.

(2)A smoking management plan must—

(a)identify the designated outdoor smoking area; and

(b)identify the outdoor areas where food is provided; and

(c)identify the buffers under section 26ZA; and

(d)state how the licensee will minimise the exposure of staff and patrons to environmental tobacco smoke; and

(e)describe the training or instruction given to staff to ensure this Act and the plan are complied with; and

Example—

training to ensure patrons do not smoke outside the designated outdoor smoking area or take food into that area

(f)provide for signage that clearly identifies where smoking is or is not allowed; and

(g)include any other matters prescribed under a regulation.

s 26ZC ins 2004 No. 47s 40

div hdg ins 2004 No. 47s 40

sub 2014 No. 60s 103; 2016 No. 6 s 11

26ZDPerson must not smoke within government precinct

(1)A person must not smoke within a government precinct.

Maximum penalty—20 penalty units.

(2)In this section—

government precinct means land—

(a)adjoining a building occupied by—

(i)the State; or

(ii)the Legislative Assembly; or

(iii)a court or tribunal; or

(iv)an entity that represents the State; or

(v)another entity established by an Act; and

(b)prescribed by regulation.

s 26ZD ins 2004 No. 47s 40

sub 2014 No. 60s 104; 2016 No. 6 s 11

26ZEPerson smoking must stop when directed

A person contravening section 26ZD(1) must comply with a direction to stop the contravention by an authorised person.

Maximum penalty—20 penalty units.

s 26ZE ins 2004 No. 47s 40

amd 2014 No. 60s 105sch 1

sub 2016 No. 6 s 11

div hdg ins 2004 No. 47s 40

26ZHPerson must not smoke at a patrolled beach

(1)A person must not smoke in a patrolled beach area of a patrolled beach.

Maximum penalty—20 penalty units.

(2)In this section—

line means an imaginary line.

patrolled beach is a beach on which red and yellow flags mark the boundaries for safe swimming at the beach.

patrolled beach area, of a patrolled beach, is the area within—

(a)a line, at right angles to 1 end of a straight line between the flags, extending seawards for 50m and landwards to the extent of any registered land; and

(b)another straight line, at right angles to the other end of the line between the flags, extending seawards for 50m and landwards to the extent of any registered land; and

(c)a line joining the landward ends of the lines mentioned in paragraphs (a) and (b) that follows the boundary of any registered land; and

(d)a straight line joining the seaward ends of the lines mentioned in paragraphs (a) and (b).

registered land means—

(a)freehold land on the freehold land register under the Land Title Act 1994; or

(b)leasehold land, road, reserve, trust land, licence, permit or State Housing lease, recorded on a register under the Land Act 1994.

seawards means in the direction of the water to which the flags relate.

s 26ZH ins 2004 No. 47s 40

26ZIPerson must not smoke at a prescribed outdoor swimming area

(1)A person must not smoke at a prescribed outdoor swimming area between sunrise and sunset.

Maximum penalty—20 penalty units.

(2)In this section—

outdoor swimming area means an area in, or adjacent to, a pool or other body of water used by the public for swimming.

Example—

an artificial beach

prescribed outdoor swimming area means an outdoor swimming area, or part of an outdoor swimming area, prescribed under a regulation.

s 26ZI ins 2004 No. 47s 40

26ZJPerson must not smoke near an entrance to an enclosed place

(1)A person must not smoke within 5m of any part of an entrance to an enclosed place, unless the person has a reasonable excuse.

Maximum penalty—20 penalty units.

(2)Subsection (1) does not apply to an entrance that is an entrance only to—

(a)residential premises; or

(b)multi-unit residential accommodation; or

(c)premises to which a commercial hotel licence or community club licence under the Liquor Act 1992 applies; or

(d)premises, to which a commercial special facility licence under the Liquor Act 1992 applies, that contain all or part of a casino; or

(e)a vehicle or part of a vehicle.

(3)Subsection (1) does not apply to a person in a motor vehicle passing the entrance.

(4)It is a reasonable excuse for subsection (1) that the person was not remaining at or near the entrance but was merely passing the entrance.

(5)Subsection (1) applies to an entrance only while either of the following types of access to the enclosed place is available by the entrance—

(a)public access;

(b)the access usually available by the entrance to enable the place to be used in a way it is ordinarily used.

(6)In this section—

multi-unit residential accommodation means motels, hostels, boarding houses, residential accommodation comprising lots in a community titles scheme and other similar accommodation.

residential premises does not include multi-unit residential accommodation.

s 26ZJ ins 2004 No. 47s 40

amd 2006 No. 46s 294; 2008 No. 48s 59(1)sch 1; 2016 No. 6 s 12

26ZKPerson must not smoke near children’s playground equipment

(1)A person must not smoke within 10m of any part of children’s playground equipment situated at a place that is ordinarily open to the public.

Maximum penalty—20 penalty units.

(2)Subsection (1) does not apply to—

(a)a person in a motor vehicle; or

(b)a person at residential premises or on land on which residential premises are built or may lawfully be built.

(3)In this section—

residential premises see section 26ZJ(6).

s 26ZK ins 2004 No. 47s 40

amd 2006 No. 46s 295

26ZKA Person must not smoke at outdoor pedestrian mall

(1)A person must not smoke at an outdoor pedestrian mall.

Maximum penalty—20 penalty units.

(2)In this section—

outdoor pedestrian mall means each of the following—

(a)a mall established under the City of Brisbane Act 2010, section 88;

(b)a mall established under the Local Government Act 2009, section 80A;

(c)a mall continued as a mall under the City of Brisbane Act 2010, section 258.

s 26ZKA ins 2016 No. 6 s 13

26ZKB Person must not smoke at or near public transport waiting point

(1)A person must not smoke at a public transport waiting point.

Maximum penalty—20 penalty units.

(2)A person must not smoke on land within 5m beyond a public transport waiting point (the buffer zone), unless the person has a reasonable excuse.

Maximum penalty—20 penalty units.

(3)For subsection (2), a person outside the buffer zone is taken to be within the buffer zone if the person is in a queue that starts at the public transport waiting point or in the buffer zone.

(4)Subsections (1) and (2) do not apply to a person at a place where smoking is prohibited under the Transport Infrastructure (Rail) Regulation 2006 or the Transport Operations (Passenger Transport) Regulation 2005.

(5)Subsection (2) does not apply to a person—

(a)in the buffer zone at residential premises or on land on which residential premises may lawfully be built; or

(b)in the buffer zone at business premises; or

(c)travelling through the buffer zone in a motor vehicle.

(6)It is a reasonable excuse for subsection (2) that the person was not remaining in the buffer zone but was merely passing through the buffer zone.

(7)In this section—

public passenger vehicle means any of the following, as defined in the Transport Operations (Passenger Transport) Act 1994, used to transport members of the public—

(a)a fixed track vehicle;

(b)a bus;

(c)a ferry;

(d)a taxi;

(e)a limousine.

public transport waiting point means any of the following—

(a)a sign indicating that it is a drop-off or collection point for a public passenger vehicle;

(b)shelter or seating provided for persons waiting at a drop-off or collection point for a public passenger vehicle;

(c)a terminal, jetty, pontoon, platform or landing for the arrival and departure of a public passenger vehicle.

s 26ZKB ins 2016 No. 6 s 13

26ZKC Person must not smoke at or near skate park

(1)A person must not smoke within 10m of any part of a skate park.

Maximum penalty—20 penalty units.

(2)Subsection (1) does not apply to a person—

(a)at residential premises or on land on which residential premises may lawfully be built; or

(b)at business premises; or

(c)travelling in a motor vehicle.

(3)In this section—

skate park—

(a)means a part of a public place constructed for the purpose of riding or skating any of the following around or over obstacles, jumps and uneven surfaces—

(i)bicycles;

(ii)rollerblades or rollerskates;

(iii)skateboards;

(iv)scooters; but

(b)does not include a bicycle path, a footpath or a path shared by cyclists and pedestrians.

s 26ZKC ins 2016 No. 6 s 13

26ZKD Person must not smoke at or near under-age sporting event

(1)A person must not smoke at a sporting ground or the viewing area for a water sport during—

(a)an organised under-age sporting event; or

(b)a training or practice session to prepare for an organised under-age sporting event; or

(c)any break or interval during the organised under-age sporting event or the training or practice session.

Maximum penalty—20 penalty units.

(2)A person must not smoke on land within 10m beyond the boundary of a sporting ground or the viewing area for a water sport (the buffer zone) during a period smoking is prohibited under subsection (1).

Maximum penalty—20 penalty units.

(3)Subsection (2) does not apply to a person—

(a)in the buffer zone at residential premises or on land on which residential premises may lawfully be built; or

(b)in the buffer zone at business premises; or

(c)travelling through the buffer zone in a motor vehicle.

(4)In this section—

organised under-age sporting event means a sporting event—

(a)organised in advance; and

(b)organised or intended for, or predominately participated in by, persons under 18; and

(c)conducted by a professional or amateur sporting body or educational institution according to established rules.

skate park see section 26ZKC(3).

sporting ground—

(a)

means 1 or more of the following places (each a playing area)—

(i)a court, field or oval marked for use to play 1 or more sports;

Examples—

a soccer field, a cricket oval, a tennis or basketball court

(ii)a running track;

(iii)a racing track for bicycles;

(iv)a textured surface used for athletics; and

(b)includes—

(i)any area, seating or other structure provided for persons to observe players and competitors at the playing area; and

(ii)any area reserved for players, competitors, umpires or other officials for a game being played at the playing area; and

(iii)any waiting or warm-up area for players or competitors waiting to enter the playing area; but

(c)does not include a bicycle path, a skate park, a path shared by cyclists and pedestrians or a horse racing track.

viewing area, for a water sport, means the area set aside for viewing the water sport.

s 26ZKD ins 2016 No. 6 s 13

26ZKEPerson must not smoke at national park

(1)A person must not smoke at a national park, or part of a national park, prescribed by regulation.

Maximum penalty—20 penalty units.

(2)Before recommending the making of a regulation under subsection (1), the Minister must obtain written consent to its making from the Minister responsible for the management of national parks.

(3)In this section—

national park means a national park under the Nature Conservation Act 1992.

s 26ZKE ins 2016 No. 6 s 13

26ZLPerson smoking must stop when directed

A person contravening section 26ZH(1), 26ZI(1), 26ZJ(1), 26ZK(1), 26ZKA(1), 26ZKB(1) or (2), 26ZKC(1), 26ZKD(1) or (2) or 26ZKE(1) must comply with a direction by an authorised person to stop the contravention.

Maximum penalty—20 penalty units.

s 26ZL ins 2004 No. 47s 40

amd 2016 No. 6 s 14

pt hdg ins 2009 No. 44s 181

sub 2016 No. 6 s 16

26ZPA Local government may make local laws prohibiting smoking at other outdoor public places

(1)Subsection (2) applies if this Act does not regulate smoking at an outdoor public place.

(2)A local government may make a local law, including a subordinate local law, prohibiting smoking at the place if the place is in the local government’s local government area.

(3)A local law made under subsection (2) must not provide for a penalty of more than 20 penalty units for a contravention of the law.

s 26ZPA ins 2009 No. 44s 181

sub 2016 No. 6 s 16

26ZPB Consultation

If—

(a)a local government proposes to make a local law under section 26ZPA; and

(b)the local law is not subject to consultation requirements under the Local Government Act 2009, section 29A or the City of Brisbane Act 2010, section 31;

the local government must consult with the department about the proposed local law before making it.

s 26ZPB ins 2009 No. 44s 181

sub 2016 No. 6 s 16

26ZPC State may require report from local government about local law

(1)This section applies to a local law made by a local government under this division.

(2)The chief executive, by written notice, may ask a local government to give the chief executive information about the local government’s administration and enforcement of the local law.

(3)The local government must comply with the request.

s 26ZPC ins 2009 No. 44s 181

sub 2016 No. 6 s 16

26ZPD Fines payable for contravention of local law payable to local government

If—

(a)a proceeding for an offence is taken for a contravention of a local law made by a local government under this division; and

(b)a court imposes a fine for the offence;

the fine must be paid to the local government.

s 26ZPD ins 2009 No. 44s 181

sub 2016 No. 6 s 16

pt hdg ins 2004 No. 47s 40A

sub 2006 No. 46s 296

26ZPF Sale, supply and display of ice pipes

(1)A person must not—

(a)sell an ice pipe or a component of an ice pipe; or

(b)supply an ice pipe, or a component of an ice pipe, as part of a business activity; or

(c)display an ice pipe, or a component of an ice pipe—

(i)in a shop; or

(ii)near, and in connection with, a shop.

Note—

‘Sell’ in paragraph (a) includes expose for sale. See the schedule, definition sell.

Maximum penalty—140 penalty units.

(2)It is a defence for the person to prove that an ice pipe, or a component of an ice pipe, is designed primarily to be used for a purpose other than administering a dangerous drug.

Examples of devices designed primarily to be used for another purpose—

aluminium foil, spoons, test tubes

(3)For subsection (2), evidence of a disclaimer does not, of itself, prove that the ice pipe or component of an ice pipe is designed primarily to be used for a purpose other than administering a dangerous drug.

(4)In this section—

component, of an ice pipe, means a device that—

(a)is apparently intended to be part of an ice pipe; and

(b)

is not capable of being used for administering a dangerous drug in the way described in the definition ice pipe without an adjustment, modification or addition.

disclaimer means a statement on, or made in relation to, the ice pipe or component of an ice pipe, at or before the time of the commission of the alleged offence, to the effect that the ice pipe or component is designed or intended to be used for a purpose that is not a purpose related to administering a dangerous drug.

ice pipe means a device capable of being used for administering a dangerous drug by the drawing of smoke or fumes resulting from heating or burning the drug, in the device, in the drug’s crystal, powder, oil or base form.

s 26ZPF (prev s 26ZPA) ins 2007 No. 28s 46

renum 2009 No. 44s 182

26ZQSale, supply and display of bongs

(1)A person must not—

(a)sell a bong or a component of a bong; or

(b)supply a bong, or a component of a bong, as part of a business activity; or

(c)display a bong, or a component of a bong—

(i)in a shop; or

(ii)near, and in connection with, a shop.

Note—

‘Sell’ in paragraph (a) includes expose for sale. See the schedule, definition sell.

Maximum penalty—140 penalty units.

(2)It is a defence for the person to prove that a bong, or a component of a bong, is designed primarily to be used for a purpose other than administering a dangerous drug.

Examples of devices designed primarily to be used for another purpose—

buckets, garden hoses, water bottles

(3)For subsection (2), evidence of a disclaimer does not, of itself, prove that the bong or component of a bong is designed primarily to be used for a purpose other than administering a dangerous drug.

(4)In this section—

bong—

(a)means a device capable of being used for administering a dangerous drug by the drawing of smoke or fumes, resulting from heating or burning the drug in or on the device, through water or another liquid in the device; but

(b)does not include a hookah.

component, of a bong, means a device that—

(a)is apparently intended to be part of a bong; and

(b)

is not capable of being used for administering a dangerous drug in the way described in the definition bong, paragraph (a), without an adjustment, modification or addition.

disclaimer means a statement on, or made in relation to, the bong or component of a bong, at or before the time of the commission of the alleged offence, to the effect that the bong or component is designed or intended to be used for a purpose that is not a purpose related to administering a dangerous drug.

s 26ZQ ins 2004 No. 47s 40A

sub 2007 No. 28s 47

26ZQA Display of hookahs

(1)A person must not display in a shop more than the number of hookahs prescribed under a regulation.

Maximum penalty—140 penalty units.

(2)For subsection (1), the display of a part of a hookah is taken to be the display of a hookah.

s 26ZQA ins 2007 No. 28s 47

amd 2016 No. 6 s 17

26ZRSupply of smokeless tobacco products

A person must not, without lawful authority or excuse, supply a smokeless tobacco product to another person.

Maximum penalty—140 penalty units.

s 26ZR ins 2006 No. 46s 297

26ZSSupply of objects resembling tobacco products

(1)A person must not, as part of a business activity, supply to a person an object, other than a tobacco product, that resembles a tobacco product.

Maximum penalty—140 penalty units.

(2)For subsection (1), an object resembles a tobacco product if the object—

(a)has an appearance that is likely to cause a reasonable person to consider the object resembles a tobacco product or tobacco product package; or

(b)is contained in a package that is likely to cause a reasonable person to consider the package resembles a tobacco product package; or

(c)is declared under a regulation to resemble a tobacco product or tobacco product package.

(3)However, subsection (1) does not apply to an object that is a personal vaporiser.

s 26ZS (prev s 24) amd 2001 No. 20s 23; 2004 No. 47s 17

renum and reloc 2006 No. 46s 273

amd 2011 No. 41s 71; 2014 No. 65s 60

26ZTSale of confectionary-flavoured or fruit-flavoured cigarettes

(1)A person must not sell a cigarette that is confectionary-flavoured or fruit-flavoured.

Maximum penalty—140 penalty units.

(2)Subsection (1) does not apply to a menthol-flavoured cigarette.

s 26ZT ins 2011 No. 41s 72

pt hdg ins 2016 No. 6 s 18

26ZUState and local governments administer particular provisions

(1)Both the State and local governments have a role in administering the following provisions (the relevant provisions)—

(a)part 2BB, divisions 4 to 8;

(b)part 2C, division 3.

(2)However, nothing in the relevant provisions imposes a duty on a local government to enforce the relevant provisions.

s 26ZU ins 2016 No. 6 s 18

26ZVRole of local government

In exercising its jurisdiction of local government in enforcing the relevant provisions, the local government has its executive role—

(a)to administer and enforce the relevant provisions in the local government’s local government area; and

(b)for a patrolled beach area of a patrolled beach or a prescribed outdoor swimming area—to administer and enforce part 2C, division 3 for the area whether it is adjacent to or within the local government’s local government area.

s 26ZV ins 2016 No. 6 s 18

26ZWState may require report from local government

(1)This section applies to a matter under the relevant provisions administered and enforced by local governments.

(2)The chief executive, by written notice, may ask a local government to give the chief executive information about the local government’s administration and enforcement of the matter.

(3)The local government must comply with the request.

s 26ZW ins 2016 No. 6 s 18

26ZX Fines payable to local government

If—

(a)a proceeding for an offence is taken for a matter under the relevant provisions by a local government; and

(b)a court imposes a fine for the offence;

the fine must be paid to the local government.

s 26ZX ins 2016 No. 6 s 18

27Powers generally

(1)An authorised person has the powers given under this Act.

(2)In exercising the powers an authorised person is subject to the directions of the administering executive.

(3)If the authorised person is appointed by 2 or more chief executive officers, the authorised person is subject to the directions of the chief executive officer of the local government for the area in which the authorised person is exercising his or her powers under this Act.

s 27 amd 2000 No. 5s 461sch 3

sub 2004 No. 47s 41

28Appointment

(1)The chief executive may appoint any of the following persons as an authorised person—

(a)a public service officer or employee;

(b)a health service employee;

(c)a person prescribed under a regulation.

(2)The chief executive officer of a local government may appoint any of the following persons as an authorised person for the local government and its area—

(a)an employee of the local government;

(b)if another local government consents—an employee of the other local government;

(c)another person under contract to the local government.

(3)The chief executive officers of 2 or more local governments may appoint an employee of, or another person under contract to, one of the local governments to be an authorised person for the local governments’ areas.

(4)A health service chief executive may appoint a person (a health service authorised person) as an authorised person.

(5)The functions of a health service authorised person are to investigate, monitor and enforce compliance with the following provisions in relation to a relevant facility—

(a)section 26VO(1) and (2);

(b)section 26VP;

(c)section 26VW(1) and (2);

(d)section 26VX.

(6)In this section—

relevant facility, for a health service authorised person, means a facility at which a service is provided by the Service managed by the health service chief executive who appointed the authorised person.

s 28 sub 2001 No. 20s 27; 2004 No. 47s 41

amd 2014 No. 65s 61; 2016 No. 6 s 18

29Qualifications for appointment

The administering executive may appoint a person as an authorised person only if the administering executive is satisfied the person is qualified for appointment because the person has the necessary expertise or experience.

s 29 amd 2000 No. 5s 461sch 3; 2001 No. 20s 28

sub 2004 No. 47s 41

30Appointment conditions and limit on powers

(1)An authorised person holds office on the conditions stated in—

(a)the authorised person’s instrument of appointment; or

(b)a signed notice given to the authorised person; or

(c)a regulation.

(2)The instrument of appointment, a signed notice given to an authorised person or a regulation may limit the authorised person’s powers under this Act.

(3)In this section—

signed notice means a notice signed by the administering executive.

s 30 amd 2000 No. 5s 461sch 3

sub 2001 No. 20s 29; 2004 No. 47s 41

30AIssue of identity card

(1)The administering executive must issue an identity card to each authorised person.

(2)The identity card must—

(a)contain a recent photo of the authorised person; and

(b)contain a copy of the authorised person’s signature; and

(c)identify the person as an authorised person under this Act; and

(d)state an expiry date for the card.

(3)This section does not prevent the issue of a single identity card to a person for this Act and other purposes.

s 30A ins 2004 No. 47s 41

30BProduction or display of identity card

(1)In exercising a power under this Act in relation to another person, an authorised person must—

(a)produce the authorised person’s identity card for the other person’s inspection before exercising the power; or

(b)have the identity card displayed so it is clearly visible to the other person when exercising the power.

(2)However, if it is not practicable to comply with subsection (1), the authorised person must produce the identity card for the other person’s inspection at the first reasonable opportunity.

(3)For subsection (1), an authorised person does not exercise a power in relation to another person only because the authorised person has entered a place as mentioned in section 33(2) or (3).

s 30B ins 2004 No. 47s 41

30CWhen authorised person ceases to hold office

(1)An authorised person ceases to hold office if any of the following happens—

(a)the term of office stated in a condition of office ends;

(b)under another condition of office, the authorised person ceases to hold office;

(c)the authorised person’s resignation under section 30D takes effect.

(2)Subsection (1) does not limit the ways an authorised person may cease to hold office.

(3)In this section—

condition of office means a condition on which the authorised person holds office.

s 30C ins 2004 No. 47s 41

30DResignation

An authorised person may resign by signed notice given to the administering executive.

s 30D ins 2004 No. 47s 41

30EReturn of identity card

(1)A person who ceases to be an authorised person must return the person’s identity card to the administering executive within 21 days after ceasing to be an authorised person, unless the person has a reasonable excuse.

Maximum penalty—10 penalty units.

(2)For subsection (1), for a person appointed under this Act as an authorised person by 2 or more chief executive officers, the identity card must be returned to one of the chief executive officers.

s 30E ins 2004 No. 47s 41

31Protection from liability

(1)An official does not incur civil liability for an act done, or omission made, honestly and without negligence under this Act.

(2)If subsection (1) prevents a civil liability attaching to a person, the liability attaches instead to the State.

(3)In this section—

official means—

(a)an authorised person; or

(b)a person acting under the direction of an authorised person.

31AApplication of div 2

This division does not apply to a health service authorised person.

s 31A ins 2014 No. 65s 62

32Meaning of occupier for div 2

In this division—

occupier, of a place, includes a person who reasonably appears to be the occupier, or in charge, of the place.

33Entry of places by authorised persons

(1)An authorised person may enter a place if—

(a)the occupier consents to the entry; or

(b)the entry is authorised by a warrant.

(2)Also, an authorised person may, without the occupier’s consent or a warrant, enter—

(a)a public place when the place is open to the public; or

(b)an outlet of a supplier or licensed premises when it is open for carrying on business.

(3)For the purpose of asking the occupier of a place for consent to enter, an authorised person may, without the occupier’s consent or a warrant—

(a)enter land around premises at the place to an extent that is necessary to contact the occupier; or

(b)enter part of the place the authorised person reasonably considers members of the public ordinarily are allowed to enter when they wish to contact the occupier.

s 33 amd 1999 No. 61s 33; 2001 No. 20s 30

34Consent to entry

(1)This section applies if an authorised person intends to ask an occupier of a place to consent to the authorised person or another authorised person entering the place.

Note—

This section does not apply if entry is authorised by section 33(1)(b) or (2).

(2)Before asking for consent, the authorised person must tell the occupier—

(a)the purpose of the entry; and

(b)that the occupier is not required to consent.

(3)If consent is given, the authorised person may ask the occupier to sign an acknowledgement of the consent (a consent acknowledgement).

(4)The consent acknowledgement must state—

(a)the occupier was told—

(i)the purpose of the entry; and

(ii)that the occupier is not required to consent; and

(b)the purpose of the entry; and

(c)the occupier gives the authorised person consent to enter the place and exercise powers under this part; and

(d)the time and date the consent was given.

(5)If the occupier signs the consent acknowledgement, the authorised person must promptly give a copy to the occupier.

35Evidence of consent

(1)Subsection (2) applies if—

(a)an issue arises in a court proceeding whether the occupier of a place consented to an authorised person entering the place under this part; and

(b)a consent acknowledgement is not produced in evidence for the entry; and

(c)it is not proved the occupier consented to the entry.

(2)The court may presume the occupier did not consent.

36Warrants

(1)An authorised person may apply to a magistrate for a warrant for a place.

(2)The application must be sworn and state the grounds on which the warrant is sought.

(3)The magistrate may refuse to consider the application until the authorised person gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application be given by statutory declaration.

(4)The magistrate may issue a warrant only if the magistrate is satisfied there are reasonable grounds for suspecting—

(a)there is a particular thing or activity (the evidence) that may provide evidence of an offence against this Act; and

(b)the evidence is, or may be within the next 7 days, at the place.

(5)The warrant must state—

(a)that the authorised person may, with necessary and reasonable help and force, enter the place and exercise the authorised person’s powers under this part; and

(b)the offence for which the warrant is issued; and

(c)the evidence that may be seized under the warrant; and

(d)the hours of the day or night when entry may be made; and

(e)the day, within 7 days after the warrant’s issue, when the warrant ends.

36ASpecial warrants

(1)An authorised person may apply for a warrant (a special warrant) by phone, fax, radio or another form of communication if the authorised person considers it necessary because of—

(a)urgent circumstances; or

(b)other special circumstances, including, for example, the authorised person’s remote location.

(2)Before applying for the warrant, the authorised person must prepare an application stating the grounds on which the warrant is sought.

(3)The authorised person may apply for the warrant before the application is sworn.

(4)After issuing the warrant, the magistrate must immediately fax a copy to the authorised person if it is reasonably practicable to fax the copy.

(5)If it is not reasonably practicable to fax a copy to the authorised person—

(a)the magistrate must tell the authorised person—

(i)what the terms of the warrant are; and

(ii)the date and time the warrant was issued; and

(b)the authorised person must complete a form of warrant (a warrant form) and write on it—

(i)the magistrate’s name; and

(ii)the date and time the magistrate issued the warrant; and

(iii)the terms of the warrant.

(6)The facsimile warrant, or the warrant form properly completed by the authorised person, authorises the entry and the exercise of the other powers stated in the warrant issued by the magistrate.

(7)The authorised person must, at the first reasonable opportunity, send to the magistrate—

(a)the sworn application; and

(b)if the authorised person completed a warrant form—the completed warrant form.

(8)On receiving the documents, the magistrate must attach them to the warrant.

(9)If—

(a)an issue arises in a proceeding about whether an exercise of a power was authorised by a special warrant; and

(b)the warrant is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a special warrant authorised the exercise of the power.

s 36A ins 2001 No. 20s 31

36BWarrants—procedure before entry

(1)This section applies if an authorised person named in a warrant issued under this division for a place is intending to enter the place under the warrant.

(2)Before entering the place, the authorised person must do or make a reasonable attempt to do the following—

(a)identify himself or herself to a person present at the place who is an occupier of the place by producing the authorised person’s identity card or a copy of another document evidencing the authorised person’s appointment;

(b)give the person a copy of the warrant or, if the entry is authorised by a facsimile warrant or warrant form mentioned in section 36A(6), a copy of the facsimile warrant or warrant form;

(c)tell the person the authorised person is permitted by the warrant to enter the place;

(d)give the person an opportunity to allow the authorised person immediate entry to the place without using force.

(3)However, the authorised person need not comply with subsection (2) if the authorised person believes on reasonable grounds that immediate entry to the place is required to ensure the effective execution of the warrant is not frustrated.

s 36B ins 2001 No. 20s 31

37General powers after entering places

(1)This section applies to an authorised person who enters a place under section 33.

(2)However, if an authorised person enters a place to get the occupier’s consent to enter premises, this section applies to the authorised person only if the consent is given or the entry is otherwise authorised.

(3)For monitoring or enforcing compliance with this Act, the authorised person may—

(a)search any part of the place; or

(b)inspect, measure, test, photograph or film any part of the place or anything at the place; or

(c)take a thing, or a sample of or from a thing, at the place for analysis; or

(d)take an extract from, or copy, a document at the place; or

(e)take into the place any persons, equipment and materials the authorised person reasonably requires for exercising a power under this part; or

(f)require the occupier of the place, or a person at the place, to give the authorised person reasonable help to exercise the authorised person’s powers mentioned in paragraphs (a) to (e); or

(g)require the occupier of the place, or a person at the place, to give the authorised person information to help the authorised person ascertain whether this Act is being complied with.

(4)When making a requirement mentioned in subsection (3)(f) or (g), the authorised person must warn the person it is an offence to fail to comply with the requirement, unless the person has a reasonable excuse.

s 37 amd 2001 No. 20s 32

37AFailure to help authorised person

(1)A person required to give reasonable help under section 37(3)(f) must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)If an individual is required under section 37(3)(f) to give information, or produce a document, it is a reasonable excuse for the individual not to comply with the requirement that complying with the requirement might tend to incriminate the individual.

s 37A ins 2001 No. 20s 33

37BFailure to give information

(1)A person of whom a requirement is made under section 37(3)(g) must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)It is a reasonable excuse for an individual not to comply with the requirement that complying with the requirement might tend to incriminate the individual.

s 37B ins 2001 No. 20s 33

37CApplication of div 3

(1)This division, other than sections 38 and 40A, does not apply to a health service authorised person.

(2)A health service authorised person may exercise a power under section 38 or 40A in the performance of the person’s functions.

s 37C ins 2014 No. 65s 63

38Power to require name and address

(1)This section applies if—

(a)an authorised person finds a person committing an offence against this Act; or

(b)an authorised person finds a person in circumstances that lead, or has information that leads, the authorised person to reasonably suspect the person or the person’s employer has just committed an offence against this Act.

(2)The authorised person may require the person to state the person’s name and residential address.

(3)When making the requirement under subsection (2), the authorised person must warn the person it is an offence to fail to state the person’s name or residential address, unless the person has a reasonable excuse.

(4)The authorised person may require the person to give evidence of the correctness of the person’s stated name or residential address if the authorised person reasonably suspects the stated name or address is false.

(5)A person must comply with a requirement under subsection (2) or (4), unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(6)The person does not commit an offence against subsection (5) if—

(a)the person was required to state the person’s name and address by an authorised person who suspected the person or the person’s employer had committed an offence against this Act; and

(b)the person or the person’s employer is not proved to have committed the offence.

s 38 amd 2001 No. 20s 34

39Power to require evidence of age, name and address of person observed being supplied a smoking product

(1)An authorised person may require a person to show acceptable evidence of age of the person if the authorised person—

(a)either—

(i)observes the person being supplied a smoking product; or

(ii)reasonably believes the person has just been supplied a smoking product; and

(b)suspects on reasonable grounds the person is a child.

(2)The authorised person may require the person to state the person’s name and residential address if—

(a)the person refuses, or is unable, to comply with a requirement made under subsection (1); or

(b)the acceptable evidence of age of the person shown under subsection (1) shows the person is a child.

(3)When making the requirement under subsection (2), the authorised person must warn the person it is an offence to fail to state the person’s name or residential address, unless the person has a reasonable excuse.

(4)The authorised person may require the person to give evidence of the correctness of the person’s stated name or residential address if the authorised person reasonably suspects the stated name or address is false.

(5)A person must comply with a requirement under subsection (2) or (4), unless the person has a reasonable excuse.

Maximum penalty—5 penalty units.

(6)The person does not commit an offence against subsection (5) if no one is proved to have committed an offence against this Act in relation to the supply of the smoking product.

s 39 amd 1999 No. 61s 34; 2001 No. 20s 35

40Power to seize smoking product

(1)This section applies if—

(a)an authorised person either—

(i)observes a person being supplied a smoking product; or

(ii)reasonably believes a person has just been supplied a smoking product; and

(b)the authorised person suspects on reasonable grounds the person is a child; and

(c)the person—

(i)refuses, or is unable, to comply with a requirement made by the authorised person under section 39(1); or

(ii)shows acceptable evidence of age of the person under section 39(1) showing the person is a child; and

(d)the authorised person reasonably believes the smoking product is evidence of an offence against this Act.

(2)The authorised person may seize the smoking product.

s 40 amd 1999 No. 61s 35; 2001 No. 20s 36

40APower to direct person to stop smoking

(1)This section applies if an authorised person finds a person contravening a relevant provision.

(2)The authorised person may direct the person to stop smoking.

(3)When directing the person to stop smoking, the authorised person must tell the person it is an offence not to comply with the direction.

(4)In this section—

relevant provision means section 26R(1), 26VH(1), 26VL(1), 26VO(1) or (2), 26VQ(1) or (2), 26VS(1), 26VU(1) or (2), 26VW(1) or (2), 26X(1), 26ZD(1), 26ZH(1), 26ZI(1), 26ZJ(1), 26ZK(1), 26ZKA(1), 26ZKB(1) or (2), 26ZKC(1), 26ZKD(1) or (2) or 26ZKE(1).

s 40A ins 2001 No. 20s 37

amd 2006 No. 46s 298; 2014 No. 65s 64; 2016 No. 6 s 20

40ABApplication of div 4

This division does not apply to a health service authorised person.

s 40AB ins 2014 No. 65s 65

40BSeizing evidence at a place that may be entered without consent or a warrant

An authorised person who enters a place that may be entered under this part without the consent of the occupier and without a warrant, may seize a thing at the place if the authorised person reasonably believes the thing is evidence of an offence against this Act.

s 40B ins 2001 No. 20s 38

41Seizing evidence at a place that may only be entered with consent or a warrant

(1)An authorised person who enters a place with the occupier’s consent may seize a thing in the place if—

(a)the authorised person reasonably believes the thing is evidence of an offence against this Act; and

(b)seizure of the thing is consistent with the purpose of entry as told to the occupier when asking for the occupier’s consent.

(2)An authorised person who enters a place with a warrant may seize the evidence for which the warrant was issued.

(3)The authorised person may also seize anything else in the place if the person reasonably believes—

(a)the thing is evidence of an offence against this Act; and

(b)the seizure is necessary to prevent the thing being hidden, lost, destroyed, or used to continue or repeat the offence.

(4)Also, the authorised person may seize a thing in the place if the person reasonably believes that it has just been used in committing an offence against this Act.

s 41amd 2001 No. 20s 39

42Securing seized thing

Having seized a thing, an authorised person may do 1 or more of the following—

(a)move the thing from the place where it was seized (the place of seizure);

(b)leave the thing at the place of seizure but take reasonable steps to restrict access to it;

(c)if the thing is equipment—make it inoperable.

Example of restricting access to a thing—

sealing a thing and marking it to show access to it is restricted

Example of making equipment inoperable—

removing a component of equipment without which the equipment is not capable of being used

s 42 sub 2001 No. 20s 40

42ATampering with seized thing

(1)If an authorised person restricts access to a seized thing, a person must not tamper with the thing, or something restricting access to the thing, without an authorised person’s approval.

Maximum penalty—50 penalty units.

(2)If an authorised person makes seized equipment inoperable, a person must not tamper with the equipment, without an authorised person’s approval.

Maximum penalty—50 penalty units.

(3)In this section—

tamper includes attempt to tamper.

s 42A ins 2001 No. 20s 40

42BPowers to support seizure

(1)To enable a thing to be seized, an authorised person may require the person in control of it—

(a)to take it to a stated reasonable place by a stated reasonable time; and

(b)if necessary, to remain in control of it at the stated place for a stated reasonable period.

(2)The requirement—

(a)must be made by written notice; or

(b)if for any reason it is not practicable to give the notice, may be made orally and confirmed by written notice as soon as practicable.

(3)A further requirement may be made under this section about the thing if it is necessary and reasonable to make the further requirement.

(4)A person of whom a requirement is made under subsection (1) or (3) must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty for subsection (4)—50 penalty units.

s 42B ins 2001 No. 20s 40

42CReceipt for seized thing

(1)As soon as practicable after an authorised person seizes a thing, the authorised person must give a receipt for it to the person from whom it was seized.

(2)However, if for any reason it is not practicable to comply with subsection (1), the authorised person must leave the receipt at the place of seizure in a conspicuous position and in a reasonably secure way.

(3)The receipt must describe generally each thing seized and its condition.

(4)This section does not apply to a thing if it is impracticable or would be unreasonable to give the receipt (given the thing’s nature, condition and value).

s 42C ins 2001 No. 20s 40

42DForfeiture of seized things

(1)A seized thing is forfeited to the State if the authorised person who seized the thing—

(a)can not find its owner, after making reasonable inquiries; or

(b)can not return it to its owner, after making reasonable efforts.

(2)In applying subsection (1)—

(a)subsection (1)(a) does not require the authorised person to make inquiries if it would be unreasonable to make inquiries to find the owner; and

(b)subsection (1)(b) does not require the authorised person to make efforts if it would be unreasonable to make efforts to return the thing to its owner.

Example for paragraph (b)—

The owner of the thing has migrated to another country.

s 42D ins 2001 No. 20s 40

42EForfeiture of smoking product seized under s 40

(1)This section applies to a smoking product seized under section 40.

(2)The smoking product is forfeited to the State—

(a)at the end of 6 months from the day it was seized; or

(b)if a proceeding involving the supply of the smoking product is started within 6 months from the day it was seized—at the end of the proceeding and any appeal from the proceeding.

s 42E ins 2011 No. 41s 73

43Forfeiture on conviction

(1)On the conviction of a person for an offence against this Act, the court may order the forfeiture to the State of—

(a)anything used to commit the offence; or

(b)anything else the subject of the offence.

(2)The court may make the order—

(a)whether or not the thing has been seized; and

(b)if the thing has been seized—whether or not the thing has been returned to its owner.

(3)The court may make any order to enforce the forfeiture it considers appropriate.

(4)This section does not limit the court’s powers under the Penalties and Sentences Act 1992 or another law.

44Dealing with forfeited things etc.

(1)On the forfeiture of a thing to the State, the thing becomes the State’s property and may be dealt with by the chief executive as the chief executive considers appropriate.

(2)Without limiting subsection (1), the chief executive may destroy the thing.

44AReturn of seized things

(1)If a seized thing is not forfeited, the authorised person must return it to its owner—

(a)at the end of 6 months; or

(b)if a proceeding for an offence involving the thing is started within 6 months—at the end of the proceeding and any appeal from the proceeding.

(2)Despite subsection (1), unless the thing is forfeited, the authorised person must immediately return a thing seized as evidence to its owner if the authorised person stops being satisfied its continued retention as evidence is necessary.

s 44A ins 2001 No. 20s 41

44BAccess to seized things

(1)Until a seized thing is forfeited or returned, an authorised person must allow its owner to inspect it and, if it is a document, to copy it.

(2)Subsection (1) does not apply if it is impracticable or would be unreasonable to allow the inspection or copying.

s 44B ins 2001 No. 20s 41

44BAApplication of div 5

This division, other than sections 45, 46, 49 and 50, does not apply to a health service authorised person.

s 44BA ins 2014 No. 65s 66

44CImprovement notices

(1)This section applies if an authorised person reasonably believes a person—

(a)is contravening a provision of this Act; or

(b)has contravened a provision of this Act in circumstances that make it likely the contravention will continue or be repeated.

(2)The authorised person may, by written notice (an improvement notice) given to the person, require the person to remedy—

(a)the contravention or likely contravention; or

(b)the things or operations causing the contravention or likely contravention.

(3)The improvement notice must state—

(a)that the authorised person believes the person—

(i)is contravening a provision of this Act; or

(ii)has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated; and

(b)the provision the authorised person believes is being, or has been, contravened; and

(c)briefly, how the provision is being, or has been, contravened; and

(d)the reasonable steps the person must take to remedy the contravention or likely contravention; and

(e)that the person must take the steps within a stated reasonable period.

(4)The person must comply with the notice, unless the person has a reasonable excuse.

Maximum penalty for subsection (4)—50 penalty units.

s 44C ins 2001 No. 20s 42

44DPower to require production of written acknowledgement

(1)An authorised person may require a supplier or a person in charge of a tobacco product vending machine to make available for inspection by an authorised person, or produce to the authorised person for inspection, at a reasonable time and place nominated by the authorised person, a written acknowledgement obtained by the supplier or person.

(2)The authorised person may keep the acknowledgement to copy it.

(3)If the authorised person copies an acknowledgement, the authorised person may require the person responsible for keeping the acknowledgement to certify the copy as a true copy of the acknowledgement.

(4)The authorised person must return the acknowledgement to the person as soon as practicable after copying it.

(5)However, if a requirement (an acknowledgement certification requirement) is made of a person under subsection (3), the authorised person may keep the acknowledgement until the person complies with the requirement.

(6)A requirement under subsection (1) is called an acknowledgement production requirement.

(7)In this section—

written acknowledgement means a written acknowledgement obtained by a supplier or person in charge of a tobacco product vending machine from an employee of the supplier or person in taking prevention measures mentioned in part 2.

s 44D ins 2001 No. 20s 42

44EFailure to produce acknowledgement

(1)A person of whom an acknowledgement production requirement is made must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)It is not a reasonable excuse for a person not to comply with an acknowledgement production requirement that complying with the requirement might tend to incriminate the person.

s 44E ins 2001 No. 20s 42

44FFailure to certify copy of acknowledgement

A person of whom an acknowledgement certification requirement is made must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

s 44F ins 2001 No. 20s 42

44GPower to require information

(1)This section applies if an authorised person reasonably believes—

(a)an offence against this Act has been committed; and

(b)a person may be able to give information about the offence.

(2)The authorised person may, by written notice given to the person, require the person to give information about the offence to the authorised person at a stated reasonable time and place.

(3)The person must comply with a requirement under subsection (2), unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(4)It is a reasonable excuse for an individual to fail to give information if giving the information might tend to incriminate the individual.

s 44G ins 2001 No. 20s 42

45False or misleading information

(1)A person must not state anything to an authorised person the person knows is false or misleading in a material particular.

Maximum penalty—50 penalty units.

(2)It is enough for a complaint for an offence against subsection (1) to state the statement made was false or misleading to the person’s knowledge.

s 45 amd 2001 No. 20s 43

46False, misleading or incomplete documents

(1)A person must not give to an authorised person a document containing information the person knows is false, misleading or incomplete in a material particular.

Maximum penalty—50 penalty units.

(2)Subsection (1) does not apply to a person if the person, when giving the document—

(a)informs the authorised person, to the best of the person’s ability, how it is false, misleading or incomplete; and

(b)if the person has, or can reasonably obtain, the correct information—gives the correct information.

(3)It is enough for a complaint against a person for an offence against subsection (1) to state that the statement made was false, misleading or incomplete to the person’s knowledge.

s 46 amd 2001 No. 20s 44

47Notice of damage

(1)This section applies if—

(a)an authorised person damages something when exercising or purporting to exercise a power under this part; or

(b)a person (the other person) acting under the direction of an authorised person damages something when exercising or purporting to exercise a power under this part.

(2)The authorised person must promptly give written notice of particulars of the damage to the person who appears to be the owner of the thing.

(3)If the authorised person believes the damage was caused by a latent defect in the thing or circumstances beyond the authorised person’s or other person’s control, the authorised person may state it in the notice.

(4)If, for any reason, it is impracticable to comply with subsection (2), the authorised person must leave the notice in a conspicuous position and in a reasonably secure way where the damage happened.

(5)This section does not apply to damage the authorised person reasonably believes is trivial.

(6)In this section—

owner, of a thing, includes the person in possession or control of it.

48Compensation

(1)If a person incurs loss or expense because of the exercise or purported exercise of a power under this part the person may claim compensation—

(a)for the exercise or purported exercise of a power by or for the State—from the State; or

(b)for the exercise or purported exercise of a power by or for a local government—from the local government.

(2)Without limiting subsection (1), compensation may be claimed for loss or expense incurred in complying with a requirement made of the person under this part.

(3)Compensation may be claimed and ordered to be paid in a proceeding—

(a)brought in a court with jurisdiction for the recovery of the amount of compensation claimed; or

(b)for an offence against this Act brought against the person claiming compensation.

(4)A court may order compensation to be paid only if it is satisfied it is just to make the order in the circumstances of the particular case.

s 48 sub 2004 No. 47s 42

49Impersonation of authorised person

A person must not pretend to be an authorised person.

Maximum penalty—50 penalty units.

s 49 amd 2001 No. 20s 45

50Obstructing authorised persons

(1)A person must not obstruct an authorised person in the exercise of a power, unless the person has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)If a person has obstructed an authorised person and the authorised person decides to proceed with the exercise of the power, the authorised person must warn the person that—

(a)it is an offence to obstruct the authorised person, unless the person has a reasonable excuse; and

(b)the authorised person considers the person’s conduct is an obstruction.

s 50 sub 2001 No. 20s 46

51Evidence that a thing is labelled as a particular product

(1)Evidence that a thing is labelled as a tobacco product, or labelled in a way a reasonable person would take to be labelled as a tobacco product, is evidence the thing is or contains a tobacco product.

(1A)Evidence that a thing is labelled as a smokeless tobacco product, or labelled in a way a reasonable person would take to be labelled as a smokeless tobacco product, is evidence the thing is or contains a smokeless tobacco product.

(2)Evidence that a thing is labelled as a herbal cigarette, or labelled in a way a reasonable person would take to be labelled as a herbal cigarette, is evidence the thing is or contains a herbal cigarette.

(3)Evidence that a thing is labelled as a loose smoking blend, or labelled in a way a reasonable person would take to be labelled as a loose smoking blend, is evidence the thing is or contains a loose smoking blend.

s 51 sub 1999 No. 61s 36

amd 2006 No. 46s 299

51AResponsibility for acts or omissions of representatives

(1)This section applies in a proceeding for an offence against this Act.

(2)If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show—

(a)the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and

(b)the representative had the state of mind.

(3)An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.

(4)In this section—

representative means—

(a)for a corporation—an executive officer, employee or agent of the corporation; or

(b)for an individual—an employee or agent of the individual.

state of mind, of a person, includes—

(a)the person’s knowledge, intention, opinion, belief or purpose; and

(b)the person’s reasons for the intention, opinion, belief or purpose.

s 51A ins 2001 No. 20s 47

51CAct does not create or preserve right to smoke

(1)To remove any doubt, it is declared that this Act does not create or preserve a right for a person to smoke in or at any place.

(2)Also, nothing in this Act affects the operation of another Act to the extent that the other Act prohibits smoking at any place.

s 51C ins 2004 No. 47s 43

53Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may impose requirements about signs for part 2C.

(3)A regulation may provide for a maximum penalty of not more than 20 penalty units for a contravention of a regulation.

s 53 amd 2004 No. 47s 45

pt hdg prev pt 5 hdg exp 30 November 1998 (see s 56)

pres pt 5 hdg ins 2004 No. 47s 46

54Transitional—court order under s 13

Section 13 applies only to an offence committed after the commencement of the Tobacco and Other Smoking Products Amendment Act 2004, section 8.

s 54 prev s 54 exp 30 November 1998 (see s 56)

pres s 54 ins 2004 No. 47s 46

section 4

acceptable evidence of age see section 6.

acknowledgement certification requirement see section 44D(5).

def acknowledgement certification requirement ins 2001 No. 20 s 49(2)

acknowledgement production requirement see section 44D(6).

def acknowledgement production requirement ins 2001 No. 20 s 49(2)

administering executive means—

(a)for a person appointed under this Act as an authorised person by the chief executive—the chief executive; or

(b)for a person appointed under this Act as an authorised person by a chief executive officer—the chief executive officer; or

(c)for a person appointed under this Act as an authorised person by 2 or more chief executive officers—the chief executive officers; or

(d)for a person appointed under this Act as an authorised person by a health service chief executive—the health service chief executive.

def administering executive ins 2004 No. 47 s 47(6)

amd 2014 No. 65 s 67(2)

advertise includes cause, permit or authorise to be advertised.

def advertise ins 2001 No. 20 s 49(2)

authorised person means a person appointed, or holding office, under section 28 as an authorised person.

def authorised person amd 2004 No. 47 s 47(9)

bar, for part 2, division 2, see section 14.

def bar ins 2001 No. 20 s 49(2)

bar area, for part 2, division 2, see section 14.

def bar area ins 2001 No. 20 s 49(2)

bong see section 26ZQ.

def bong ins 2014 No. 65 s 67(1)

business premises means—

(a)means premises used, or intended to be used, for a commercial or industrial activity; and

(b)includes land on which premises mentioned in paragraph (a) may lawfully be built.

def business premises ins 2014 No. 65 s 67(1)

sub 2016 No. 6 s 21(1)–(2)

carton means a package containing, or designed to contain, immediate packages of a smoking product.

def carton ins 2001 No. 20 s 49(2)

amd 2011 No. 32 s 331(1)–(2)

casino has the meaning given by the Casino Control Act 1982, schedule.

def casino ins 2001 No. 20 s 49(2)

amd 2002 No. 43 s 112 sch 2

chief executive officer means the chief executive officer of a local government.

def chief executive officer ins 2004 No. 47 s 47(6)

child means an individual who is under 18.

cigar includes tobacco leaf rolled into a cylinder with a conical end for smoking.

cigarette means a roll of cut tobacco for smoking enclosed in paper, bark, leaf or something else, whether or not the tobacco is mixed with another substance, but does not include a cigar.

coin operated vending machine means a machine or device operated by money, token, debit card or credit card.

common area ...

def common area ins 2001 No. 20 s 49(2)

om 2006 No. 46 s 300(1)

community titles scheme has the meaning given by the Body Corporate and Community Management Act 1997, section 10.

def community titles scheme ins 2006 No. 46 s 300(2)

consent acknowledgement see section 34.

consumption, of a smoking product, includes smoking, inhaling or chewing the smoking product.

def consumption sub 2004 No. 47 s 47(1), (5)

conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded.

dangerous drug see the Drugs Misuse Act 1986, section 4.

def dangerous drug ins 2007 No. 28 s 48

designated outdoor smoking area see section 26ZA.

def designated outdoor smoking area ins 2004 No. 47 s 47(8)

dining area ...

def dining area ins 2001 No. 20 s 49(2)

om 2004 No. 47 s 47(4)

display includes cause, permit or authorise to be displayed.

def display ins 2001 No. 20 s 49(2)

driver licence includes a licence, permit or other authority issued under a law of the State or another State that authorises a person to drive or ride a motor vehicle on public roads.

def driver licence amd 1999 No. 42 s 54(3) sch pt 3

duty free shop ...

def duty free shop ins 2001 No. 20 s 49(2)

om 2004 No. 47 s 47(3)

employee, for part 2, division 2, see section 14.

def employee ins 2001 No. 20 s 49(2)

enclosed means—

(a)for a place other than a vehicle or part of a vehicle—having a ceiling or roof and, except for doors and passageways, completely or substantially enclosed, whether permanently or temporarily; or

(b)for a place that is a vehicle, or part of a vehicle—having a ceiling or roof and, except for doors and exits, completely or substantially enclosed, whether permanently or temporarily.

def enclosed ins 2001 No. 20 s 49(2)

sub 2004 No. 47 s 47(4), (8)

engage in conduct ...

def engage in conduct om 2001 No. 20 s 49(1)

executive officer, of a corporation, means a person who is concerned with, or takes part in, the corporation’s management, whether or not the person is a director or the person’s position is given the name of executive officer.

exempt vehicle ...

def exempt vehicle ins 2001 No. 20 s 49(2)

om 2009 No. 44 s 183(1)

face, for an immediate package, means the surface (or if 2 surfaces have the same area, either of the surfaces) of the package whose area is greater than the area of each of its other surfaces.

def face ins 2001 No. 20 s 49(2)

food service means a business, or an enterprise of a commercial, charitable or community nature, that sells food or drink.

def food service ins 2006 No. 46 s 300(2)

gaming machine has the meaning given by the Gaming Machine Act 1991, schedule 2.

def gaming machine ins 2004 No. 47 s 47(5)

amd 2012 No. 25 s 195 sch

gaming machine area, for part 2, division 2, see section 14.

def gaming machine area ins 2001 No. 20 s 49(2)

gaming table area ...

def gaming table area ins 2001 No. 20 s 49(2)

om 2004 No. 47 s 47(4)

health facility land ...

def health facility land ins 2014 No. 65 s 67(1)

om 2016 No. 6 s 21(1)

health service ...

def health service ins 2014 No. 65 s 67(1)

om 2016 No. 6 s 21(1)

health service authorised person see section 28(4).

def health service authorised person ins 2014 No. 65 s 67(1)

health service chief executive see the Hospital and Health Boards Act 2011, schedule 2.

def health service chief executive ins 2014 No. 65 s 67(1)

health service employee see the Hospital and Health Boards Act 2011, schedule 2

def health service employee ins 2004 No. 47 s 47(6)

sub 2011 No. 32 s 332 sch 1 pt 2 (amd 2012 No. 9 s 47)

herbal cigarette means a preparation for smoking that—

(a)is made from a herb or other plant, or a blend of herbs or other plants, whether or not the herb, plant or blend is mixed with another substance; and

(b)is enclosed in paper, bark, leaf or something else; and

(c)does not contain tobacco.

def herbal cigarette ins 1999 No. 61 s 37(2)

hookah means a fully assembled device—

(a)for smoking tobacco or another thing by the drawing of smoke, fumes or vapour, resulting from heating or burning the tobacco or other thing in the device, through water or another liquid in the device; and

(b)that has—

(i)1 or more openings; and

(ii)1 or more flexible hoses, each with a mouthpiece, through which the smoke or fumes are drawn.

Example of a hookah—

def hookah ins 2007 No. 28 s 48

amd 2016 No. 6 s 21(3)

humidified container ...

def humidified container ins 2004 No. 47 s 47(7)

amd 2006 No. 46 s 300(4)

om 2011 No. 32 s 331(1)

humidified room, for part 2A, see section 25.

def humidified room ins 2004 No. 47 s 47(7)

amd 2006 No. 46 s 300(4)

ice pipe see section 26ZPF.

def ice pipe ins 2014 No. 65 s 67(1)

immediate package, for a smoking product, means a package containing the product but does not include a package containing a further package or packages of the product.

def immediate package ins 2001 No. 20 s 49(2)

inhale, for an individual, means draw a vapour or gas into the individual’s lungs.

def inhale ins 2014 No. 65 s 67(1)

licensed premises—

(a)for part 2B, see section 26Q; or

(b)otherwise—see the Liquor Act 1992, section 4.

def licensed premises sub 2016 No. 6 s 21(1)–(2)

licensed premises ...

def licensed premises, for part 2B, ins 2001 No. 20 s 49(2)

om 2016 No. 6 s 21(1)

licensee—

(a)for part 2B, see section 26Q; or

(b)otherwise—see the Liquor Act 1992, section 4.

def licensee sub 2016 No. 6 s 21(1)–(2)

licensee ...

def licensee, for part 2B, ins 2001 No. 20 s 49(2)

om 2016 No. 6 s 21(1)

liquor, for part 2, division 2, see section 14.

def liquor ins 2001 No. 20 s 49(2)

loose smoking blend means a preparation for smoking that does not contain tobacco and is made from a herb or other plant, or a blend of herbs or other plants, and is prepared for retail sale, but does not include a herbal cigarette.

def loose smoking blend ins 1999 No. 61 s 37(2)

loose tobacco means a tobacco product for smoking that is cut for retail sale, but does not include a cigarette or a cigar.

Example—

tobacco product commonly called ‘roll your own tobacco’ or ‘pipe tobacco’

def loose tobacco ins 2004 No. 47 s 47(7)

lot see the Body Corporate and Community Management Act 1997, schedule 6.

def lot ins 2001 No. 20 s 49(2)

sub 2006 No. 46 s 300(1)–(2)

major event facility, for part 2BB, division 3, see section 26VK.

def major event facility ins 2014 No. 60 s 105 sch 1

sub 2016 No. 6 s 21(1)–(2)

major event organiser, for part 2BB, division 3, see section 26VK.

def major event organiser ins 2016 No. 6 s 21(2)

major sports facility, for part 2BB, division 2, see section 26VG.

def major sports facility prev def ins 2004 No. 47 s 47(6)

om 2014 No. 60 s 105 sch 1

pres def ins 2016 No. 6 s 21(2)

meal ...

def meal ins 2001 No. 20 s 49(2)

om 2004 No. 47 s 47(4)

motor vehicle means a motor vehicle within the meaning of the Transport Operations (Road Use Management) Act 1995, schedule 4 other than the following—

(a)a trailer attached to the motor vehicle;

(b)an aircraft;

(c)a boat;

(d)a train.

def motor vehicle ins 2014 No. 65 s 67(1)

amd 2016 No. 6 s 21(4)

mouthpiece, in relation to a flexible hose of a hookah, means a device or part of a device—

(a)of a type usually attached to the end of the hose; and

(b)designed particularly for the purpose of being held in the human mouth for inhaling smoke or fumes drawn through the hose.

def mouthpiece ins 2007 No. 28 s 48

multi-unit residential accommodation ...

def multi-unit residential accommodation ins 2001 No. 20 s 49(2)

sub 2004 No. 47 s 47(2), (6)

om 2006 No. 46 s 300(1)

non-State school ...

def non-State school ins 2014 No. 65 s 67(1)

om 2016 No. 6 s 21(1)

obstruct includes hinder, resist and attempt to obstruct.

occupier, of a place or part of a place—

(a)for part 3, division 2, see section 32; or

(b)otherwise, means a person having the management or control, or otherwise being in charge, of the place or part.

def occupier ins 2001 No. 20 s 49(2)

sub 2004 No. 47 s 47(2), (6)

on-site food service, in relation to a place, means a food service at, or adjacent to, the place.

def on-site food service ins 2006 No. 46 s 300(2)

outdoor area, of premises, means any area at the premises that is not enclosed.

def outdoor area ins 2004 No. 47 s 47(8)

outdoor eating or drinking place, for part 2C, division 1, see section 26W.

def outdoor eating or drinking place ins 2004 No. 47 s 47(8)

package means—

(a)for cigarettes—a package containing cigarettes packed by the manufacturer, or importer, of the cigarettes; or

(b)for herbal cigarettes—a package containing herbal cigarettes packed by the manufacturer, or importer, of the herbal cigarettes; or

(c)for loose tobacco—a package containing loose tobacco packed by the manufacturer, or importer, of the loose tobacco; or

(d)for loose smoking blend—a package containing loose smoking blend packed by the manufacturer, or importer, of the loose smoking blend; or

(e)for cigarette papers—a package containing cigarette papers packed by the manufacturer, or importer, of the papers; or

(f)for cigars—a package containing cigars packed by the manufacturer, or importer, of the cigars.

def package sub 1999 No. 61 s 37; 2004 No. 47 s 47(3), (7)

amd 2006 No. 46 s 300(5); 2011 No. 32 s 331(3)

patrolled beach see section 26ZH(2).

def patrolled beach ins 2004 No. 47 s 47(6)

patrolled beach area see section 26ZH(2).

def patrolled beach area ins 2004 No. 47 s 47(6)

personal vaporiser see section 5A(1) and (2).

def personal vaporiser ins 2014 No. 65 s 67(1)

personal vaporiser related product see section 5A(3) and (4).

def personal vaporiser related product ins 2014 No. 65 s 67(1)

person in charge, of a tobacco product vending machine, means the licensee of licensed premises in which the vending machine is located.

place includes premises and vacant land.

def place sub 2001 No. 20 s 49

point of sale means a place where there is a counter or similar fixture where smoking products are sold within a retail outlet, but does not include a tobacco product vending machine.

def point of sale ins 2001 No. 20 s 49(2)

amd 2011 No. 32 s 331(4)

premises includes—

(a)a building or other structure; and

(b)a part of a building or other structure; and

(c)land where a building or other structure is situated; and

(d)a vehicle.

def premises sub 2001 No. 20 s 49

premium gaming room, for part 2B, see section 26Q.

def premium gaming room ins 2001 No. 20 s 49(2)

prepackaged loose smoking blend ...

def prepackaged loose smoking blend ins 1999 No. 61 s 37(2)

om 2004 No. 47 s 47(3)

prepackaged loose tobacco ...

def prepackaged loose tobacco om 2004 No. 47 s 47(3)

prescribed outdoor swimming area see section 26ZI(2).

def prescribed outdoor swimming area ins 2004 No. 47 s 47(6)

prevention measures—

(a)for part 2, division 1, see section 9; and

(b)for part 2, division 2, see section 14.

def prevention measures ins 2001 No. 20 s 49(2)

private health facility ...

def private health facility ins 2014 No. 65 s 67(1)

om 2016 No. 6 s 21(1)

product line means a kind of smoking product distinguishable from other kinds by 1 or more of the following characteristics—

(a)trademark;

(b)brand name;

(c)nicotine or tar content;

(d)flavour;

(e)the number of items in the immediate package in which it is sold.

def product line ins 2001 No. 20 s 49(2)

prohibition sign ...

def prohibition sign amd 2001 No. 78 s 237 sch 4

om 2011 No. 32 s 331(1)

proof of age card means a proof of age card, or adult proof of age card, mentioned in the Liquor Act 1992, section 6(1).

def proof of age card sub 2008 No. 72 s 55

public place means a place that the public is entitled to use, is open to the public or is used by the public (whether or not on payment of money).

publish includes cause, permit or authorise to be published.

def publish ins 2001 No. 20 s 49(2)

quit smoking sign ...

def quit smoking sign ins 2006 No. 46 s 300(2)

amd 2007 No. 54 s 62(1)

om 2011 No. 32 s 331(1)

relevant point of sale, for part 2A, see section 25.

def relevant point of sale ins 2011 No. 32 s 331(2)

relevant provisions, for part 2E, see section 26ZU(1).

def relevant provisions ins 2016 No. 6 s 21(2)

representative ...

def representative om 2001 No. 20 s 49(1)

residential premises means premises used, or intended to be used, as a place of residence or mainly as a place of residence.

def residential premises prev def ins 2001 No. 20 s 49(2)

sub 2004 No. 47 s 47(2), (6)

om 2006 No. 46 s 300(1)

pres def ins 2014 No. 65 s 67(1)

sub 2016 No. 6 s 21(1)–(2)

responsible adult see section 5.

retail outlet means premises where smoking products are available for sale by retail.

def retail outlet ins 2001 No. 20 s 49(2)

road see the Transport Operations (Road Use Management) Act 1995, schedule 4.

def road ins 2014 No. 65 s 67(1)

amd 2016 No. 6 s 21(5)

road-related area, for part 2BA, see the Transport Operations (Road Use Management—Road Rules) Regulation 2009, section 13.

def road-related area ins 2014 No. 65 s 67(1)

amd 2016 No. 6 s 21(6)

school land ...

def school land ins 2014 No. 65 s 67(1)

om 2016 No. 6 s 21(1)

sell means sell by retail, wholesale or auction, and includes—

(a)offer or agree to sell; and

(b)invite to treat or expose for sale; and

(c)attempt to sell; and

(d)cause or permit to be sold.

def sell sub 2001 No. 20 s 49

Service means a Hospital and Health Service established under the Hospital and Health Boards Act 2011, section 17.

def Service ins 2014 No. 65 s 67(1)

sub 2016 No. 6 s 21(1)–(2)

shop includes—

(a)any part of a building or place that is used for the sale, or supply as part of a business activity, of goods; and

(b)a stall or other structure used for the sale, or supply as part of a business activity, of goods at a market or elsewhere.

def shop ins 2007 No. 28 s 48

smoke means—

(a)for a smoking product other than a personal vaporiser or a hookah—smoke, hold or otherwise have control over an ignited smoking product; or

(b)for a personal vaporiser—inhale through the vaporiser; or

(c)for a hookah—inhale through the hookah.

def smoke ins 2001 No. 20 s 49(2)

sub 2004 No. 47 s 47(2), (6); 2014 No. 65 s 67(3); 2016 No. 6 s 21(1)–(2)

smokeless tobacco product means tobacco, or something containing tobacco, prepared for consumption other than by being smoked.

Examples—

snuff, chewing tobacco

def smokeless tobacco product ins 2006 No. 46 s 300(3)

smoking product—

(a)for parts 1, 2 and 3—means a tobacco product, herbal cigarette, loose smoking blend, personal vaporiser or personal vaporiser related product; or

(b)for part 2A—see section 25; or

(c)otherwise—

(i)except for a hookah—means a tobacco product, herbal cigarette, loose smoking blend or personal vaporiser; or

(ii)for a hookah—means tobacco or another thing that may be smoked in the hookah.

def smoking product ins 1999 No. 61 s 37(2)

sub 2004 No. 47 s 47(3), (7)

amd 2006 No. 46 s 300(4)

sub 2014 No. 65 s 67(4)

amd 2016 No. 6 s 21(7)

smoking related product, for part 2A, see section 25.

def smoking related product ins 2009 No. 44 s 183(2)

state of mind ...

def state of mind om 2001 No. 20 s 49(1)

State school ...

def State school ins 2014 No. 65 s 67(1)

om 2016 No. 6 s 21(1)

supplier means a person who, as part of a business activity, supplies smoking products to the public, but does not include a person who supplies smoking products to the public as an employee of another person.

def supplier ins 1999 No. 61 s 37(2)

supply includes—

(a)distribute, give or sell; and

(b)offer or agree to supply; and

(c)expose for supply; and

(d)attempt to supply; and

(e)cause or permit to be supplied.

def supply sub 2001 No. 20 s 49

tobacconist means a person who conducts a business selling smoking products by retail if—

(a)80% or more of the average gross turnover of the business is derived from the sale of smoking products by retail; and

(b)the business is conducted separately from, not in conjunction with, and not within the premises of, any other business.

def tobacconist ins 2004 No. 47 s 47(7)

amd 2007 No. 54 s 62(2)

tobacco product means tobacco prepared for consumption or something containing tobacco for consumption, and includes a cigarette, cigar and loose tobacco but does not include a smokeless tobacco product.

def tobacco product amd 2004 No. 47 s 47(10); 2006 No. 46 s 300(6)

tobacco product package means a package—

(a)of a type commonly used for tobacco products; and

(b)depicting a symbol, design or words that show the package contains a tobacco product.

tobacco product supplier ...

def tobacco product supplier om 1999 No. 61 s 37(1)

tobacco product vending machine means a coin operated vending machine used, or intended for use, for selling tobacco products, whether or not it is also used, or intended for use, for selling other products.

vehicle includes an aircraft, boat and train.