Tobacco and Other Smoking Products Act 1998

862Application of div 1

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

963Meaning 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

(iii)if the employee is a child—not to supply smoking products to anyone in any circumstances; and

(iv)to only supply smoking products as authorised under a retail or wholesale licence applying to the supplier, including all the conditions applying to the licence; and

(b)warning the employee that if the employee supplies a smoking productsproduct to childrena person 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).

9A64Supplier 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.

1066Supplier 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.

1167Supplier 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.

1269When 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.—

(a)supply a smoking product to a child; or

(b)sell a smoking product unless the supplier holds a retail or wholesale licence that authorises that type of sale.

Maximum penalty—

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

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

(3)This section does not apply to—

(a)an employee who is a child; or

(b)the sale of a smoking product if—

(i)the supplier is a pharmacist; and

(ii)the smoking product is a regulated substance; and

(iii)the sale is made under a prescription.

1370Order prohibiting or restricting sale of smoking products

(1)This section applies if a supplier is convicted of an offence against section 10section 66 or 1167.

(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.

13A71Power 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 or online shops.

(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 informationsupplier 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 website address of the supplier’s online shop;

(de)the supplier’s postal address;

(ef)the supplier’s phone number;

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

(h)the chemical composition of the smoking products;

(i)the number, type or quantity of smoking products.

(3)The notice must state—

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

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

(c)the way the contactsupplier 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 contactsupplier information or disclose contactsupplier 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.

26PB110Application of pt 2Bpt 5

This part does not apply to a motor vehicle under part 2BApart 6.

26Q111DefinitionsDefinition for pt 2Bpart

In this part—

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.

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

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 patronscustomers.

26R112Person 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.

26S113No 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 liquor 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.

26U114Person smoking must stop whenNo food or drink to be provided while person continues smoking after being directed to stop

(1)This section applies if a person contravening section 112(1) is directed to stop smoking by—

(a)an authorised person; or

(b)an occupier of an enclosed place where the contravention is happening; or

(c)an employee or agent of an occupier mentioned in paragraph (b).

(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 athe person (the first person) does not comply with a direction to stop the contraventiondirection 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 26Rsection 112(1).

Maximum penalty—140 penalty units.

(3)However, for subsection (2), it isIt is a defence to a defencecharge under subsection (2) 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.

26V115Offence by occupier

(1)If a person contravenes section 26Rsection 112(1), an occupier of the enclosed place where the contravention happens commits an offence.

Maximum penalty—140 penalty units.

(2)However, itIt is a defence to a charge under subsection (1) 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.

26VB116Person 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.

26VC117Person 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.

26VD118Defence for s 26VCs 117

It is a defence to a charge for an offence againstunder section 26VCsection 117 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.

26VE119Evidentiary 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.

26VF120Application 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.

26VG121Meaning 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.

26VH122Person 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.

26VJ123Offence by occupier

(1)If a person contravenes section 26VHsection 122(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, itIt is a defence to a charge under subsection (1) 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.

26VK124Definitions 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.

26VL125Person 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.

26VN126Offence by major event organiser

(1)If a person contravenes section 26VLsection 125(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, itIt is a defence to a charge under subsection (1) 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.

26VO127Person 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 builtland; 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 26VWsection 131(5).

26VQ128Person 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 builtland; 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 under the Education (Accreditation of Non-State Schools) Act 2017.

school community, for a school, means the students, teachers, parents of students, visitors and other employees for the school.

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 2017; or

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

(d)a carpark is located if the carpark is—

(i)adjacent to a school mentioned in paragraph (a), (b) or (c); and

(ii)provided for the exclusive use of the school community of the school.

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

26VS129Person 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.

26VU130Person 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 builtland; 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 a charge under 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.

26VW131Person 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 builtland; 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.

26ZD140Person must not smoke within government precinct

(1)A person must not smoke within a government precinct, unless the person has a reasonable excuse.

Maximum penalty—20 penalty units.

(2)It is a reasonable excuse for subsection (1) that the person was not remaining at the government precinct but was merely passing through the precinct.

(23)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.

26ZPF 158 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 1, definition sell.

Maximum penalty—140 penalty units.

(2)It is a defence to a charge under subsection (1) 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.

26ZQ159Sale, 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 1, definition sell.

Maximum penalty—140 penalty units.

(2)It is a defence to a charge under subsection (1) 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.

26ZQA 160 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.

(2)For subsection (1)—

(a)the display of a part of a hookah is taken to be the display of a hookah; and

(b)the display of packaging for a hookah is taken to be the display of a hookah if—

(i)the packaging includes a picture of a hookah; or

(ii)the packaging includes a statement that the package is for a hookah; and

(c)the display of a static or moving image of a hookah or a part of a hookah is taken to be the display of a hookah.

(3)For subsection (2)(b), it is irrelevant whether the packaging contains a hookah or a part of a hookah.

26ZR162Supply 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.

26ZS163Supply 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.

26ZT164Sale 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.

26ZU165State 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 2BBpart 7, divisions 4 to 8;

(b)part 2Cpart 8, division 3division 4.

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

26ZV166Role 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 2Cpart 8, division 3division 4 for the area whether it is adjacent to or within the local government’s local government area.

26ZW167State 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.

26ZX 168 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.

27169Powers 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.

28170Appointment

(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 26VOsection 127(1) and (2);

(b)section 26VP;

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

(d)section 26VX.

(b)section 131(1) and (2);

(c)section 223 to the extent it relates to a person smoking in contravention of a section mentioned in paragraph (a) or (b).

(6)A conservation officer under the Nature Conservation Act 1992 is an authorised person and the functions of the officer are to investigate, monitor and enforce compliance with the following sections—

(a)section 153;

(b)section 223 to the extent it relates to a person smoking in contravention of section 153(1).

(7)A police officer is an authorised person and the functions of the officer are to investigate, monitor and enforce compliance with sections 65 and 161.

(8)However, sections 171, 173, 176 and 177 do not apply in relation to a conservation officer or police officer as an authorised person.

(9)To remove any doubt, it is declared that the limited function of an authorised person under subsection (5), (6) or (7) does not limit the powers the authorised person has under this part for the performance of the function.

(610)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.

29171Qualifications 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.

30172Appointment 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.

30A173Issue 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.

30B174Production 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)section 181(2) or (3).

30C175When 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 30Dsection 176 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.

30D176Resignation

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

30E177Return 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.

31178Protection 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.

31A179Application of div 2

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

32180Meaning 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.

33181Entry 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 liquor 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.

(4)After entering a place under this section, an authorised person may remain at the place for a reasonable period to take either of the following actions, regardless of whether the place continues to be open to the public or open for carrying on business—

(a)exercise a power under section 187;

(b)if the entry is made for the purpose of checking compliance with an improvement notice—check compliance with the notice.

(5)In this section—

improvement notice see section 211(2).

34182Consent 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 33section 181(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.

35183Evidence of consent

(1)Subsection (2) applies if—

(a)an issue arises in a court proceeding about 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.

36184Warrants

(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.

36A185Special 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.

36B186Warrants—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 36Asection 185(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.

37187General powers after entering places

(1)This section applies to an authorised person who enters a place under section 33section 181.

(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.

(g)require the owner of the place, occupier of the place or another person at the place to give the authorised person information to help the authorised person ascertain—

(i)whether this Act is being complied with; or

(ii)if smoking products are sold at the place—the name and contact details of the business that sells the smoking products at the place.

(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.

(5)In this section—

owner, of a place, includes—

(a)a lessee for the place; and

(b)an agent of the owner who is responsible for the management or maintenance of the place.

37A188Failure to help authorised person

(1)A person required to give reasonable help under section 37section 187(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 37section 187(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.

37B189Failure to give information

(1)A person of whom a requirement is made under section 37section 187(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.

37C190Application of div 3

(1)This division, other than sections 38sections 191 and 40A194, does not apply to a health service authorised person.

(2)A health service authorised person may exercise a power under section 38section 191 or 40A194 in the performance of the person’s functions.

38191Power 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.

Note—

See the Transport Planning and Coordination Act 1994, sections 29AH and 29AI for the use of a digital authority, a digital evidence of age or a digital evidence of identity.

(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.

39192Power 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.

Note—

See the Transport Planning and Coordination Act 1994, sections 29AH and 29AI for the use of a digital authority, a digital evidence of age or a digital evidence of identity.

(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.

40193Power 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 39section 192(1); or

(ii)shows acceptable evidence of age of the person under section 39section 192(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.

40A194Power to direct person to stop smoking

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

(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).

smoking prohibition see section 223(2).

40AB195Application of div 4

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

40AC196Restriction of seizure powers

(1)Nothing in this division authorises an authorised person to seize a digital device if—

(a)the authorised person reasonably believes the device is, or contains, evidence of an offence against this Act; and

(b)in committing the offence a person used the device to store or display the following things, or an image or other design purporting to be the thing—

(i)a digital authority;

(ii)a digital evidence of age;

(iii)a digital evidence of identity.

(2)In this section—

digital authority see the Transport Planning and Coordination Act 1994, section 29AC.

digital device see the Transport Planning and Coordination Act 1994, section 29AB.

digital evidence of age see the Transport Planning and Coordination Act 1994, section 29AD.

digital evidence of identity see the Transport Planning and Coordination Act 1994, section 29AE.

40B197Seizing 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.

41198Seizing 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.

42199Securing 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

42A200Tampering 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.

42B201Powers 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.

42C202Receipt 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).

42D203Forfeiture of seized things that can not be returned to owner

(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.

42E204Forfeiture of smoking product seized under s 40s 193

(1)This section applies to a smoking product seized under section 40section 193.

(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.

43206Forfeiture 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.

44207Dealing 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.

44A208Return 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.

44B209Access 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.

44BA210Application of div 5

(1)This division, other than sections 45sections 216, 46217, 49220 and 50221, does not apply to a health service authorised person or a conservation officer under the Nature Conservation Act 1992.

(2)Also, this division, other than sections 215, 216, 217, 220 and 221, does not apply to a police officer.

Note—

Conservation officers and police officers are authorised persons. See section 170.

44C211Improvement 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.

(d)each of the following statements that is relevant—

(i)that the person must immediately cease the contravention;

(ii)that the person must not continue or repeat the contravention.

(4)If the authorised person believes that reasonable steps may be taken by the person to remedy the contravention or likely contravention, the improvement notice may state the reasonable steps the person must take to remedy the contravention.

(5)If the improvement notice states reasonable steps the person must take to remedy the contravention or likely contravention, the improvement notice must state the reasonable period during which the person must take the steps.

(46)The person must comply with the notice, unless the person has a reasonable excuse.

Maximum penalty for subsection (4)subsection (6)—50 penalty units.

(7)Subsection (6) does not prevent the prosecution and punishment of the person for the contravention for which the person was given the improvement notice.

44D212Power 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 2part 3.

44E213Failure 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.

44F214Failure 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.

44G215Power 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.

45216False 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.

46217False, 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.

47218Notice 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.

48219Compensation

(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.

49220Impersonation of authorised person

A person must not pretend to be an authorised person.

Maximum penalty—50 penalty units.

50221Obstructing 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.

51229Evidence 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.

(1A2)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.

(23)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.

(34)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.

51A230Responsibility 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.

51C231Act 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.

53237Regulation-making power

(1)The Governor in Council may make regulations under this Act.

(2)A regulation may impose requirements about signs for part 2Cpart 8.

(3)A regulation may provide for a maximum penalty of not more than 20 penalty units for a contravention of a regulation.

(4)A regulation may prescribe general conditions for retail or wholesale licences.

(5)A regulation may prescribe a general condition that requires a licensee to provide employees with particular training about supplying smoking products.

(6)A regulation may be made about fees for applications and other matters under part 2.

(7)Without limiting subsection (6), a regulation may—

(a)be made about the refund or waiver of all or part of a fee; or

(b)prescribe that a fee for an application under part 2 may be charged on a pro rata basis relating to the term of a retail or wholesale licence.

(8)In this section—

general conditions see section 15(2).