Tobacco (Amendment) Act 2005
i
Tobacco (Amendment) Act 2005
Act No. 45/2005
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1. Purposes 1
2. Commencement 2
PART 2—GENERAL AMENDMENTS TO TOBACCO ACT 1987 3
3. Definitions 3
4. New section 3B inserted 7
3B. Tobacco advertisements 7
5. New sections 5A to 5H substituted 10
5A. Enclosed workplaces: offence by smoker 10
5B. Enclosed workplaces: offence by occupier 12
5C. Dining areas: offence by smoker 12
5D. Dining areas: offence by occupier 13
5E. Dining areas: no smoking signs 13
5F. Enclosed restaurants and cafes: no smoking signs 14
5G. Retail shopping centres: no smoking signs 14
5H. Bingo areas and centres: no smoking signs 15
6. New section 5K substituted 15
5K. Casinos: no smoking signs 15
7. Approved venues 16
8. New section 5N substituted 16
5N. Approved venues: no smoking signs 16
9. Licensed premises: non-smoking rooms 17
10. New section 5R substituted 17
5R. Licensed premises: no smoking signs 17
11. Certain advertising prohibited 18
12. Competitions 18
13. Free samples 19
14. Prohibition on certain sponsorships 20
15. Supplying tobacco to minors 20
16. New section 13 substituted 23
13. Vending machines 23
17. Further alteration of penalties 24
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18. New Division 3 inserted in Part 2 25
Division 3—Underage Music/Dance Events 25
15E. What is an underage music/dance event? 25
15F. No smoking at underage music/dance events 25
15G. Offence by occupier 26
15H. No smoking signs 27
15I. Covering vending machines, tobacco
advertisements etc. 27
15J. Prohibition on supplying tobacco at underage
music/dance events 28
15K. No offence by minors 28
19. Infringements and offences 29
20. New Schedule substituted 30
SCHEDULE—Infringements 30
PART 3—LICENSED PREMISES, CASINOS AND OUTDOOR
DINING OR DRINKING AREAS 32
21. Definitions 32
22. New section 3E inserted 32
3E. Declared smoking areas in casinos 32
23. Removal of licensed premises and casino exemptions 33
24. New sections 5C, 5D and 5E substituted 33
5C. Outdoor dining or drinking areas: offence by smoker 33
5D. Outdoor dining or drinking areas: offence by occupier 34
5E. Outdoor dining or drinking areas: no smoking signs 35
25. Consequential amendments regarding casinos and licensed
premises (including approved venues) 35
PART 4—AMENDMENTS TO TRANSPORT ACT 1983 37
26. Removal of current smoking offences from section 222 37
27. New section 222A inserted 37
222A. Smoking offences 37
PART 5—CONSEQUENTIAL AMENDMENT OF OTHER ACTS 40
28 Gambling Regulation Act 2003 40
29 Magistrates' Court Act 1989 40
67. Tobacco Act 1987 40
═══════════════
ENDNOTES 41
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1
Tobacco (Amendment) Act 2005 †
[Assented to 16 August 2005]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1. Purposes
The purposes of this Act are—
(a) to amend the Tobacco Act 1987—
(i) to ban smoking in enclosed workplaces
and other areas;
(ii) to increase controls over tobacco
advertising;
Victoria
No. 45 of 2005
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Part 1—Preliminary
Tobacco (Amendment) Act 2005
Act No. 45/2005
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(iii) to introduce further measures to prevent
the supply of tobacco products to young
people;
(iv) generally to increase controls over
tobacco;
(b) to amend the Transport Act 1983 to ban
smoking in covered public transport
property;
(c) to make consequential amendments to other
Acts.
2. Commencement
(1) This Act, except Part 3 and section 28, comes into
operation on 1 March 2006.
(2) Part 3 and section 28 come into operation on
1 July 2007.
__________________
s. 2
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Part 2—General Amendments to Tobacco Act 1987
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3
PART 2—GENERAL AMENDMENTS TO TOBACCO
ACT 1987
3. Definitions
In section 3 of the Tobacco Act 1987—
(a) insert the following definitions—
' "acceptable no smoking sign" means a
sign that contains—
(a) a no smoking symbol in the form
of a circle and diagonal line
printed in red over a depiction of a
cigarette and smoke printed in
black, or other symbol that clearly
indicates that smoking is not
permitted, with the symbol being
at least 70mm in height; and
(b) the phrase "No Smoking" or
"Smoking Prohibited", or other
wording that clearly indicates that
smoking is not permitted, in
letters that are at least 20mm in
height;
"approved issuer document" means a
document issued—
(a) by a person; or
(b) on behalf of a government
department or an agency—
approved by the Minister;
"exercise yard" means an area in a prison
(within the meaning of the Corrections
Act 1986) that is provided for the
purpose of allowing prisoners to have
access to the open air;
See:
Act No.
81/1987.
Reprint No. 5
as at
1 September
2002
and
amending
Act Nos
114/2003 and
108/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
s. 3
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"interstate driver licence" means a licence
issued in another State or a Territory
that is the equivalent of a Victorian
driver licence;
"interstate proof of age card" means a card
issued in another State or a Territory
that is the equivalent of a Victorian
proof of age card;
"outdoor dining or drinking area" means
any of the following outdoor areas that
is predominantly used for the
consumption of food or drinks or
both—
(a) a balcony or verandah;
(b) a courtyard;
(c) a rooftop;
(d) a marquee;
(e) a street or footpath;
(f) any similar outdoor area;
"police member" means a member of the
force within the meaning of the Police
Regulation Act 1958;
"residential care facility" means—
(a) a residential care service, State
funded residential care service or
supported residential service
within the meaning of the Health
Services Act 1988; or
(b) an aged care service within the
meaning of the Aged Care Act
1997 of the Commonwealth;
s. 3
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"roof" includes any structure or device
(whether fixed or movable) that
prevents or significantly impedes
upward airflow, including a ceiling;
"substantially enclosed" includes
completely enclosed;
"tobacco company" means—
(a) a public company (within the
meaning of the Corporations Act)
that is engaged in any one or more
of—
(i) tobacco growing;
(ii) manufacturing tobacco
products;
(iii) wholesaling tobacco
products; or
(b) a proprietary company (within the
meaning of the Corporations Act)
that is a subsidiary or related body
corporate (within the meaning of
that Act) of a company referred to
in paragraph (a);
"Victorian driver licence" means a driver
licence issued under the Road Safety
Act 1986;
"Victorian proof of age card" means a
document issued by the Director of
Liquor Licensing under section 176 of
the Liquor Control Reform Act 1998;
"wall" includes any structure or device
(whether fixed or movable) that
prevents or significantly impedes lateral
airflow, including a window or door;
s. 3
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"workplace" means any premises or area
where one or more employees or self-
employed persons (or both) work,
whether or not they receive any
payment for that work.';
(b) the definition of "driver licence" is repealed;
(c) for the definition of "enclosed" substitute—
' "enclosed" means an area, room or
premises that is or are substantially
enclosed by a roof and walls, regardless
of whether the roof or walls or any part
of them are—
(a) permanent or temporary;
(b) open or closed;';
(d) for the definition of "evidence of age
document" substitute—
' "evidence of age document" means a
document that—
(a) is—
(i) a Victorian proof of age card
or an interstate proof of age
card; or
(ii) a Victorian driver licence or
an interstate driver licence;
or
(iii) an Australian or foreign
passport; or
(iv) an approved issuer
document; and
(b) contains a photograph of the
bearer; and
s. 3
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(c) indicates, by reference to a date of
birth or otherwise, that the bearer
is of or over a particular age;';
(e) the definitions of "proof of age card" and
"room" are repealed;
(f) for the definition of "tobacco advertisement"
substitute—
' "tobacco advertisement" has the meaning
given in section 3B;'.
4. New section 3B inserted
After section 3A of the Tobacco Act 1987
insert—
'3B. Tobacco advertisements
(1) Subject to this section, for the purposes of
this Act, a "tobacco advertisement" is any
writing, still or moving picture, sign, symbol
or other visual image, or any audible
message, or any combination of 2 or more of
those things, that gives publicity to, or
otherwise promotes or is intended to
promote—
(a) smoking; or
(b) the purchase or use of a tobacco
product or a range of tobacco products;
or
(c) the whole or a part of a trade mark that
is registered under the Trade Marks Act
1955 of the Commonwealth in respect
of goods that are or include tobacco
products; or
s. 4
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(d) the whole or a part of a design that is
registered under the Designs Act 2003
of the Commonwealth in relation to
products that are or include tobacco
products; or
(e) the whole or a part of the name of a
person—
(i) who is a manufacturer of tobacco
products; and
(ii) whose name appears on, or on the
packaging of, some or all of those
products; or
(f) any other words (for example the whole
or a part of a brand name) or designs, or
combination of words and designs, that
are closely associated with a tobacco
product or a range of tobacco products
(whether also closely associated with
other kinds of products).
(2) A reference in sub-section (1) to a visual
image or a design includes a reference to an
image or design consisting of a colour or a
scheme of colours.
(3) Without limiting sub-section (1), a tobacco
advertisement includes—
(a) the display of an immediate package of
a tobacco product;
(b) the advertisement of cigarette papers.
(4) Words, signs or symbols that appear as part
of the standard wording of an invoice,
statement, order form, letterhead, business
card, cheque, manual, or other document,
ordinarily used in the normal course of the
business of a manufacturer, distributor or
retailer of tobacco products (a "business
s. 4
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document") do not, when so appearing,
constitute a tobacco advertisement (but this
does not prevent a still or moving picture, or
other visual image, of a tobacco product, of
the packaging of a tobacco product, or of a
business document, from being a tobacco
advertisement).
(5) Words, signs or symbols that appear in or on
land or buildings occupied by a manufacturer
of tobacco products do not, when so
appearing, constitute a tobacco
advertisement (but this does not prevent a
still or moving picture, or other visual image,
of words, signs or symbols that so appear
from being a tobacco advertisement).
(6) For the avoidance of doubt, the taking of any
action to prevent a product from causing
injury to anyone, including action—
(a) to recall a product; or
(b) to disclose a defect in, or a dangerous
characteristic of, a product; or
(c) to disclose circumstances in which the
use of a product is or may be
dangerous; or
(d) to disclose procedures for disposing of
a product—
does not constitute a tobacco advertisement.
s. 4
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(7) If—
(a) apart from this sub-section, something
("the advertisement") would,
technically, be a tobacco advertisement;
and
(b) it is clear from the advertisement that
its sole or principal purpose is to
discourage smoking or the use of
tobacco products—
then, despite sub-section (1), the
advertisement is not a tobacco advertisement
for the purposes of this Act.
(8) In this section—
"words" includes abbreviations, initials and
numbers.'.
5. New sections 5A to 5H substituted
For sections 5A, 5B, 5BA, 5C, 5D, 5E, 5F, 5G
and 5H of the Tobacco Act 1987 substitute—
"5A. Enclosed workplaces: offence by smoker
(1) A person must not smoke in an enclosed
workplace.
Penalty: 5 penalty units.
(2) Sub-section (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 one or
more persons who do not reside at the
premises are present in that part;
(b) licensed premises;
(c) an outdoor dining or drinking area;
(d) a casino;
s. 5
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(e) a vehicle;
(f) a place of business occupied by the sole
operator of the business that is not for
the use of members of the public;
(g) a personal sleeping or living area of—
(i) premises providing
accommodation to members of the
public for a fee; or
(ii) a residential care facility;
(h) an area in an approved mental health
service (within the meaning of the
Mental Health Act 1986) that is
declared, or that is in a class of area that
is declared, by the Secretary, by notice
published in the Government Gazette,
to be a smoking area;
(i) a personal sleeping or living area, or an
exercise yard, of a prison within the
meaning of the Corrections Act 1986;
(j) a detention centre established for the
purposes of the Migration Act 1958 of
the Commonwealth.
(3) If an inspector believes on reasonable
grounds that a person is contravening sub-
section (1), the inspector, on producing his or
her identity card, may direct the person to
cease the contravention.
(4) A person who is contravening sub-
section (1) must not, without reasonable
excuse, fail to comply with a direction by an
inspector to cease the contravention.
Penalty: 5 penalty units.
s. 5
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5B. Enclosed workplaces: offence by occupier
(1) If smoking occurs in an enclosed workplace,
in contravention of section 5A, the occupier
of the enclosed workplace is guilty of an
offence and liable to a penalty not exceeding
5 penalty units.
(2) It is a defence to a prosecution under sub-
section (1) if the defendant proves that the
defendant did not provide an ashtray,
matches, a lighter or any other thing
designed to facilitate smoking where the
contravention occurred and that—
(a) the defendant was not aware, and could
not reasonably be expected to have
been aware, that the contravention was
occurring; or
(b) the defendant—
(i) requested the person contravening
to stop smoking; and
(ii) informed the person that the
person was committing an
offence.
5C. Dining areas: offence by smoker
(1) A person must not smoke in a dining area.
Penalty: 5 penalty units.
(2) If an inspector believes on reasonable
grounds that a person is contravening sub-
section (1), the inspector, on producing his or
her identity card, may direct the person to
cease the contravention.
s. 5
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(3) A person who is contravening sub-section
(1) must not, without reasonable excuse, fail
to comply with a direction by an inspector to
cease the contravention.
Penalty: 5 penalty units.
5D. Dining areas: offence by occupier
(1) If smoking occurs in a dining area, in
contravention of section 5C, the occupier of
the dining area is guilty of an offence and
liable to a penalty not exceeding 5 penalty
units.
(2) It is a defence to a prosecution under sub-
section (1) if the defendant proves that the
defendant did not provide an ashtray,
matches, a lighter or any other thing
designed to facilitate smoking where the
contravention occurred and that—
(a) the defendant was not aware, and could
not reasonably be expected to have
been aware, that the contravention was
occurring; or
(b) the defendant—
(i) requested the person contravening
to stop smoking; and
(ii) informed the person that the
person was committing an
offence.
5E. Dining areas: no smoking signs
(1) The occupier of a dining area is guilty of an
offence, and liable to a penalty not exceeding
5 penalty units, if, without reasonable
excuse, acceptable no smoking signs are not
displayed in accordance with sub-section (2).
Note: Section 3 defines an acceptable no smoking
sign.
s. 5
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(2) The signs must be displayed in a manner that
ensures that a person is reasonably likely to
see one or more of them either on entering
the dining area or from within the dining
area.
5F. Enclosed restaurants and cafes: no
smoking signs
(1) The occupier of an enclosed restaurant or
cafe is guilty of an offence, and liable to a
penalty not exceeding 5 penalty units, if,
without reasonable excuse, acceptable no
smoking signs are not displayed in
accordance with sub-section (2).
Note: Section 3 defines an acceptable no smoking
sign.
(2) The signs must be displayed in a manner that
ensures that a person is reasonably likely to
see one or more of them either on entering
the enclosed restaurant or cafe or from
within the enclosed restaurant or cafe.
5G. Retail shopping centres: no smoking signs
(1) The occupier of a retail shopping centre is
guilty of an offence if, without reasonable
excuse, acceptable no smoking signs are not
displayed in accordance with sub-section (2).
Note: Section 3 defines an acceptable no smoking
sign.
(2) The signs must be displayed in such
prominent positions at entrances to any
enclosed areas of the centre as would
reasonably identify those areas of the centre
as no smoking areas for persons entering
them.
s. 5
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(3) The maximum penalty for an offence against
sub-section (1) is 5 penalty units in the case
of a natural person and 10 penalty units in
any other case.
5H. Bingo areas and centres: no smoking signs
(1) The occupier of a bingo area or bingo centre
is guilty of an offence, and liable to a penalty
not exceeding 5 penalty units, if, without
reasonable excuse, acceptable no smoking
signs are not displayed in accordance with
sub-section (2).
Note: Section 3 defines an acceptable no smoking
sign.
(2) The signs must be displayed in a manner that
ensures that a person is reasonably likely to
see one or more of them either on entering
the bingo area or bingo centre or from within
the bingo area or bingo centre.".
6. New section 5K substituted
For section 5K of the Tobacco Act 1987
substitute—
"5K. Casinos: no smoking signs
(1) The occupier of an area of a casino, other
than a declared smoking area, is guilty of an
offence, and liable to a penalty not exceeding
5 penalty units, if, without reasonable
excuse, acceptable no smoking signs are not
displayed in accordance with sub-section (2).
Note: Section 3 defines an acceptable no smoking
sign.
(2) The signs must be displayed in a manner that
ensures that a person is reasonably likely to
see one or more of them either on entering
the area or from within the area.".
s. 6
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7. Approved venues
In the Tobacco Act 1987—
(a) in section 5L(1), for "room" (where first
occurring) substitute "enclosed room";
(b) in section 5L(2)—
(i) for "a gaming room" substitute "an
enclosed gaming room";
(ii) for "rooms" substitute "enclosed
rooms";
(c) in section 5L(3), omit "or has committed";
(d) in section 5M(1), for "gaming room"
substitute "an enclosed gaming room".
8. New section 5N substituted
For section 5N of the Tobacco Act 1987
substitute—
"5N. Approved venues: no smoking signs
(1) The occupier of a gaming machine area or an
enclosed gaming room in which smoking is
prohibited by section 5L is guilty of an
offence, and liable to a penalty not exceeding
5 penalty units, if, without reasonable
excuse, acceptable no smoking signs are not
displayed in accordance with sub-section (2).
Note: Section 3 defines an acceptable no smoking
sign.
(2) The signs must be displayed in a manner that
ensures that a person is reasonably likely to
see one or more of them either on entering
the gaming machine area or enclosed gaming
room or from within the area or room.".
s. 7
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9. Licensed premises: non-smoking rooms
In the Tobacco Act 1987—
(a) in section 5O—
(i) in sub-section (1), for "rooms" (where
first occurring) substitute "enclosed
rooms";
(ii) for sub-section (2)(a)(i) substitute—
"(i) an enclosed gaming room; or";
(iii) in sub-section (3), for "section 5A, 5B
or 5BA" substitute "section 5C, 5D
or 5E";
(b) in section 5P(2), omit "or has committed".
10. New section 5R substituted
For section 5R of the Tobacco Act 1987
substitute—
"5R. Licensed premises: no smoking signs
(1) The occupier of a designated non-smoking
room is guilty of an offence, and liable to a
penalty not exceeding 5 penalty units, if,
without reasonable excuse, acceptable no
smoking signs are not displayed in
accordance with sub-section (2).
Note: Section 3 defines an acceptable no smoking
sign.
(2) The signs must be displayed in a manner that
ensures that a person is reasonably likely to
see one or more of them either on entering
the designated non-smoking room or from
within the room.".
s. 9
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11. Certain advertising prohibited
(1) In section 6 of the Tobacco Act 1987, for the
penalty at the foot of each of sub-sections (1), (2),
(2A) and (2B) substitute—
"Penalty: 60 penalty units.".
(2) After section 6(2C) of the Tobacco Act 1987
insert—
"(2D) A tobacco company is guilty of an offence
against this sub-section, and liable to a
penalty not exceeding 5000 penalty units, if
the tobacco company intentionally or
recklessly—
(a) contravenes sub-section (1), (2), (2A)
or (2B); or
(b) causes another person to contravene
sub-section (1), (2), (2A) or (2B).
(2E) An offence against sub-section (2D) is an
indictable offence.".
(3) Section 6(3)(d) of the Tobacco Act 1987 is
repealed.
12. Competitions
(1) For the penalty at the foot of section 7(1) of the
Tobacco Act 1987 substitute—
"Penalty: 60 penalty units.".
(2) After section 7(3) of the Tobacco Act 1987
insert—
"(4) For the avoidance of doubt, sub-section (1)
applies to a tobacco company that, or a
person carrying on a tobacco wholesaling
business who, does anything referred to in
paragraph (a) or (b) of that sub-section in
connection with the sale of a tobacco product
s. 11
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or for the purposes of promoting the sale of a
tobacco product.
(5) A tobacco company is guilty of an offence
against this sub-section, and liable to a
penalty not exceeding 5000 penalty units, if
the tobacco company intentionally or
recklessly—
(a) contravenes sub-section (1); or
(b) causes another person to contravene
sub-section (1).
(6) An offence against sub-section (5) is an
indictable offence.".
13. Free samples
(1) For the penalty at the foot of section 8(1) of the
Tobacco Act 1987 substitute—
"Penalty: 60 penalty units.".
(2) After section 8(2) of the Tobacco Act 1987
insert—
"(3) A tobacco company is guilty of an offence
against this sub-section, and liable to a
penalty not exceeding 5000 penalty units, if
the tobacco company intentionally or
recklessly—
(a) contravenes sub-section (1); or
(b) causes another person to contravene
sub-section (1).
(4) An offence against sub-section (3) is an
indictable offence.".
s. 13
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14. Prohibition on certain sponsorships
(1) In section 9 of the Tobacco Act 1987, for the
penalty at the foot of each of sub-sections (1)
and (2) substitute—
"Penalty: 60 penalty units.".
(2) After section 9(4) of the Tobacco Act 1987
insert—
"(5) A tobacco company is guilty of an offence
against this sub-section, and liable to a
penalty not exceeding 5000 penalty units, if
the tobacco company intentionally or
recklessly—
(a) contravenes sub-section (1) or (2); or
(b) causes another person to contravene
sub-section (1) or (2).
(6) An offence against sub-section (5) is an
indictable offence.".
15. Supplying tobacco to minors
(1) For the penalty at the foot of section 12(2) of the
Tobacco Act 1987 substitute—
"Penalty: 20 penalty units.".
(2) For section 12(3A) and (3B) of the Tobacco Act
1987 substitute—
'(3A) If a person (the "primary offender")
commits an offence against sub-section (1),
each manager of the primary offender (if
any) also commits an offence against that
sub-section.
s. 14
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(3B) Proceedings for an offence committed by a
manager because of sub-section (3A) may be
brought whether or not proceedings have
been brought against the primary offender
and whether or not the primary offender has
been convicted.'.
(3) Section 12(3D) of the Tobacco Act 1987 is
repealed.
(4) In section 12(4) of the Tobacco Act 1987—
(a) paragraphs (a) and (b) are repealed;
(b) for paragraph (d) substitute—
"(d) in the case of a prosecution against a
manager for an offence against sub-
section (1)—
(i) had no knowledge of the primary
offence; and
(ii) had taken prevention measures in
relation to the primary offender.".
(5) After section 12(4) of the Tobacco Act 1987
insert—
'(5) In this section—
"manager" of a primary offender, means—
(a) an employer of the primary
offender; or
(b) a person who authorised the
primary offender to sell tobacco
products as the person's agent; or
(c) if the primary offence was
committed in the course of
carrying on a business—a person
who owns, manages, controls,
conducts or operates that business;
s. 15
-- 23 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
22
"prevention measures" by a manager in
relation to a primary offender, means
doing the following things at intervals
not exceeding 6 months—
(a) instructing the primary offender—
(i) not to sell tobacco products
to a person under the age of
18 years in any
circumstances, even if the
tobacco products are for, or
claimed to be for, a person
over that age; and
(ii) to sight an evidence of age
document for a person before
selling a tobacco product to
the person; and
(b) warning the primary offender that
if the primary offender sells
tobacco products to a person
under the age of 18 years in
disregard of the instructions
mentioned in paragraph (a), the
primary offender commits an
offence against this Act; and
(c) obtaining written
acknowledgement by the primary
offender that the primary offender
received the instructions and
warning mentioned in
paragraphs (a) and (b);
"primary offence" means the offence
committed by the primary offender;
"primary offender" has the meaning given
in sub-section (3A).'.
s. 15
-- 24 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
23
16. New section 13 substituted
For section 13 of the Tobacco Act 1987
substitute—
'13. Vending machines
(1) A person must not place or cause or permit
to be placed in any premises a vending
machine for operation by members of the
public.
Penalty: 10 penalty units.
(2) Sub-section (1) does not apply to a vending
machine that is placed—
(a) in the bar area of licensed premises in
line of sight of a bar; or
(b) in an approved venue or in a casino in
line of sight of a service counter of the
approved venue or casino; or
(c) in a bottle shop immediately adjacent to
the service counter of the bottle shop.
(3) In this section—
"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
s. 16
-- 25 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
24
(ii) at which, or in the immediate
vicinity of which, customers
may immediately consume
the liquor supplied;
"bar area" means the area—
(a) in the immediate vicinity of a bar;
and
(b) not more than 5 metres from the
outer edge of the counter of the
bar;
"bottle shop" means an area in licensed
premises where liquor is supplied to
customers solely for consumption off
the licensed premises;
"service counter"—
(a) of an approved venue or a casino,
means a counter at which gaming
tokens (within the meaning of the
Gambling Regulation Act 2003)
may be issued or redeemed;
(b) of a bottle shop, means a counter
in the bottle shop across which
liquor is supplied directly to
customers.'.
17. Further alteration of penalties
For the penalty at the foot of each of
sections 13A(1), 13A(2) and 14 of the Tobacco
Act 1987 substitute—
"Penalty: 100 penalty units.".
s. 17
-- 26 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
25
18. New Division 3 inserted in Part 2
After Division 2 of Part 2 of the Tobacco Act
1987 insert—
'Division 3—Underage Music/Dance Events
15E. What is an underage music/dance event?
For the purposes of this Division, an
"underage music/dance event" is an event
that—
(a) involves the provision of music
(whether live or recorded and whether
for listening to or dancing to or both);
and
(b) is predominantly organised or intended
for, or predominantly attended by,
persons under the age of 18 years; and
(c) is open to members of the public
(whether with or without payment); and
(d) takes place in any area or premises
other than a private residence.
15F. No smoking at underage music/dance
events
(1) A person must not smoke in any area or
premises while an underage music/dance
event is taking place there.
Penalty: 5 penalty units.
(2) If an inspector believes on reasonable
grounds that a person is contravening sub-
section (1), the inspector, on producing his or
her identity card, may direct the person to
cease the contravention.
s. 18
-- 27 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
26
(3) A person who is contravening sub-
section (1) must not, without reasonable
excuse, fail to comply with a direction by an
inspector to cease the contravention.
Penalty: 5 penalty units.
15G. Offence by occupier
(1) If smoking occurs in an area or premises
while an underage music/dance event is
taking place there, in contravention of
section 15F, the occupier of the area or
premises is guilty of an offence and liable to
a penalty not exceeding 5 penalty units.
(2) It is a defence to a prosecution under sub-
section (1) if the defendant proves that the
defendant did not provide an ashtray,
matches, a lighter or any other thing
designed to facilitate smoking where the
contravention occurred and that—
(a) the defendant was not aware, and could
not reasonably be expected to have
been aware, that the contravention was
occurring; or
(b) the defendant—
(i) requested the person contravening
to stop smoking; and
(ii) informed the person that the
person was committing an
offence.
s. 18
-- 28 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
27
15H. No smoking signs
(1) The occupier of an area or premises where
an underage music/dance event is taking
place is guilty of an offence, and liable to a
penalty not exceeding 5 penalty units, if,
without reasonable excuse, acceptable no
smoking signs are not displayed in
accordance with sub-section (2).
Note: Section 3 defines an acceptable no smoking
sign.
(2) The signs must be displayed in a manner that
ensures that a person is reasonably likely to
see one or more of them either on entering
the area or premises or from within the area
or premises.
15I. Covering vending machines, tobacco
advertisements etc.
(1) The occupier of an area or premises where
an underage music/dance event is taking
place must ensure that each of the following
is removed or covered at all times while the
event is taking place—
(a) a vending machine in the area or
premises;
(b) a tobacco advertisement in the area or
premises;
(c) a display of tobacco products in the
area or premises.
Penalty: 60 penalty units.
s. 18
-- 29 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
28
(2) In this section—
"covered" means—
(a) in relation to a vending machine—
covered by an opaque material or
some other means in such a way
that none of the top, front, back
and sides of the machine or its
contents are visible;
(b) in relation to a tobacco
advertisement or display of
tobacco products—covered by an
opaque material or some other
means in such a way that the
advertisement or products are not
visible.
15J. Prohibition on supplying tobacco at
underage music/dance events
A person must not sell a tobacco product to
another person in any area or premises while
an underage music/dance event is taking
place there.
Penalty: 50 penalty units.
15K. No offence by minors
Despite anything to the contrary in this
Division or the Sentencing Act 1991, a
person under the age of 18 years does not
commit an offence if he or she contravenes a
provision of this Division.'.
s. 18
-- 30 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
29
19. Infringements and offences
(1) For section 38(1) and (2) of the Tobacco Act
1987 substitute—
"(1) An inspector or a police member may serve
an infringement notice on a person whom the
inspector or police member believes has
committed an infringement referred to in the
Schedule requiring the person to pay the
penalty for that infringement specified in the
Schedule.
(1A) An infringement notice must contain the
prescribed information.
(2) An inspector or a police member may
withdraw an infringement notice within
28 days after serving it by sending a notice
containing the prescribed information to the
person on whom the infringement notice was
served.".
(2) In the Tobacco Act 1987—
(a) in section 38—
(i) in sub-section (4), after "the inspector"
insert "or police member who served
the notice";
(ii) in sub-section (5), after "the inspector"
insert "or police member who served
the infringement notice";
(b) in section 39—
(i) in sub-section (1), for "member of the
police force" substitute "police
member";
(ii) sub-section (3) is repealed.
s. 19
-- 31 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
30
(3) At the end of section 41 of the Tobacco Act 1987
insert—
"(2) Sub-section (1) does not apply to an offence
against section 6(2D), 7(5), 8(3) or 9(5).".
20. New Schedule substituted
For the Schedule to the Tobacco Act 1987
substitute—
"SCHEDULE
Section 38
INFRINGEMENTS
Infringement Penalty
1. An offence against section 5A(1) 1 penalty unit
2. An offence against section 5B(1) 1 penalty unit
3. An offence against section 5C(1) 1 penalty unit
4. An offence against section 5D(1) 1 penalty unit
5. An offence against section 5E(1) 1 penalty unit
6. An offence against section 5F(1) 1 penalty unit
7. An offence against section 5G(1) 1 penalty unit
8. An offence against section 5H(1) 1 penalty unit
9. An offence against section 5I(1) 1 penalty unit
9A. An offence against section 5J(1) 1 penalty unit
9B. An offence against section 5K(1) 1 penalty unit
10. An offence against section 5L(1)
or (2)
1 penalty unit
11. An offence against section 5M(1) 1 penalty unit
12. An offence against section 5N(1) 1 penalty unit
13. An offence against section 5O(1) 1 penalty unit
14. An offence against section 5P(1) 1 penalty unit
15. An offence against section 5Q(1) 1 penalty unit
16. An offence against section 5R(1) 1 penalty unit
17. An offence against section 6(2A) 1 penalty unit
18. An offence against section 6(2B) 1 penalty unit
19. An offence against section 12(1) 2 penalty units
20. An offence against section 12(2) 1 penalty unit
21. An offence against section 12(3) 2 penalty units
s. 20
-- 32 of 43 --
Part 2—General Amendments to Tobacco Act 1987
Tobacco (Amendment) Act 2005
Act No. 45/2005
31
Infringement Penalty
22. An offence against section 13 1 penalty unit
23. An offence against section 13A 1 penalty unit
24. An offence against section 14 1 penalty unit
25. An offence against section 15C 1 penalty unit
26. An offence against section 15F(1) 1 penalty unit
27. An offence against section 15G(1) 1 penalty unit
28. An offence against section 15H(1) 1 penalty unit
29. An offence against section 15I(1) 1 penalty unit
30. An offence against section 15J(1) 1 penalty unit
31. An offence against section 36C(3) 1 penalty unit
.".
__________________
s. 20
-- 33 of 43 --
Part 3—Licensed Premises, Casinos and Outdoor Dining or Drinking Areas
Tobacco (Amendment) Act 2005
Act No. 45/2005
32
PART 3—LICENSED PREMISES, CASINOS AND OUTDOOR
DINING OR DRINKING AREAS
21. Definitions
In the Tobacco Act 1987—
(a) in section 3—
(i) the definition of "bar area" is repealed;
(ii) in the definition of "declared smoking
area", for "section 5I(4)" substitute
"section 3E";
(b) in section 3, the definitions of "designated
non-smoking room", "dining area" and
"TAB area" are repealed;
(c) section 3D is repealed.
22. New section 3E inserted
Before section 4 of the Tobacco Act 1987
insert—
"3E. Declared smoking areas in casinos
(1) For the purposes of this Act, the Minister, by
notice published in the Government Gazette,
may declare an area in a casino that, in the
Minister's opinion, is a high roller room, to
be a declared smoking area.
(2) The Minister, by notice published in the
Government Gazette, may revoke or vary a
declaration under sub-section (1).
(3) The Minister must consult the Minister
administering Part 2 of the Casino Control
Act 1991 before making, revoking or
varying a declaration under this section.".
s. 21
-- 34 of 43 --
Part 3—Licensed Premises, Casinos and Outdoor Dining or Drinking Areas
Tobacco (Amendment) Act 2005
Act No. 45/2005
33
23. Removal of licensed premises and casino exemptions
(1) Section 5A(2)(b) of the Tobacco Act 1987 is
repealed.
(2) For section 5A(2)(d) of the Tobacco Act 1987
substitute—
"(d) a declared smoking area of a casino;".
24. New sections 5C, 5D and 5E substituted
For sections 5C, 5D and 5E of the Tobacco Act
1987 substitute—
'5C. Outdoor dining or drinking areas: offence
by smoker
(1) A person must not smoke in an outdoor
dining or drinking area if—
(a) the area has a roof and walls in place;
and
(b) the total actual area of the wall surfaces
exceeds 75% of the total notional wall
area.
Penalty: 5 penalty units.
(2) If an inspector believes on reasonable
grounds that a person is contravening sub-
section (1), the inspector, on producing his or
her identity card, may direct the person to
cease the contravention.
(3) A person who is contravening sub-
section (1) must not, without reasonable
excuse, fail to comply with a direction by an
inspector to cease the contravention.
Penalty: 5 penalty units.
s. 23
-- 35 of 43 --
Part 3—Licensed Premises, Casinos and Outdoor Dining or Drinking Areas
Tobacco (Amendment) Act 2005
Act No. 45/2005
34
(4) In this section—
"total notional wall area" means what
would be the total area of the wall
surfaces if the walls were—
(a) at the perimeter of the roofed area;
and
(b) continuous; and
(c) of a uniform height equal to the
lowest height of the roof.
5D. Outdoor dining or drinking areas: offence
by occupier
(1) If smoking occurs in an outdoor dining or
drinking area, in contravention of section 5C,
the occupier of the area is guilty of an
offence and liable to a penalty not exceeding
5 penalty units.
(2) It is a defence to a prosecution under sub-
section (1) if the defendant proves that the
defendant did not provide an ashtray,
matches, a lighter or any other thing
designed to facilitate smoking where the
contravention occurred and that—
(a) the defendant was not aware, and could
not reasonably be expected to have
been aware, that the contravention was
occurring; or
(b) the defendant—
(i) requested the person contravening
to stop smoking; and
(ii) informed the person that the
person was committing an
offence.
s. 24
-- 36 of 43 --
Part 3—Licensed Premises, Casinos and Outdoor Dining or Drinking Areas
Tobacco (Amendment) Act 2005
Act No. 45/2005
35
5E. Outdoor dining or drinking areas: no
smoking signs
(1) The occupier of an outdoor dining or
drinking area in which smoking is prohibited
by section 5C is guilty of an offence, and
liable to a penalty not exceeding 5 penalty
units, if, without reasonable excuse,
acceptable no smoking signs are not
displayed in accordance with sub-section (2).
Note: Section 3 defines an acceptable no smoking
sign.
(2) The signs must be displayed in a manner that
ensures that a person is reasonably likely to
see one or more of them either on entering
the outdoor dining or drinking area or from
within the outdoor dining or drinking area.'.
25. Consequential amendments regarding casinos and
licensed premises (including approved venues)
In the Tobacco Act 1987—
(a) sections 5I, 5J, 5L and 5M are repealed;
(b) in section 5N(1), omit "in which smoking is
prohibited by section 5L";
(c) sections 5O, 5P and 5Q are repealed;
(d) in section 5R—
(i) in sub-section (1), for "a designated
non-smoking room" substitute
"enclosed licensed premises";
(ii) in sub-section (2), for "designated non-
smoking room or from within the
room" substitute "enclosed licensed
premises or from within those
premises";
s. 25
-- 37 of 43 --
Part 3—Licensed Premises, Casinos and Outdoor Dining or Drinking Areas
Tobacco (Amendment) Act 2005
Act No. 45/2005
36
(e) section 42AA is repealed;
(f) in the table in the Schedule, items 9, 9A, 10,
11, 13, 14 and 15 are repealed.
__________________
s. 25
-- 38 of 43 --
Part 4—Amendments to Transport Act 1983
Tobacco (Amendment) Act 2005
Act No. 45/2005
37
PART 4—AMENDMENTS TO TRANSPORT ACT 1983
26. Removal of current smoking offences from
section 222
Section 222(1) of the Transport Act 1983 is
repealed.
27. New section 222A inserted
After section 222 of the Transport Act 1983
insert—
'222A. Smoking offences
(1) A person must not smoke tobacco or any
other substance in or on—
(a) a carriage or part of a carriage (not
being a carriage or part of a carriage set
apart for that purpose); or
(b) any public transport property that is a
covered train platform, tram stop or bus
stop; or
(c) any other public transport property or
part of public transport property where
a notice is displayed that smoking on
that property or part is prohibited.
Penalty: 5 penalty units.
(2) The occupier of public transport property
that is a covered train platform, tram stop or
bus stop is guilty of an offence, and liable to
a penalty not exceeding 5 penalty units, if,
without reasonable excuse, acceptable no
smoking signs are not displayed in
accordance with sub-section (3).
See:
Act No.
9921.
Reprint No. 10
as at
1 July 2004
and
amending
Act Nos
54/2002,
69/2003,
94/2003,
101/2003,
108/2004 and
110/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
s. 26
-- 39 of 43 --
Part 4—Amendments to Transport Act 1983
Tobacco (Amendment) Act 2005
Act No. 45/2005
38
(3) The signs must be displayed in a manner that
ensures that a person is reasonably likely to
see one or more of them either on entering
the covered train platform, tram stop or bus
stop or from within the covered train
platform, tram stop or bus stop.
(4) In this section—
"acceptable no smoking sign" has the same
meaning as in the Tobacco Act 1987;
"bus stop" means a place where passengers
wait for the purpose of catching a bus,
and includes a shelter or other structure
at that place;
"carriage" means any passenger vehicle
operated by, on behalf of or under
contract to the Secretary or under a
contract entered into by the Crown or
the Director on behalf of the Crown;
"covered train platform, tram stop or bus
stop" means any part of a train
platform, tram stop or bus stop that is
covered;
"occupier" of public transport property
means—
(a) the passenger transport company
that uses the property in the
provision of a passenger service;
or
(b) the bus company that uses the
property in the provision of a
transport service;
s. 27
-- 40 of 43 --
Part 4—Amendments to Transport Act 1983
Tobacco (Amendment) Act 2005
Act No. 45/2005
39
"train platform" means a platform on
which passengers wait for the purpose
of catching a train and includes a
shelter or other structure on that
platform;
"tram stop" means a place where
passengers wait for the purpose of
catching a tram, and includes a shelter
or other structure at that place.'.
__________________
s. 27
-- 41 of 43 --
Part 5—Consequential Amendment of Other Acts
Tobacco (Amendment) Act 2005
Act No. 45/2005
40
PART 5—CONSEQUENTIAL AMENDMENT OF OTHER
ACTS
28 Gambling Regulation Act 2003
Section 10.1.36 of the Gambling Regulation Act
2003 is repealed.
29 Magistrates' Court Act 1989
In Schedule 4 to the Magistrates' Court Act
1989, after clause 66 insert—
"67. Tobacco Act 1987
Offences against sections 6(2D), 7(5), 8(3) and 9(5) of
the Tobacco Act 1987.".
═══════════════
See:
Act No.
114/2003
and
amending
Act Nos
10/2004,
16/2004,
33/2004,
45/2004,
54/2004,
70/2004,
104/2004 and
108/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
s. 28
See:
Act No.
51/1989.
Reprint No. 10
as at
13 October
2004
and
amending
Act Nos
27/2002,
80/2003,
94/2003,
68/2004,
77/2004,
107/2004,
108/2004,
2/2005 and
3/2005.
LawToday:
www.dms.
dpc.vic.
gov.au
-- 42 of 43 --
Tobacco (Amendment) Act 2005
Act No. 45/2005
41
ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 5 May 2005
Legislative Council: 9 August 2005
The long title for the Bill for this Act was "to amend the Tobacco Act
1987 to ban smoking in enclosed workplaces and other areas, to increase
controls on tobacco advertising and the supply of tobacco to young people
and generally to increase controls on tobacco, to amend the Transport
Act 1983 to ban smoking in covered public transport property, to make
consequential amendments to other Acts and for other purposes."
Endnotes
-- 43 of 43 --