Tobacco (Miscellaneous Amendments) Act 2002

i Tobacco (Miscellaneous Amendments) Act 2002 Act No. 31/2002 TABLE OF PROVISIONS Section Page 1. Purpose 1 2. Commencement 2 3. Principal Act 2 4. Definitions 2 5. Agents and employees of tobacco retailers 4 6. New section 3C inserted 4 3C.Bingo area 4 7. Controls relating to tobacco products 4 8. New section 5BA inserted 4 5BA. Enclosed restaurants and cafes and dining areas: no smoking signs 4 9. New sections 5E to 5R inserted 5 5E. Retail shopping centres: no smoking signs 5 5F. Bingo areas and centres: offence by smoker 6 5G. Bingo areas and centres: offence by occupier 6 5H. Bingo areas and centres: no smoking signs 7 5I. Casinos: offence by smoker 8 5J. Casinos: offence by occupier 8 5K. Casinos: no smoking signs 9 5L. Approved venues: offence by smoker 10 5M. Approved venues: offence by occupier 11 5N. Approved venues: no smoking signs 12 5O. Licensed premises: non-smoking rooms 13 5P. Licensed premises: offence by smokers 13 5Q. Licensed premises: offence by occupier 14 5R. Licensed premises: no smoking signs 15 10. Consequential amendments to Part 2 15 11. New section 41A inserted 16 41A. No double jeopardy 16 12. New section 42AA inserted 16 42AA. Victorian Casino and Gaming Authority and Director of Gaming and Betting to supply Secretary with certain information 16 13. Supreme Court—limitation of jurisdiction 18 -- 1 of 23 -- Section Page ii 14. Infringement notices 18 15. Amendment of Gaming Machine Control Act 1991 19 ═══════════════ ENDNOTES 21 -- 2 of 23 -- 1 Tobacco (Miscellaneous Amendments) Act 2002 † [Assented to 12 June 2002] The Parliament of Victoria enacts as follows: 1. Purpose The purpose of this Act is to amend the Tobacco Act 1987— (a) to prohibit smoking in places where bingo is played; (b) to limit smoking in licensed premises, gaming venues and the casino; (c) for other minor purposes. Victoria No. 31 of 2002 -- 3 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 2 2. Commencement (1) Section 1, this section and sections 3, 4(3), 5, 12 and 15 come into operation on the day after the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act come into operation on 1 September 2002. 3. Principal Act In this Act, the Tobacco Act 1987 is called the Principal Act. 4. Definitions (1) In section 3 of the Principal Act, insert the following definitions— ' "approved venue" has the same meaning as in the Gaming Machine Control Act 1991; "bar area", in relation to a casino, means an area in the casino that is used predominantly for the serving and consumption of alcoholic drinks; "bingo" has the same meaning as in the Gaming No. 2 Act 1997; "bingo area" has the meaning given by section 3C; "bingo centre" has the same meaning as in the Gaming No. 2 Act 1997; "casino" has the same meaning as in the Casino Control Act 1991; s. 2 See: Act No. 81/1987. Reprint No. 4 as at 1 January 2002. LawToday: www.dms. dpc.vic. gov.au -- 4 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 3 "declared smoking area", in relation to a casino, means an area declared under section 5I(4); "designated non-smoking room", in relation to licensed premises, means a room designated under section 5O(1); "gaming machine" has the same meaning as in the Gaming Machine Control Act 1991; "gaming machine area" has the same meaning as in the Gaming Machine Control Act 1991; "gaming room" means a room in an approved venue in which gaming machines available for gaming are installed; "high roller room" means a room in a casino that is used substantially for gaming by international visitors to the casino; "licensed premises" means premises in respect of which a general licence, an on-premises licence or a club licence within the meaning of the Liquor Control Reform Act 1998 is in force, other than premises that are a restaurant or cafe or a bingo centre; "minor gaming permit" means a permit issued under section 15 of the Gaming No. 2 Act 1997; "room" means an enclosed room; "TAB area", in relation to a casino, means an area in the casino in which wagering or approved betting competitions (within the meaning of the Gaming and Betting Act 1994) or both are conducted in accordance with the wagering licence granted under Part 2 of that Act;'. s. 4 -- 5 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 4 (2) In section 3 of the Principal Act, in the definition of "enclosed"— (a) after "area" (where first occurring) insert ", room"; and (b) after "area" (where secondly occurring) insert "or room". (3) In section 3 of the Principal Act, in the definition of "product line", paragraph (a) is repealed. 5. Agents and employees of tobacco retailers Section 3B of the Principal Act is repealed. 6. New section 3C inserted Before section 3D of the Principal Act insert— "3C. Bingo area For the purposes of this Act, an area (other than an outdoor area) is a bingo area at any time when the predominant activity in that area is the conducting of a session of bingo under a minor gaming permit.". 7. Controls relating to tobacco products After the heading to Part 2 of the Principal Act insert— "Division 1—No Smoking Areas". 8. New section 5BA inserted After section 5B of the Principal Act insert— "5BA. Enclosed restaurants and cafes and dining areas: no smoking signs (1) The occupier of an enclosed restaurant or cafe, or of a dining area, is guilty of an offence if, without reasonable excuse, no smoking signs that comply with sub- s. 5 -- 6 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 5 section (2) are not displayed, or are not displayed in the prescribed manner (if any). Penalty: 5 penalty units. (2) A sign referred to in sub-section (1) must comply with any prescribed requirements as to size and the information contained in it.". 9. New sections 5E to 5R inserted After section 5D of the Principal Act insert— '5E. Retail shopping centres: no smoking signs (1) The owner of a retail shopping centre or, if there is more than one owner, each owner must cause no smoking signs that comply with sub-section (2) to 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. Penalty: 5 penalty units in the case of a natural person. 10 penalty units in any other case. (2) A sign referred to in sub-section (1) must comply with any prescribed requirements as to size and the information contained in it. (3) In this section— "owner" includes a person who is, or is entitled to be registered under the Transfer of Land Act 1958 as, the proprietor of an estate in fee simple in the land, or any part of the land, on which the retail shopping centre is situated. s. 9 -- 7 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 6 5F. Bingo areas and centres: offence by smoker (1) A person must not smoke in a bingo area or bingo centre. Penalty: 5 penalty units. (2) If an inspector believes on reasonable grounds that a person is committing or has committed an offence against 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. 5G. Bingo areas and centres: offence by occupier (1) If smoking occurs in a bingo area or bingo centre in contravention of section 5F(1), the occupier of the bingo area or bingo centre is guilty of an offence. Penalty: 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 s. 9 -- 8 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 7 (b) the defendant— (i) requested the person contravening to stop smoking; and (ii) informed the person that the person was committing an offence. 5H. Bingo areas and centres: no smoking signs (1) The occupier of a bingo area or bingo centre is guilty of an offence if, without reasonable excuse, no smoking signs that comply with sub-section (2) are not displayed in accordance with that sub-section. Penalty: 5 penalty units. (2) Signs referred to in sub-section (1)— (a) must contain— (i) 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 (ii) 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; and (b) 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 s. 9 -- 9 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 8 centre or from within the bingo area or bingo centre. 5I. Casinos: offence by smoker (1) A person must not smoke in a casino, except in a declared smoking area. Penalty: 5 penalty units. (2) If an inspector believes on reasonable grounds that a person is committing or has committed an offence against 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. (4) For the purpose of this section, the Minister, by notice published in the Government Gazette, may declare an area in a casino that, in the Minister's opinion, is a bar area, a TAB area or a high roller room to be a declared smoking area. (5) The Minister, by notice published in the Government Gazette, may revoke or vary a declaration under sub-section (4). (6) 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. 5J. Casinos: offence by occupier (1) If smoking occurs in an area of a casino in contravention of section 5I(1), the occupier of the area is guilty of an offence. s. 9 -- 10 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 9 Penalty: 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. 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 if, without reasonable excuse, no smoking signs that comply with sub- section (2) are not displayed in accordance with that sub-section. Penalty: 5 penalty units. (2) Signs referred to in sub-section (1)— (a) must contain— (i) 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 s. 9 -- 11 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 10 permitted, with the symbol being at least 70mm in height; and (ii) 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; and (b) 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. 5L. Approved venues: offence by smoker (1) A person must not smoke in a gaming machine area in an approved venue that consists of only one room (not including a toilet, bathroom, hallway, foyer, storeroom or similar room) that— (a) in the case of a club—is regularly open to members of the club or members of the public; or (b) in any other case—is regularly open to members of the public. Penalty: 5 penalty units. (2) A person must not smoke in a gaming room in an approved venue that consists of two or more rooms (not including a toilet, bathroom, hallway, foyer, storeroom or similar room) that— (a) in the case of a club—are regularly open to members of the club or members of the public; or (b) in any other case—are regularly open to members of the public. s. 9 -- 12 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 11 Penalty: 5 penalty units. (3) If an inspector believes on reasonable grounds that a person is committing or has committed an offence against sub-section (1) or (2), 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) or (2) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention. Penalty: 5 penalty units. 5M. Approved venues: offence by occupier (1) If smoking occurs in a gaming machine area or gaming room in contravention of section 5L, the occupier of the area or room is guilty of an offence. Penalty: 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 s. 9 -- 13 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 12 (ii) informed the person that the person was committing an offence. 5N. Approved venues: no smoking signs (1) The occupier of a gaming machine area or gaming room in which smoking is prohibited by section 5L is guilty of an offence if, without reasonable excuse, no smoking signs that comply with sub-section (2) are not displayed in accordance with that sub- section. Penalty: 5 penalty units. (2) Signs referred to in sub-section (1)— (a) must contain— (i) 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 (ii) 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; and (b) 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 gaming room or from within the area or room. s. 9 -- 14 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 13 5O. Licensed premises: non-smoking rooms (1) If licensed premises at any time have two or more rooms in operation, the occupier of the licensed premises must designate one of those rooms to be a non-smoking room. Penalty: 5 penalty units. (2) For the purposes of sub-section (1)— (a) a room does not include— (i) a gaming room; or (ii) a toilet, bathroom, hallway, foyer, storeroom or other similar room; and (b) a room is in operation when— (i) in the case of a club—it is open to, and available for use by, members of the club or members of the public; or (ii) in any other case—it is open to, and available for use by, members of the public. (3) Nothing in this section is to be taken as limiting the requirements of section 5A, 5B or 5BA in relation to dining areas. 5P. Licensed premises: offence by smokers (1) A person must not smoke in a designated non-smoking room of licensed premises. s. 9 -- 15 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 14 Penalty: 5 penalty units. (2) If an inspector believes on reasonable grounds that a person is committing or has committed an offence against 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. 5Q. Licensed premises: offence by occupier (1) If smoking occurs in a designated non- smoking room in contravention of section 5P(1), the occupier of the room is guilty of an offence. Penalty: 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. 9 -- 16 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 15 5R. Licensed premises: no smoking signs (1) The occupier of a designated non-smoking room is guilty of an offence if, without reasonable excuse, no smoking signs that comply with sub-section (2) are not displayed in accordance with that sub- section. Penalty: 5 penalty units. (2) Signs referred to in sub-section (1)— (a) must contain— (i) 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 (ii) 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; and (b) 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.'. 10. Consequential amendments to Part 2 In the Principal Act— (a) in section 5C(4), for "section 15B" substitute "section 5E"; (b) before section 6 insert— s. 10 -- 17 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 16 "Division 2—Advertising and Other Controls"; (c) sections 15A and 15B are repealed. 11. New section 41A inserted After section 41 of the Principal Act insert— "41A. No double jeopardy If an act or omission constitutes more than one offence against this Act, the offender is liable to be prosecuted for any or all of those offences but is not liable to be punished more than once for the same act or omission.". 12. New section 42AA inserted After section 42 of the Principal Act insert— '42AA. Victorian Casino and Gaming Authority and Director of Gaming and Betting to supply Secretary with certain information (1) In this section— "Authority" means the Victorian Casino and Gaming Authority established under the Gaming and Betting Act 1994; "commencement day" means the commencement of section 12 of the Tobacco (Miscellaneous Amendments) Act 2002; "Director" means the Director of Gaming and Betting appointed under the Gaming and Betting Act 1994; s. 11 -- 18 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 17 "relevant approved venue" means an approved venue of a kind referred to in section 5L(1). (2) As soon as practicable after the commencement day, the Authority must provide to the Secretary a plan of a relevant approved venue showing any gaming machine area in that venue as at the commencement day. (3) If at any time after the commencement day the Authority, under Part 2A of the Gaming Machine Control Act 1991, varies the approval of a gaming machine area in a relevant approved venue, the Authority must provide to the Secretary, as soon as practicable after making that variation, a revised plan of the approved venue showing any gaming machine area in that venue as at that time. (4) If at any time after the commencement day the Director, under section 29 of the Gaming Machine Control Act 1991, approves a modification of a gaming machine area in a relevant approved venue, the Director must provide to the Secretary, as soon as practicable after granting that approval, details of the modification. (5) If at any time after the commencement day the Authority, under Part 2A of the Gaming Machine Control Act 1991, approves a gaming machine area in a relevant approved venue, the Authority must provide to the Secretary, as soon as practicable after the granting of that approval, a plan of the approved venue showing any gaming machine area in that venue as at that time. s. 12 -- 19 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 18 (6) If at any time after the commencement day the approval of a gaming machine area in a relevant approved venue is, under Part 2A of the Gaming Machine Control Act 1991, cancelled, revoked or surrendered, the Authority must provide to the Secretary, as soon as practicable after that event, details of the cancellation, revocation or surrender. (7) The Secretary may provide to an inspector any plan, revised plan or information provided to the Secretary in accordance with this section, despite anything to the contrary in the Gaming Machine Control Act 1991 or any other Act.'. 13. Supreme Court—limitation of jurisdiction In section 42B of the Principal Act, after sub- section (2) insert— "(3) It is the intention of section 42, as it has effect on and after the commencement of sections 8 and 9 of the Tobacco (Miscellaneous Amendments) Act 2002, to alter or vary section 85 of the Constitution Act 1975.". 14. Infringement notices In the Schedule to the Principal Act— (a) after item 2 insert— "2A. An offence against section 5BA(1) 1 penalty unit"; (b) after item 3A insert— "3B. An offence against section 5E(1) 1 penalty unit 3C. An offence against section 5F(1) 1 penalty unit 3D. An offence against section 5G(1) 1 penalty unit s. 13 -- 20 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 19 3E. An offence against section 5H(1) 1 penalty unit 3F. An offence against section 5I(1) 1 penalty unit 3G. An offence against section 5J(1) 1 penalty unit 3H. An offence against section 5K(1) 1 penalty unit 3I. An offence against section 5L(1) or (2) 1 penalty unit 3J. An offence against section 5M(1) 1 penalty unit 3K. An offence against section 5N(1) 1 penalty unit 3L. An offence against section 5O(1) 1 penalty unit 3M. An offence against section 5P(1) 1 penalty unit 3N. An offence against section 5Q(1) 1 penalty unit 3O. An offence against section 5R(1) 1 penalty unit"; (c) items 9 and 10 are repealed. 15. Amendment of Gaming Machine Control Act 1991 In section 139 of the Gaming Machine Control Act 1991, before sub-section (5) insert— "(4D) Nothing in this section applies to prohibit or restrict the provision of— (a) a plan or revised plan of; or (b) details of the cancellation, revocation or surrender of the approval of a gaming machine area in; or (c) details of the approval of a modification of a gaming machine area in— s. 15 See: Act No. 53/1991. Reprint No. 8 as at 28 August 2001 and amending Act Nos 117/1993, 90/1997, 88/2000 and 11/2002. LawToday: www.dms. dpc.vic. gov.au -- 21 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 20 an approved venue of a kind referred to in section 5L(1) of the Tobacco Act 1987 in accordance with section 42AA of that Act.". ═══════════════ -- 22 of 23 -- Act No. 31/2002 Tobacco (Miscellaneous Amendments) Act 2002 21 ENDNOTES † Minister's second reading speech— Legislative Assembly: 14 May 2002 Legislative Council: 4 June 2002 The long title for the Bill for this Act was "to make miscellaneous amendments to the Tobacco Act 1987, to amend the Gaming Machine Control Act 1991 and for other purposes." Constitution Act 1975: Section 85(5) statement: Legislative Assembly: 14 May 2002 Legislative Council: 4 June 2002 Absolute majorities: Legislative Assembly: 30 May 2002 Legislative Council: 6 June 2002 Endnotes -- 23 of 23 --