Amendments to Smoke-free Environments Act 1990
Clause 3 provides that Part 1 amends the Smoke-free Environments Act 1990 (the principal Act).
Clause 4 amends section 2 by inserting a definition of large retailer for use in the offence provisions.
Clause 5 amends section 3A to update the purpose of the principal Act to reflect the general policy about plain packaging of tobacco products.
Clause 6 amends section 21 to update the purpose of Part 2 of the principal Act (which relates to control of smoking products) to reflect the specific policy about plain packaging of tobacco products.
Clause 7 amends section 24 to remove any suggestion that a trade mark may be used on a tobacco product, package, or container. The use of marks is governed by the new provisions about plain packaging.
Clause 8 replaces the cross-heading above section 29AA so that it fits the amended provisions below it.
Clause 9 repeals section 30A, which has been overtaken by the new provisions about plain packaging. New section 31A(1)(b) effectively bans the retail sale of all loose cigarettes. Under new section 39A(3), the related regulations must not permit packages of cigarettes or loose tobacco below the quantities banned by existing section 30A.
Clause 10 inserts new section 31A. The new section is the main provision about plain packaging. It requires that a tobacco product comply with regulations and, if sold or offered for sale, that the product be contained in a package and be packaged in a quantity that complies with regulations. It also requires that the package for a tobacco product comply with section 32(1) (which relates to messages and information), allows the restricted display of a brand or company name on the package, and requires that the package comply with regulations in all other respects.
Clause 11 amends section 32. The amended provision applies to packages for tobacco products at all times (not just when the products are sold). It widens the types of messages, pictures, and information that can be required on packages. They may now relate to the harmful health, social, or economic effects, or other harmful effects, of using the product or to the beneficial effects of stopping the use of the product or of not using the product.
Clause 12 amends section 32AA. It widens the types of messages, pictures, and information that can be required on packages containing herbal smoking products in the same way as for tobacco products.
Clause 13 amends section 36 to increase the maximum fines for certain offences and to impose different maximum fines depending on whether the person is—
a manufacturer, an importer, or a distributor ($600,000); or
a large retailer ($200,000); or
anyone else ($50,000).
The clause repeals section 36(7A), which is consequential on the repeal of section 30A. It also repeals section 36(9), which is covered by new section 36AA.
Clause 14 inserts new sections 36AA and 36AAB.
New section 36AA creates an offence in respect of plain packaging of tobacco products. An offence is committed by—
a person who manufactures, distributes, sells, offers for sale, or otherwise supplies a tobacco product knowing that the product contravenes the relevant requirements:
a person who distributes, sells, offers for sale, or otherwise supplies a tobacco product in a package knowing that the package contravenes the relevant requirements:
a person who does certain things in relation to a package for a tobacco product knowing that the package contravenes the relevant requirements.
The maximum fines are the same as those in the amendments to section 36. There is an exception for certain exports, but the defendant must prove that the exception applies.
New section 36AAB creates a presumption that a defendant (who is not a manufacturer, an importer, or a distributor) is a large retailer. The defendant can rebut the presumption by raising evidence to the contrary.
Clause 15 amends section 38A to include as an infringement offence an offence against new section 36AA (which relates to contravening plain packaging requirements). The infringement offence has no mental element. The clause removes the existing section 38A(j), which is consequential on the repeal of section 30A.
Clause 16 amends section 39 to remove from a regulation-making power aspects that relate to packages for tobacco products. Those aspects are now covered by new section 39A. The clause also clarifies the regulation-making power relating to photographs and pictures for herbal smoking products. Some redundant subprovisions are also repealed.
Clause 17 inserts new section 39A. The new section allows regulations to be made that relate to plain packaging. The regulations can impose requirements or permit options for tobacco products and for packages for tobacco products. Most of the provisions relate to restrictive requirements about the appearance of the products and packages. Appearance is defined to include anything that may affect a person's senses.
Clause 18 inserts new section 41BA. The new section lets an enforcement officer apply for a search warrant. A warrant may be issued if there are reasonable grounds to suspect an offence and to believe that there is evidential material in the relevant place. Most of the provisions of Part 4 of the Search and Surveillance Act 2012 are applied.
Clause 19 inserts new Part 3. The new Part contains new section 42, which gives effect to the transitional provisions set out in the new Schedule. The transitional provisions relate to amendments made to the principal Act on or after 1 January 2013.
Clause 20 inserts the new Schedule, which contains the transitional provisions for the Bill's amendments to the principal Act.