Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Bill

Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Bill

Government Bill

153—1

Explanatory note

General policy statement

This Bill amends the Smoke-free Environments Act 1990 to prohibit smoking in motor vehicles carrying children and young people under 18 years of age. The purpose is to protect them from the harm associated with second-hand smoke.

The Bill supports New Zealand’s responsibilities to protect children’s health and wellbeing under the United Nations Convention on the Rights of the Child.

Younger children are at particular risk from second-hand smoke. There is strong evidence that exposure to second-hand smoke can put them at increased risk of serious medical conditions. Māori children and those living in the most deprived areas are more likely to be exposed to second-hand smoke in vehicles. While rates of children and young people’s exposure to second-hand smoke have been decreasing, the rate of decrease may be slowing. Public education social marketing campaigns have been useful but this amendment is needed to significantly decrease rates further.

Departmental disclosure statement

The Ministry of Health is required to prepare a disclosure statement to assist with the scrutiny of this Bill. The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

Regulatory impact assessment

The Ministry of Health produced a regulatory impact assessment on 17 December 2018 to help inform the main policy decisions taken by the Government relating to the contents of this Bill.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause and provides that the Bill comes into force 18 months after receiving the Royal assent.

Clause 3 provides that the Bill amends the Smoke-free Environments Act 1990 (the principal Act).

Part 1Amendments to principal Act

Clause 4 amends section 2, which relates to interpretation, by replacing the definition of enforcement officer so that it includes constables as enforcement officers for the purposes of new Part 1A, as inserted by clause 9 of the Bill.

Clause 5 amends section 3A, which relates to the purposes of the principal Act, so that the particular purpose of new Part 1A, set out in new section 20B, is not limited or affected by the general purposes referred to in section 3A(1).

Clause 6 amends section 5, which relates to prohibiting smoking in workplaces, so that the exception that would allow smoking in a work vehicle is overridden by new section 20D, which prohibits smoking in motor vehicles carrying child occupants.

Clause 7 amends section 5A, which relates to employers permitting smoking in a work vehicle with the consent of its users, so that it is subject to the prohibition in new section 20D on smoking in motor vehicles carrying child occupants.

Clause 8 amends section 9, which relates to restrictions on smoking in passenger service vehicles, so that the section cannot be used to permit smoking in motor vehicles carrying child occupants as prohibited by new section 20D.

Clause 9 inserts new Part 1A, which is to make motor vehicles smoke-free when they are carrying child occupants. New Part 1A consists of new sections 20B to 20F.

New section 20B sets out the purpose of new Part 1A.

New section 20C provides definitions of terms used in new Part 1A.

New section 20D sets out the prohibition on smoking in motor vehicles carrying child occupants.

New section 20E provides for the powers of a constable in relation to the prohibition.

New section 20F relates to the offences that a person may commit in relation to the exercise of a constable’s powers under new section 20E.

Clause 10 amends section 38B, which relates to the commission of infringement offences, to update the section regarding the way proceedings in relation to infringement offences are dealt with.

Part 2Amendment to Summary Proceedings Act 1957

Clause 11 amends the Summary Proceedings Act 1957. Section 2, which relates to interpretation, is amended by including in the definition of infringement notices those that are issued under new section 20D, as well as section 38C, of the Smoke-free Environments Act 1990.

1 Title

This Act is the Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Act 2019.

2 Commencement

This Act comes into force on the day that is 18 months after the date on which it receives the Royal assent.

3 Principal Act

This Act amends the Smoke-free Environments Act 1990 (the principal Act).

Part 1 Amendments to principal Act

4 Section 2 amended (Interpretation)

In section 2(1), replace the definition of enforcement officer with:

enforcement officer means—

(a)

a person for the time being appointed under section 14 to enforce Parts 1 and 2, or provisions of Parts 1 and 2; or

(b)

for the purposes of Part 1A, a constable

5 Section 3A amended (Purposes of this Act)

In section 3A(2), replace “4 and 21, of Parts 1 and 2” with “4, 20B, and 21, of Parts 1, 1A, and 2”.

6 Section 5 amended (Smoking in workplaces prohibited)

After section 5(2), insert:

(3)

Nothing in this section permits smoking in a vehicle carrying child occupants (see section 20D).

7 Section 5A amended (Employer may permit smoking in vehicle with consent of users)

In section 5A, insert as subsection (2):

(2)

Nothing in this section permits smoking in a vehicle carrying child occupants (see section 20D).

8 Section 9 amended (Smoking restricted in passenger service vehicles)

After section 9(4), insert:

(5)

Nothing in this section permits smoking in a vehicle carrying child occupants (see section 20D).

9 New Part 1A inserted

After section 20A, insert:

Part 1A Smoke-free motor vehicles carrying child occupants

20B Purpose of this Part

The purpose of this Part is to limit children’s exposure to second-hand smoke by prohibiting smoking when they are in motor vehicles.

20C Interpretation for this Part

In this Part, unless the context otherwise requires,—

child occupant means a person under the age of 18 years who is in a motor vehicle

motor vehicle has the meaning given to it in section 2(1) of the Land Transport Act 1998

road has the meaning given to it in section 2(1) of the Land Transport Act 1998.

20D Smoking prohibited in motor vehicle carrying child occupant

(1)

A person must not smoke in a motor vehicle, whether moving or stationary, that is on a road and has a child occupant.

(2)

However, a person may smoke in a motor vehicle if—

(a)

the person is the only occupant of the motor vehicle who is under the age of 18 years; or

(b)

the motor vehicle is stationary on a road and in use as a dwelling.

(3)

A person who contravenes subsection (1) commits an infringement offence and is liable to—

(a)

an infringement fee of $50; or

(b)

a fine imposed by a court not exceeding $100.

(4)

Sections 38B to 39 apply to the infringement offence in subsection (3) as if—

(a)

the infringement offence were an infringement offence defined in section 38A; and

(b)

the infringement fee in subsection (3)(a) were an infringement fee specified in section 38A for the infringement offence (although the fee is a set fee and not a maximum fee as contemplated by section 38A); and

(c)

a constable were the enforcement officer referred to in those sections.

20E Constable’s powers

(1)

A constable who sees a person smoking in a motor vehicle that is on a road and that appears to have a child occupant may do 1 or more of the following, if the constable is in uniform, or wearing a distinctive cap, hat, or helmet, with a badge of authority affixed to it:

(a)

signal or request the driver of the motor vehicle to stop the vehicle as soon as practicable:

(b)

require the driver to remain stopped for as long as is reasonably necessary for the constable to make the inquiries and complete the exercise of powers under this section:

(c)

require the person who is smoking to stop smoking in the motor vehicle:

(d)

require any person who is smoking or appears to be aged under 18 years to provide the person’s—

(i)

full name; and

(ii)

full address; and

(iii)

date of birth; and

(iv)

occupation; and

(v)

telephone number.

(2)

A constable who sees a person smoking in a motor vehicle that is on a road and that appears to have a child occupant may do 1 or more of the following, if the constable is in another vehicle following the motor vehicle:

(a)

by displaying flashing blue, or blue and red, lights or sounding a siren, require the driver of the other vehicle to stop:

(b)

require the driver to remain stopped for as long as is reasonably necessary for the constable to make the inquiries and complete the exercise of powers under this section:

(c)

require the person who is smoking to stop smoking in the motor vehicle:

(d)

require any person who is smoking or appears to be aged under 18 years to provide the person’s—

(i)

full name; and

(ii)

full address; and

(iii)

date of birth; and

(iv)

occupation; and

(v)

telephone number.

(3)

Despite subsection (1), a constable must not take either of the actions referred to in subsection (1)(c) or (d) if the motor vehicle is stationary on the road and is in use as a dwelling.

Offences

20F Offences in respect of constables

A person commits an offence, and is liable on conviction to a fine not exceeding $1,000, if the person—

(a)

intentionally obstructs, hinders, or resists a constable exercising or attempting to exercise powers under section 20E; or

(b)

intentionally fails to comply with a requirement under section 20E; or

(c)

when required under section 20E(1)(d) or (2)(d) to give information, gives information the person knows to be false or misleading.

10 Section 38B amended (Commission of infringement offences)

In section 38B, insert as subsections (2) and (3):

(2)

Proceedings commenced in the way described in subsection (1)(a) do not require the leave of a District Court Judge or Registrar under section 21(1)(a) of the Summary Proceedings Act 1957.

(3)

See section 21 of the Summary Proceedings Act 1957 for the procedure that applies if an infringement notice is issued.

Part 2 Amendment to Summary Proceedings Act 1957

11 Summary Proceedings Act 1957 amended

(1)

This section amends the Summary Proceedings Act 1957.

(2)

In section 2(1), definition of infringement notice, after paragraph (je), insert:

(jf)

section 20D or 38C of the Smoke-free Environments Act 1990; or