Definitions and product categories drive the legal effects. The inserted Division 3A creates the central taxonomy and locates the new prohibitions.

• Prohibited smoking product (s 74LB) is a catch-all that includes prohibited tobacco products, prohibited personal vaporiser products, prohibited nicotine products and any other items prescribed as prohibited smoking products (s 74LB, definition). Each subcategory has specific triggers:
  • Prohibited tobacco product includes tobacco products that (a) fail to comply with the Commonwealth Public Health (Tobacco and Other Products) Act 2023, or (b) are “prohibited goods” under the Customs Act 1901, or (c) are excisable goods under the Excise Act 1901 where duty is due and owing, or (d) are prescribed as prohibited tobacco products (s 74LB).
  • Prohibited personal vaporiser product includes personal vapouriser products that are Commonwealth-prohibited goods, excisable goods where duty is due, or are prescribed (s 74LB).
  • Prohibited nicotine product is defined in a technically specific way to capture nicotine enclosed in or applied to packaging that is designed to be placed in the mouth, not to be ingested, with nicotine absorbed via oral membranes (s 74LB), and also any products prescribed as prohibited nicotine products (s 74LB).
• Related definitions: “smoking paraphernalia” is broadly defined (s 70A(1)) to include utensils, appliances or devices designed or used for preparation, smoking, inhalation, administration or taking of an inhalable substance, or capable of modification to be so used, or which if possessed would constitute an offence under s 23 of the Misuse of Drugs Act 2001. “Inhalable substance” expressly includes smoking products, controlled drugs and plants under the Misuse of Drugs Act 2001, and herbs or other plant matter intended for smoking (s 70A(1)).
• Machine definitions: the Act replaces the definitions of “electronic dispensing unit” and “vending machine” to distinguish an electronic keypad-operated machine from other dispensing machines (s 4). The Bill then expressly prohibits sales by vending machine (s 69B) and prevents persons from causing or allowing vending machines to be located in premises they own or operate (s 69B(2)).

Prohibitions and offences:

• Division 3A prohibits possessing prohibited smoking products with intent to supply, selling or offering to sell prohibited smoking products, advertising or displaying them, and displaying prohibited smoking products in retail premises (ss 74LD-74LE). The Bill treats an offer to sell as covered whether expressed or implied and whether made in person or electronically (s 74LE(2)).
• Separate prohibitions: vending machine sales are expressly prohibited (s 69B). Display of smoking paraphernalia visible from a public place is prohibited (s 70A(2)). Display of prohibited smoking products in retail premises is also criminalised (s 74LE(3)).
• Closure powers: short-term premises closure orders are available to the Secretary where there is reasonable suspicion smoking products are being or likely to be sold otherwise than in accordance with the Act or prohibited products are being or likely to be sold (s 74LG). The Minister can apply to the Appeal Tribunal for closure for up to 12 months, and the Tribunal may make such orders where it is satisfied similar grounds apply (s 74LH).

Enforcement architecture:

• Nominated officers are given, as of right, the powers of an authorised officer in s 36, and may exercise further powers in Division 5 of Part 2 if authorised by the Director (s 30A replacement in s 5). The Secretary has administrative closure powers and a publication obligation (ss 74LG; 74LJ). The Appeal Tribunal is the judicial/adjudicative route for longer closures (s 74LH).

Penalty structure:

• Many offences use tiered penalties by stage (first, second, third and subsequent) and differentiate between bodies corporate and natural persons (e.g. ss 73, 74LD-74LE). Several maximum penalties for repeat corporate offending reach very high numbers of penalty units (e.g. up to 16 000 penalty units for third and subsequent corporate offences in several provisions (ss 73 (packaging), 74LD, 74LE(1),(3))). Other provisions carry single-tier penalties (e.g. vending machine sale prohibited: 250 penalty units; display paraphernalia visible in or from a public place: 100 penalty units) (ss 69B; 70A(2)).

Temporal and coverage limits:

• The Division 3A contains an express non-application clause that excludes products possessed under lawful authorisation under the Poisons Act 1971 or other Commonwealth or State laws, seized goods lawfully withheld, or products prescribed as excluded (s 74LC). The Act itself is time-limited and repeals itself one year after commencement (s 16).

Process and publication:

• The register of smoking product licences is to be published online by the Department, except addresses of licence holders (s 74J(3)). The Secretary must publish prescribed details about premises closure orders while they are in effect (s 74LJ).

These concepts are the operational building blocks: who is a nominated officer, what a prohibited product is, what constitutes an “offer” or “display”, how closure orders are made and reviewed, and what penalties apply.

The Bill creates effects for several identifiable groups and decision-makers. State who pays, who decides, and what behaviour must change.

• Retailers and specialists in smoking products and ancillary goods. Retailers that sell, display or advertise smoking products or paraphernalia are directly affected. The Act prohibits vending-machine sales (s 69B), banning premises from hosting vending machines (s 69B(2)), prohibits public display of paraphernalia (s 70A(2)), and prohibits display of prohibited smoking products in retail premises (s 74LE(3)). Retailers risk tiered fines: natural persons face up to 800 penalty units for repeat offending in many provisions, while corporations face higher caps (for example up to 16 000 penalty units for third and subsequent corporate offences under s 74LD and s 74LE).
• Importers, wholesalers and distributors. The definitions tie prohibited goods to Commonwealth customs and excise classifications (s 74LB). Products that are “prohibited goods” under the Customs Act, or excisable where duty is due, are captured. Importers and distributors therefore must verify customs clearance and excise obligations to avoid supplying “prohibited” products (s 74LB).
• Manufacturers and product designers. The definition of “prohibited nicotine product” targets products where nicotine is enclosed in packaging designed to be placed in the mouth with absorption via oral membranes (s 74LB). Manufacturers and product designers of nicotine products need to review product form and packaging to determine if the product falls within that definition.
• License-holders and applicants for smoking product licences. The register amendment requires publication of licence information on the Department’s website, except for addresses (s 74J(3)). Licence-holders face elevated penalties for unlicensed activity or breaches (s 74A amendment).
• Owners and occupiers of premises, including landlords and venue operators. The Secretary may make short-term closure orders if there is reasonable suspicion of unlawful sales at premises (s 74LG). The order can be given to the owner or occupier, or affixed to premises (s 74LG(4)). Owners who “cause or allow” vending machines on their premises face penalties (s 69B(2)). Premises subject to closure orders trigger obligations and penalties for operating or entering during a closure (ss 74LI-74LJ).
• Individuals possessing or intending to supply prohibited products. Division 3A criminalises possession with intent to supply (s 74LD(1)), selling/supplying/ offering (s 74LD(2)), and advertising/offering to sell (s 74LE) of prohibited smoking products. These offences apply to natural persons and bodies corporate with differentiated penalties.
• State officials and enforcement agents. The Director, Secretary, authorised officers and nominated officers see altered roles. Nominated officers are empowered to exercise s 36 powers as if they were authorised officers, and the Director can authorise further powers in Division 5 of Part 2 (s 30A). The Secretary gains a closure power and a publication duty (s 74LG; s 74LJ). The Minister can apply to the Appeal Tribunal for closure orders (s 74LH).
• The Appeal Tribunal and judicial process. The Bill gives the Appeal Tribunal statutory jurisdiction to order closures for up to 12 months on application by the Minister, and specifies that the operator of premises is a party to the proceedings (s 74LH).

Indirectly affected groups include online platforms, payment and logistics intermediaries, landlords and property insurers, because the Act covers offers and displays made electronically (s 74LE(2)) and addresses obligations to prevent vending machines on premises (s 69B(2)). The Act’s linkage to Commonwealth customs and excise law places import compliance and customs brokers in the chain of risk management.

Who pays: the statutory penalties specify payment obligations. Bodies corporate face higher fines (for many offences up to 16 000 penalty units for third and subsequent offences, ss 73; 74LD; 74LE), natural persons face lower but still substantial caps (commonly up to 800 penalty units for third and subsequent offences, ss 73; 74LD; 74LE). Owners/occupiers may face fines for permitting vending machines (s 69B(2)) and may face closure orders that prevent business operations (ss 74LG-74LH, 74LI).

Who decides: the Director authorises nominated officers’ additional powers (s 30A). The Secretary makes short-term closure orders (s 74LG). The Minister is the gatekeeper for applying to the Appeal Tribunal for longer closure orders (s 74LH). The Appeal Tribunal decides whether to order closure after hearing (s 74LH(3)).

What must change: businesses must remove vending-machine sales, ensure no visible public display of paraphernalia, check that products do not fall within the statutory definitions of prohibited products (or else avoid possessing with intent to supply, offering to sell, advertising or displaying them), train staff on offers made by electronic means, and maintain documentation proving lawful supply chains or lawful authority to possess (s 74LC). Premises owners must be ready to receive closure orders and to restrict access as ordered (ss 74LI-74LJ).

This section describes statutory duties imposed on private persons and public officials, and the decision-making and review rights the Act creates or removes.

Duties on private persons and businesses

• Do not sell smoking products by vending machine (s 69B(1)). That is an absolute prohibition: a person must not sell by means of a vending machine and faces a penalty up to 250 penalty units.
• Do not cause or allow a vending machine to be located on your premises if you own or operate the premises (s 69B(2)). That duty carries a separate penalty (50 penalty units).
• Do not display smoking paraphernalia visible from a public place (s 70A(2)). The definition of paraphernalia is broad, capturing devices designed for smoking, devices intended for modification, and items which, if possessed, would be an offence under s 23 of the Misuse of Drugs Act 2001 (s 70A(1)). Penalty: up to 100 penalty units.
• Do not possess a prohibited smoking product intending to supply it (s 74LD(1)). Penalties escalate with repeat offending and are higher for corporations than for natural persons (s 74LD(1)).
• Do not sell, supply or offer to supply a prohibited smoking product (s 74LD(2)). Again the penalties are escalatory and differentiated by corporate status (s 74LD(2)).
• Do not offer to sell, advertise or display prohibited smoking products or products that purport to be such (s 74LE(1)-(3)). The Act treats offers made by any means, including electronic means, as caught (s 74LE(2)). The display prohibition applies to retail premises (s 74LE(3)).

Duties on public officials

• Director may authorise nominated officers to exercise additional powers in Division 5 of Part 2 (s 30A(b)). Nominated officers have the powers specified in s 36 as if they were authorised officers (s 30A(a)).
• The Secretary may make short-term premises closure orders when reasonably satisfied there is present or likely unlawful sale activity (s 74LG(1)). The Secretary must ensure such orders are written, specify premises, take effect on a stated day, and may impose conditions (s 74LG(2)). The Secretary is required to publish details of premises closure orders while in effect (s 74LJ(1)-(2)).
• The Minister may apply to the Appeal Tribunal for closure orders (s 74LH(1)). The Appeal Tribunal may, after hearing, close premises for up to 12 months if satisfied of the statutory grounds (s 74LH(3)-(4)).

Rights and procedural points

• Operators of premises are statutory parties to Appeal Tribunal proceedings brought by the Minister (s 74LH(2)), giving them an opportunity to contest a closure application before the Tribunal.
• The Act expressly removes the operation of s 165 in relation to the Secretary’s decision to make or revoke a short-term closure order (s 74LG(6)). The effect is that the particular review or appeal mechanism in s 165 will not apply to those Secretary decisions; the Act leaves intact the Appeal Tribunal pathway for Minister-initiated applications in s 74LH.
• The Division 3A non-application clause creates lawful defences or exclusions: products in lawful possession under the Poisons Act 1971 or other Commonwealth/State law, or seized and lawfully withheld goods, or those prescribed as excluded, are not caught by the Division (s 74LC). “Lawful excuse” is referenced as a statutory qualifier to several offences (e.g. s 74LD(1) and s 74LE(1)) but the Act does not define the phrase beyond the specific non-application examples in s 74LC.
• The register of smoking product licences is required to be made freely available on the Department’s website, other than licence-holder addresses (s 74J(3)). This creates a transparency duty on the Department and a disclosure effect on holders of licences.

Enforcement powers and consequences

• Nominated officers can exercise powers of authorised officers under s 36 (s 30A(a)), and any additional Division 5 Part 2 powers specifically authorised by the Director (s 30A(b)). The Act thus expands the pool of enforcement agents vested with entry/search/seizure-type powers without needing to appoint each as an authorised officer under the original Act.
• While a premises closure order is in effect, persons are prohibited from selling or supplying prohibited smoking products, selling or supplying any smoking products, carrying on related business activity, or entering/remaining on premises except as permitted by the order (ss 74LI(1)-(3)). The Act sets large fines for contraventions, with corporate fines higher than individual fines (s 74LI).
• The Secretary must publish information about closure orders while they are in effect (s 74LJ). That creates a reputational and informational duty on the Department with collateral effects for premises subject to closure orders.

These duties establish compliance obligations for the private sector, grant discretion to the Secretary and Director to act administratively, and preserve a Tribunal route for longer-lasting closures while removing a specific review mechanism for short-term closures by the Secretary (s 74LG(6)).

The Bill substantially escalates the enforcement regime in three ways: higher and tiered fines across many offences, wider powers for enforcement officers, and administrative closure mechanisms that interrupt commercial activity.

Penalty increases and structure

• Sale to children (amendment to s 64): each subsection’s penalty is replaced with a tiered structure of 200 penalty units for a first offence, 400 penalty units for a second offence, and 800 penalty units for a third and subsequent offence (s 6 amending s 64). The tier applies to subsections (1), (2) and (3) of s 64.
• Vending machine sales: s 69B(1) creates an offence of selling smoking products by means of a vending machine with a penalty up to 250 penalty units; s 69B(2) penalises causing or allowing a vending machine to be located on one’s premises at up to 50 penalty units.
• Display of smoking paraphernalia in view from public place: s 70A(2) sets a penalty up to 100 penalty units.
• Packaging (s 73): penalties are escalatory and distingue corporate/natural persons. For a body corporate: first offence up to 400 penalty units; second, up to 800; third and subsequent, up to 16 000 penalty units. For a natural person: 200/400/800 penalty units across first, second and third+ offences (s 11).
• Licence offences (s 74A amendment): for bodies corporate, maximum 400 penalty units for a first offence and 1 600 for a subsequent offence; for natural persons, 200 and 800 penalty units respectively (s 12).
• Division 3A offences (possession with intent to supply, sale/supply/offer, advertising/display): penalties again escalate. For bodies corporate: first offence up to 400 penalty units, second up to 800, third and subsequent up to 16 000 penalty units (ss 74LD(1)-(2); 74LE(1)-(3)). For natural persons, 200/400/800 units respectively (ss 74LD; 74LE).
• Premises closure order contraventions (s 74LI): while a closure order is in effect, selling or supplying prohibited smoking products is punishable by up to 5 366 penalty units for a body corporate and up to 3 145 penalty units for a natural person (s 74LI(1)). Selling or supplying any smoking products or carrying on a related business during a closure is punishable by up to 1 600 penalty units for a body corporate and 800 for an individual (s 74LI(2)). Entering or remaining on closed premises contrary to the order attracts up to 1 600 penalty units for a body corporate and 800 for a natural person (s 74LI(3)).
• Offences against authorised officers: s 154(1) penalty is increased from 100 penalty units to 250 penalty units (s 15).

Enforcement agents and their powers

• Nominated officers are given the powers of an authorised officer specified in s 36, as if they were authorised officers (s 30A(a)), and the Director may authorise them to exercise additional powers from Division 5 of Part 2 (s 30A(b)). The change expands who can enforce the Act and what powers they can use, subject to Director authorisation for additional powers.
• The Secretary may issue short-term premises closure orders based on reasonable suspicion of unlawful selling (s 74LG). Short-term closures are limited to 90 days and no more than 2 such orders may be made in respect of the same premises in a calendar year (s 74LG(5)-(3)). Short-term closure orders are not subject to the review mechanism in s 165 (s 74LG(6)).
• The Minister may apply to the Appeal Tribunal for longer closure orders; the Tribunal may order closure for up to 12 months, specify remediation steps and impose conditions (s 74LH(1), (3)-(4)). The operator of the premises is a party to those proceedings (s 74LH(2)).

Operational enforcement steps and publication

• Procedure for short-term orders: the Secretary must put orders in writing, state premises, specify start date and may add conditions; the order must be given to the owner or occupier or affixed to the premises before it takes effect (s 74LG(2), (4)). An order lasts for 90 days from the effective day (s 74LG(5)).
• Publication duty: the Secretary is required to publish certain information about premises closure orders in a format the Secretary determines (s 74LJ(1)). The information must remain published while the order is in effect (s 74LJ(2)). Required information includes the type of order, premises description and address, date and period for which the order is in effect, any prescribed information, and other information the Secretary considers relevant (s 74LJ(1)(a)-(f)).
• Register publication: the register of smoking product licences, other than licence-holder addresses, must be published on the Department’s website (s 74J(3)). That increases transparency of licence-holders while protecting their addresses.

Practical enforcement effects

• The Act gives the Secretary an immediate administrative stop-gap power (90 days closures, s 74LG) that can be deployed more quickly than waiting for Tribunal orders, subject to the constraints on frequency (no more than 2 short-term orders per premises per calendar year, s 74LG(3)). That power is not subject to s 165 review, reducing the administrative review pathway for those Secretary decisions (s 74LG(6)).
• The Minister-to-Tribunal pathway gives a judicialised route for longer closures, with the Tribunal able to set revocation steps and conditions (s 74LH(4)(b)-(c)). The operator is a party and thus can defend and contest the facts at a hearing (s 74LH(2)).
• The legislation expands the pool of enforcement personnel by empowering nominated officers with the powers of authorised officers and by possible additional authorisations by the Director (s 30A). This affects enforcement capacity and the range of officers who can perform entry, inspection or seizure tasks set out elsewhere in the Principal Act (s 36 and Division 5 Part 2).

The enforcement architecture therefore pairs high monetary penalties, administrative closure mechanisms with public disclosure duties, and broadened enforcement personnel powers.

The Bill embeds multiple cross-references to Commonwealth and State statutes and changes the interplay between state-level public-health enforcement and federal customs, excise and therapeutic/poisons regulation.

Key cross-references contained in the text

• Public Health (Tobacco and Other Products) Act 2023 (Commonwealth). The definition of “prohibited tobacco product” includes tobacco products that fail to comply with that Commonwealth Act (s 74LB). The Act therefore enforces state-level prohibitions for items non-compliant with Commonwealth regulation.
• Customs Act 1901 (Cth). The Bill treats goods that are “prohibited goods” under the Customs Act as prohibited tobacco or personal vaporiser products if they meet the defined criteria (s 74LB). That links state prohibitions to federal import controls and prohibited-goods designations.
• Excise Act 1901 (Cth). Goods that are excisable under the Excise Act and where duty is due and owing are captured as prohibited tobacco or personal vaporiser products (s 74LB). The Bill therefore targets goods that lack proper excise compliance.
• Poisons Act 1971 (Tasmania). The Division 3A non-application provision expressly exempts products in the possession of persons authorised under the Poisons Act to possess or supply the products, or those lawfully supplied under the Poisons Act (s 74LC). The prohibited nicotine product definition also references products “not obtained and administered in accordance with the Poisons Act 1971” as part of the nicotine-in-packaging capture (s 74LB).
• Misuse of Drugs Act 2001 (Tasmania). The definition of “inhalable substance” in s 70A includes controlled drugs and controlled plants within the meaning of the Misuse of Drugs Act 2001. The definition of “smoking paraphernalia” also reaches utensils and other things which, if possessed, would constitute an offence under s 23 of the Misuse of Drugs Act 2001 (s 70A(1)).
• The Principal Act (Public Health Act 1997). The Bill amends multiple provisions of the Principal Act: it replaces s 30A with a broadened nominated-officer provision (s 5), inserts new sections and Divisions (ss 69B, 70A, 74LB-74LJ), amends penalties (ss 6, 11-13), and alters the register publication duty (s 13 inserting s 74J(3)). It explicitly omits application of s 165 to Secretary decisions to make or revoke short-term closure orders (s 74LG(6)).

Interaction effects and practical implications

• Enforcement relies in part on Commonwealth determinations: goods designated as “prohibited” under the Customs Act or barred under Commonwealth public-health federal law are treated as state-level “prohibited” products (s 74LB). State enforcement therefore depends on federal classifications and excise/customs treatment, and sellers/importers must ensure federal compliance to avoid state penalties.
• The Poisons Act carve-out (s 74LC) creates a lawful channel for some nicotine products if those products are lawfully obtained and administered under the Poisons Act 1971. Entities operating within the Poisons Act framework (for example, authorised therapeutic supply) will not be captured by Division 3A for those products. The Act does not define “lawful excuse” beyond these non-application examples, so the Poisons Act and related licences will likely be relied on in defence.
• The Misuse of Drugs Act link expands the reach of the tobacco/nicotine regime to paraphernalia that overlaps with drug paraphernalia offences under the Misuse of Drugs Act 2001 (s 70A(1)(c)). Possession or display that would be an offence under s 23 of the Misuse of Drugs Act becomes a trigger in the definition of paraphernalia.
• The division of powers between the Secretary (administrative short-term closure) and the Appeal Tribunal (Minister application for longer closure) sits alongside administrative review norms in the Principal Act, but s 74LG(6) removes s 165 review for Secretary short-term closure decisions. This changes the interaction between administrative review mechanisms and enforcement closures.
• Publishing the register on the Department’s website (s 74J(3)) interacts with privacy and transparency considerations; the Bill explicitly excludes addresses from the online publication but otherwise requires free access to the register.
• The Bill’s self-repeal after one year (s 16) means these interactions are designed as temporary, which may affect how regulated entities prioritise investment in compliance changes versus temporary adjustments.

Taken together, the Bill is carefully drafted to operate in tandem with federal customs and health law and existing Tasmanian drug and poisons regulation; compliance therefore requires concurrent attention to federal authorisations, excise and customs status, and Tasmania’s Poisons and Misuse of Drugs statutes.

This Act is an amending instrument to the Public Health Act 1997. The Bill text itself lists the sections of the Principal Act amended and the new sections inserted. The Act also contains a self-contained expiry clause.

Provisions amended and inserted

• Short title and commencement: the Act is the Public Health Amendment (Prohibited Tobacco and Other Products) Act 2026 and commences on proclamation (ss 1-2).
• Principal Act reference: the instrument names the Public Health Act 1997 as the Principal Act (s 3).
• Definitions: the definitions of “electronic dispensing unit” and “vending machine” in s 3 of the Principal Act are replaced with narrower/form-specific definitions (s 4).
• Nominated officers: s 30A of the Principal Act is repealed and substituted with a provision giving nominated officers the powers of an authorised officer per s 36, and further Division 5 powers if authorised by the Director (s 5).
• Sale to children: the penalties in s 64 are replaced with tiered penalty schemes for first, second, and third and subsequent offences (s 6).
• Part 4 Division 2 heading is amended to add “Sale” to the heading (s 7).
• New sections inserted: s 69B (sale by vending machine prohibited) and s 70A (display of smoking paraphernalia prohibited) are added into Division 2 (ss 8-9).
• Section 71 is amended to remove subsections (5)-(7), remove the definitions of “electronic dispensing unit” and “vending machine” from subsection (10), and make a minor punctuation change in the definition of “service area” (s 10).
• Section 73 (packaging) and section 74A (licence to sell smoking products) penalties are revised and made tiered and to distinguish corporate and natural person penalties (ss 11-12).
• Section 74J (register of smoking product licences) is amended to require public web publication of the register other than addresses of licence-holders (s 13).
• Part 4 Divisions 3A and 3B are inserted, introducing ss 74LB-74LJ covering interpretation, application limits, offences for possession/sale/advertising/display of prohibited products, short-term and Tribunal closure powers, offences for contravening closure orders, and a Secretary publication duty (s 14).
• Section 154 penalty for offences against authorised officers is amended to increase the penalty to 250 penalty units (s 15).
• Sunset clause: the Act is repealed on the first anniversary of the day on which it commenced (s 16).

Statutory timing and temporality

• Commencement is by proclamation (s 2), so there will be a date the instruments come into force after proclamation. The Act automatically expires one year after commencement (s 16). Therefore the Bill is explicitly designed to be temporary rather than permanent unless re-enacted or extended.

Notable drafting choices in amendments

• The insertion of tiered penalties in multiple pre-existing sections (s 64, s 73, s 74A) and the creation of separate corporate and natural-person penalty tiers suggests an intent to increase deterrence especially for repeat corporate offenders (ss 6, 11-12).
• The removal of certain subsections from s 71 and deletion of vending machine/electronic dispensing unit cross-references in s 71(10) (s 10) indicates a reorganisation and selective targeting of vending machines via the new s 69B.
• The new Division 3A and 3B are structurally self-contained and include an express non-application clause (s 74LC) and a publication duty (s 74LJ), showing parliamentary intent to regulate specific products and use closure orders as an enforcement tool.

Because the Act repeals itself after one year, the amendment history is necessarily short-term: the instrument will stand for a maximum of 12 months from proclamation unless before expiry further legislative action is taken.

The Bill text does not reference any past litigation, court decisions, or Tribunal findings. There are no cases, appeals, or judicial determinations cited in the Act. The statutory text provides new enforcement powers and routes to the Appeal Tribunal, but it does not include or summarise prior litigation involving the provisions it amends.

Practical note for users:

• Because the Act creates new offences, new administrative orders and new duties without listing any precedent or case law, litigation history will have to be developed through enforcement actions, Tribunal proceedings under s 74LH, and any court prosecutions for the new offences. The Act itself establishes the Appeal Tribunal as the adjudicative body for Minister applications under s 74LH and preserves the Tribunal process for those orders (s 74LH(2)-(4)).
• The Secretary’s short-term closure orders are explicitly excluded from the operation of s 165 (s 74LG(6)). If a regulated party wishes to challenge a Secretary short-term closure order, the Act removes one statutory review pathway and does not itself set out alternative review mechanisms for those Secretary decisions. Any challenge to a short-term closure order would therefore require reliance on other judicial review avenues outside s 165, but the Bill text contains no discussion of such mechanisms or of prior litigation shaping that choice.
• The register and publication requirements may give rise to privacy or reputation-based litigation in future, but the Bill text does not provide guidance beyond the requirement that the register, aside from licence-holder addresses, be published online (s 74J(3)).

In short, the Act is silent on litigation precedent; any legal challenge or interpretation will depend on future enforcement actions and Tribunal or court decisions once the provisions are applied.

This section flags textual and operational features in the Bill that create uncertainty, discretionary risk, or compliance traps, grounded in the statutory text.

Lawful excuse and non-application are limited and circumscribed

• The Act repeatedly displaces liability except where there is a “lawful excuse” or where Division 3A does not apply (s 74LC). However s 74LC’s non-application examples are explicit and narrow: lawful possession or supply authorised under the Poisons Act 1971, lawful possession or supply under Commonwealth or State laws, or goods seized/forfeited/retained lawfully by State or Commonwealth, or those prescribed as exempt (s 74LC). The Bill does not define “lawful excuse” beyond these examples, leaving uncertainty about what other circumstances might qualify. Casual or inadvertent possession risks criminal exposure unless captured by s 74LC.
• The “intends to supply” test (s 74LD(1)) and the prohibition on “offer to sell” (s 74LD(2), s 74LE(1)) have subjective and objective elements. Evidentiary thresholds for “intent” and what constitutes an “offer” (express or implied, in person or electronic , s 74LE(2)) may be contested in prosecutions, but the Act itself does not elaborate evidentiary standards.

Broad definitions sweep in unexpected items

• “Smoking paraphernalia” includes items which, if possessed, would constitute an offence under s 23 of the Misuse of Drugs Act 2001 (s 70A(1)(c)). Retailers selling items that could be dual-use (e.g. hookahs, bongs, components) may be caught by s 70A(2) if displayed where visible from a public place even if the item is legal to sell absent drug-offence considerations.
• The prohibited nicotine product definition intentionally captures nicotine-in-packaging intended to be placed in the mouth and to deliver nicotine via membranes (s 74LB). That will catch oral nicotine pouches that are not medicine authorised under the Poisons Act, but the statutory description relies on product design and function tests (“designed to be placed in the mouth”, “designed to be absorbed...”), which may require scientific or expert evidence to apply in enforcement or defence.

Selective machine prohibition and residual ambiguity

• The Act amends definitions of “electronic dispensing unit” and “vending machine” (s 4), then expressly prohibits vending-machine sales (s 69B) but not sales through electronic dispensing units. The net effect is that keypad-operated machines (electronic dispensing units) are defined separately and not expressly banned by s 69B. The Bill removes vending machine and electronic dispensing unit references from s 71(10) (s 10). This creates a possible compliance trap: businesses using electronic dispensing units may or may not be captured depending on how the Principal Act otherwise regulates “electronic dispensing unit” sales; the Bill itself only criminalises vending-machine sales (s 69B). Operators and lawyers must read both the amended Principal Act and the new provisions together to determine risk.
• The Secretary’s short-term closure power is under a “reasonable suspicion” standard (s 74LG(1)). Short-term orders can be made without s 165 review (s 74LG(6)) and are effective for 90 days (s 74LG(5)); no more than 2 such short-term orders per premises per calendar year are permitted (s 74LG(3)). Businesses confronted with such an order lose access to s 165 review for that Secretary decision, which heightens the administrative risk and accelerates the need for crisis response.

Publication and reputational risk

• The Secretary must publish details of closure orders while in effect (s 74LJ). The register of smoking product licences (other than addresses) is to be published on the Department’s website (s 74J(3)). These publication duties create reputational effects for licence-holders and premises subject to closure orders, and the Bill gives the Secretary latitude to publish “any other information the Secretary considers relevant” (s 74LJ(1)(f)).
• The Act does not prescribe a right to delist or correct published information while an order is in effect; the publication obligation is one-way and linked to the life of the order (s 74LJ(2)). Operators should anticipate publicly available notices and plan communications and legal strategies accordingly.

High, escalating penalties tied to repeat offending

• Many offences use escalating penalties that increase significantly for second and third+ offences, and corporate caps are much higher than those for individuals (e.g. 16 000 penalty units for third and subsequent corporate offences in multiple provisions, ss 73; 74LD; 74LE). The magnitude of the caps and the inclusion of multiple discrete offences (possession with intent, sale, offer, display) mean a single course of conduct can generate multiple charges and compounding financial exposure.
• Premises closure breaches attract particularly high fines (s 74LI(1) up to 5 366 penalty units for corporate contravention of the prohibition on selling prohibited smoking products during a closure).

Temporal limit creates strategic timing considerations

• The Act will be repealed one year after commencement (s 16). Businesses and enforcement agencies must plan for a potentially short enforcement window. For regulated parties, decisions about investing in long-term product or layout changes must weigh the Act’s temporary nature against the immediate enforcement risk. For regulators, the one-year horizon creates a limited period to deploy closure powers and to litigate questions of interpretation.

Unspecified details left to prescription or regulation

• The Bill refers in several places to “prescribed” products or “prescribed information” (e.g., s 74LB includes items that are “prescribed as prohibited nicotine products”, and s 74LJ(1)(e) references any other prescribed information). The absence of the prescription instrument in the Bill text leaves key details to subordinate instruments and administrative rule-making, which creates uncertainty pending those prescriptions.

In sum, the main “gotchas” come from narrow carve-outs for lawful possession, broad functional definitions that may sweep in innocuous items, selective targeting of vending machines while leaving electronic dispensing units differently treated, the Secretary’s unreviewable short-term closure power, publication duties that create reputational risk, and large escalating penalties for repeat corporate offending.

This is a practical compliance checklist and steps for businesses, landlords, license-holders and public authorities grounded in the new statutory obligations.

Immediate legal and transactional checks

• Product classification and supply chain due diligence:

  • Confirm whether each product you sell or distribute qualifies as a prohibited tobacco product, prohibited personal vapouriser product or prohibited nicotine product under s 74LB. Check whether the item fails to comply with the Commonwealth Public Health (Tobacco and Other Products) Act 2023, is a prohibited good under the Customs Act 1901, or is excisable under the Excise Act 1901 with duty due and owing (s 74LB).
  • For nicotine-in-packaging products, assess whether the product is designed to be placed in the mouth and deliver nicotine via oral membranes (s 74LB). If the product is lawfully supplied or administered under the Poisons Act 1971, retain documentary evidence of that authorisation (s 74LC).
  • For imports, secure clearance documentation evidencing that goods are not Customs-prohibited and that excise duties, where applicable, have been satisfied. Keep customs broker records and excise receipts.

• Licence and register issues:

  • If you hold a smoking product licence, check the register requirements. The Department will publish the register online other than addresses (s 74J(3)). Expect public visibility of non-address licence data and plan for disclosure implications.
  • Ensure your licence conditions are complied with; the amended s 74A imposes higher penalties for unlicensed or unauthorised sales (s 74A as amended).

Retail practice and store layout

• Remove vending machines that dispense smoking products, and ensure you do not cause or allow such machines on premises you own or operate (s 69B(1)-(2)). If you lease premises to third parties, update lease clauses and control arrangements to ensure compliance with s 69B(2).
• Do not display smoking paraphernalia where visible in or from a public place (s 70A(2)). Move paraphernalia out of public view or into locked cabinets not visible from outside. The definition of paraphernalia is broad (s 70A(1)), so evaluate items such as bongs, hookahs or accessories for visibility and potential reach of the prohibition.
• Do not display prohibited smoking products in retail premises (s 74LE(3)). If you have inventory that may be prohibited, remove it from sale and from display until you have legal clearance.
• For online listings, remove any product descriptions or images that could be construed as offers to sell prohibited smoking products. The Act treats offers made by electronic means as captured whether expressed or implied (s 74LE(2)).

Records and evidentiary preparation

• Maintain contemporaneous records proving lawful supply chains: invoices, delivery documents, customs entries, excise payments, Poisons Act authorisations, and correspondence confirming legal status. These records are the primary means to establish a lawful excuse or that the Division 3A non-application applies (s 74LC).
• Implement inventory controls and traceability systems to demonstrate that any seized, forfeited or retained goods were lawfully obtained (s 74LC).

Staff training and policies

• Train staff on the new prohibitions, particularly on what constitutes an “offer” and on the handling of customers seeking to buy items that might be prohibited. Provide staff with clear escalation pathways if customers request prohibited items.
• Prepare script templates and standard operating procedures for responding to enforcement visits by authorised or nominated officers (s 30A). Ensure staff know to request identity and the basis for entry/search, and follow prescribed procedures in the Principal Act (including s 36 powers referenced in s 30A).

Responding to closure orders and notices

• If served with a short-term premises closure order under s 74LG, be aware that the Secretary must give the order to the owner/occupier or affix it to the premises before it takes effect (s 74LG(4)). The order lasts 90 days unless revoked (s 74LG(5)). Short-term orders are not subject to s 165 review (s 74LG(6)). Seek immediate legal advice to identify judicial review options or interlocutory relief where necessary, and prepare to comply with conditions in the order.
• If the Minister applies to the Appeal Tribunal for closure, the operator is a party to the proceedings (s 74LH(2)). Prepare factual evidence and expert reports for the Tribunal hearing and consider immediate compliance or remediation steps that the Tribunal might require for revocation (s 74LH(4)(b)).

Engagement with regulators and public communication

• Maintain open lines with the Department and the Director if nominated officers are in contact. The Director can authorise nominated officers to exercise further powers from Division 5 of Part 2 (s 30A(b)). Establish points of contact to ensure any visits or enforcement are managed with corporate counsel present.
• Prepare a communications plan for the publicity risks of the register publication and of any closure order publication (s 74J(3); s 74LJ). Anticipate the Secretary’s publication of information while an order is in effect (s 74LJ(2)) and craft factual disclosures and corrective statements consistent with legal advice.

Contractual and property measures

• Update lease terms and vendor agreements to allocate responsibility for vending machines, stock compliance, and liability if prohibited products are supplied without proper authorisation. Because s 69B(2) penalises causing or allowing vending machines on premises, landlords should ensure lease covenants prohibit tenants from installing vending machines that dispense smoking products.
• Review insurance policies for business interruption and fines coverage; closure orders and high fines can materially affect revenues. Confirm whether legal expense coverage will respond to Tribunal or judicial review proceedings.

Monitor subordinate instruments and prescriptions

• Watch for “prescribed” regulations or orders that will identify products excluded from Division 3A or that will elaborate on “prescribed information” required under s 74LJ(1)(e). The Bill anticipates subordinate instruments will fill gaps; active monitoring of the Department’s website and Gazette notices is required.

Contingency planning

• Given the Act’s automatic repeal one year after commencement (s 16), evaluate whether short-term