Tobacco Act 1987

Division 7—Statements of reasons 147

34ZG Request for statement of reasons for decision 147

34ZH Chief Commissioner of Police may request statement of reasons 148

34ZI Provision of statement of reasons 148

Division 8—Internal reviews 149

34ZJ Applications for internal review 149

34ZK Decisions on internal review 150

Division 9—Review by VCAT 151

34ZL Application to VCAT for review of decision on internal review 151

34ZM Application to VCAT for review of decision based on advice from the Chief Commissioner of Police 152

34ZN VCAT to inquire on grounds for decision 152

34ZO Appointment of special counsel—protected information 153

34ZP Procedure for hearing—protected information 154

34ZQ Decision of VCAT where protected information exists 155

34ZR Chief Commissioner of Police may request Regulator reconsider decision without protected information 157

Division 10—Licence renewals 158

34ZS Application for renewal of licence 158

Division 11—Disqualification 159

34ZT Procedure—proposal to disqualify person from holding licence 159

34ZU Decision on disqualification and notice 160

Division 12—General 161

34ZV Register of Licensed Tobacco Suppliers 161

34ZW Requirement to notify Regulator of change in application information 162

34ZY Court may suspend or cancel licence or disqualify person 163

34ZZ Regulator may review licences 163

34ZZA Licence ceases to have effect in certain circumstances 165

34ZZB Licence not personal property 165

34ZZC Regulator may issue copy of licence 165

Part 3AAB—Enforcement in relation to licensing 167

Division 1—The Regulator 167

35 Regulator's functions, powers and delegations 167

35A Ministerial directions 167

35B Decision‑making guidelines 168

35C Collection, use and disclosure of information 168

Division 2—Licensing inspectors 170

35D Appointment of licensing inspectors 170

35E Criminal records check 170

35F Functions and powers of licensing inspectors 171

35G Identity card 172

Division 3—General inspection and enforcement powers 173

35H Power to require names and addresses 173

35I Right of entry 173

35J Entry with consent of owner or occupier 175

35K Powers of licensing inspectors 177

35L Licensing search warrants 179

35M Announcement before entry 180

35N Copy of warrant to be given to occupier or other person present or notice left on premises 181

35O Seizure of things not mentioned in the warrant 182

35P Use or seizure of electronic equipment at premises 182

35Q Retention and return of things seized 184

35R Magistrates' Court may extend 3 month period 185

35S Offence to fail to produce, attend or answer questions 186

35T Offence to give false or misleading information 186

35U Offence to prevent another person from complying 187

35V Offence to take things seized or fail to comply with directions as to use of equipment 187

35W Offence to hinder or obstruct licensing inspector 187

35X Offence to intimidate, threaten or assault licensing inspector 188

35Y Offence to impersonate licensing inspector 188

35Z Offence to refuse or fail to comply with requirement 188

35ZA Protection against self‑incrimination 188

35ZB Forfeiture of seized tobacco products 189

Division 4—Improvement notices 189

35ZC Issue of improvement notice 189

35ZD Non‑compliance with improvement notice 191

35ZE Variation and withdrawal of improvement notice 192

35ZF Review by VCAT 192

Division 5—Enforceable undertakings 193

35ZG Definition 193

35ZH Regulator may accept enforceable undertaking 193

35ZI Enforcement 194

35ZJ Regulator may take specified action 194

35ZK No criminal proceedings while enforceable undertaking in force 196

35ZL Proceedings following withdrawal of enforceable undertaking 196

35ZM No further proceedings if enforceable undertaking is complied with 196

35ZN Contempt of court 197

Part 3A—Inspectors and powers of inspectors 198

36 Appointment of persons as inspectors 198

36AA Inspectors appointed under section 36 198

36A Inspector's identity card 199

36B Production of identity card 199

36C Power to require names and addresses 200

36D Entry or search with consent for investigation of suspected offences 201

36E Entry of premises open to the public 203

36EA Power to enter, inspect, monitor compliance and investigate 204

36F Search warrants 206

36G Announcement before entry 207

36H Details of warrant to be given to occupier 208

36I Seizure of things not mentioned in the warrant 209

36J Copies of seized documents 209

36K Retention and return of seized documents or things 210

36L Magistrates' Court may extend 3 month period 210

36M Requirement to assist inspector during entry 211

36N Refusal or failure to comply with requirement 211

36O Protection against self-incrimination 211

36P Offence to give false or misleading information 212

36Q Offence to hinder or obstruct inspector 213

36QA Offence to intimidate, threaten or assault inspector 213

36R Offence to impersonate inspector 213

36S Service of documents 213

36T Confidentiality 214

Part 4—Miscellaneous 215

37 Removal of advertisements 215

37A Forfeiture of prohibited products 215

38 Infringement notices 218

39 Proceedings 219

39A Sufficient evidence of matters relating to tobacco sales 219

40 Application of penalties 220

41 Offences by a body corporate 220

41AA Conduct by officers, employees or agents 220

41A No double jeopardy 221

42 Civil proceedings 222

42A Power to require names of persons supplied with tobacco 222

42B Supreme Court—limitation of jurisdiction 224

42C Review of licensing scheme 224

43 Regulations 225

Part 5—Transitional 228

44 Proceedings under section 6(2) 228

45 Section 15D 228

46 Section 3: definition of occupier 229

47 Savings and validation provision—Tobacco Amendment (Protection of Children) Act 2009—lodgeable infringement offences 229

48 Transitional provision—Tobacco Amendment (Tobacco Retailer and Wholesaler Licensing Scheme) Act 2024 230

Endnotes 232

1 General information 232

2 Table of Amendments 234

3 Explanatory details 240

Version No. 103

Tobacco Act 1987

No. 81 of 1987

Version incorporating amendments as at

The Parliament of Victoria enacts as follows:

Preamble

Whereas—

(a) the following guiding principles are recognised in relation to the use, supply and promotion of tobacco—

(i) tobacco use is so injurious to the health of both smokers and non-smokers as to warrant restrictive legislation;

(ii) tobacco use has adverse health effects even with infrequent use and there is no completely safe form of tobacco use;

(iii) tobacco use is a widely accepted practice amongst adults which it is inappropriate to ban completely;

(iv) the extent of the health effects of smoking requires strong action to deter people from taking up smoking and to encourage existing smokers to give up smoking;

(v) the association of smoking with social success, business advancement and sporting prowess through use of advertising and promotion has a particularly harmful effect by encouraging children and young people to take up smoking; and

(b) it has been resolved to discourage the use of tobacco in all its forms and to prohibit various types of promotion and advertising of tobacco products in order to reduce the incidence of tobacco-related illness and death.

The Parliament of Victoria therefore enacts as follows:

Part 1—Preliminary

S. 1
amended by No. 49/2009 s. 7, substituted by No. 51/2024 s. 4.

1 Purposes

The purposes of this Act are—

(a) to prohibit certain sales or promotion of tobacco products and certain non‑tobacco products; and

(b) to establish a licensing scheme to regulate the lawful supply of tobacco products; and

(c) to create offences in relation to smoking, possession of tobacco products and licensing; and

(d) to establish the Victorian Health Promotion Foundation.

2 Commencement

(1) Except as provided in this section, this Act comes into operation on the day on which it receives the Royal Assent.

(2) Sections 6(1) and (3), 13 and 15 come into operation on 1 April 1988.

(3) Section 14 comes into operation on 1 July 1988.

(4) Section 6(2) comes into operation on 1 January 1989.

3 Definitions

In this Act—

S. 3 def. of acceptable no smoking sign inserted by No. 45/2005 s. 3(a).

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 70 mm 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 20 mm in height;

S. 3 def. of angled stack inserted by No. 28/2001 s. 3(1).

angled stack means packages stacked behind each other from the point of view of the customer's side of the customer service area;

S. 3 def. of approved issuer document inserted by No. 45/2005 s. 3(a).

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;

S. 3 def. of approved venue inserted by No. 31/2002 s. 4(1), amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 13.1(a)).

approved venue has the same meaning as in the Gambling Regulation Act 2003;

S. 3 def. of associate inserted by No. 51/2024 s. 5.

associate has the meaning given by section 3G;

S. 3 def. of ban order inserted by No. 49/2009 s. 8(1).

ban order means an order made by the Minister under section 15N(1);

S. 3 def. of bar area inserted by No. 31/2002 s. 4(1), repealed by No. 45/2005 s. 21(a)(i).

S. 3 def. of bingo inserted by No. 31/2002 s. 4(1), amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 13.1(b)).

bingo has the same meaning as in the Gambling Regulation Act 2003;

S. 3 def. of bingo area inserted by No. 31/2002 s. 4(1).

bingo area has the meaning given by section 3C;

S. 3 def. of bingo centre inserted by No. 31/2002 s. 4(1), amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 13.1(b)).

bingo centre has the same meaning as in the Gambling Regulation Act 2003;

S. 3 def. of carton inserted by No. 43/2000 s. 4(1), amended by Nos 55/2016 s. 9(2)(a), 51/2024 s. 46(b).

carton means a package containing packages of a tobacco product, or a package designed to contain packages of a tobacco product, but does not include a package containing individually-wrapped cigars (unless the package contains a further package or packages of the cigars);

S. 3 def. of casino inserted by No. 31/2002 s. 4(1).

casino has the same meaning as in the Casino Control Act 1991;

Chairperson means Chairperson of the Foundation;

S. 3 def. of children's indoor play centre inserted by No. 65/2014 s. 4.

children's indoor play centre means premises used by a business whose principal revenue is generated by providing indoor play equipment to be used at the premises predominantly by children under the age of 12 years and those responsible for their care;

S. 3 def. of children's service inserted by No. 65/2014 s. 4.

children's service has the same meaning as in section 3(1) of the Children's Services Act 1996;

S. 3 def. of children's service premises inserted by No. 65/2014 s. 4, substituted by No. 37/2019 s. 22.

children's service premises has the same meaning as in the Children's Services Act 1996;

S. 3 def. of controlled shopping centre inserted by No. 43/2000 s. 4(1), repealed by No. 28/2001 s. 3(2)(a).

S. 3 def. of correspond-ing law inserted by No. 51/2024 s. 5.

corresponding law means—

(a) a law of another jurisdiction (whether in Australia or elsewhere) corresponding, or substantially corresponding, to this Act; or

(b) a law of another jurisdiction that is prescribed to be a corresponding law, whether or not the law corresponds, or substantially corresponds to this Act;

S. 3 def. of Council inserted by No. 51/2024 s. 5.

Council has the same meaning as in the Local Government Act 2020;

S. 3 def. of criminal history check inserted by No. 51/2024 s. 5.

criminal history check means a check of the criminal history of a person in or outside of Australia with or through a police force or other authority of Victoria, another State, a Territory or the Commonwealth;

S. 3 def. of declared smoking area inserted by No. 31/2002 s. 4(1), amended by No. 45/2005 s. 21(a)(ii), repealed by No. 42/2022 s. 63.

S. 3 def. of designated non-smoking room inserted by No. 31/2002 s. 4(1), repealed by No. 45/2005 s. 21(b).

S. 3 def. of dining area inserted by No. 43/2000 s. 4(1), repealed by No. 45/2005 s. 21(b).

S. 3 def. of director inserted by No. 51/2024 s. 5.

director of a body corporate includes—

(a) a person occupying or acting in the position of director of the body corporate, by whatever name called and whether or not validly appointed to occupy or duly authorised to act in the position; and

(b) a person in accordance with whose directions or instructions the directors of the body corporate are accustomed to act;

S. 3 def. of display inserted by No. 43/2000 s. 4(1), amended by Nos 55/2016 s. 9(2)(b), 51/2024 s. 46(c).

display, in relation to a tobacco product at a retail outlet or a wholesale outlet, means display to the customers of the retail outlet or wholesale outlet;

S. 3 def. of disqualified person inserted by No. 51/2024 s. 5.

disqualified person means a person disqualified under section 34ZU or 34ZY(c) from holding a licence;

S. 3 def. of driver inserted by No. 49/2009 s. 8(1).

driver has the same meaning as in the Road Safety Act 1986;

S. 3 def. of driver licence inserted by No. 43/2000 s. 4(1), repealed by No. 45/2005 s. 3(b).

S. 3 defs of
e-cigarette, e‑cigarette accessory, e‑cigarette company, e‑cigarette product, e‑cigarette retailing business and e‑cigarette wholesaling business inserted by No. 55/2016 s. 9(1), repealed by No. 51/2024 s. 46(m).

S. 3 def. of education and care service inserted by No. 65/2014 s. 4.

education and care service has the same meaning as in section 5(1) of the Education and Care Services National Law (Victoria);

S. 3 def. of education and care service premises inserted by No. 65/2014 s. 4.

education and care service premises has the same meaning as in paragraph (a) of the definition of education and care service premises in section 5(1) of the Education and Care Services National Law (Victoria);

S. 3 def. of enclosed inserted by No. 43/2000 s. 4(1), amended by No. 31/2002 s. 4(2)(a)(b), substituted by No. 45/2005 s. 3(c).

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;

S. 3 def. of evidence
of age document inserted by No. 43/2000 s. 4(1), substituted by No. 45/2005 s. 3(d).

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

(c) indicates, by reference to a date of birth or otherwise, that the bearer is of or over a particular age;

S. 3 def. of exercise yard inserted by No. 45/2005 s. 3(a), repealed by No. 45/2014 s. 6.

Foundation means the Victorian Health Promotion Foundation;

S. 3 def. of gaming machine inserted by No. 31/2002 s. 4(1), amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 13.1(a)).

gaming machine has the same meaning as in the Gambling Regulation Act 2003;

S. 3 def. of gaming machine area inserted by No. 31/2002 s. 4(1), amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 13.1(a)).

gaming machine area has the same meaning as in the Gambling Regulation Act 2003;

S. 3 def. of gaming room inserted by No. 31/2002 s. 4(1).

gaming room means a room in an approved venue in which gaming machines available for gaming are installed;

S. 3 def. of high roller room inserted by No. 31/2002 s. 4(1), repealed by No. 42/2022 s. 63.

S. 3 def. of highway inserted by No. 49/2009 s. 8(1).

highway has the same meaning as in the Road Safety Act 1986;

S. 3 def. of illicit tobacco inserted by No. 51/2024 s. 5.

illicit tobacco means—

(a) a tobacco product that does not comply with a tobacco product requirement of Part 3.3 of the Public Health (Tobacco and Other Products) Act 2023 of the Commonwealth; or

(b) a tobacco product in packaging that does not comply with a packaging requirement of Part 3.4 of the Public Health (Tobacco and Other Products) Act 2023 of the Commonwealth; or

(c) a tobacco product that does not comply with a requirement of a law of the Commonwealth prescribed by the regulations;

S. 3 def. of immediate package inserted by No. 43/2000 s. 4(1), amended by Nos 55/2016 s. 9(2)(c), 51/2024 s. 46(d).

immediate package, in relation to a tobacco product, means a package containing the product—

(a) in the case of a tobacco product other than cigars, not including a package containing a further package or packages of the product; and

(b) in the case of cigars—

(i) including a package constituted by the individual wrapping of a cigar, and a package containing individually wrapped or unwrapped cigars; but

(ii) not including any other package containing a further package or packages of cigars (whether wrapped or unwrapped);

S. 3 def. of improvement notice inserted by No. 51/2024 s. 32.

improvement notice means a notice issued under section 35ZC;

S. 3 def. of inspector inserted by No. 43/2000 s. 4(1), amended by Nos 46/2008 s. 291, 51/2024 s. 10(b).

inspector means a person—

(a) who is an environmental health officer appointed under section 29 of the Public Health and Wellbeing Act 2008; or

(b) who is appointed under section 36;

S. 3 def. of interstate driver licence inserted by No. 45/2005 s. 3(a).

interstate driver licence means a licence issued in another State or a Territory that is the equivalent of a Victorian driver licence;

S. 3 def. of interstate proof of age card inserted by No. 45/2005 s. 3(a).

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;

S. 3 def. of licence inserted by No. 51/2024 s. 5.

licence means a licence to sell tobacco products in Victoria;

S. 3 def. of licence application inserted by No. 51/2024 s. 5.

licence application means an application under section 34A for a licence;

S. 3 def. of licensed premises inserted by No. 31/2002 s. 4(1), amended as licensed liquor premises by No. 51/2024 s. 10(c).

licensed liquor 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;

S. 3 def. of licensed tobacco premises inserted by No. 51/2024 s. 5.

licensed tobacco premises means premises in respect of which a licence is issued;

S. 3 def. of licensee inserted by No. 51/2024 s. 5.

licensee means a person who holds a licence;

S. 3 def. of licensing inspector inserted by No. 51/2024 s. 10(a).

licensing inspector means a person appointed under section 35D;

S. 3 def. of licensing offence inserted by No. 51/2024 s. 32.

licensing offence means an offence against a provision of—

(c) Part 3AAB; or

(d) any regulations made for the purposes of a provision referred to in paragraph (a), (b) or (c);

S. 3 def. of medicinal cannabis vaporiser inserted by No. 51/2024 s. 46(a).

medicinal cannabis vaporiser has the meaning given by section 80T of the Drugs, Poisons and Controlled Substances Act 1981;

member means member of the Foundation;

S. 3 def. of minor gaming permit inserted by No. 31/2002 s. 4(1), amended by No. 114/2003 s. 12.1.3 (Sch. 6 item 13.1(c)).

minor gaming permit means a permit issued under Division 2 of Part 3 of Chapter 8 of the Gambling Regulation Act 2003;

S. 3 def. of motor vehicle inserted by No. 49/2009 s. 8(1).

motor vehicle has the same meaning as in the Road Safety Act 1986;

S. 3 def. of municipal district inserted by No. 51/2024 s. 5.

municipal district has the same meaning as in section 3(1) of the Local Government Act 2020;

S. 3 def. of newspaper substituted by No. 56/1998 s. 5(2).

newspaper means any paper or pamphlet in paper form containing any public news or comments on public news or any political matter printed for sale or distribution and published periodically at intervals not exceeding 26 days but does not include any document containing only matter wholly of a commercial nature;

S. 3 def. of occupier inserted by No. 43/2000 s. 4(1), substituted by No. 49/2009 s. 8(2).

occupier, in relation to an area or premises, means—

(a) a person who appears to be of or over the age of 16 years and who is or appears to be in control of the area or premises, whether or not the person is present in the area or on the premises; or

(b) a body corporate that is or appears to be in control of the area or premises;

S. 3 def. of on‑airport duty free shop inserted by No. 28/2001 s. 3(1).

on-airport duty free shop has the same meaning as in regulation 93 of the Customs Regulations 1926 of the Commonwealth;

S. 3 def. of outdoor dining area inserted by No. 55/2016 s. 5(1).

outdoor dining area has the meaning given in section 3F;

S. 3 def. of outdoor dining or drinking area inserted by No. 45/2005 s. 3(a), amended as outdoor drinking area by No. 55/2016 s. 4(1).

outdoor drinking area means any of the following outdoor areas that is predominantly used for the consumption of drinks—

(a) a balcony or verandah;

(b) a courtyard;

(c) a rooftop;

(d) a marquee;

(e) a street or footpath;

(f) any similar outdoor area;

S. 3 def. of package inserted by No. 43/2000 s. 4(1), substituted by No. 55/2016 s. 5(2), amended by No. 51/2024 s. 46(e).

package (other than in relation to a snack) does not include a transparent wrapping, unless the wrapping has a tobacco advertisement printed on it;

S. 3 def. of pedestrian access point inserted by No. 65/2014 s. 4.

pedestrian access point in relation to premises means a door or gate by which a pedestrian can enter or exit the premises but does not include—

(a) a door or gate to premises that are used partly for residential purposes and partly for other purposes if the door or gate is used solely for entry to or exit from that part of the premises that is used solely for residential purposes; or

(b) an emergency exit that is locked to entry;

S. 3 def. of point of sale inserted by No. 43/2000 s. 4(1), amended by Nos 55/2016 s. 9(2)(d), 51/2024 s. 46(f).

point of sale means a place where tobacco products are sold within a retail outlet or wholesale outlet, and includes a vending machine from which tobacco products are sold;

S. 3 def. of police member inserted by No. 45/2005 s. 3(a), substituted as police officer by No. 37/2014 s. 10(Sch. item 169.1).

police officer has the same meaning as in the Victoria Police Act 2013;

S. 3 def. of premises inserted by No. 43/2000 s. 4(1).

premises includes any part of premises and includes a vehicle or vessel and a permanent or temporary structure;

S. 3 def. of product line inserted by No. 43/2000 s. 4(1), amended by Nos 31/2002 s. 4(3), 55/2016 s. 9(2)(e), 51/2024 s. 46(g).

product line means a kind of tobacco product distinguishable from other kinds by one or more of the following characteristics—

(b) brand name;

(c) nicotine or tar content;

(d) flavour—

but not by the size of the package containing the tobacco product;

S. 3 def. of proof of age card inserted by No. 43/2000 s. 4(1), repealed by No. 45/2005 s. 3(e).

S. 3 def. of protected information inserted by No. 51/2024 s. 5.

protected information means any information, document or thing the production or inspection of which—

(a) is likely to reveal the identity of a person who provided any information that is relevant to a decision of the Chief Commissioner of Police to—

(i) object to the grant or transfer of a licence; or

(ii) apply for the variation, suspension or cancellation of a licence; or

(iii) make representations under Part 3AA; or

(b) is likely to reveal the identity of a person whose name appears in any evidence given or information provided to a police officer in the course of any investigation; or

(c) is likely to reveal the identity of a person who is or has been the subject of an investigation conducted by a police officer; or

(d) is likely to jeopardise the safety of a person or police officer referred to in paragraph (a), (b) or (c); or

(e) is likely to reveal an investigation method, intelligence gathering method, investigative technique or technology or covert practice used by police officers; or

(f) is likely to put at risk any investigation by a police officer; or

(g) may prejudice any investigation or criminal proceeding; or

(h) is otherwise not in the public interest;

public place includes a place to which the public ordinarily has access, whether by payment or not, but does not include a part of a place to which the public has access by reason only of the carrying on of a trade, business or profession on or in that place;

S. 3 def. of Regulator inserted by No. 51/2024 s. 5.

Regulator means the Department Head (within the meaning of the Public Administration Act 2004) of the Department administered by the Minister administering Part 3AA;

S. 3 def. of relocation application inserted by No. 51/2024 s. 5.

relocation application means an application under section 34H to relocate licensed tobacco premises to another premises;

S. 3 def. of renewal application inserted by No. 51/2024 s. 5.

renewal application means an application under section 34ZS to renew a licence;

S. 3 def. of represen-tations inserted by No. 51/2024 s. 5.

representations includes any information the person making the representations considers may be relevant for the Regulator to make a decision on the matter in relation to which the representations are made;

S. 3 def. of residential care facility inserted by No. 45/2005 s. 3(a), amended by Nos 49/2010 s. 232, 37/2021 s. 399.

residential care facility means—

(a) a residential care service or State funded residential care 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; or

(c) a supported residential service within the meaning of section 214 of the Social Services Regulation Act 2021;

S. 3 def. of restaurant
or cafe inserted by No. 43/2000 s. 4(1).

restaurant or cafe means premises that are, or an area in premises that is, used by the public, or a section of the public, predominantly for the consumption of food or non-alcoholic drinks purchased on the premises (whether or not food or non-alcoholic drinks are also sold on the premises for consumption off the premises) and—

(a) in the case of a restaurant or cafe that is an area in premises, includes any abutting area in those premises that is not separately enclosed from that area, irrespective of the purpose or purposes for which the abutting area is used; but

(b) does not include premises in respect of which a general licence or a club licence within the meaning of the Liquor Control Reform Act 1998 is in force;

S. 3 def. of retail outlet inserted by No. 43/2000 s. 4(1), amended by Nos 55/2016 s. 9(2)(f), 51/2024 s. 46(h).

retail outlet means premises where tobacco products are available for sale by retail;

S. 3 def. of retail shopping centre inserted by No. 43/2000 s. 4(1), substituted by No. 28/2001 s. 3(2)(b), amended by Nos 114/2003 s. 12.1.3 (Sch. 6 item 13.1(b)), 69/2006. s. 224(Sch. 3 item 9).

retail shopping centre means a cluster of premises 5 or more of which are retail premises and—

(a) all of which have, or if leased would have, a common head landlord; or

(b) each of which is on a lot on the same plan of subdivision and those lots are land affected by an owners corporation within the meaning of the Subdivision Act 1988—

but does not include—

(c) a building with more than one storey except in relation to each storey of the building on which is situated a cluster of premises in respect of which paragraph (a) or (b) applies; or

(d) any part of those premises—

(i) that is not used by the public, or a section of the public; or

(ii) that is an enclosed restaurant or cafe; or

(iii) in respect of which a general licence or a club licence within the meaning of the Liquor Control Reform Act 1998 is in force; or

(iv) that is a bingo centre within the meaning of the Gambling Regulation Act 2003; or

(v) that is a road or road related area within the meaning of the Road Safety Act 1986;

S. 3 def. of reviewable decision inserted by No. 51/2024 s. 5.

reviewable decision means a decision made by the Regulator to—

(a) refuse a licence application under section 34W; or

(b) refuse a renewal application under section 34W; or

(c) impose a condition on a licence under section 34ZD; or

(d) vary a licence under section 34C or 34E; or

(e) suspend or cancel a licence under section 34N, 34O or 34Q; or

(f) suspend a licence under section 34R; or

(g) disqualify a person from holding a licence under section 34ZU; or

(h) refuse under section 34E to grant an application made under section 34B(1)(b); or

(i) refuse to grant a variation application under section 34W; or

(j) refuse to grant a relocation application under section 34W; or

(k) refuse to grant a transfer application under section 34W; or

(l) refuse an application to suspend or cancel a licence under section 34M;

S. 3 def. of road inserted by No. 66/2013 s. 4.

road has the same meaning as in section 3(1) of the Road Safety Act 1986;

S. 3 def. of roof inserted by No. 45/2005 s. 3(a).

roof includes any structure or device (whether fixed or movable) that prevents or significantly impedes upward airflow, including a ceiling;

S. 3 def. of room inserted by No. 31/2002 s. 4(1), repealed by No. 45/2005 s. 3(e).

S. 3 def. of school premises inserted by No. 65/2014 s. 4.

school premises means the buildings and grounds of a school within the meaning of section 1.1.3(1) of the Education and Training Reform Act 2006;

S. 3 def. of Secretary inserted by No. 43/2000 s. 4(1), substituted by No. 29/2010 s. 73.

Secretary means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health;

sell includes—

(a) barter or exchange; and

(b) offer or expose for sale, barter or exchange; and

(c) supply, or offer to supply, in circumstances in which the supplier derives, or would derive, a direct or indirect pecuniary benefit; and

(d) supply, or offer to supply, gratuitously but with a view to gaining or maintaining custom, or otherwise with a view to commercial gain;

S. 3 def. of show cause notice inserted by No. 51/2024 s. 5.

show cause notice means a notice given by the Regulator under section 34P;

S. 3 def. of smoke inserted by No. 55/2016 s. 9(1), amended by No. 51/2024 s. 46(i).

smoke means—

(a) smoke, hold or otherwise have control over, an ignited or heated tobacco product; or

(b) use a vaping device to generate or release an aerosol or vapour;

S. 3 def. of snack inserted by No. 55/2016 s. 5(1).

snack means—

(a) a pre-packaged shelf-stable food that—

(i) is sealed in the container or package in which the manufacturer intended the food to be sold by retail; and

(ii) does not require any intervention or attention by, or on behalf of, the provider before consumption; or

(b) a piece of fruit which has not been cut for the purposes of consumption;

S. 3 def. of special counsel inserted by No. 51/2024 s. 5.

special counsel means a person appointed under section 34ZO;

S. 3 def. of specialist
e-cigarette retailing premises inserted by No. 55/2016 s. 9(1), amended by No. 13/2022 s. 60(1), repealed by No. 51/2024 s. 46(m).

S. 3 def. of specialist tobacconist inserted by No. 49/2009 s. 8(1), repealed by No. 51/2024 s. 46(m).

S. 3 def. of substantially enclosed inserted by No. 45/2005 s. 3(a).

substantially enclosed includes completely enclosed;

S. 3 def. of suitability offence inserted by No. 51/2024 s. 5.

suitability offence means any of the following offences—

(a) an offence of selling tobacco products without a licence (whether in Victoria or elsewhere);

(b) any other offence against this Act or the regulations;

(c) an indictable offence relating to fraud, dishonesty, or tax or customs evasion (whether in Victoria or elsewhere);

(d) an offence under the Therapeutic Goods Act 1989 of the Commonwealth relating to vaping goods or vaping devices;

(e) an offence against a corresponding law;

S. 3 def. of TAB area inserted by No. 31/2002 s. 4(1), amended by No. 114/2003 s. 12.1.3(Sch. 6 item 13.1(d)
(i)(ii)),
repealed by No. 45/2005 s. 21(b).

theatre means a place where any live entertainment or film is presented, performed or exhibited to which admission is or may be procured by payment or by ticket or by any other means, token or consideration;

S. 3 def. of tobacco advertisement amended by No. 43/2000 s. 4(2), substituted by No. 45/2005 s. 3(f), substituted as tobacco or
e-cigarette advertisement by
No. 55/2016 s. 9(2)(g), amended as tobacco advertisement by No. 51/2024 s. 46(j).

tobacco advertisement has the meaning given in section 3B;

S. 3 def. of tobacco company inserted by No. 45/2005 s. 3(a).

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);

S. 3 def. of tobacco product amended by No. 55/2016 s. 9(2)(h).

tobacco product means tobacco, cigarette or cigar or any other product containing tobacco and which is designed for human consumption;

S. 3 def. of tobacco retailing business inserted by No. 43/2000 s. 4(1).

tobacco retailing business means the business of selling tobacco by retail, either alone or in conjunction with any other merchandise, and includes—

(a) any such business carried on as part of, or in conjunction with, any other business; and

(b) any business that consists of, or involves, management of a retail outlet where tobacco products are available for sale by means of a vending machine;

S. 3 def. of tobacco supply business inserted by No. 51/2024 s. 5.

tobacco supply business means—

(a) a tobacco retailing business; or

(b) a tobacco wholesaling business; or

(c) any other business that involves the sale or supply of tobacco, including any such business carried on as part of, or in conjunction with, any other business;

S. 3 def. of tobacco wholesaling business inserted by No. 43/2000 s. 4(1).

tobacco wholesaling business means the business of selling tobacco for the purposes of resale, either alone or in conjunction with any other merchandise, and includes any such business carried on as part of, or in conjunction with, any other business;

S. 3 def. of transfer application inserted by No. 51/2024 s. 5.

transfer application means an application under section 34I to transfer a licence;

S. 3 def. of vaping device inserted by No. 51/2024 s. 46(a).

vaping device means—

(a) a vaping device as defined by section 41P of the Therapeutic Goods Act 1989 of the Commonwealth; or

(b) any other device prescribed by the regulations—

but does not include a medicinal cannabis vaporiser;

S. 3 def. of vaping goods inserted by No. 51/2024 s. 46(a).

vaping goods has the meaning that vaping goods would have under section 41P of the Therapeutic Goods Act 1989 of the Commonwealth if vaping device had the meaning given by this section;

S. 3 def. of variation application inserted by No. 51/2024 s. 5.

variation application means an application under section 34B(1)(a) or (c) to vary a licence;

S. 3 def. of vending machine amended by Nos 55/2016 s. 9(2)(i), 51/2024 s. 46(k).

vending machine means a machine, device or contrivance that is constructed to contain tobacco products that may be obtained from it by an operation that involves the insertion in the machine, device or contrivance of a coin, token or similar object;

S. 3 def. of Victorian driver licence inserted by No. 45/2005 s. 3(a).

Victorian driver licence means a driver licence issued under the Road Safety Act 1986;

S. 3 def. of Victorian proof of age card inserted by No. 45/2005 s. 3(a), amended by Nos 58/2011 s. 104(Sch. item 6), 26/2022 s. 62.

Victorian proof of age card means a document issued by the Victorian Liquor Commission under section 176 of the Liquor Control Reform Act 1998;

S. 3 def. of Victorian public premises inserted by No. 65/2014 s. 4.

Victorian public premises means a building that is occupied on an ongoing basis (either solely or in part) by one or more of the following—

(a) Parliament, but not any electorate office of a member of Parliament;

(b) the Supreme Court;

(c) the County Court;

(d) the Magistrates' Court;

(e) the Children's Court;

(f) the Coroners Court;

(g) a denominational hospital, multi purpose service, privately-operated hospital, public health service, public hospital or registered community health centre (all within the meaning of the Health Services Act 1988);

(h) a public service body within the meaning of section 4(1) of the Public Administration Act 2004;

(i) a special body within the meaning of section 4(1) of the Public Administration Act 2004;

S. 3 def. of wall inserted by No. 45/2005 s. 3(a).

wall includes any structure or device (whether fixed or movable) that prevents or significantly impedes lateral airflow, including a window or door;

S. 3 def. of wholesale outlet inserted by No. 43/2000 s. 4(1), amended by Nos 55/2016 s. 9(2)(j), 51/2024 s. 46(l).

wholesale outlet means premises where tobacco products are available for sale exclusively by wholesale;

S. 3 def. of workplace inserted by No. 45/2005 s. 3(a).

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.

S. 3A inserted by No. 43/2000 s. 5,
amended by Nos 55/2016 s. 9(3)(a), 51/2024 s. 47.

3A Vending machines

The presence on any premises of a vending machine is deemed to constitute the carrying on on those premises of a tobacco retailing business.

S. 3B (Heading) amended by Nos 55/2016 s. 9(3)(b), 51/2024 s. 48(1).

S. 3B inserted by No. 43/2000 s. 5, repealed by No. 31/2002 s. 5, new s. 3B inserted by No. 45/2005 s. 4.

3B Tobacco advertisements

S. 3B(1) amended by Nos 55/2016 s. 9(3)(c), 51/2024 s. 48(2)(a).

(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

S. 3B(1)(b) substituted by Nos 55/2016 s. 9(3)(d), 51/2024 s. 48(2)(b).

(b) the purchase or use of a tobacco product or range of tobacco products; or

S. 3B(1)(c) amended by Nos 55/2016 s. 9(3)(e), 51/2024 s. 48(2)(c).

(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. 3B(1)(d) amended by Nos 55/2016 s. 9(3)(e), 51/2024 s. 48(2)(c).

(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—

S. 3B(1)(e)(i) amended by Nos 55/2016 s. 9(3)(e), 51/2024 s. 48(2)(c).

(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

S. 3B(1)(ea) inserted by No. 34/2019 s. 65(1).

(ea) any other words or designs, or a combination of words and designs, that are closely associated with a person described in paragraph (e); or

S. 3B(1)(f) amended by Nos 55/2016 s. 9(3)(f), 51/2024 s. 48(2)(d).

(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 range of tobacco products (whether also closely associated with other kinds of products).

(2) A reference in subsection (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.

S. 3B(3) amended by Nos 55/2016 s. 9(3)(g)(i), 51/2024 s. 48(3)(a)(i).

(3) Without limiting subsection (1), a tobacco advertisement includes—

S. 3B(3)(a) amended by Nos 55/2016 s. 9(3)(g)(ii), 51/2024 s. 48(3)(a)(ii).

(a) the display of an immediate package of a tobacco product;

(b) the advertisement of cigarette papers.

S. 3B(3A) inserted by No. 34/2019 s. 65(2), amended by No. 51/2024 s. 48(3)(b).

(3A) Without limiting subsection (1)(ea), words or designs, or a combination of words and designs, are closely associated with a manufacturer of tobacco products if that manufacturer enters into a contract, agreement, partnership, sponsorship, undertaking or understanding with a person for that person to give publicity to, or otherwise promote or intend to promote, the words or designs, or a combination of words and designs.

S. 3B(4) amended by Nos 49/2009 s. 9, 55/2016 s. 9(3)(h), 51/2024 s. 48(3)(c).

(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 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 business document, from being a tobacco advertisement).

S. 3B(5) amended by Nos 55/2016 s. 9(3)(h), 51/2024 s. 48(3)(c).

(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).

S. 3B(6) amended by Nos 55/2016 s. 9(3)(i), 51/2024 s. 48(3)(d).

(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. 3B(7) amended by Nos 55/2016 s. 9(3)(j), 51/2024 s. 48(3)(e)(i).

(7) If—

S. 3B(7)(a) amended by Nos 55/2016 s. 9(3)(j), 51/2024 s. 48(3)(e)(i).

(a) apart from this subsection, something (the advertisement) would, technically, be a tobacco advertisement; and

S. 3B(7)(b) amended by Nos 55/2016 s. 9(3)(k), 51/2024 s. 48(3)(e)(ii).

(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 subsection (1), the advertisement is not a tobacco advertisement for the purposes of this Act.

(8) In this section—

words includes abbreviations, initials and numbers.

S. 3C inserted by No. 43/2000 s. 5, repealed by No. 28/2001 s. 4,
new s. 3C inserted by No. 31/2002 s. 6.

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.

S. 3D inserted by No. 43/2000 s. 5,
repealed by No. 45/2005 s. 21(c).

S. 3E inserted by No. 45/2005 s. 22, repealed by No. 42/2022 s. 64.

S. 3F inserted by No. 55/2016 s. 6.

3F Outdoor dining area

(1) For the purposes of this Act, an outdoor dining area is—

(a) an outdoor area in a public place—

(i) that has an occupier; and

(ii) that the occupier permits to be used for the consumption of food provided on a commercial basis, whether or not prepared by, or on behalf of, the occupier; and

(iii) to which neither paragraph (b) nor (c) applies; or

(b) an outdoor area in a public place at which a food fair is held; or

(c) an area that—

(i) is part of an outdoor area in a public place at which an organised event (other than a food fair) is held; and

(ii) is within 10 metres of a place at the outdoor area at which food is provided on a commercial basis by, or with the permission of, the occupier of the outdoor area.

food does not include drink or any snack;

food fair means an organised event at which the principal activities are the sale or supply of food for consumption at the event and the consumption of that food.

S. 3G inserted by No. 51/2024 s. 6.

3G Who is an associate?

(1) In this Act, an associate of a person (primary person) who is an applicant for a licence, a licensee or a proposed transferee of a licence is—

(a) a person who—

(i) has or will have a relevant financial interest, or is or will be entitled to exercise a relevant power (whether in right of the person or on behalf of any other person) in the tobacco supply business carried on, or proposed to be carried on, under the licence; and

(ii) by virtue of that interest or power, is able or will be able to exercise a significant influence over or with respect to the management of that business; or

(b) a person who holds or will hold any relevant position (whether in right of the person or on behalf of another person) in the tobacco supply business carried on, or proposed to be carried on, under the licence; or

(c) if the primary person is a body corporate, a relative of any director of the primary person, other than a relative—

(i) who is not, and has never been, involved in a tobacco supply business of the primary person; or

(ii) who is not, or will not, be involved in the tobacco supply business carried on, or proposed to be carried on, under the licence; or

(d) if the primary person is a natural person who holds or will hold the licence on the primary person's own account, a relative of the primary person, other than a relative—

(i) who is not, and has never been, involved in a tobacco supply business of the primary person; or

(ii) who is not, or will not, be involved in the tobacco supply business carried on, or proposed to be carried on, under the licence; or

(e) if the primary person is a natural person who holds or will hold the licence on behalf of a partnership, a relative of any partner in the partnership, other than a relative—

(i) who is not, and has never been, involved in a tobacco supply business of the partnership; or

(ii) who is not, or will not, be involved in the tobacco supply business carried on, or proposed to be carried on, under the licence; or

(f) a person who is prescribed as an associate of the primary person.

domestic partner, in relation to a person, means—

(a) a person who is in a registered relationship with the person; or

(b) an adult person to whom the person is not married, but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—

(i) for fee or reward; or

(ii) on behalf of another person or organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);

relative, in relation to a person, means any of the following—

(a) the spouse or domestic partner of the person;

(b) a parent, child, step child, adopted child, sibling or step sibling of the person;

(c) a parent, child, step child, adopted child, sibling or step sibling of the spouse or domestic partner of the person;

relevant financial interest, in relation to a tobacco supply business, means—

(a) a share in the capital of the business; or

(b) an entitlement to receive any income derived from the business; or

(c) an entitlement to receive a payment as a result of money advanced;

relevant position, in relation to a tobacco supply business, means the position (however described) of—

(a) director, partner, trustee, manager or other executive position; or

(b) secretary;

relevant power means a power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others—

(a) to participate in a directorial, managerial or executive decision; or

(b) to elect or appoint a person as a director;

spouse of a person means a person to whom the person is married.

(3) For the purposes of the definition of domestic partner in subsection (2)—

(a) registered relationship has the same meaning as in the Relationships Act 2008; and

(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and

(c) a person is not a domestic partner of another person only because they are co‑tenants.

4 Application of Act

(1) Nothing in this Act applies to anything done by radio or television broadcast.

(2) Nothing in this Act or the regulations applies to—

(a) the labelling of packages of tobacco if the tobacco is packed for sale outside Victoria and is not sold in Victoria; or

(b) anything which causes, permits, authorises or assists in the sale or promotion of the sale, purchase, use or consumption of a tobacco product if the sale, purchase, use or consumption occurs solely outside Victoria.

(3) Nothing in section 9 applies to anything done before 1 January 1989 under a contract or agreement entered into before 8 October 1987.

5 Objects of Act

(1) The objects of this Act are—

(a) the active discouragement of the smoking of tobacco—

(i) by encouraging non-smokers, particularly young people, not to start smoking; and

(ii) by limiting exposure of children and young people to persuasion to smoke; and

(iii) by encouraging and assisting smokers to give up smoking; and

S. 5(1)(b) amended by No. 51/2024 s. 7(a).

(b) the promotion of health and illness prevention; and

S. 5(1)(c) inserted by No. 51/2024 s. 7(b).

(c) in relation to the licensing scheme for tobacco retailers and wholesalers—

(i) the safeguarding of the suitability of licensed retailers and wholesalers of tobacco products; and

(ii) the promotion and enforcement of compliance with controls on the lawful sale and promotion of tobacco products; and

(iii) the upholding of the integrity of the licensing scheme by deterring unlawful conduct.

S. 5(2) amended by No. 51/2024 s. 7(c).

(2) In giving effect to the objects referred to in subsection (1)(a) and (b), the Minister shall cause steps to be taken to—

(a) plan and co-ordinate an integrated State-wide program to reduce the prevalence of smoking in Victoria; and

(b) encourage agreements to prohibit or limit the places and times at which people may smoke in enclosed public places or in the work environment; and

(c) ensure that tobacco usage by all age and sex groups in the population is monitored and reported upon regularly; and

(d) evaluate the effectiveness of anti-smoking programs and plan future activities and policies on tobacco usage.

Pt 2 (Heading) substituted by No. 43/2000 s. 6, amended by Nos 55/2016 s. 9(4), 51/2024 s. 49.

Part 2—Controls relating to tobacco products and vaping goods

Pt 2 Div. 1 (Heading) inserted by No. 31/2002 s. 7.

Division 1—No smoking areas

S. 5A inserted by No. 43/2000 s. 7(1), substituted by No. 45/2005 s. 5.

5A Enclosed workplaces: offence by smoker

(1) A person must not smoke in an enclosed workplace.

(2) Subsection (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;

S. 5A(2)(b) repealed by No. 45/2005 s. 23(1).

S. 5A(2)(c) amended by No. 55/2016 s. 4(2)(a).

(c) an outdoor drinking area;

S. 5A(2)(d) substituted by No. 45/2005 s. 23(2), repealed by No. 42/2022 s. 65.

(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;

S. 5A(2)(h) amended by Nos 26/2014 s. 455(Sch. item 30), 39/2022 s. 873.

(h) an area in a designated mental health service (within the meaning of the Mental Health and Wellbeing Act 2022) 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;

S. 5A(2)(i) repealed by No. 45/2014 s. 7.

(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 subsection (1), the inspector, on producing his or her identity card, may direct the person to cease the contravention.

(4) A person who is contravening subsection (1) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention.

S. 5B inserted by No. 43/2000 s. 7(1), substituted by No. 45/2005 s. 5.

5B Enclosed workplaces: offence by occupier

S. 5B(1) amended by No. 49/2009 s. 10.

(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 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate.

S. 5B(2) amended by No. 68/2009 s. 97(Sch. item 120.1).

(2) It is a defence to a prosecution under subsection (1) if the accused proves that the accused did not provide an ashtray, matches, a lighter or any other thing designed to facilitate smoking where the contravention occurred and that—

S. 5B(2)(a) amended by No. 68/2009 s. 97(Sch. item 120.1).

(a) the accused was not aware, and could not reasonably be expected to have been aware, that the contravention was occurring; or

S. 5B(2)(b) amended by No. 68/2009 s. 97(Sch. item 120.1).

S. 5BA inserted by No. 31/2002 s. 8, repealed by No. 45/2005 s. 5.

S. 5C (Heading) amended by No. 55/2016 s. 4(2)(b).

S. 5C inserted by No. 43/2000 s. 7(2), amended by Nos 28/2001 s. 5, 31/2002 s. 10(a), substituted by No. 45/2005 ss 5, 24.

5C Outdoor drinking areas: offence by smoker

S. 5C(1) amended by No. 55/2016 s. 4(2)(c).

(1) A person must not smoke in an outdoor 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.

S. 5C(1A) inserted by No. 55/2016 s. 4(3).

(1A) A person must not smoke in an outdoor drinking area if—

(a) any part of the outdoor drinking area is within 4 metres of an outdoor dining area, irrespective of whether or not the outdoor drinking area and the outdoor dining area are operated by the same occupier; and

S. 5C(1A)(b) amended by No. 42/2022 s. 67(a).

(b) the outdoor drinking area and the outdoor dining area are not separated by a wall that is at least 2·1 metres high.

S. 5C(1B) inserted by No. 55/2016 s. 4(3), amended by No. 51/2024 s. 14.

(1B) It is a defence to a prosecution under subsection (1A) if the accused proves that the accused could not reasonably be expected to have been aware that the accused was contravening subsection (1A).

S. 5C(2) amended by No. 55/2016 s. 4(4)(a).

(2) If an inspector believes on reasonable grounds that a person is contravening subsection (1) or (1A), the inspector, on producing his or her identity card, may direct the person to cease the contravention.

S. 5C(3) amended by No. 55/2016 s. 4(4)(a).

(3) A person who is contravening subsection (1) or (1A) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention.

(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.

S. 5D (Heading) amended by No. 55/2016 s. 4(4)(b).

S. 5D inserted by No. 43/2000 s. 7(2), amended by No. 28/2001 s. 6, substituted by No. 45/2005 ss 5, 24.

5D Outdoor drinking areas: offence by occupier

S. 5D(1) amended by Nos 49/2009 s. 11, 55/2016 s. 4(4)(c)(d).

(1) If smoking occurs in an outdoor drinking area, in contravention of section 5C(1), the occupier of the area is guilty of an offence and liable to a penalty not exceeding 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate.

S. 5D(2) amended by No. 68/2009 s. 97(Sch. item 120.2).

(2) It is a defence to a prosecution under subsection (1) if the accused proves that the accused did not provide an ashtray, matches, a lighter or any other thing designed to facilitate smoking where the contravention occurred and that—

S. 5D(2)(a) amended by Nos 68/2009 s. 97(Sch. item 120.2), 51/2024 s. 15(a).

S. 5D(2)(b) amended by No. 68/2009 s. 97(Sch. item 120.2).

S. 5D(3) inserted by No. 55/2016 s. 4(5).

(3) If a person smokes in an outdoor drinking area in contravention of section 5C(1A), the occupier of the outdoor drinking area is guilty of an offence.

Penalty: In the case of a natural person, 10 penalty units.

S. 5D(4) inserted by No. 55/2016 s. 4(5).

(4) It is a defence to the prosecution under subsection (3) if the occupier of the outdoor drinking area proves that the occupier of the outdoor drinking area—

S. 5D(4)(a) amended by No. 51/2024 s. 15(b).

(a) could not reasonably be expected to have been aware that the contravention of section 5C(1A) was occurring; or

(b) the contravention of section 5C(1A) occurred during a period of 3 months starting on the day that the outdoor dining area was first used as an outdoor dining area.

S. 5E (Heading) amended by No. 55/2016 s. 4(6)(a).

S. 5E inserted by No. 31/2002 s. 9, substituted by No. 45/2005 ss 5, 24.

5E Outdoor drinking areas: no smoking signs

S. 5E(1) amended by Nos 49/2009 s. 12, 55/2016 s. 4(6)(b)(c).

(1) The occupier of an outdoor drinking area in which smoking is prohibited by section 5C(1) or (1A) is guilty of an offence, and liable to a penalty not exceeding 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate, if, without reasonable excuse, acceptable no smoking signs are not displayed in accordance with subsection (2).

S. 5E(2) amended by No. 55/2016 s. 4(6)(d).

(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 drinking area or from within the outdoor drinking area.

S. 5EA inserted by No. 55/2016 s. 7.

5EA Outdoor dining areas: offence by smoker

(1) A person must not smoke in an outdoor dining area.

(2) If an inspector believes on reasonable grounds that a person is contravening subsection (1), the inspector, on producing the inspector's identity card, may direct the person to cease the contravention.

(3) A person who is contravening subsection (1) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention.

S. 5EB inserted by No. 55/2016 s. 7.

5EB Outdoor dining areas: offence by occupier

(1) If smoking occurs in an outdoor dining area, in contravention of section 5EA, the occupier of the area is guilty of an offence and liable to a penalty not exceeding 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate.

(2) It is a defence to a prosecution under subsection (1) if the accused proves that the accused did not provide an ashtray, matches, a lighter or any other thing designed to facilitate smoking where the contravention occurred and that—

S. 5EB(2)(a) amended by No. 51/2024 s. 16.

S. 5EC inserted by No. 55/2016 s. 7.

5EC Outdoor dining areas: no smoking signs

(1) The occupier of an outdoor dining area in which smoking is prohibited by section 5EA, is guilty of an offence, and liable to a penalty not exceeding 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate, if, without reasonable excuse, acceptable no smoking signs are not displayed in accordance with subsection (2).

(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 area or from within the outdoor dining area.

S. 5F inserted by No. 31/2002 s. 9, substituted by No. 45/2005 s. 5.

5F Enclosed restaurants and cafes: no smoking signs

S. 5F(1) amended by No. 49/2009 s. 13.

(1) The occupier of an enclosed restaurant or cafe is guilty of an offence, and liable to a penalty not exceeding 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate, if, without reasonable excuse, acceptable no smoking signs are not displayed in accordance with subsection (2).

(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.

S. 5G inserted by No. 31/2002 s. 9, substituted by No. 45/2005 s. 5.

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 subsection (2).

(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. 5G(3) amended by No. 49/2009 s. 14.

(3) The maximum penalty for an offence against subsection (1) is 10 penalty units in the case of a natural person and 50 penalty units in the case of a body corporate.

S. 5H inserted by No. 31/2002 s. 9, substituted by No. 45/2005 s. 5.

5H Bingo areas and centres: no smoking signs

S. 5H(1) amended by No. 49/2009 s. 15.

(1) The occupier of a bingo area or bingo centre is guilty of an offence, and liable to a penalty not exceeding 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate, if, without reasonable excuse, acceptable no smoking signs are not displayed in accordance with subsection (2).

(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.

Ss 5I, 5J inserted by No. 31/2002 s. 9,
repealed by No. 45/2005 s. 25(a).

S. 5K inserted by No. 31/2002 s. 9, substituted by No. 45/2005 s. 6.

5K Casinos: no smoking signs

S. 5K(1) amended by Nos 49/2009 s. 16, 42/2022 s. 66.

(1) The occupier of an area of a casino is guilty of an offence, and liable to a penalty not exceeding 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate, if, without reasonable excuse, acceptable no smoking signs are not displayed in accordance with subsection (2).

(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. 5L inserted by No. 31/2002 s. 9,
amended by No. 45/2005 s. 7(a)‑(c), repealed by No. 45/2005 s. 25(a).

S. 5M inserted by No. 31/2002 s. 9, amended by No. 45/2005 s. 7(d), repealed by No. 45/2005 s. 25(a).

S. 5N inserted by No. 31/2002 s. 9, substituted by No. 45/2005 s. 8.

5N Approved venues: no smoking signs

S. 5N(1) amended by Nos 45/2005 s. 25(b), 49/2009 s. 17.

(1) The occupier of a gaming machine area or an enclosed gaming room is guilty of an offence, and liable to a penalty not exceeding 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate, if, without reasonable excuse, acceptable no smoking signs are not displayed in accordance with subsection (2).

(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. 5O inserted by No. 31/2002 s. 9, amended by No. 45/2005 s. 9(a), repealed by No. 45/2005 s. 25(c).

S. 5P inserted by No. 31/2002 s. 9, amended by No. 45/2005 s. 9(b), repealed by No. 45/2005 s. 25(c).

S. 5Q inserted by No. 31/2002 s. 9, repealed by No. 45/2005 s. 25(c).

S. 5R (Heading) amended by No. 51/2024 s. 11(1).

S. 5R inserted by No. 31/2002 s. 9, substituted by No. 45/2005 s. 10.

5R Licensed liquor premises: no smoking signs

S. 5R(1) amended by Nos 45/2005 s. 25(d)(i), 49/2009 s. 18, 51/2024 s. 11(2).

(1) The occupier of enclosed licensed liquor premises is guilty of an offence, and liable to a penalty not exceeding 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate, if, without reasonable excuse, acceptable no smoking signs are not displayed in accordance with subsection (2).

S. 5R(2) amended by Nos 45/2005 s. 25(d)(ii), 51/2024 s. 11(2).

(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 licensed liquor premises or from within those premises.

S. 5RA inserted by No. 71/2012 s. 3.

5RA No smoking at patrolled beaches

(1) A person must not smoke within an area (on public land or in the sea) that is—

(a) between red and yellow flags temporarily erected on behalf of Surf Life Saving Victoria or its affiliated surf life saving clubs marking the boundaries for safe swimming; or

(b) within a 50 metre radius of a red and yellow flag referred to in paragraph (a).

(2) Subsection (1) does not apply in an area beyond—

(a) the landward edge of a beach's sanded area if the beach is adjacent to the coast or a bay; or

(b) the water's edge or the landward edge of a beach's sanded area if the beach is adjacent to a river.

(3) If an inspector believes on reasonable grounds that a person is contravening subsection (1), the inspector, on producing his or her identity card, may direct the person to cease the contravention.

S. 5RB inserted by No. 71/2012 s. 3, substituted by No. 65/2014 s. 5.

5RB No smoking in outdoor area of education and care service premises or children's service premises or their vicinity

(1) A person must not smoke in an area that is not enclosed and is within—

(a) education and care service premises while they are being used to provide an education and care service; or

(b) children's service premises while they are being used to provide a children's service.

(2) A person must not smoke at or within 4 metres of any part of a pedestrian access point to—

(a) education and care service premises while they are being used to provide an education and care service; or

(b) children's service premises while they are being used to provide a children's service.

(3) Subsection (2) does not apply to a person—

(b) in an area that is separated from premises referred to in that subsection by a road; or

S. 5RB(3)(d) amended by No. 55/2016 s. 4(6)(e).

(4) If an inspector believes on reasonable grounds that a person is contravening subsection (1) or (2), the inspector, on producing the inspector's identity card, may direct the person to cease the contravention.

(5) A person who is contravening subsection (1) or (2) must comply with a direction by an inspector to cease the contravention.

S. 5RBA inserted by No. 65/2014 s. 5.

5RBA Vicinity of education and care service premises or children's service premises: no smoking signs

(1) The occupier of education and care service premises or children's service premises must display an acceptable no smoking sign in accordance with subsection (2).

(2) The sign must be displayed in such a prominent position at a pedestrian access point to education and care service premises or children's service premises as would reasonably identify the area at or within 4 metres of any part of the pedestrian access point as a no smoking area.

S. 5RC inserted by No. 66/2013 s. 5.

5RC No smoking in outdoor area of public swimming pool complex

(1) A person must not smoke in an outdoor area of a swimming pool complex that is a public place.

(2) If an inspector believes on reasonable grounds that a person is contravening subsection (1), the inspector, on producing his or her identity card, may direct the person to cease the contravention.

(3) A person who is contravening subsection (1) must comply with a direction by an inspector to cease the contravention.

S. 5RC(4) amended by No. 55/2016 s. 4(6)(f).

(4) Despite anything to the contrary in this Part, subsection (1) applies to a person who is in an outdoor drinking area that is within a swimming pool complex that is a public place.

(5) For the purposes of this section—

outdoor area, in relation to a swimming pool complex, means an area within the external perimeter of the complex that is not enclosed.

S. 5RD inserted by No. 66/2013 s. 5, substituted by No. 65/2014 s. 6.

5RD No smoking in outdoor area of school premises or vicinity of school premises

(1) A person must not smoke in an area that is within school premises and is not enclosed.

(2) A person must not smoke at or within 4 metres of any part of a pedestrian access point to school premises.

(3) Subsection (2) does not apply to a person—

(b) in an area that is separated from school premises by a road; or

S. 5RD(3)(d) amended by No. 55/2016 s. 4(6)(g).

(4) If an inspector believes on reasonable grounds that a person is contravening subsection (1) or (2), the inspector, on producing the inspector's identity card, may direct the person to cease the contravention.

(5) A person who is contravening subsection (1) or (2) must comply with a direction by an inspector to cease the contravention.

S. 5RDA inserted by No. 65/2014 s. 6.

5RDA Vicinity of school premises: no smoking signs

(1) The occupier of school premises must display an acceptable no smoking sign in accordance with subsection (2).

(2) The sign must be displayed in such a prominent position at a pedestrian access point to school premises as would reasonably identify the area at or within 4 metres of any part of the pedestrian access point as a no smoking area.

S. 5RE inserted by No. 66/2013 s. 5.

5RE No smoking at or in vicinity of outdoor children's playground equipment

(1) A person must not smoke at or within 10 metres of children's playground equipment that is in an outdoor public place.

(b) in an area that is separated from the children's playground equipment by a road; or

(3) If an inspector believes on reasonable grounds that a person is contravening subsection (1), the inspector, on producing his or her identity card, may direct the person to cease the contravention.

S. 5RE(5) amended by No. 55/2016 s. 4(6)(h).

(5) Despite anything to the contrary in this Part, subsection (1) applies to a person who is in an outdoor drinking area that is within 10 metres of children's playground equipment.

S. 5RF inserted by No. 66/2013 s. 5, substituted by No. 65/2014 s. 7.

5RF No smoking in vicinity of children's indoor play centre

(1) A person must not smoke at or within 4 metres of any part of a pedestrian access point to a children's indoor play centre.

(b) in an area that is separated from the children's indoor play centre by a road; or

S. 5RF(2)(d) amended by No. 55/2016 s. 4(6)(i).

(3) If an inspector believes on reasonable grounds that a person is contravening subsection (1), the inspector, on producing the inspector's identity card, may direct the person to cease the contravention.

S. 5RFA inserted by No. 65/2014 s. 7.

5RFA Vicinity of children's indoor play centre: no smoking signs

(1) The occupier of a children's indoor play centre must display an acceptable no smoking sign in accordance with subsection (2).

(2) The sign must be displayed in such a prominent position at a pedestrian access point to the children's indoor play centre as would reasonably identify the area at or within 4 metres of any part of the pedestrian access point as a no smoking area.

S. 5RG inserted by No. 66/2013 s. 5.

5RG No smoking at or in vicinity of outdoor skate park

(1) A person must not smoke at or within 10 metres of a skate park that is in an outdoor public place.

(b) in an area that is separated from the skate park by a road; or

(3) If an inspector believes on reasonable grounds that a person is contravening subsection (1), the inspector, on producing his or her identity card, may direct the person to cease the contravention.

S. 5RG(5) amended by No. 55/2016 s. 4(6)(j).

(5) Despite anything to the contrary in this Part, subsection (1) applies to a person who is in an outdoor drinking area that is at or within 10 metres of the skate park.

skate park means an area specifically designed and equipped with structures for rollerblading, rollerskating or skateboarding or the use of BMX or non-motorised scooters.

S. 5RH inserted by No. 66/2013 s. 5, substituted by No. 65/2014 s. 8.

5RH No smoking in vicinity of Victorian public premises

(1) A person must not smoke at or within 4 metres of any part of a pedestrian access point to Victorian public premises.

(b) in an area that is separated from Victorian public premises by a road; or

S. 5RH(2)(d) amended by No. 55/2016 s. 4(6)(k).

(3) If an inspector believes on reasonable grounds that a person is contravening subsection (1), the inspector, on producing the inspector's identity card, may direct the person to cease the contravention.

S. 5RHA inserted by No. 65/2014 s. 8.

5RHA Vicinity of Victorian public premises—no smoking signs

(1) The occupier of Victorian public premises must display an acceptable no smoking sign in accordance with subsection (2).

(2) The sign must be displayed in such a prominent position at a pedestrian access point to the premises as would reasonably identify the area at or within 4 metres of any part of the pedestrian access point as a no smoking area.

S. 5RI inserted by No. 66/2013 s. 5.

5RI No smoking at or in vicinity of outdoor sporting venue

(1) A person must not smoke at or within 10 metres of a sporting venue that is an outdoor public place during—

(a) an organised underage sporting event; or

(b) a training or practice session to prepare for participation in an organised underage sporting event; or

(c) any break or interval during the course of the organised underage sporting event or training or practice session.

(b) in an area that is separated from the sporting venue by a road; or

(3) If an inspector believes on reasonable grounds that a person is contravening subsection (1), the inspector, on producing his or her identity card, may direct the person to cease the contravention.

S. 5RI(5) amended by No. 55/2016 s. 4(6)(l).

(5) Despite anything to the contrary in this Part, subsection (1) applies to a person who is in an outdoor drinking area that is at or within 10 metres of the sporting venue.

organised underage sporting event means a sporting event that—

(a) is planned in advance; and

(b) is organised or intended for, or predominantly participated in by, persons under the age of 18 years; and

(c) is conducted according to established rules by a professional or amateur sporting body or by an educational institution; and

(d) may be a one-off event or part of a series of events;

sporting event means a match, game, tournament or other event that involves the playing of, or participation in, sport;

sporting venue includes, but is not limited to—

(a) a playing field;

(b) a track;

(c) an arena;

(d) a court or rink;

(e) any permanently or temporarily erected public seating at the venue;

(f) any seating, marshalling area, warm-up area, podium or other part of the venue reserved for the use of competitors or officials;

(g) any part of the venue used to conduct the actual organised underage sporting event.

S. 5RJ inserted by No. 66/2013 s. 5, substituted by No. 65/2014 s. 9.

5RJ No offence by minors at or in vicinity of certain places where smoking is prohibited

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 section 5RA, 5RB, 5RC, 5RD, 5RE, 5RF, 5RG, 5RH or 5RI.

Pt 2 Div. 1A (Heading and ss 5S–5U) inserted by No. 49/2009 s. 19.

Division 1A—Smoking in motor vehicles

S. 5S

5S Offence to smoke in motor vehicle if person under 18 is present

Despite anything to the contrary in this Act, a person must not smoke in a motor vehicle, whether or not the motor vehicle is in motion, if another person is present in the motor vehicle and the other person is under the age of 18 years.

S. 5T

5T Power to require driver to stop

S. 5T(1) amended by No. 37/2014 s. 10(Sch. item 169.2).

(1) A police officer may require a driver or person in charge of a motor vehicle on a highway to stop the motor vehicle if the police officer believes on reasonable grounds that a person in the vehicle has committed or is about to commit an offence against section 5S.

(2) Subject to subsection (3), a person must not fail to stop a motor vehicle when required to do so under subsection (1).

1. 10 penalty units.

(3) Subsection (2) is not contravened if—

(a) the person making the requirement to stop is not in uniform; and

S. 5T(3)(b) amended by No. 37/2014 s. 10(Sch. item 169.2).

(b) the driver or person in charge of the motor vehicle believed that that person was not a police officer.

S. 5U

5U Evidential burden regarding age

In proceedings for an offence against section 5S, evidence that a person present in the relevant motor vehicle appeared to be under the age of 18 years is, in the absence of evidence to the contrary, proof that the person was under the age of 18 years.

Pt 2 Div. 2 (Heading) inserted by No. 31/2002 s. 10(b).

Division 2—Advertising and other controls

6 Certain advertising prohibited

S. 6(1) amended by Nos 45/2005 s. 11(1), 49/2009 s. 20(1).

(1) A person must not for any direct or indirect pecuniary benefit—

S. 6(1)(a) amended by Nos 55/2016 s. 9(5)(a), 51/2024 s. 50(1).

(a) display or cause or permit to be displayed, or authorise the display of, a tobacco advertisement in a theatre; or

S. 6(1)(b) amended by Nos 55/2016 s. 9(5)(a), 51/2024 s. 50(1).

(b) sell, or cause or permit to be sold, any film or video tape that contains a tobacco advertisement; or

S. 6(1)(c) amended by Nos 55/2016 s. 9(5)(a), 51/2024 s. 50(1).

(c) distribute or cause or permit to be distributed, or authorise the distribution of, to the public any unsolicited leaflet, handbill or other document that is a tobacco advertisement.

S. 6(2) amended by No. 45/2005 s. 11(1).

(2) A person must not for any direct or indirect pecuniary benefit—

S. 6(2)(a) amended by Nos 55/2016 s. 9(5)(a), 51/2024 s. 50(1).

(a) place or display or cause or permit to be placed or displayed, or authorise the placing or display of, a tobacco advertisement that is visible from a public place; or

S. 6(2)(b) amended by Nos 55/2016 s. 9(5)(a), 51/2024 s. 50(1).

(b) place or display, or cause or permit to be placed or displayed, or authorise the placing or display of, a tobacco advertisement on the outside of any road, sea or air vehicle or vessel.

S. 6(2AA) inserted by No. 49/2009 s. 4(1), amended by No. 55/2016 s. 9(5)(b)–(e), substituted by No. 51/2024 s. 50(2).

(2AA) If there is a tobacco advertisement at a retail outlet (other than an on‑airport duty free shop), the person carrying on the tobacco retailing business at that retail outlet commits an offence and is liable to a penalty not exceeding 60 penalty units, in the case of a natural person, or 300 penalty units, in the case of a body corporate.

S. 6(2A) inserted by No. 43/2000 s. 8(1) (as amended by No. 28/2001 s. 19(1)), amended by Nos 45/2005 s. 11(1), 49/2009 ss 4(2), 20(2)(3), 55/2016 s. 9(5)(f)–(h), substituted by No. 51/2024 s. 50(2).

(2A) If there is a tobacco advertisement of a product line of a tobacco product at a point of sale at an on‑airport duty free shop or at a wholesale outlet that is not in accordance with section 6A, the person carrying on the tobacco retailing business or the tobacco wholesaling business at that outlet is guilty of an offence and liable to a penalty not exceeding 60 penalty units, in the case of a natural person, or 300 penalty units, in the case of a body corporate.

S. 6(2AB)–(2AD) inserted by No. 55/2016 s. 9(6), repealed by No. 51/2024 s. 50(3).

S. 6(2B) inserted by No. 43/2000 s. 8(1) (as amended by No. 28/2001 s. 19(1)), amended by Nos 45/2005 s. 11(1), 49/2009 ss 4(3), 20(4), 55/2016 s. 9(7)(a)–(d), substituted by No. 51/2024 s. 50(4).

(2B) A person must not, in the course of carrying on a tobacco retailing business at an on‑airport duty free shop or a tobacco wholesaling business, display tobacco products at a retail outlet or wholesale outlet other than at a point of sale.

S. 6(2C) inserted by No. 43/2000 s. 8(1) (as amended by No. 28/2001 s. 19(1)).

(2C) Subsection (2B) does not apply to—

(a) the display of cigars in an operating humidor; or

(b) the display of cartons at an on-airport duty free shop.

S. 6(2D) inserted by No. 45/2005 s. 11(2), amended by Nos 49/2009 s. 4(4), 55/2016 s. 9(7)(e)–(g), 13/2022 s. 60(2), substituted by No. 51/2024 s. 50(5).

(2D) A tobacco company commits an offence against this subsection, and is liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly—

(a) contravenes subsection (1), (2), (2AA), (2A) or (2B); or

(b) causes another person to contravene subsection (1), (2), (2AA), (2A) or (2B).

S. 6(2E) inserted by No. 45/2005 s. 11(2).

(2E) An offence against subsection (2D) is an indictable offence.

(3) Nothing in this section applies to—

S. 6(3)(a) amended by Nos 55/2016 s. 9(7)(h), 51/2024 s. 50(6)(a)(i).

(a) a tobacco advertisement in or on—

(i) a newspaper or magazine; or

(ii) a book; or

S. 6(3)(a)(iii) amended by Nos 43/2000 s. 8(2)(a), 55/2016 s. 9(7)(i), 51/2024 s. 50(6)(a)(ii).

(iii) a package containing a tobacco product, other than a package at a point of sale; or

S. 6(3)(b) amended by Nos 55/2016 s. 9(7)(h), 51/2024 s. 50(6)(b).

(b) a tobacco advertisement that is an accidental or incidental accompaniment to a film or video tape; or

S. 6(3)(ba) inserted by No. 49/2009 s. 4(5), amended by Nos 55/2016 s. 9(7)(i)(j), 51/2024 s. 50(6)(c).

(ba) the temporary display of tobacco products or immediate packages of tobacco products in a retail outlet in response to a request by a customer wishing to purchase a specified tobacco product; or

S. 6(3)(c) substituted by No. 43/2000 s. 8(3) (as amended by No. 28/2001 s. 19(3)(a)–(c)), amended by Nos 49/2009 s. 4(6), 55/2016 s. 9(7)(h)(i), substituted by No. 51/2024 s. 50(6)(d).

(c) a tobacco advertisement (other than a display of a tobacco product carried about on a person) at a point of sale inside an on‑airport duty free shop or a wholesale outlet that is in accordance with section 6A; or

S. 6(3)(ca) inserted by No. 43/2000 s. 8(3) (as amended by No. 28/2001 s. 19(3)(a)–(c)), amended by Nos 49/2009 s. 4(7), 66/2013 s. 6(1), 55/2016 s. 9(7)(k), 51/2024 s. 50(6)(e).

(ca) one notice about tobacco products at one or more points of sale at an on‑airport duty free shop or a wholesale outlet that complies with the prescribed requirements as to size, information contained in it and the manner in which the information is set out in it and the form in which the notice is displayed; or

S. 6(3)(cab) inserted by No. 49/2009 s. 4(8), amended by Nos 66/2013 s. 6(2), 55/2016 s. 9(7)(k)(l), 51/2024 s. 50(6)(f).

(cab) one notice about tobacco products at one point of sale at a retail outlet (other than an on-airport duty free shop) that complies with the prescribed requirements as to size, information contained in it and the manner in which the information is set out in it and the form in which the notice is displayed; or

S. 6(3)(cb) inserted by No. 43/2000 s. 8(3) (as amended by No. 28/2001 s. 19(3)(a)–(c)), amended by Nos 49/2009 s. 4(9), 55/2016 s. 9(7)(k), 51/2024 s. 50(6)(g).

(cb) tickets or labels on, or adjacent to, immediate packages of tobacco products in an on‑airport duty free shop if the tickets or labels display retail prices and comply with the prescribed requirements as to size, information contained in them and the manner in which the information is set out or displayed; or

S. 6(3)(cba)–(cbc) inserted by No. 55/2016 s. 9(7)(m), repealed by No. 51/2024 s. 50(6)(h).

S. 6(3)(cc) inserted by No. 43/2000 s. 8(3) (as amended by No. 28/2001 s. 19(3)(a)–(c)), amended by No. 49/2009 s. 4(10).

(cc) tickets or labels on or in vending machines that comply with the prescribed requirements as to size, information contained in them and the manner in which the information is set out or displayed; or

S. 6(3)(d) amended by No. 28/2001 s. 7, repealed by No. 45/2005 s. 11(3), new s. 6(3)(d) inserted by No. 49/2009 s. 4(11).

(d) one notice at a retail outlet or a wholesale outlet to the effect that tobacco products are available for sale at the outlet, being a notice that does not exceed the prescribed maximum size and complies with the prescribed requirements as to information contained in it and the manner in which the information is set out or displayed; or

S. 6(3)(da) inserted by No. 55/2016 s. 9(7)(n), repealed by No. 51/2024 s. 50(6)(h).

S. 6(3)(e) repealed by No. 34/2019 s. 66.

(f) an invoice, statement, order, letterhead, business card, cheque, manual or other document ordinarily used in the course of business.

S. 6A (Heading) inserted by No. 55/2016 s. 9(7)(o), amended by No. 51/2024 s. 51(1).

S. 6A inserted by No. 43/2000 s. 9 (as amended by No. 28/2001 s. 20(1)–(5)).

6A Point of sale advertisements

S. 6A(1) amended by Nos 49/2009 s. 5(1), 55/2016 s. 9(7)(p), 51/2024 s. 51(2)(a).

(1) A tobacco advertisement at one point of sale at an on‑airport duty free shop or at any point of sale at a wholesale outlet may advertise a product line of a tobacco product in one only of the following ways—

(a) by the display of a single immediate package of the product line in the form in which the package is available for sale at that point of sale (including the display of an immediate package if only cartons are available for sale);

(b) by means of a stack dispenser for immediate packages of the product line in the form in which the packages are available for sale at that point of sale if—

(i) in the case of an angled stack, the most that is displayed is—

(A) any part of the single package at the front of the stack; and

(B) any part (other than the face) of the other packages in the stack; and

S. 6A(1)(b)(i)(C) amended by Nos 49/2009 s. 21(1), 55/2016 s. 9(7)(q).

(C) those parts of the faces of the other packages that bear the warning message required by the Competition and Consumer (Tobacco) Information Standard 2011 of the Commonwealth; and

(ii) in the case of packages stacked on top of each other, the most that is displayed is any part of the package on the top of the stack and any part of the package on the bottom of the stack;

S. 6A(1)(c) repealed by No. 49/2009 s. 5(2).

(d) in the case of a product line of cigars, by the display of either or both of the following—

(i) up to 13 cigars of the product line in an open box, or in any other manner;

(ii) a single closed box full of the product line in the form in which the box is available for sale at that point of sale.

S. 6A(2) amended by Nos 49/2009 s. 5(3), 55/2016 s. 9(7)(p), 51/2024 s. 51(2)(b).

(2) A tobacco advertisement at any other point of sale at an on-airport duty free shop may advertise a product line of a tobacco product by means of a stack dispenser for immediate packages of the product line in the form in which the packages are available at that point of sale if—

(a) in the case of an angled stack, the most that is displayed is—

(i) any part (other than the face) of any package in the stack; and

S. 6A(2)(a)(ii) amended by No. 49/2009 s. 21(2).

(ii) those parts of the faces of the packages that bear the warning message required by the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004 of the Commonwealth; and

(b) in the case of packages stacked on top of each other, the most that is displayed is any part of the package on the top of the stack (but not including the face or the top of that package as stacked or the side or end of that package directly facing the customer) and any part of the package on the bottom of the stack (but not including the face or the bottom of that package as stacked or the side or end of that package directly facing the customer).

S. 6A(3) amended by Nos 55/2016 s. 9(7)(p), 51/2024 s. 51(2)(c).

(3) A display of tobacco products at a point of sale may not consist of the display of the products, packages of the products or representations of the products or packages so as to constitute a tobacco advertisement itself as distinct from the display of each product, package or representation.

S. 6A(4) amended by Nos 49/2009 s. 5(4), 51/2024 s. 51(2)(d).

(4) A display of a product line at a point of sale at an on-airport duty free shop may not include the display of a carton of the product line, or any part of the carton, whether or not the carton is empty or partly empty.

(5) Despite subsection (4), a product line at a point of sale at a retail outlet that is an on-airport duty free shop may be displayed in such a way that—

(a) one carton of the product line is visible; or

(b) in the case of cartons of the same size as each other, the cartons are stacked directly behind each other, and the most that is visible is—

(i) any part of the carton at the front of the stack; and

(ii) any end or the top (or both) of the next carton in the stack; or

(c) in the case of cartons of different sizes, the most that is visible is—

(i) one carton of one size; and

(ii) any end or the top (or both) of one other carton of that size; and

(iii) the smallest side (or one of the smallest sides) of one carton of any other size.

(6) A display of a product line at a point of sale at a wholesale outlet—

(a) may include the display of one or more cartons of the product line, but only with the smallest (or one of the smallest) sides of the carton (or cartons) facing the customer service area; and

(b) must otherwise comply with this section.

S. 6A(7) amended by Nos 49/2009 s. 5(5), 55/2016 s. 9(7)(p), 51/2024 s. 51(2)(e).

(7) The area of display of tobacco products that constitute a tobacco advertisement referred to in subsection (1) at an on-airport duty free shop must not exceed the prescribed area.

S. 6A(8) repealed by No. 49/2009 s. 5(6).

S. 6B
inserted by No. 55/2016 s. 10, repealed by No. 51/2024 s. 52.

S. 7 (Heading) inserted by No. 86/2012 s. 3(1).

7 Competitions, rewards and shopper loyalty schemes

S. 7(1) amended by Nos 45/2005 s. 12(1), 49/2009 s. 22, 55/2016 s. 9(8)(a), 51/2024 s. 53(1)(a).

(1) A person must not, in connection with the sale of a tobacco product or for the purpose of promoting the sale of a tobacco product—

(a) supply to the purchaser or any other person—

S. 7(1)(a)(i) substituted by No. 28/2001 s. 8(1)(a), amended by Nos 55/2016 s. 9(8)(b), 51/2024 s. 53(1)(b).

(i) any non‑tobacco product or other benefit (whether or not a separate charge is made for that product or benefit); or

S. 7(1)(a)(ii) amended by Nos 28/2001 s. 8(1)(b), 55/2016 s. 9(8)(b), 51/2024 s. 53(1)(b).

(ii) a stamp, coupon, token, voucher, ticket or other thing by virtue of which the purchaser or any other person may become entitled to, or may qualify for any non‑tobacco product or other benefit (whether the entitlement or qualification is absolute or conditional); or

S. 7(1)(a)(iii) amended by Nos 28/2001 s. 8(1)(c), 55/2016 s. 9(8)(b), 51/2024 s. 53(1)(b).

(iii) any thing which, or a copy or facsimile of which, is a necessary prerequisite to participation in, or is likely to confer an advantage in, any game, contest or other activity in which a participant may become entitled to, or may qualify for, any non‑tobacco product or other benefit (whether the entitlement or qualification is absolute or conditional); or

S. 7(1)(b) amended by Nos 55/2016 s. 9(8)(a), 51/2024 s. 53(1)(c).

(b) conduct a scheme declared by the Governor in Council by Order published in the Government Gazette for the purposes of this section to be a scheme to promote the sale of a tobacco product or to promote smoking generally.

S. 7(2) substituted by No. 86/2012 s. 3(2), amended by Nos 55/2016 s. 9(8)(c), 51/2024 s. 53(1)(c).

(2) In proceedings for an offence against subsection (1), it is a defence to prove that it was not practicable for the person to identify the purchased item that gave rise to the supply of the benefit or thing or participation in the scheme as a tobacco product.

S. 7(3) inserted by No. 28/2001 s. 8(2), amended by Nos 55/2016 s. 9(8)(d)(e), 51/2024 s. 53(1)(d).

(3) Subsection (1) does not prohibit the sale of non‑tobacco products such as lighters, matches, ashtrays or other items that are necessary for, or ancillary to, the smoking of tobacco products, unless the consideration for the sale of those non-tobacco products is less than it would have been had they not been sold in connection with the sale of tobacco products.

S. 7(4) inserted by No. 45/2005 s. 12(2), substituted by Nos 55/2016 s. 9(9), 51/2024 s. 53(2).

(4) To avoid doubt, subsection (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 subsection in connection with the sale of a tobacco product or for the purposes of promoting the sale of a tobacco product.

S. 7(5) inserted by No. 45/2005 s. 12(2), amended by Nos 55/2016 s. 9(10)(a)(b), 51/2024 s. 53(3).

(5) A tobacco company is guilty of an offence against this subsection, and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly—

S. 7(6) inserted by No. 45/2005 s. 12(2).

(6) An offence against subsection (5) is an indictable offence.

8 Free samples

S. 8(1) amended by Nos 45/2005 s. 13(1), 49/2009 s. 23, 55/2016 s. 9(10)(c), 51/2024 s. 54(a)(i).

(1) A person must not, for the purpose of inducing or promoting—

S. 8(1)(a) amended by Nos 55/2016 s. 9(10)(c), 51/2024 s. 54(a)(i).

(a) the sale of a tobacco product; or

(b) the use or consumption of a tobacco product; or

S. 8(1)(ba) inserted by No. 55/2016 s. 9(10)(d), repealed by No. 51/2024 s. 54(a)(ii).

(c) smoking generally—

offer, give or distribute to a member of the public a free sample of a tobacco product or a product which advertises a tobacco product.

S. 8(2) amended by Nos 55/2016 s. 9(10)(e), 51/2024 s. 54(b).

(2) Nothing in subsection (1) applies to a gratuitous offer of a tobacco product to a person without any direct or indirect pecuniary benefit or inducement to purchase a tobacco product.

S. 8(3) inserted by No. 45/2005 s. 13(2), amended by Nos 55/2016 s. 9(10)(f)(g), 51/2024 s. 54(c).

(3) A tobacco company is guilty of an offence against this subsection, and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly—

S. 8(4) inserted by No. 45/2005 s. 13(2).

(4) An offence against subsection (3) is an indictable offence.

9 Prohibition of certain sponsorships

S. 9(1) amended by Nos 45/2005 s. 14(1), 49/2009 s. 24(1).

(1) A person must not, under a contract, agreement, undertaking or understanding, whether or not legally binding, with another person—

(a) promote—

S. 9(1)(a)(i) amended by Nos 55/2016 s. 9(10)(h), 51/2024 s. 55(a).

(i) a tobacco product; or

S. 9(1)(a)(ii) amended by Nos 55/2016 s. 9(10)(h)(i), 51/2024 s. 55(a).

(ii) a trade mark or brand name or part of a trade mark or brand name of a tobacco product; or

S. 9(1)(b) amended by Nos 55/2016 s. 9(10)(h), 51/2024 s. 55(a).

(b) promote the name or interests of a manufacturer or distributor of a tobacco product in association, whether directly or indirectly, with that tobacco product—

in exchange for a sponsorship, gift, prize, scholarship or like benefit given or agreed to be given by another person.

S. 9(2) amended by Nos 45/2005 s. 14(1), 49/2009 s. 24(2), 55/2016 s. 9(10)(j), 51/2024 s. 55(a).

(2) A person must not, under a contract, agreement, undertaking or understanding, whether or not legally binding, with another person give or agree to give any sponsorship, gift, prize, scholarship or like benefit in exchange for the promotion of, or an agreement to promote, a tobacco product or a name, interest, trade mark or brand name referred to in subsection (1).

S. 9(3) amended by Nos 55/2016 s. 9(10)(k), 51/2024 s. 55(a).

(3) Nothing in subsection (1) or (2) applies to the giving of, or an agreement to give, a scholarship by a manufacturer or distributor of a tobacco product to an employee or a member of the family of an employee, of the manufacturer or distributor.

(4) Nothing in this section applies to the annual festival known as the Myrtleford Tobacco, Hops and Timber Festival.

S. 9(5) inserted by No. 45/2005 s. 14(2), amended by Nos 55/2016 s. 9(10)(l)(m), 51/2024 s. 55(b).

(5) A tobacco company is guilty of an offence against this subsection, and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly—

(a) contravenes subsection (1) or (2); or

(b) causes another person to contravene subsection (1) or (2).

S. 9(6) inserted by No. 45/2005 s. 14(2).

(6) An offence against subsection (5) is an indictable offence.

S. 10 amended by Nos 43/2000 s. 10, 55/2016 s. 9(10)(n), repealed by No. 34/2019 s. 67.

S. 11 amended by No. 49/2009 s. 25,
repealed by No. 66/2013 s. 7.

S. 11A inserted by No. 43/2000 s. 11, amended by Nos 49/2009 s. 26, 65/2014 s. 10, substituted by No. 51/2024 s. 17.

11A Illicit tobacco offences

(1) A person who carries on a tobacco supply business must not have any illicit tobacco in the person's possession or under the person's control.

Penalty: In the case of a natural person, 120 penalty units;

(2) A person who carries on a tobacco supply business must not, intentionally or recklessly, have a commercial quantity of illicit tobacco in the person's possession or under the person's control.

Penalty: In the case of a natural person, 840 penalty units or imprisonment for 5 years;

In the case of a body corporate, 4200 penalty units.

(3) A person must not sell or otherwise supply any illicit tobacco.

Penalty: In the case of a natural person, 120 penalty units;

(4) A person must not, intentionally or recklessly, sell or otherwise supply a commercial quantity of illicit tobacco.

Penalty: In the case of a natural person, 1800 penalty units or imprisonment for 15 years;

In the case of a body corporate, 9000 penalty units.

(5) An offence against subsection (2) or (4) is an indictable offence.

commercial quantity, in relation to illicit tobacco, means a quantity of illicit tobacco prescribed by the regulations.

S. 12 (Heading) inserted by No. 55/2016 s. 9(10)(o), amended by No. 51/2024 s. 56(1).

12 Supplying tobacco products or vaping goods to person under 18 years

S. 12(1) amended by Nos 83/1993 s. 4, 43/2000 s. 12(1)(a), 49/2009 s. 27(1), 55/2016 s. 9(10)(p), 51/2024 s. 56(2)(a).

(1) A person must not sell a tobacco product or vaping goods to a person under the age of 18 years.

S. 12(2) amended by Nos 83/1993 s. 4, 45/2005 s. 15(1), 49/2009 s. 27(2), 55/2016 s. 9(10)(p), 51/2024 ss 18(a), 56(2)(a).

(2) A person must not purchase, or hold themselves out as being willing to purchase, a tobacco product or vaping goods for the use of a person under the age of 18 years.

1. In the case of a natural person, 20 penalty units;

In the case of a body corporate, 100 penalty units.

S. 12(3) amended by Nos 83/1993 s. 4, 43/2000 s. 12(1)(b), substituted by No. 49/2009 s. 27(3).

(3) The occupier of premises on which a vending machine is situated must not permit a person under the age of 18 years to obtain a tobacco product from that vending machine.

S. 12(3A) inserted by No. 43/2000 s. 12(2), substituted by No. 45/2005 s. 15(2).

(3A) If a person (the primary offender) commits an offence against subsection (1), each manager of the primary offender (if any) also commits an offence against that subsection.

S. 12(3B) inserted by No. 43/2000 s. 12(2), substituted by No. 45/2005 s. 15(2).

(3B) Proceedings for an offence committed by a manager because of subsection (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.

S. 12(3C) inserted by No. 43/2000 s. 12(2).

(3C) If an offence is committed against subsection (1) on premises at which a business is carried on, it must be presumed, unless the contrary is established, that the offence was committed in the course of the carrying on of that business.

S. 12(3D) inserted by No. 43/2000 s. 12(2), repealed by No. 45/2005 s. 15(3).

(4) It is a defence to a prosecution under this section if a person proves that he or she—

S. 12(4)(a) amended by No. 83/1993 s. 4, repealed by No. 45/2005 s. 15(4)(a).

S. 12(4)(b) amended by Nos 83/1993 s. 4, 43/2000 s. 12(3), repealed by No. 45/2005 s. 15(4)(a).

S. 12(4)(c) inserted by No. 43/2000 s. 12(3).

(c) at the time of the alleged offence, had seen an evidence of age document of the person whose age is material to the offence, indicating that the person is of or over the age of 18 years; or

S. 12(4)(d) inserted by No. 43/2000 s. 12(3), substituted by Nos 45/2005 s. 15(4)(b), 51/2024 s. 18(b).

(d) in the case of a prosecution of a manager for an offence against subsection (1), had taken prevention measures in relation to the primary offender.

S. 12(5) inserted by No. 45/2005 s. 15(5).

S. 12(5) def. of manager amended by Nos 55/2016 s. 9(10)(q), 51/2024 s. 56(2)(b).

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 or vaping goods 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. 12(5) def. of prevention measures amended by Nos 55/2016 s. 9(10)(r), 51/2024 s. 56(2)(c).

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 or vaping goods to a person under the age of 18 years in any circumstances, even if the tobacco products or vaping goods 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 or vaping goods to the person; and

(b) warning the primary offender that if the primary offender sells tobacco products or vaping goods 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 subsection (3A).

S. 13 amended by Nos 16/1997 s. 120, 43/2000 s. 22(1)(a), 114/2003 s. 12.1.3 (Sch. 6 item 13.2), substituted by No. 45/2005 s. 16.

13 Vending machines

S. 13(1) amended by No. 49/2009 s. 28.

(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.

S. 13(1A) inserted by No. 55/2016 s. 9(11), repealed by No. 51/2024 s. 57.

S. 13(2) substituted by No. 51/2024 s. 33(1).

(2) Subsection (1) does not apply to a vending machine that is placed in any of the following that are, or are part of, licensed tobacco premises—

(a) the bar area of licensed liquor premises in line of sight of the bar;

(b) an approved venue or a casino in line of sight of a service counter of the approved venue or casino;

(c) a bottle shop immediately adjacent to the service counter of the bottle shop.

S. 13(3)
def. of bar amended by No. 51/2024 s. 33(2)(a).

bar means a place in licensed liquor 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

(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;

S. 13(3)
def. of
bottle shop amended by No. 51/2024 s. 33(2)(b).

bottle shop means an area in licensed liquor premises where liquor is supplied to customers solely for consumption off the licensed liquor 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.

S. 13A (Heading) substituted by No. 55/2016 s. 9(12)(a), amended by No. 51/2024 s. 58(1).

S. 13A inserted by No. 28/2001 s. 9.

13A Mobile selling of tobacco products

S. 13A(1) amended by Nos 45/2005 s. 17, 49/2009 s. 29(1), 55/2016 s. 9(12)(b), 51/2024 s. 58(2)(a).

(1) A person must not, in the course of carrying on a business or in the course of his or her employment, sell any tobacco product that is carried about on his or her person.

1. 120 penalty units.

S. 13A(2) amended by Nos 45/2005 s. 17, 49/2009 s. 29(2), 55/2016 s. 9(12)(b), 51/2024 s. 58(2)(a).

(2) A person must not authorise another (the seller) to sell any tobacco product that is carried about on the seller's person.

S. 13A(2A) inserted by No. 49/2009 s. 29(3), amended by Nos 55/2016 s. 9(12)(c), 51/2024 s. 58(2)(b).

(2A) A tobacco company is guilty of an offence against this subsection, and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly—

(a) contravenes subsection (2); or

(b) causes another person to contravene subsection (1) or (2).

S. 13A(2B) inserted by No. 49/2009 s. 29(3).

(2B) An offence against subsection (2A) is an indictable offence.

S. 13A(3) amended by Nos 55/2016 s. 9(12)(d), 51/2024 s. 58(2)(c).

(3) A reference in this section to a tobacco product carried about on a person includes a reference to a tobacco product that is intended to be sold from a tray, bag or other container whether or not it is being carried about on the person at the time of sale.

S. 14 amended by Nos 28/2001 s. 10, 45/2005 s. 17, 49/2009 s. 30.

14 Packages of cigarettes

A person must not sell cigarettes unless the cigarettes are in a package containing at least 20 cigarettes.

15 Smokeless tobacco

S. 15(1) amended by No. 49/2009 s. 31.

(1) A person must not manufacture or sell a tobacco product other than a product prepared for smoking.

(2) Subsection (1) does not apply to the manufacture or sale of prescribed tobacco products.

S. 15A inserted by No. 43/2000 s. 13(1) (as amended by No. 28/2001 s. 21(1)(a)
(b)(2)), repealed by No. 31/2002 s. 10(c).

S. 15B inserted by No. 43/2000 s. 13(2), substituted by No. 28/2001 s. 11, repealed by No. 31/2002 s. 10(c).

S. 15C inserted by No. 43/2000 s. 13(3) (as amended by No. 28/2001 s. 22).

15C Retail outlets: signage

S. 15C(1) amended by No. 49/2009 s. 32(1).

(1) The occupier of premises on which a tobacco retailing business is carried on must cause to be displayed on those premises in accordance with the regulations—

(a) a health warning sign; or

(b) a sign relating to programs assisting in the cessation of smoking.

1. In the case of a natural person, 10 penalty units;

(2) A sign referred to in subsection (1) must comply with any prescribed requirements as to size, information contained in it (including where people may obtain more information) and the manner in which the information is set out or displayed.

S. 15C(3) inserted by No. 28/2001 s. 12, amended by No. 49/2009 s. 32(2).

(3) The occupier of premises on which a tobacco retailing business is carried on must cause to be displayed on those premises in accordance with the regulations a prescribed sign relating to the prohibition of the sale of tobacco products to persons under the age of 18 years.

1. In the case of a natural person, 10 penalty units;

S. 15D inserted by No. 43/2000 s. 14,
amended by Nos 49/2009 s. 33, 55/2016 s. 9(13)(a)–(e), 51/2024 s. 59, repealed by No. 51/2024 s. 34.

Pt 2 Div. 3 (Heading and ss 15E–15K) inserted by No. 45/2005 s. 18.

Division 3—Underage music/dance events

S. 15E inserted by No. 45/2005 s. 18.

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.

S. 15F inserted by No. 45/2005 s. 18.

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.

(2) If an inspector believes on reasonable grounds that a person is contravening subsection (1), the inspector, on producing his or her identity card, may direct the person to cease the contravention.

(3) A person who is contravening subsection (1) must not, without reasonable excuse, fail to comply with a direction by an inspector to cease the contravention.

S. 15G inserted by No. 45/2005 s. 18.

15G Offence by occupier

S. 15G(1) amended by No. 49/2009 s. 34.

(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 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate.

S. 15G(2) amended by No. 68/2009 s. 97(Sch. item 120.3).

(2) It is a defence to a prosecution under subsection (1) if the accused proves that the accused did not provide an ashtray, matches, a lighter or any other thing designed to facilitate smoking where the contravention occurred and that—

S. 15G(2)(a) amended by Nos 68/2009 s. 97(Sch. item 120.3), 51/2024 s. 19.

S. 15G(2)(b) amended by No. 68/2009 s. 97(Sch. item 120.3).

S. 15H inserted by No. 45/2005 s. 18.

15H No smoking signs

S. 15H(1) amended by No. 49/2009 s. 35.

(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 10 penalty units, in the case of a natural person, or 50 penalty units, in the case of a body corporate, if, without reasonable excuse, acceptable no smoking signs are not displayed in accordance with subsection (2).

(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.

S. 15I (Heading) substituted by No. 55/2016 s. 9(13)(f), amended by No. 51/2024 s. 60(1).

S. 15I inserted by No. 45/2005 s. 18.

15I Covering vending machines, tobacco advertisements etc.

S. 15I(1) amended by No. 49/2009 s. 36.

(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;

S. 15I(1)(b) amended by Nos 55/2016 s. 9(13)(g), 51/2024 s. 60(2)(a)(i).

(b) a tobacco advertisement in the area or premises;

S. 15I(1)(c) amended by Nos 55/2016 s. 9(13)(h), 51/2024 s. 60(2)(a)(ii).

(c) a display of tobacco products in the area or premises.

S. 15I(2) def. of covered amended by Nos 55/2016 s. 9(13)(i), 51/2024 s. 60(2)(b).

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.

S. 15J (Heading) substituted by No. 55/2016 s. 9(13)(j), amended by No. 51/2024 s. 61(1).

S. 15J inserted by No. 45/2005 s. 18, amended by Nos 49/2009 s. 37, 55/2016 s. 9(13)(k), 51/2024 s. 61(2).

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.

S. 15K inserted by No. 45/2005 s. 18.

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.

Pt 2 Div. 4 (Heading) amended by Nos 55/2016 s. 9(13)(l), 51/2024 s. 62.

Pt 2 Div. 4 (Heading and ss 15L, 15M) inserted by No. 49/2009 s. 38.

Division 4—Sales of tobacco products from temporary outlets

S. 15L (Heading) amended by Nos 55/2016 s. 9(13)(m), 51/2024 s. 63(1).

S. 15L inserted by No. 49/2009 s. 38.

15L Offence to sell tobacco products from temporary outlet

S. 15L(1) amended by Nos 55/2016 s. 9(13)(n), 51/2024 s. 63(2).

(1) A person must not sell tobacco products from a point of sale that is located in a temporary display stand, booth or tent or other temporary or mobile structure or enclosure, whether or not a part of that display stand, booth, tent, structure or enclosure is permanent.

S. 15L(2) amended by Nos 55/2016 s. 9(13)(n), 51/2024 s. 63(2).

(2) A person must not sell tobacco products from a point of sale that is in a retail outlet established in an area or premises for the duration of a specific sports, music or arts-related function or event in the area or premises.

S. 15M (Heading) substituted by No. 55/2016 s. 9(13)(o), amended by No. 51/2024 s. 64(1).

S. 15M inserted by No. 49/2009 s. 38.

15M Offence for tobacco company to sell tobacco products from temporary outlet

(1) A tobacco company is guilty of an offence against this subsection, and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly contravenes section 15L(1) or 15L(2) or causes another person to contravene section 15L(1) or 15L(2).

S. 15M(1A) inserted by No. 55/2016 s. 9(14), repealed by No. 51/2024 s. 64(2).

S. 15M(2) amended by Nos 55/2016 s. 9(15)(a), 41/2025 s. 3(Sch. 1 item 31).

(2) An offence against subsection (1) is an indictable offence.

Pt 2 Div. 5 (Heading and ss 15N–15S) inserted by No. 49/2009 s. 38.

Division 5—Prohibited products

S. 15N inserted by No. 49/2009 s. 38.

15N Ban orders

(1) The Minister, by order published in the Government Gazette, may ban a product or a class of products if—

(a) the Secretary recommends the making of the order to the Minister under section 15O; or

(b) the product or the class of products has been prohibited or restricted by or under a law of the Commonwealth or another State or Territory on the ground that the product or the class of products meets one or more criteria that substantially correspond to the criteria set out in section 15O(2)(a).

(2) A ban order must—

(a) if the ban order is made on the recommendation of the Secretary, specify that fact and set out the grounds for the recommendation; or

(b) if a ban order is made on the basis of a prohibition or restriction by the Commonwealth or another State or Territory, specify that fact and the law or subordinate instrument containing the prohibition or restriction.

(3) A ban order may apply, adopt or incorporate, wholly or partially or as amended by the order, any matter contained in any document as existing—

(a) from time to time; or

(b) at a particular time.

S. 15O inserted by No. 49/2009 s. 38.

15O Secretary may recommend ban order

(1) The Secretary may recommend to the Minister that a ban order be made in respect of a specified product or a specified class of products.

(2) The Secretary must not make a recommendation under subsection (1) unless the Secretary has fully investigated the matter and is satisfied that—

(a) the product—

(i) is a tobacco product and the product or its smoke possesses a distinctive fruity, sweet or confectionery-like character; or

S. 15O(2)(a)(ii) amended by Nos 55/2016 s. 9(15)(b), 51/2024 s. 65(a).

(ii) is a tobacco product or vaping goods and has packaging that appeals to children or young people; or

(iii) is not a tobacco product but resembles a tobacco product; or

S. 15O(2)
(a)(iiia) inserted by No. 55/2016 s. 9(15)(c), amended by No. 51/2024 s. 65(b).

(iiia) is not vaping goods but resembles vaping goods; or

(iv) is of a nature or is advertised in a way that may encourage children or young people to smoke; and

(b) the supply of the product should be prohibited, having regard to the objects of this Act.

(3) A recommendation by the Secretary must set out the grounds for the recommendation.

S. 15P inserted by No. 49/2009 s. 38.

15P Operation of ban order

A ban order takes effect on the date specified in the ban order or 7 days after the ban order is published in the Government Gazette, whichever is the later.

S. 15Q inserted by No. 49/2009 s. 38.

15Q Amendment or revocation of ban order

The Minister, by order published in the Government Gazette, may amend or revoke a ban order.

S. 15R inserted by No. 49/2009 s. 38.

15R Notice of order

(1) The Secretary must cause a copy of a ban order, or a copy of an order amending or revoking a ban order—

(a) to be given to each person who, to the knowledge of the Minister, supplies the product or class of products in respect of which the ban order was made; and

(b) to be published in a newspaper circulating generally throughout the State.

(2) A copy of a ban order or a copy of an order amending or revoking a ban order must be given and published under subsection (1) within 2 days after the publication of the order in the Government Gazette, or if that is not practicable, as soon as possible after the end of that period.

(3) A failure to comply with subsection (1) or (2) in relation to a ban order or an order amending or revoking a ban order does not invalidate the order.

S. 15S inserted by No. 49/2009 s. 38.

15S Offence to breach a ban order

(1) A person must not sell by retail or wholesale a product in respect of which a ban order under section 15N is in force.

S. 15S(2) amended by Nos 55/2016 s. 9(15)(d)(e), 51/2024 s. 66.

(2) A tobacco company is guilty of an offence against this subsection and liable to a penalty not exceeding 5000 penalty units, if the tobacco company intentionally or recklessly—

(3) An offence against subsection (2) is an indictable offence.

Pt 2A (Heading and ss 15T–15ZB) inserted by No. 49/2009 s. 39, amended by Nos 66/2013 s. 9, 55/2016 s. 9(15)(f)–(h)(16)–(21), 13/2022 s. 60(3)(4), repealed by No. 51/2024 s. 67.

Part 3—Victorian Health Promotion Foundation

16 Victorian Health Promotion Foundation

(1) There is established by this Act a body to be called the Victorian Health Promotion Foundation.

(2) The Foundation—

(a) is a body corporate with perpetual succession; and

(b) shall have an official seal; and

(c) may sue and be sued in its corporate name; and

(d) is capable of taking, purchasing, leasing, holding, selling and disposing of real and personal property for the purpose of performing its functions and exercising its powers under this Act; and

(e) is capable of doing and suffering all such acts and things as bodies corporate may by law do or suffer and which are necessary or expedient for the purpose of performing its functions and exercising its powers under this Act.

(3) The Foundation represents, and shall be taken to be part of, the Crown.

(4) The official seal of the Foundation shall be kept in such custody as the Foundation directs and must not be used except as authorised by the Foundation.

(5) All courts, judges and persons acting judicially shall take judicial notice of the seal of the Foundation affixed to a document and shall presume that it was duly affixed.

17 Objectives of Foundation

The objects of the Foundation are—

(a) to fund activity related to the promotion of good health, safety or the prevention and early detection of disease; and

(b) to increase awareness of programs for promoting good health in the community through the sponsorship of sports, the arts and popular culture; and

(c) to encourage healthy lifestyles in the community and support activities involving participation in healthy pursuits; and

(d) to fund research and development activities in support of these objects.

18 Functions of Foundation

The following are the functions of the Foundation—

(a) to promote its objects;

(b) to make grants from the Fund for activities, facilities, projects or research programs in furtherance of the objects of the Foundation;

(c) to provide sponsorships for sporting or cultural activities;

(d) to keep statistics and other records relating to the achievement of the objects of the Foundation;

(e) to provide advice to the Minister on matters related to its objects referred by the Minister to the Foundation and generally in relation to the achievement of its objects;

(f) to make loans or otherwise provide financial accommodation for activities, facilities, projects or research programs in furtherance of the objects of the Foundation;

S. 18(g) amended by No. 43/2000 s. 22(1)(b).

(g) to consult regularly with relevant Government Departments and agencies and to liaise with persons and organisations affected by the operation of this Act;

(h) to perform such other functions as are conferred on the Foundation by this or any other Act.

19 Powers of Foundation

(1) The Foundation has power to do all things necessary to be done in the performance of its functions or achievement of its objects.

(2) In addition to its other powers, the Foundation has power, following consultation with the Minister, to make grants from the Fund for the relief of loss suffered as a result of the application of this Act to anything existing at or before the date of enactment of this Act where special circumstances warrant assistance of that kind.

20 Foundation to be responsible to Minister

(1) The Foundation shall perform its functions and exercise its powers subject to any guidelines or directions on any matter or class of matters declared by the Governor in Council on the recommendation of the Minister after consultation with the Minister administering the Sport and Recreation Act 1972 by notice published in the Government Gazette to be guidelines or directions for the purposes of this section.

S. 20(2) substituted by No. 43/2000 s. 22(2).

(2) Section 15 of the Subordinate Legislation Act 1994 applies to a guideline of which notice is published under subsection (1) as if the guideline were a statutory rule within the meaning of that Act notice of which had been published in the Government Gazette on the day on which the notice under subsection (1) was published.

S. 20(3) substituted by No. 43/2000 s. 22(2).

(3) A guideline notice of which is published under subsection (1) is subject to disallowance by a House of the Parliament and sections 23, 24 and 25 of the Subordinate Legislation Act 1994 apply as if the guideline were a statutory rule notice of which had been published in the Government Gazette on the day on which the notice under subsection (1) was published.

21 Membership of Foundation

(1) The Foundation shall consist of—

(a) three persons with expertise in health and illness prevention, one of whom shall be chosen by the Minister from a panel of three names submitted by the Anti-Cancer Council; and

(b) four persons with expertise in sport or sports administration, one of whom shall be chosen by the Minister from a panel of three names submitted by the Sports Federation of Victoria or, if that body ceases to exist, another body representing amateur sport in Victoria and nominated by the Minister and one of whom shall be nominated by the Minister as representing country sport; and

(c) two persons with expertise in business, management, communications or law; and

(d) one person with expertise in the arts or arts administration; and

(e) one person with expertise in advertising; and

(f) three persons who are members of the Legislative Council or the Legislative Assembly elected by the Legislative Council and Legislative Assembly jointly.

(2) The Minister may appoint a Chairperson and a Deputy Chairperson from amongst the members referred to in subsection (1) (other than paragraph (f)).

(3) The members (other than the members referred to in subsection (1)(f))—

(a) shall be appointed by the regulations; and

S. 21(3)(b) amended by No. 46/1998 s. 7(Sch. 1), substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 204.1), 80/2006 s. 26(Sch. item 101).

(b) are, in respect of the office of member, subject to the Public Administration Act 2004 (other than Part 3 of that Act).

(4) If the regulation appointing a member is disallowed, the appointment ceases to have effect.

22 Term of appointment

(1) Subject to this Part, a member appointed under section 21 holds office for such period not exceeding 5 years as is specified in the instrument of appointment but is eligible for re-appointment.

S. 22(2)(3) repealed by No. 42/1995 s. 224(Sch. 2 item 41).

(4) A member elected under section 21(1)(f) holds office, subject to this Part for three years but is eligible for re-election.

(5) Subject to this Part, a member holds office on such terms and conditions as are determined by the Governor in Council.

23 Remuneration and allowances

A member (other than a member referred to in section 21(1)(f)) shall be paid such remuneration and allowances (if any) as are determined by the Governor in Council.

24 Removal from office

The Governor in Council may remove a member from office.

25 Resignation

A member may resign office by writing signed by him or her and delivered to the Governor in Council.

26 Disclosure of interests etc.

(1) A member of the Foundation who is in any way, whether directly or indirectly interested in a contract or proposed contract with the Foundation must, as soon as practicable after the relevant facts have come to his or her knowledge, declare the fact and the nature and extent of the interest at a meeting of the Foundation.

(2) Subsection (1) does not apply if the interest of the member consists only of being a member or creditor of a body that is interested in a contract or proposed contract with the Foundation if the interest may properly be regarded as not being a material interest.

(3) For the purposes of subsection (1), a general notice given to the members of the Foundation by a member to the effect that he or she is a member, officer or employee of a body and is to be regarded as interested in any contract that may, after the date of the notice, be made with that body is sufficient declaration of interest in relation to any contract so made or proposed to be made if—

(a) the notice states the nature and extent of the interest of the member in the body; and

(b) when the question of the confirming or entering into a contract is first taken into consideration, the extent of the member's interest is not greater than that stated in the notice; and

(c) the notice is read at a meeting of the Foundation or the member takes reasonable steps to ensure that it is brought up and read at the next meeting of the Foundation after it is given.

(4) A member of the Foundation who possesses any property or holds any office whereby, whether directly or indirectly, interests or duties might be created in conflict with the member's interests or duties as a member must, in accordance with subsection (5), declare at a meeting of the members of the Foundation the fact and nature and extent of the conflict.

(5) A declaration required by subsection (4) in relation to the possession of any property or the holding of any office must be made by a person—

(a) if the person possesses the property or holds the office as mentioned in subsection (4) when he or she becomes a member—at the first meeting of the Foundation held after—

(i) he or she becomes a member; or

(ii) the relevant facts as to the possession of the property or the holding of the office come to his or her knowledge—

whichever is the later; or

(b) if the person comes into possession of the property or commences to hold the office as mentioned in subsection (4) after he or she becomes a member—at the first meeting of the Foundation held after the relevant facts as to the possession of the property or the holding of the office come to his or her knowledge.

(6) The Chairperson must cause to be recorded every declaration under this section in the minutes of the meeting at which it was made.

(7) This section is in addition to, and not in derogation of, the operation of any Act or rule of law restricting a member from having an interest in contracts with the Foundation or from possessing property or holding offices involving interests or duties in conflict with the member's interests or duties as a member.

S. 27 amended by No. 43/2000 s. 22(3).

27 Validity of acts and decisions

An act or decision of the Foundation is not invalid by reason only—

(a) of a vacancy in the office of a member; or

(b) of any defect or irregularity in or in connection with the appointment of a member; or

(c) in the case of a person appointed to act as Chairperson or as a member, that the occasion for so acting had not arisen or had ceased.

28 Meetings of Foundation

(1) The Chairperson shall preside at a meeting of the Foundation at which he or she is present and, if the Chairperson is not present, the members present shall elect a member to preside.

(2) A majority of members in office at any time constitutes a quorum at a meeting of the Foundation.

(3) A question arising at a meeting of the Foundation shall be determined by a majority of votes of the members present and voting on the question.

(4) If there is an equality of votes on a question at a meeting, the Chairperson or other person presiding at the meeting has a casting vote.

(5) Subject to this Part, the Foundation may regulate its own procedure.

29 Patrons

The Governor in Council may appoint persons as honorary patrons of the Foundation.

30 Advisory committees

(1) The Foundation may, following consultation with the Minister and the Minister administering the Sport and Recreation Act 1972, appoint advisory committees for the purposes of providing advice and information to assist the Foundation in the performance of its functions.

(2) A member of an advisory committee shall be paid such allowances and expenses as are determined by the Governor in Council.

31 Chief executive officer and staff

(1) There shall be a chief executive officer of the Foundation, who shall be appointed by the Governor in Council on the recommendation of the Minister for such period and subject to such terms and conditions as are determined by the Governor in Council.

(2) Before making a recommendation for the purposes of subsection (1), the Minister must seek the advice of the Foundation.

(3) The Governor in Council may remove the chief executive officer from office.

(4) The chief executive officer may resign office in writing signed by him or her and delivered to the Governor in Council.

S. 31(5) amended by Nos 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 204.2).

(5) The chief executive officer is not, in respect of the office of chief executive officer, subject to the Public Administration Act 2004.

(6) The Foundation shall appoint such other staff as are necessary for the purposes of this Part.

(7) If the chief executive officer or a member of the staff of the Foundation was, immediately before his or her appointment, an officer within the meaning of the Superannuation Act 1958, the chief executive officer or member continues, subject to that Act, to be an officer within the meaning of that Act while he or she continues to be the chief executive officer or such a member.

S. 31(8) substituted by No. 46/1998 s. 7(Sch. 1).

(8) If a person was, immediately before appointment as the chief executive officer or a member of the staff of the Foundation, an employee in the public service, the person upon ceasing to be the chief executive officer or member, is eligible to be employed in the public service with a classification and emolument corresponding with or higher than that which the person held or received in the public service immediately before appointment as the chief executive officer or such a member as if the period of service as the chief executive officer or such a member had been service in the public service.

32 Victorian Health Promotion Fund

(1) There shall be established in the Public Account as part of the Trust Fund an account to be known as the Victorian Health Promotion Fund.

(2) The Fund shall be administered by the Foundation.

S. 32(3) substituted by No. 94/1997 s. 21(1).

(3) All money received by the Foundation must be paid into the Fund.

S. 32(3A) inserted by No. 94/1997 s. 21(1).

(3A) There shall be paid out of the Consolidated Fund (which is to the necessary extent appropriated accordingly) into the Victorian Health Promotion Fund, in respect of the financial year commencing on 1 July 1997, an amount of $21 395 000 in such instalments and at such times as are determined by the Treasurer.

(4) There shall be paid out of the Fund in accordance with the budget of the Foundation—

S. 32(4)(a) amended by No. 94/1997 s. 21(2).

(a) amounts determined by the Foundation for payment to sporting bodies; and

S. 32(4)(b) amended by No. 94/1997 s. 21(2).

(b) amounts determined by the Foundation for payment to bodies for the purpose of health promotion; and

(c) other amounts by way of grant or loan or financial accommodation for payment in accordance with this Act to persons or bodies determined by the Foundation; and

(d) the cost and expenses incurred by the Foundation under this Act; and

(e) amounts determined by the Minister for payment to a body or bodies specified by the Minister for the purpose of medical research related to the prevention and treatment of illness; and

(f) any other money authorised under this or any other Act to be paid out of the Fund.

S. 32(5) amended by No. 46/1998 s. 7(Sch. 1), substituted by No. 11/2001 s. 3(Sch. item 76).

(5) The Foundation may, with the approval of the Minister administering Part 7 of the Financial Management Act 1994, maintain an account or accounts with an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth.

(6) An amount paid to a body out of the Fund under subsection (4) (except paragraph (d)) must be presented or otherwise delivered to the body by the Chairperson or the chief executive officer or by a member of the Foundation (other than a member appointed under section 21(1)(f)) nominated by the Chairperson for that purpose and must be made only in the name of the Foundation.

33 Budget

(1) The Foundation must, before 1 June in each year, submit to the Minister for the Minister's approval a budget for the next financial year of money to be paid into the Fund and money to be paid out of the Fund.

(2) The budget must be in a form required by the Minister.

S. 33(2A) inserted by No. 94/1997 s. 21(3).

(2A) The amounts included in the budget for a financial year to be paid out of the Fund to sporting bodies and to bodies for the purpose of health promotion must each be not less than 30% of the total money budgeted to be paid into the Fund out of the Consolidated Fund in that year.

(3) The Minister may, after consultation with the Treasurer and the Minister administering the Sport and Recreation Act 1972, approve a budget as submitted to the Minister, or approve it with such alterations as the Minister determines.

(4) The Minister may, if requested to do so by the Foundation, at any time, approve alterations to the budget.

Ss 34–36 repealed by No. 31/1994 s. 4(Sch. 2 item 90).

Pt 3AA (Headings and ss 34–34ZZC) inserted by No. 51/2024 s. 8.

Part 3AA—Licensing of tobacco retailers and wholesalers

Pt 3AA
Div. 1AA (Heading and ss 33A–33F) inserted by No. 51/2024 s. 35.

Division 1AA—Offences in relation to licensing

S. 33A inserted by No. 51/2024 s. 35.

33A Selling tobacco without a licence

(1) A person must not sell a tobacco product in Victoria unless the person holds a licence authorising the sale.

Penalty: In the case of a natural person, 840 penalty units or imprisonment for 5 years;

In the case of a body corporate, 4200 penalty units.

(2) An offence against subsection (1) is an indictable offence.

(3) Subsection (1) does not apply to a person who sells a tobacco product as an employee or agent of a person who holds a licence if the sale is in accordance with the licence and this Act.

(4) In a proceeding against the occupier of any premises for an offence against subsection (1), the fact that there are on the premises more tobacco products than are reasonably required for the use of the occupier is evidence of the sale of those products by the occupier.

(5) Subsection (4) does not apply to residential premises unless those premises are also licensed tobacco premises.

S. 33B inserted by No. 51/2024 s. 35.

33B Selling tobacco except in accordance with licence

A licensee must not sell a tobacco product except in accordance with their licence.

S. 33C inserted by No. 51/2024 s. 35.

33C Failing to display licence

A licensee must cause a copy of their licence to be displayed in a conspicuous place on the licensed tobacco premises in a manner that invites public inspection.

Penalty: In the case of a natural person, 5 penalty units;

In the case of a body corporate, 25 penalty units.

S. 33D inserted by No. 51/2024 s. 35.

33D False or misleading statements in connection with licensing

(1) A person must not, in or in relation to an application for the grant, variation, transfer, relocation or renewal of a licence, make a statement that is false or misleading because of—

(a) the inclusion in the statement of false or misleading matter; or

(b) the omission from the statement of material matter.

(2) It is an exception to an offence against subsection (1) if the accused—

(a) believed on reasonable grounds that the false matter was true; or

(b) believed on reasonable grounds that the misleading matter was not misleading; or

(c) in the case of an omission—

(i) believed on reasonable grounds that no material had been omitted, being material the omission of which would make the statement false or misleading; or

(ii) did not know that the omitted matter was material.

S. 33E inserted by No. 51/2024 s. 35.

33E Holding out that unlicensed tobacco premises are licensed

A person must not indicate, by means of a sign, notice or otherwise, that premises are licensed tobacco premises if the premises are not licensed tobacco premises.

Penalty: In the case of a natural person, 15 penalty units;

In the case of a body corporate, 75 penalty units.

S. 33F inserted by No. 51/2024 s. 35.

33F Holding out that unlicensed person is licensed

A person must not indicate, by means of a sign, notice or otherwise, that the person is authorised under a licence to sell tobacco products if the person is not authorised under a licence to sell those products.

Penalty: In the case of a natural person, 15 penalty units;

In the case of a body corporate, 75 penalty units.

Division 1—Application for licence

New s. 34 inserted by No. 51/2024 s. 8.

34 Who can apply for a licence?

(1) The following persons may apply to the Regulator for a licence—

(a) a natural person of or over the age of 18 years—

(i) on the person's own behalf; or

(ii) on behalf of a partnership in which the person is a partner;

(b) a body corporate.

(2) Despite subsection (1)—

(a) a natural person cannot apply for a licence if the natural person or, if the natural person is applying on behalf of a partnership, any partner in the partnership, is a disqualified person; and

(b) a body corporate cannot apply for a licence if the body corporate or any director of the body corporate is a disqualified person.

S. 34A inserted by No. 51/2024 s. 8.

34A Form and content of licence application

(1) A licence application must—

(b) list the names, addresses and dates of birth (if applicable) of—

(i) the applicant; and

(ii) the associates of the applicant; and

(c) specify, as the proposed licensed tobacco premises, premises that are a permanent structure located in Victoria; and

(d) include or be accompanied by any prescribed information; and

(e) be accompanied by the prescribed fee.

(2) The Regulator may request the applicant to provide any other document or information that the Regulator considers appropriate in relation to—

(a) assessing the suitability of the applicant to hold a licence; or

(b) verifying any information included with or accompanying the licence application, including by way of statutory declaration.

(3) Without limiting the document or information the Regulator may request under subsection (2), the Regulator may request the applicant to provide a criminal history check in respect of the applicant or any associate of the applicant.

(4) If the applicant does not comply with a request under subsection (2)—

(a) the application is taken to be withdrawn on the day after the last day for compliance with the request; and

(5) A licence application may specify only one proposed licensed tobacco premises, but a person may lodge 2 or more licence applications concurrently.

(6) If a person lodges 2 or more licence applications concurrently, the Regulator may waive any one or more of the requirements of this Act or the regulations in relation to any of those applications so as to avoid duplication.

Division 2—Variation of licence

S. 34B inserted by No. 51/2024 s. 8.

34B Application for variation of licence

(1) The following persons may apply to the Regulator for the variation of a licence—

(a) the licensee;

(b) the Chief Commissioner of Police;

(c) the licensee and a proposed transferee of the licence jointly.

(2) An application under subsection (1) may seek one or more of the following—

(a) a variation of the category of licence;

(b) a variation of a condition of the licence (other than a condition imposed by this Act or a prescribed condition);

(c) the imposition of a new condition on a licence;

(d) the removal of a condition of the licence (other than a condition imposed by this Act or a prescribed condition).

(3) An application under subsection (1) must—

(c) except in the case of an application by the Chief Commissioner of Police, be accompanied by the prescribed fee.

(4) The Regulator may request the applicant to provide any other document or information that the Regulator reasonably requires to assess the application.

(5) If the applicant does not comply with a request under subsection (4)—

S. 34C inserted by No. 51/2024 s. 8.

34C Variation of licence by Regulator

(1) The Regulator, at the Regulator's own initiative, may vary a licence in accordance with this section.

(2) If the Regulator proposes to vary a licence under this section, the Regulator must give the licensee written notice of the proposed variation.

(3) The licensee may object to the proposed variation by giving a written notice of objection to the Regulator within 21 days after receiving a notice under subsection (2).

(4) If, after considering any objection made by the licensee under subsection (3), the Regulator is satisfied that the licence should be varied, the Regulator may vary the licence—

(a) as originally proposed; or

(b) as otherwise considered appropriate.

(5) If the Regulator decides not to vary the licence under this section, the Regulator must give written notice to the licensee as soon as practicable.

S. 34D inserted by No. 51/2024 s. 8.

34D Variation of licence by Regulator following show cause process

(1) The Regulator may vary a licence as the Regulator considers appropriate if—

(a) the Regulator has given the licensee a show cause notice; and

(b) after considering any representations made by the licensee under section 34P(4), the Regulator decides that suspension or cancellation of the licence is not warranted, but that the licence should be varied instead.

(2) Section 34C does not apply to the Regulator in varying a licence under this section.

S. 34E inserted by No. 51/2024 s. 8.