35Z Offence to refuse or fail to comply with requirement
A person must not, without reasonable excuse, refuse or fail to comply with a requirement of a licensing inspector under this Part.
S. 35ZA inserted by No. 51/2024 s. 37.
35ZA Protection against self‑incrimination
(1) Subject to subsection (2), it is a reasonable excuse for a natural person to refuse or fail to answer a question, give information or do any other thing that the person is required to do by or under this Division, if the answering of the question, the giving of the information or the doing of that other thing would tend to incriminate the person.
(2) It is not a reasonable excuse for a natural person to refuse or fail to produce a document that the person is required to produce by or under this Division.
(3) A document produced by a natural person in accordance with a requirement to produce by or under this Division that would tend to incriminate the person is not admissible in evidence against the person in a criminal proceeding unless—
(a) the person is required by law to keep the document; or
(b) the proceeding is in respect of false or misleading information included in the document.
S. 35ZB inserted by No. 51/2024 s. 37.
35ZB Forfeiture of seized tobacco products
(a) either—
(i) a licensing inspector seizes a tobacco product under section 35K; or
(ii) a licensing inspector or police officer seizes a tobacco product under a licensing search warrant; and
(b) the tobacco product is used in evidence in a proceeding against a person for an offence against this Act; and
(c) the person is found guilty of the offence.
(2) Unless the court before which the person is found guilty orders otherwise, the tobacco—
(a) is forfeited to the State; and
(b) must be destroyed or otherwise disposed in accordance with an order of the court.
Pt 3AAB Div. 4 (Heading and ss 35ZC–35ZF) inserted by No. 51/2024 s. 37.
Division 4—Improvement notices
S. 35ZC inserted by No. 51/2024 s. 37.
35ZC Issue of improvement notice
(1) The Regulator may issue a licensee with an improvement notice if the Regulator reasonably believes that the licensee—
(a) is contravening, has contravened or is likely to contravene a relevant provision; or
(b) is not complying, has not complied or is likely not to comply with a condition of the licence.
(2) An improvement notice may require the licensee to whom it is issued to take any action that the Regulator reasonably considers necessary to remedy—
(a) the contravention or non‑compliance; or
(b) the matters or activities that are causing the contravention or non‑compliance.
(3) An improvement notice must—
(a) state the name and address of the licensee to whom the notice is issued; and
(b) state the relevant provision to which the contravention, or the licence condition to which the non‑compliance, relates and the conduct constituting the contravention or non‑compliance; and
(c) specify the actions that the licensee must take to comply with the notice; and
(d) specify the period within which the licensee must comply with the notice; and
(e) set out the penalty for failing to comply with the notice; and
(f) specify how the licensee may seek review of the decision to issue the notice; and
(g) include a statement to the effect of subsection (5); and
(h) include any prescribed matters.
(4) An improvement notice may require the licensee to whom it is issued—
(a) to give a copy of the notice to a person, or persons of a class, specified in the notice; or
(b) to cause a copy of the notice to be displayed (whether in physical or electronic form) in a manner specified in the notice.
(5) The issuing, variation, revocation or withdrawal of an improvement notice does not affect any proceeding for an offence in connection with any matter in respect of which the notice is or was issued.
relevant provision means a provision of—
(c) this Part; or
(d) any regulations made for the purposes of a provision referred to in paragraph (a), (b) or (c).
S. 35ZD inserted by No. 51/2024 s. 37.
35ZD Non‑compliance with improvement notice
A licensee to whom an improvement notice is issued must not, without reasonable excuse, fail to comply with that notice.
Penalty: In the case of a natural person, 240 penalty units;
In the case of a body corporate, 1200 penalty units.
S. 35ZE inserted by No. 51/2024 s. 37.
35ZE Variation and withdrawal of improvement notice
The Regulator, by written notice to a licensee—
(a) may at any time vary or withdraw an improvement notice issued to the licensee; and
(b) must withdraw the improvement notice if the Regulator is satisfied that the licensee has fully complied with it.
S. 35ZF inserted by No. 51/2024 s. 37.
35ZF Review by VCAT
(1) A licensee may apply to VCAT for review of a decision—
(a) to issue an improvement notice to the licensee; or
(b) to vary an improvement notice issued to the licensee.
(2) An application under subsection (1) must be made within 28 days after the later of—
(a) the day on which the decision is made; or
(b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the licensee requests a statement of reasons for the decision, the day on which the statement of reasons is given to the licensee or the licensee is informed under section 46(5) of that Act that a statement of reasons will not be given.
Pt 3AAB Div. 5 (Heading and ss 35ZG–35ZN) inserted by No. 51/2024 s. 37.
Division 5—Enforceable undertakings
S. 35ZG inserted by No. 51/2024 s. 37.
35ZG Definition
In this Division—
contravention means a contravention or alleged contravention of this Act or the regulations, or any other Act or regulations made under any other Act.
S. 35ZH inserted by No. 51/2024 s. 37.
35ZH Regulator may accept enforceable undertaking
(1) The Regulator may accept an enforceable undertaking from a person in connection with any matter the Regulator has a function or power in relation to by operation of this Act.
For the Regulator's general functions and powers see section 35.
(2) An enforceable undertaking must—
(a) be in writing; and
(b) state the name and address of the person offering the undertaking; and
(c) specify the day on which the undertaking commences; and
(d) specify the actions or measures to be undertaken by the person under the undertaking; and
(e) specify the day by which, or the period within which, those actions or measures must be taken; and
(f) set out any other matters agreed between the Regulator and the person in relation to the undertaking; and
(g) include any prescribed matters.
(3) The Regulator may publish an enforceable undertaking on the Regulator's website.
(4) A person may withdraw or vary an enforceable undertaking with the consent of the Regulator.
S. 35ZI inserted by No. 51/2024 s. 37.
35ZI Enforcement
(1) The Regulator may apply to the Magistrates' Court for an enforcement order under subsection (2) if the Regulator considers that a person has breached an enforceable undertaking.
(2) If the Magistrates' Court is satisfied a person has breached an enforceable undertaking, the Magistrates' Court may make any of the following orders—
(a) an order directing the person to comply with the enforceable undertaking;
(b) an order that the person take any specified action for the purpose of complying with the enforceable undertaking;
(c) an order revoking the enforceable undertaking;
(d) any other order that the Magistrates' Court considers appropriate in the circumstances.
S. 35ZJ inserted by No. 51/2024 s. 37.
35ZJ Regulator may take specified action
(1) If a person fails to comply with an order to take any specified action made under section 35ZI(2), the Regulator may take the specified action.
(2) The Regulator must not take any specified action under subsection (1) unless—
(a) the Regulator gives the person written notice advising that the Regulator intends to take the specified action; and
(b) the Regulator invites the person to provide the following within a specified period, being 10 business days after the day the notice is given—
(i) proof that satisfies the Regulator that the person has taken the specified action;
(ii) such reasons that satisfy the Regulator that the person will carry out the specified action within a period specified by the Regulator as acceptable for carrying out the specified action; and
(c) the person given the notice fails to—
(i) carry out the specified action within 10 business days after the day the notice is given or the final day of the period specified by the Regulator as acceptable for carrying out the specified action (whichever is the later); or
(ii) give the Regulator a response satisfying the Regulator that the person will carry out the specified action within 10 business days after the day the notice is given or the final day of the period specified by the Regulator as acceptable for carrying out the specified action (whichever is the later).
(3) In taking any action under subsection (1), the Regulator—
(a) may do anything that is necessary or expedient to carry out any action that remains to be done under the order and that is still practicable; and
(b) may publicise the failure of the person to comply with the order.
(4) The Regulator may recover any cost reasonably incurred in taking specified actions under this section as a debt due and payable by the person against whom the order was made under section 35ZI(2).
S. 35ZK inserted by No. 51/2024 s. 37.
35ZK No criminal proceedings while enforceable undertaking in force
If the Regulator accepts an enforceable undertaking in relation to a contravention while the enforceable undertaking is in force, the Regulator must not commence criminal proceedings for an offence that is constituted by the contravention.
S. 35ZL inserted by No. 51/2024 s. 37.
35ZL Proceedings following withdrawal of enforceable undertaking
If the Regulator accepts an enforceable undertaking in relation to a contravention and the person withdraws the enforceable undertaking before the Regulator is satisfied the enforceable undertaking has been complied with, the Regulator may commence proceedings for any offence that is constituted by the contravention.
S. 35ZM inserted by No. 51/2024 s. 37.
35ZM No further proceedings if enforceable undertaking is complied with
If the Regulator accepts an enforceable undertaking in relation to a contravention and the Regulator is satisfied the enforceable undertaking has been complied with, the Regulator must not commence criminal proceedings for an offence that is constituted by the contravention.
S. 35ZN inserted by No. 51/2024 s. 37.
35ZN Contempt of court
(1) Nothing in section 35ZI prevents the commencement or continuation of contempt of court proceedings against a person who fails to comply with an order under section 35ZI(2).
(2) If a person is found in contempt of court for failing to comply with an order under section 35ZI(2), the Regulator—
(a) may do anything that is necessary or expedient to carry out any action that remains to be done under the order and that is still practicable; and
(b) may publicise the failure of the person to comply with the order.
(3) The Regulator may recover any costs reasonably incurred in taking a specified action under this section as a debt due and payable by the person against whom the order was made under section 35ZI(2).
Pt 3A (Heading and ss 36–36T) inserted by No. 43/2000 s. 15.
Part 3A—Inspectors and powers of inspectors
New s. 36 inserted by No. 43/2000 s. 15.
36 Appointment of persons as inspectors
The Secretary may, by instrument, appoint as an inspector—
S. 36(a) amended by No. 9/2020 s. 390(Sch. 1 item 102).
(a) a person nominated by the Chief Executive Officer of a council within the meaning of the Local Government Act 2020 and employed by, or providing services to, that council;
S. 36(b) amended by Nos 108/2004 s. 117(1) (Sch. 3 item 204.2), 13/2022 s. 57(1).
(b) an employee or member of a class of employees employed under Part 3 of the Public Administration Act 2004;
S. 36(c) inserted by No. 13/2022 s. 57(2).
(c) an authorised officer appointed under section 224 of the Local Government Act 1989 by a Council whose municipal district is in the proximity of an alpine resort within the meaning of the Alpine Resorts Act 1983;
S. 36(d) inserted by No. 13/2022 s. 57(2).
(d) any other person engaged by the Secretary or seconded to assist the Secretary in performing the Secretary's functions under this Act.
S. 36AA inserted by No. 13/2022 s. 58.
36AA Inspectors appointed under section 36
(1) Before appointing a person as an inspector under section 36, the Secretary must be satisfied that the person has the necessary skills, training and expertise to perform the functions and duties, and exercise the powers, of an inspector under this Act.
(2) An inspector appointed under section 36(c) may perform the functions and duties, or exercise the powers, of an inspector under this Act in relation to an alpine resort that is specified in the instrument of appointment.
(3) The instrument of appointment of an inspector under section 36(c) may—
(a) specify the functions, duties and powers that may be performed or exercised by the inspector under this Act; and
(b) specify that the appointment is subject to any conditions that the Secretary considers appropriate.
(4) The Secretary may direct an inspector appointed under section 36(c) or (d) in the performance of the inspector's functions and duties, or in the exercise of the inspector's powers, under this Act.