Part 1Preliminary

Part 1—Preliminary 1—Short title This Act may be cited as the Tobacco and E-Cigarette Products Act 1997. 3—Objects of Act In recognition of the fact that the consumption of tobacco products impairs the health of the citizens of the State and places a substantial burden on the State's financial resources, and in recognition of the potential harm caused by smoking e‑cigarettes, the objects of this Act are— (b) to take steps to eliminate the uptake of smoking and to reduce the consumption of tobacco products and e‑cigarette products to the greatest extent possible, especially by young people— (i) by requiring health warnings to be displayed on tobacco products and e‑cigarette products and otherwise disseminating information about the harmful effects of such smoking or consumption; (ii) by prohibiting the supply of tobacco products and e‑cigarette products to children; (iii) by encouraging non-smokers, especially young people, not to start smoking and encouraging and assisting smokers to give up smoking; (iv) by prohibiting or limiting advertising, sponsorships and other practices designed to promote or publicise tobacco products and e‑cigarette products and their consumption; (v) by reducing the availability of tobacco products and e‑cigarette products; (c) to protect non-smokers from unwanted and unreasonable exposure to tobacco smoke and e‑cigarette vapour; (d) to ensure that the sale of tobacco products is conducted honestly and free from interference, criminal influence and exploitation. 4—Interpretation (1) In this Act, unless the contrary intention appears— act includes an omission; and to act has a corresponding meaning; advertise tobacco products or e‑cigarette products means take any action that is designed to publicise or promote such products, smoking, or the sale of such products, whether visual or auditory means are employed and whether such products are directly depicted or referred to or symbolism of some kind is employed, and includes take any action of a kind prescribed by regulation; authorised officer means an authorised officer under Part 5; body corporate has the same meaning as in the Corporations Act 2001 of the Commonwealth; child means a person under the age of 18 years; cigarette does not include an e‑cigarette; consume means— (a) in relation to a tobacco product— (i) smoke; or (ii) inhale (in the form of a powder); or (iii) chew or suck; or (iv) give away; or (b) in relation to an e‑cigarette—smoke; contract of service means— (a) a contract under which 1 person is employed by another; or (b) a training contract under the South Australian Skills Act 2008; or (c) a contract, arrangement or understanding under which a person receives on‑the‑job training from another; criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or endanger a person's life or physical safety; e‑cigarette—see section 5; e‑cigarette advertisement includes any writing, still or moving picture, sign, symbol or other visual image or message designed to promote or publicise— (a) the purchase or use of an e‑cigarette product; or (b) a trademark or brand name, or part of a trademark or brand name, of an e‑cigarette product; e‑cigarette product—see section 5; employee means a person who is employed under a contract of service or who works under a contract of service; enclosed public place, workplace or shared area means— (a) an enclosed public place; or (b) an enclosed workplace; or (c) an enclosed shared area; label includes information that is enclosed in or attached to or is provided with a package containing tobacco products or e‑cigarette products but that does not comprise part of the package; licence means— (a) a retail licence; or (b) a wholesale licence; multi-unit premises means premises divided into parts that are in separate ownership or let or provided for separate occupation; officer, in relation to a body corporate, means— (a) a director of the body corporate; or (b) the chief executive officer of the body corporate; or (c) a receiver or manager of any property of the body corporate or a liquidator of the body corporate, and includes, in relation to a contravention or alleged contravention of this Act by the body corporate, an employee of the body corporate with management responsibilities in respect of the matters to which the contravention or alleged contravention related; place includes a vehicle; premises means— (a) any land, building or structure; or (b) any vehicle; prescribed packaging requirements means— (a) the requirements for the retail packaging and appearance of tobacco products in the Public Health (Tobacco and Other Products) Act 2023 of the Commonwealth; and (c) any other requirements prescribed by the regulations; prohibited product—see section 39C; public area or public place means an area or place that the public, or a section of the public, is entitled to use or that is open to, or used by, the public or a section of the public (whether access is unrestricted or subject to payment of money, membership of a body or otherwise); purchase of tobacco products or e‑cigarette products includes receipt of such products in the course of a business (whether or not for valuable consideration); record includes any book, document or writing and any other source of information compiled, recorded or stored by computer or other process, or in any other manner or by any other means; residential premises means— (a) a house, home or residential unit, apartment or flat; or (b) a bedroom or living area let or provided for separate occupation (for example, accommodation in a motel, hotel, boarding house, hostel, nursing home or college or accommodation for employees); or (d) any other place of a kind prescribed by regulation; retail connotes a sale to a consumer; retail licence—see section 7; SACAT means the South Australian Civil and Administrative Tribunal established under the South Australian Civil and Administrative Tribunal Act 2013; sell includes supply in the course of a business (whether or not for valuable consideration) and offer or expose for sale or such supply, and sale has a corresponding meaning; shared area means an area in multi-unit premises the use of which is shared by persons from various parts of the premises that are in separate ownership or occupation; shisha tobacco means a fibrous plant product (whether or not comprised of or containing tobacco) that is designed for smoking in a shisha, hookah, water pipe or similar device; smoke means— (a) in relation to a tobacco product—smoke, hold or otherwise have control over, an ignited tobacco product; or (b) in relation to an e‑cigarette—inhale from, hold or otherwise have control over, an e‑cigarette that is in use; sponsorship includes a scholarship, prize, gift or other benefit; sucking tobacco means tobacco that has been prepared for sucking but not chewing; tobacco advertisement includes any writing, still or moving picture, sign, symbol or other visual image or message designed to promote or publicise— (a) the purchase or use of a tobacco product; or (b) a trademark or brand name, or part of a trademark or brand name, of a tobacco product; tobacco product means— (a) a cigarette; or (b) a cigar; or (c) cigarette or pipe tobacco; or (ca) shisha tobacco; or (d) tobacco prepared for chewing or sucking; or (e) snuff; or (f) any other product, of a kind prescribed by regulation, that is comprised of or contains tobacco; or (g) any product (other than an e‑cigarette product) that does not contain tobacco but is designed for smoking, and includes any packet, carton, shipper or other device in which any of the above is contained; trust—a trust is considered for the purposes of this Act as a single entity consisting of the trustees and the beneficiaries; trust or corporate entity means a trust or a body corporate; vehicle includes any kind of aircraft or vessel; vending machine means a device from which a product can be obtained by the use of a payment card or the insertion of a coin, banknote or token; wholesale connotes a sale for the purpose of resale; wholesale licence—see section 7; workplace has the same meaning as in the Work Health and Safety Act 2012, but does not include— (a) a place occupied as residential premises; or (b) a place (other than a vehicle) where only a single self-employed person is working; or (c) a vehicle that is used for work purposes by only one person; or (d) any other place of a kind prescribed by regulation. (3) A place or area is enclosed if it is fully enclosed or is at least partially covered by a ceiling and has walls such that the total area of the ceiling and wall surfaces exceeds 70 per cent of the total notional ceiling and wall area. (4) For the purposes of subsection (3)— (a) ceiling includes any structure or device (whether fixed or movable) that prevents or impedes upward airflow, but does not include anything prescribed by regulation; (b) wall includes any structure or device (whether fixed or movable) that prevents or impedes lateral airflow, but does not include anything prescribed by regulation; (c) the total notional ceiling and wall area is the sum of— (i) what would be the total area of the wall surfaces if— (A) the walls were continuous, any gap in the walls being filled by a surface of the minimum area required for the purpose; and (B) the walls were of a uniform height equal to the lowest height of the ceiling; and (ii) what would be the floor area of the space within the walls if the walls were continuous as referred to in subparagraph (i). (5) For the purposes of this Act, a person occupies a position of authority in a trust or corporate entity if the person— (i) is a director of the body corporate; or (ii) exercises, or is in a position to exercise, control or substantial influence over the body corporate in the conduct of its affairs; or (iii) manages, or is to manage, the business of the body corporate to be carried out under a licence; or (iv) if the body corporate is a proprietary company—is a shareholder in the body corporate; or (b) in the case of a trust—is a trustee or beneficiary of the trust. (6) However— (a) a child who is a shareholder in a proprietary company, or a beneficiary under a trust, is not for that reason to be regarded as a person occupying a position of authority; and (b) a charitable organisation that is the beneficiary of a trust is not, for that reason, to be regarded as occupying a position of authority in the trust. 5—Definition of e‑cigarette product and related terms (1) In this Act— e‑cigarette means— (a) a device (whether or not filled with a vaping substance) that generates or releases, or is designed or intended to generate or release, using a heating element and by electronic means, an aerosol, vapour or mist for direct inhalation by its user; or (b) a device to which paragraph (a) would apply if the device were not temporarily or permanently inoperable, incomplete, damaged or unfinished; e‑cigarette accessory means a cartridge, capsule, pod or other vessel— (a) that is for use in, or with, an e‑cigarette; and (b) whether or not the cartridge, capsule, pod or other vessel— (i) contains a vaping substance; or (ii) is designed or intended to be refilled; e‑cigarette product means any of the following: (a) an e‑cigarette; (b) an e‑cigarette accessory; (c) a vaping substance; (d) a product the presentation of which includes an express or implied representation that the product is of a kind referred to in paragraph (a), (b) or (c); (e) a product of a kind or class determined to be an e‑cigarette product under subsection (3); vaping substance means— (a) nicotine in solution in any concentration (including in a salt or base form); or (b) any liquid or other substance for use in, or with, an e‑cigarette, and includes a container (other than an e‑cigarette or an e‑cigarette accessory), or part of such a container, in which a liquid or other substance referred to in paragraph (a) or (b) is present. (2) For the purposes of paragraph (d) of the definition of e‑cigarette product in subsection (1)— (a) the presentation of the product includes matters in relation to— (i) the name of the product; and (ii) the labelling and packaging of the product; and (iii) any advertising or informational material associated with the use or supply of the product; and (b) a product is taken to be presented as being a particular kind of product even if the presentation— (i) is capable of being misleading or confusing as to the content or proper use or identification of the product; or (ii) suggests that the product has ingredients, components or characteristics that it does not have. (3) The Minister may, by notice in the Gazette, determine that, for the purposes of this Act, a specified product or a specified class of product— (a) is or is not an e‑cigarette product; or (b) when used, advertised, or presented for use or supply in a particular way, is or is not an e‑cigarette product. 5A—Provisions governing whether person is fit and proper (1) A person is not a fit and proper person for a particular purpose under this Act if— (a) the person has been found guilty or convicted of an offence as prescribed by the regulations; or (b) in the case of a body corporate— (i) the body corporate is a body corporate, or is a body corporate of a class, prescribed by the regulations; or (ii) the body corporate is a prescribed organisation; or (c) in the case of an individual, the individual— (i) is— (A) a member of a prescribed organisation; or (B) a close associate of a person who is a member of a prescribed organisation or is subject to a control order under the Serious and Organised Crime (Control) Act 2008; or (ii) is an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth. (2) A person is not a fit and proper person to occupy a position of authority in a trust or corporate entity that holds a licence if— (a) the person has been found guilty or convicted of an offence as prescribed by the regulations; or (b) the person is— (i) a member of a prescribed organisation; or (ii) a close associate of a person who is a member of a prescribed organisation or is subject to a control order under the Serious and Organised Crime (Control) Act 2008; or (c) the person is an insolvent under administration within the meaning of the Corporations Act 2001 of the Commonwealth. (3) In deciding whether a person is a fit and proper person for a particular purpose under this Act, the Minister must take into consideration— (a) the reputation, honesty and integrity (including the creditworthiness) of the person; and (b) the reputation, honesty and integrity of people with whom the person associates; and (c) if the person is a body corporate—whether the body corporate is being wound up or is under official management or in receivership; and (d) any other factor relevant to the particular purpose to which the decision relates, including any relevant offence of which the person has been convicted or found guilty. Note— A relevant factor might, for example, be that a person (or, if the person is a body corporate, a director of the body corporate) has been a director of a number of bodies corporate wound up for the benefit of creditors. close associate—see subsection (5); domestic partner means a person who is a domestic partner within the meaning of the Family Relationships Act 1975 whether declared as such under that Act or not; prescribed organisation—the following are prescribed organisations: (a) a declared organisation within the meaning of the Serious and Organised Crime (Control) Act 2008; (b) a criminal organisation within the meaning of Division 1 or Division 2 of Part 3B of the Criminal Law Consolidation Act 1935; (c) any other organisation prescribed by the regulations for the purposes of this definition; related body corporate—bodies corporate are related for the purposes of this section if they are related within the meaning of the Corporations Act 2001 of the Commonwealth; spouse—a person is the spouse of another if they are legally married. (5) For the purposes of this section, 2 persons are close associates if— (a) 1 is a spouse, domestic partner, parent, brother, sister or child of the other; or (b) they are members of the same household; or (c) they are in partnership; or (d) they are related bodies corporate; or (e) 1 has a right to participate (otherwise than as a shareholder in a body corporate) in income or profits derived from a business conducted by the other; or (f) 1 is in a position to exercise control or significant influence over the conduct of the other. (6) For the purposes of this section, a reference to a parent, brother, sister or child of a person will be taken to include a reference to a step‑parent, step‑brother, step‑sister or step‑child (as the case requires) of the person.