Part 7Miscellaneous

Part 7—Miscellaneous 70A—Confiscation of products from children (1) A prescribed person who becomes aware that tobacco products or e‑cigarette products are in the possession of a child may confiscate the products from the child. (2) Subsection (1) does not apply to tobacco products that are in the possession of a child in the ordinary course of their employment or otherwise for the purpose of sale in accordance with this Act. (3) If tobacco products or e‑cigarette products are confiscated under subsection (1)— (a) the products are forfeited by the child; and (b) the products must be destroyed as soon as is reasonably practicable by the prescribed person; and (c) no compensation is payable in relation to the confiscation of the products. prescribed person, in relation to a child, means— (a) a member of the police force; or (b) any other authorised officer under Part 5; or (c) a person performing the duties of a teacher at a school attended by the child (whether or not such duties are being performed on the grounds of the school). 70AB—Power to require evidence of age (1) An authorised person may require a person— (a) who is, or who has recently been, in possession of a tobacco product, an e‑cigarette product or a prohibited product; and (b) who the authorised person reasonably suspects is a child, to produce evidence as to the person's age that complies with the requirements of the regulations. (2) A person who— (a) fails, without reasonable excuse, to comply with a requirement under this section; or (b) makes a false statement, or produces false evidence, in response to such a requirement, authorised person means— (a) a person who holds a licence under Part 2 or an employee of such a person; or (b) an authorised officer. 71—Exemptions (1) The Minister may, by notice in the Gazette— (a) exempt a person, tobacco product or e‑cigarette product, or a class of persons, tobacco products or e‑cigarette products, from the operation of a provision of this Act subject to such conditions as may be set out in the notice; (b) vary or revoke an exemption under this section. (5) Without limiting subsection (1), the Minister may, by notice in writing, exempt a person, or a class of persons, from the operation of a provision of this Act in respect of an artistic performance. (6) An exemption under subsection (5) may be conditional or unconditional. (7) The Minister may, by notice in writing, vary or revoke an exemption under subsection (5). 72—Delegation (1) A Minister may delegate powers or functions under this Act to any person or body. (2) A power, duty or function delegated under this section may, if the instrument of delegation so provides, be subdelegated. (3) A delegation or subdelegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the power of the delegator to act in any matter; and (d) is revocable at will by the delegator. 73—Register (1) The Minister must maintain a register of licences granted under this Act (the register). (2) The register must contain the following particulars for each licence: (a) the name and contact details of the holder of the licence; (b) the business name, ABN and address for the business to which the licence relates; (c) the date of issue of the licence; (d) any conditions imposed on the licence by the Minister; (e) the details of any action taken under this Act against the holder of the licence of a kind prescribed by the regulations; (f) any other particulars prescribed by regulation. (3) The Minister must make the register publicly available on a website determined by the Minister. 75—False or misleading information A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information furnished, or record kept, under this Act. 76—Minister may require verification of information (1) Where a person is required to furnish information under this Act, the Minister may require that the information be verified by statutory declaration. (2) A person who fails, without reasonable excuse, to comply with a requirement under subsection (1) is guilty of an offence. 76A—Enforceable voluntary undertakings (1) The Minister may accept, by notice in writing, an undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of this Act. (2) The giving of an undertaking does not constitute an admission of guilt by the person giving the undertaking in respect of the contravention or alleged contravention to which the undertaking relates. (3) A person who has given an undertaking may, at any time, with the written agreement of the Minister— (a) vary the undertaking; or (b) withdraw the undertaking. (4) A person must not contravene an undertaking made by the person that is in effect. (5) Subject to this section, no proceedings for a contravention or alleged contravention of this Act may be brought against a person if an undertaking is in effect in relation to that contravention. (6) No proceedings for a contravention or alleged contravention of this Act may be brought against a person who has given an undertaking under this section in relation to that contravention and who has completely discharged the undertaking. (7) The Minister may accept an undertaking in relation to a contravention or alleged contravention before proceedings in respect of that contravention have been finalised. (8) If the Minister accepts an undertaking before the proceedings are finalised, the Minister must take all reasonable steps to have the proceedings discontinued as soon as possible. 77—Criminal intelligence (1) Information that is classified by the Commissioner of Police as criminal intelligence for the purposes of this Act may not be disclosed to any person other than the Minister, SACAT, a court or a person to whom the Commissioner of Police authorises its disclosure. (2) If the Minister, SACAT or a court— (a) makes a decision under this Act; and (b) the decision is made because of information that is classified by the Commissioner of Police as criminal intelligence, the Minister, SACAT or the court (as the case may be) is not required to provide any grounds or reasons for the decision other than that, in their view, the making of any other decision would have been contrary to the public interest. (3) In any proceedings under this Act, the Minister, SACAT or a court— (a) must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and (b) may take evidence consisting of or relating to information so classified by the Commissioner of Police by way of affidavit of a police officer of or above the rank of superintendent. (4) The Commissioner of Police may not delegate the function of classifying information as criminal intelligence for the purposes of this Act except to a Deputy Commissioner or Assistant Commissioner of Police. 78—Disclosure of information (1) A person who obtains information in the course of the administration of this Act must not— (a) disclose the information; or (b) give access to the information to another person; or (c) use the information for any purpose. (a) in the case of a body corporate—$50 000; (b) in the case of an individual—$25 000. (2) Subsection (1) does not apply to the disclosure of information, or the giving of access to information or the use of information— (a) about a person, with the person's consent; or (b) that is necessary for administration of this Act or a designated Act; or (c) by the Minister or a person authorised by the Minister if the Minister reasonably believes the disclosure, access or use— (i) is necessary for administering, monitoring or enforcing compliance with this Act or a designated Act; or (ii) is necessary for the administration or enforcement of another Act or law, if the disclosure, access or use is necessary to lessen or prevent a serious risk to public health or safety or to otherwise protect the public interest; or (d) to any other agency or instrumentality of this State, the Commonwealth or another State or a Territory of the Commonwealth for the purposes of the performance of its official functions; or (e) as required or authorised by law; or (f) to a designated Minister, the Commissioner of Police or an authorised person. (2a) Subsection (1) does not apply to the disclosure of information by an authorised person in relation to premises— (a) in respect of which a closure order under Part 6AA is in effect; or (b) that the authorised person reasonably suspects are being used in connection with an offence against this Act, if the person to whom the disclosure is made is— (c) the owner or occupier of the premises; or (d) an agent of the owner or occupier of the premises; or (e) a person of a kind prescribed by the regulations for the purposes of this paragraph. (2b) Despite section 86A, the Crown incurs no liability as a consequence of a disclosure of information of a kind authorised under subsection (2a). (3) Before information obtained in the course of the administration of this Act is disclosed, the Minister may exclude information that the Minister considers to be— (a) personal information of a confidential nature; or (b) information that has a commercial or other value that would be, or could reasonably be expected to be, destroyed or diminished if the information is disclosed; or (c) information the disclosure of which would, or could reasonably be expected to, prejudice the commercial position of a person or confer a commercial advantage on a person; or (d) information the disclosure of which— (i) would be otherwise contrary to the public interest; or (ii) would be inappropriate for such other reason as the Minister thinks fit. authorised person means each of the following: (a) a police officer; (b) an authorised officer; (c) a person who is or has been, at any time, engaged in the administration or enforcement of this Act or a designated Act; (d) a person of a class prescribed by regulation for the purposes of this definition; designated Act means the following: (a) this Act; (b) the Controlled Substances Act 1984; (c) the Gambling Administration Act 2019; (d) the Liquor Licensing Act 1997; (e) an Act designated by the Minister by notice in the Gazette for the purposes of this definition; designated Minister means a Minister responsible for the administration of a designated Act. 78A—Commissioner of Police may provide information to Minister Without limiting any other Act or law that requires or authorises the Commissioner of Police to disclose information, the Commissioner of Police may disclose to the Minister any information on any matter relevant to the operation or enforcement of this Act. 79—General defence It is a defence to a charge of an offence against this Act, including a charge of an offence against a body corporate or an individual where conduct or a state of mind is imputed to the body or individual under this Part, if the defendant proves that the offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. 81—Vicarious liability (2) If an employee or agent is convicted of an offence against this Act, the employer or principal is, subject to the general defence under this Part, guilty of an offence and liable to the same penalty as may be imposed for the principal offence. (3) If an offence is committed against this Act in relation to a sale, any person who has derived or would, if the sale were completed, expect to derive a direct or indirect pecuniary benefit from the transaction is, subject to the general defence under this Part, guilty of an offence and liable to the same penalty as may be imposed for the principal offence. 82—Prosecutions Proceedings for an offence against this Act must be commenced— (a) in the case of an expiable offence—within 2 years after the date on which the offence is alleged to have been committed; (b) in any other case—within five years after the date on which the offence is alleged to have been committed. 82A—Court may make certain orders (1) If a court finds a person guilty of an offence under this Act, the court may make 1 or more of the following orders: (a) that a licence held by the person is subject to specified conditions; (b) that a licence held by the person is suspended for a specified period or until further order; (c) that a licence held by the person is cancelled; (d) that the person is disqualified from holding or obtaining a licence for a specified period or until further order. (2) If a court makes an order under subsection (1), the Registrar of the relevant court must notify the Minister of the details of the order. 83—Expiation notices may be given to certain children Despite section 6 of the Expiation of Offences Act 1996, an expiation notice for an offence against this Act may be given to a child who has attained the age of 15 years. 85—Evidence (1) In any proceedings for an offence against this Act, an apparently genuine document purporting to be— (a) a certificate of the Minister certifying that a specified person was an authorised officer at a specified date; or (b) a certificate of the Minister certifying that a specified person was or was not the holder of a licence of a specified kind at a specified date, constitutes proof of the matters so certified in the absence of proof to the contrary. (2) The presence on any premises of a vending machine from which tobacco products or e‑cigarette products may be obtained is to be taken to constitute conclusive evidence that the occupier of the premises has sold such products by means of the machine. (3) In proceedings for an offence against this Act by a body corporate, a statement made by an officer of the body corporate is admissible as evidence against the body corporate. 86—Imputation of conduct or state of mind of officer, employee etc For the purposes of proceedings for an offence against this Act— (a) the conduct and state of mind of an officer, employee or agent of a body corporate acting within the scope of their actual, usual or ostensible authority will be imputed to the body corporate; and (b) the conduct and state of mind of an employee or agent of an individual acting within the scope of their actual, usual or ostensible authority will be imputed to that individual. 86A—Immunity (1) No personal liability attaches to an authorised officer or any other person engaged in the administration of this Act for an honest act or omission in the performance, exercise or discharge, or purported performance, exercise or discharge, of a function, power or duty under this Act. (2) A liability that would, but for subsection (1), lie against a person lies instead against the Crown. 86B—Exclusion of compensation No right to compensation arises as a result of the expropriation or diminution of rights of the holder of a licence by the amendments to this Act made by the Tobacco and E-Cigarette Products (E-Cigarette and Other Reforms) Amendment Act 2024. 87—Regulations and fee notices (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting the generality of subsection (1), the regulations may make provision for or in relation to— (a) the provision by the holder of a licence of prescribed information to the Minister; and (d) warnings in relation to tobacco products or e‑cigarette products generally or tobacco products or e‑cigarette products of a particular class; and (e) signs that must be displayed in relation to places or areas where smoking is prohibited or permitted and the manner and form in which those signs must be displayed; and (f) fines (not exceeding $20 000) for offences against the regulations; and (g) expiation fees (not exceeding $1 000) for alleged offences against the regulations; and (h) evidentiary provisions to facilitate proof of contraventions of the Act or the regulations for the purposes of proceedings for offences; and (i) provisions of a saving or transitional nature consequent on any amendments to this Act or on the commencement of specified provisions of this Act or on the making of regulations under this Act. (3) The regulations may— (a) be of general or limited application; and (b) make different provision according to the matters or circumstances to which they are expressed to apply; and (c) make provisions of a saving or transitional nature consequent on the enactment of the Tobacco Products Regulation (E-Cigarettes and Review) Amendment Act 2018 or on the commencement of a specified provision of that Act or on the making of regulations under this Act; and (d) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister or an authorised officer. (4) Without limiting any other provisions of this section, the regulations may, for transitional purposes— (a) provide that this Act or specified provisions of this Act will not apply in relation to a particular person or thing, or a class of person or thing, until a specified day; or (b) modify the application of this Act or provisions of this Act in relation to a particular person or thing, or a class of person or thing, until a specified day. (5) The Minister may prescribe fees (including an annual fee) for the purposes of this Act by fee notice under the Legislation (Fees) Act 2019. (6) The Minister may, on application by a person or on the Minister's own initiative, waive, reduce or refund a prescribed fee payable by a person under this Act. Schedule A1—Prohibited conduct