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relevant lessor, of premises—
(a) means the person who—
(i) leases the premises directly to a person
conducting a tobacco business at the
premises; or
(ii) otherwise directly allows a person
conducting a tobacco business at the
premises to occupy the premises; and
(b) does not include a person, including, for
example, a head lessor, who leases the
premises to a person who is not occupying
the premises for the purpose of conducting a
tobacco business at the premises.
tobacco business means a business that involves
supplying or possessing illicit tobacco, illicit
nicotine products or smoking products.
209CB Chief executive must give relevant lessor
copy of closure order and notice
(1) This section applies if—
(a) a closure order is made in relation to
premises; and
(b) the premises are subject to a lease.
(2) The chief executive must give the relevant lessor
of the premises the following documents within 7
days after the closure order is made—
(a) a copy of the order;
(b) a notice stating the following information—
(i) the reason for the making of the order;
(ii) that the order may allow the relevant
lessor to terminate the lease of the
premises under section 209CC;
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(iii) that the relevant lessor may be liable
for an offence under section 209CE or
a civil penalty under section 209CF.
(3) Subsection (2) does not apply if the chief
executive is satisfied it is not reasonably
practicable to give the documents.
209CC Relevant lessor may terminate lease of
premises subject to closure order
(1) This section applies if—
(a) a closure order is made in relation to
premises; and
(b) the premises are subject to a lease.
(2) The relevant lessor of the premises may terminate
the lease of the premises by giving the lessee a
notice (the termination notice) stating that the
lease is terminated on a stated day (the
termination day).
(3) The termination day must be at least 14 days after
the day the relevant lessor gives the lessee the
termination notice.
(4) The termination notice must—
(a) be in the approved form; and
(b) be given before the end of the closure order.
(5) Subsection (2) applies—
(a) despite any other Act or anything to the
contrary in the lease or another agreement or
arrangement; and
(b) even if the closure order is subsequently
revoked, found to have been wrongfully
made or found by a court to be invalid.
(6) The termination is taken—
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(a) to be a termination of the lease for a
repudiation of the lease by the lessee; and
(b) to preserve the rights and powers of the
relevant lessor in relation to a repudiation of
the lease by the lessee, including, for
example, the right to claim damages or a
rental bond.
(7) The relevant lessor—
(a) is not liable for damages or compensation,
on any ground, to any person in relation to
the termination of the lease under this
section; and
(b) may enter, and take possession of, the
premises after the termination of the lease
under this section.
(8) The lessee is not entitled to bring a proceeding
against either of the following persons, on any
ground, in relation to the termination of the lease
under this section—
(a) the relevant lessor;
(b) a person, including, for example, a head
lessor, who leases the premises to a person
who is not occupying the premises for the
purpose of conducting a tobacco business at
the premises.
(9) Without limiting subsection (8), the following
provisions do not apply in relation to the
termination—
(a) the Property Law Act 2023, part 9, division
5;
(b) the Retail Shop Leases Act 1994, part 8;
(c) the Small Business Commissioner Act 2022,
part 3.
(10) Subsection (8) does not prevent a lessee from
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bringing a proceeding against the relevant lessor
on a ground unrelated to the termination of the
lease under this section, including, for example, a
proceeding in relation to a breach of the lease by
the relevant lessor before the termination of the
lease under this section.
(11) If a lease is terminated under this section and the
lessee has not removed the lessee’s property from
the premises under the lease, the relevant lessor
may deal with the property as the relevant lessor
considers appropriate, including, for example, by
disposing of the property.
(12) This section does not limit or affect any other
power of the relevant lessor to terminate the lease
or deal with property not removed from the
premises.
209CD Ending of closure order if lease ends
(1) If a lease of premises subject to a closure order
ends—
(a) the order ends when the lease ends; and
(b) if the relevant lessor of the premises has
been given a copy of the order under section
209CB(2)—the relevant lessor must give the
chief executive a notice stating the lease of
the premises has ended within 7 days after
the end of the lease.
(2) However, if the premises are leased to the same
lessee in the period stated in the closure order, the
order is reinstated and ends on the last day of the
period stated in the order.
(3) A person must comply with a requirement to give
a notice under subsection (1)(b) unless the person
has a reasonable excuse.
Maximum penalty—10 penalty units.
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209CE Offence of permitting premises to be used
to supply or possess illicit tobacco or illicit
nicotine products
(1) A relevant lessor of premises must not permit
another person to use the premises for the supply
or possession of illicit tobacco or illicit nicotine
products as part of a business activity.
Maximum penalty—1,000 penalty units or 1
year’s imprisonment, or both.
(2) A person commits an offence under subsection (1)
only if the person knowingly permits another
person to use the premises for the supply or
possession of illicit tobacco or illicit nicotine
products as part of a business activity.
Note—
Civil proceedings may be taken under section 209CF in
relation to a contravention of subsection (1).
(3) It is a defence to a charge under subsection (1) if
the relevant lessor has a reasonable excuse for
permitting the person to use the premises for the
supply or possession of illicit tobacco or illicit
nicotine products as part of a business activity.
(4) The relevant lessor bears an evidential burden in
relation to the matter mentioned in subsection (3).
209CF Civil penalty for contravention by relevant
lessor
(1) The chief executive may apply to the court for an
order under this section if the chief executive is
reasonably satisfied a relevant lessor has
contravened section 209CE(1).
(2) If the court is satisfied the relevant lessor has
contravened section 209CE(1), the court may
make—
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(a) an order that the relevant lessor pay the State
as a civil penalty—
(i) if the relevant lessor is an
individual—an amount of not more
than the amount that is equivalent to
1,000 penalty units; or
(ii) if the relevant lessor is a
corporation—an amount of not more
than the amount that is equivalent to
5,000 penalty units; and
(b) any other order the court considers
appropriate.
(3) In deciding whether a relevant lessor has
contravened section 209CE(1), the court may
have regard to the following—
(a) whether there is a pattern of supply or
possession of illicit tobacco or illicit
nicotine products at the premises;
(b) whether the chief executive has notified the
relevant lessor that 1 or more closure orders
have been made in relation to the premises;
(c) whether the relevant lessor and the person
using the premises have an arm’s length
relationship;
(d) whether the rent for the premises is
significantly above market value or paid
well in advance;
(e) whether the lease is in writing;
(f) whether the relevant lessor has taken steps
to terminate the lease of the premises or
otherwise prevent the supply or possession
of illicit tobacco or illicit nicotine products
at the premises.
(4) However, the court must not make an order under
subsection (2) against the relevant lessor if the
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relevant lessor has a reasonable excuse for
permitting the person to use the premises for the
supply or possession of illicit tobacco or illicit
nicotine products as part of a business activity.
(5) The relevant lessor bears an evidential burden in
relation to the matter mentioned in subsection (4).
(6) The court must apply the rules of evidence and
procedure for civil proceedings when hearing a
proceeding under this section.
(7) Evidence or information acquired under this Act
in relation to an offence against section 209CE,
including, for example, under a warrant issued
under section 184 or under section 215A, is
admissible in a proceeding under this section.
(8) A contravention of section 209CE(1) found under
this section is not an offence.
(9) An application for an order in relation to a
contravention of section 209CE(1) must be made
within 2 years after the contravention or alleged
contravention first comes to the notice of the chief
executive.
209CG Civil proceeding stayed during criminal
proceeding
(1) A proceeding against a person for a contravention
of section 209CE(1) is stayed if—
(a) a criminal proceeding is or has commenced
against the person for an offence against
section 209CE; and
(b) the offence against section 209CE is
constituted by conduct that is substantially
the same as the conduct alleged to constitute
the contravention of section 209CE(1).
(2) The proceeding for a contravention of section
209CE(1) may be resumed if the person is not
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convicted of the offence against section 209CE.
(3) Otherwise, the proceeding for the contravention
of section 209CE(1) is dismissed.
(4) In this section—
convicted, of an offence, includes a plea of guilty
or a finding of guilt by a court even though a
conviction is not recorded.
209CH No criminal proceeding after successful
civil proceeding
A criminal proceeding for an offence against
section 209CE may not be commenced against a
person for conduct that is substantially the same
as conduct in relation to which an order has been
made against the person under section 209CF(2).
209CI Evidence given by individual in civil
proceeding not admissible in criminal
proceeding
(1) Evidence of information given, or evidence of
production of documents, by an individual is not
admissible in a criminal proceeding for an offence
against the individual if the individual previously
gave the information or produced the documents
in a civil proceeding against the individual for a
contravention of section 209CE(1) (whether or
not an order under section 209CF(2) was made).
(2) However, subsection (1) does not apply to a
criminal proceeding in relation to the falsity of
evidence given by an individual in a civil
proceeding for a contravention of section
209CE(1).
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27 Amendment of s 212 (Power to require production of
written acknowledgement)
(1) Section 212, heading, ‘written’—
omit.
(2) Section 212(2) to (6)—
omit, insert—
(2) A written acknowledgement may be an electronic
document but only if the acknowledgement
contains a unique identifier for the person giving
the acknowledgement.
(3) If a written acknowledgment is in hard copy form,
an authorised person—
(a) may keep the acknowledgement to copy the
acknowledgement; and
(b) may require the supplier or person in charge
of the tobacco product vending machine to
certify the copy as a true copy of the
acknowledgement; and
(c) must return the acknowledgement as soon as
practicable after copying the
acknowledgement.
(4) Despite subsection (3)(c), if a requirement is
made of a person under subsection (3)(b), the
authorised person may keep the
acknowledgement until the person complies with
the requirement.
(3) Section 212(7)—
insert—
digital signature means encrypted electronic or
computer data intended for the exclusive use of a
particular person as a means of identifying the
person as the signer of an electronic document.
unique identifier, for a person, includes the
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following—
(a) a digital signature of the person;
(b) an identifying number for the person.
(4) Section 212(7)—
renumber as section 212(5).
28 Amendment of s 213 (Failure to produce
acknowledgement)
Section 213—
insert—
(3) In this section—
acknowledgement production requirement
means a requirement made under section 212(1).
29 Amendment of s 214 (Failure to certify copy of
acknowledgement)
Section 214—
insert—
(2) In this section—
acknowledgement certification requirement
means a requirement made under section
212(3)(b).
30 Amendment of s 215 (Power to require information)
(1) Section 215, heading, after ‘information’—
insert—
about offence
(2) Section 215(2), from ‘at a’—
omit, insert—
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within a stated reasonable period.
(3) Section 215—
insert—
(5) In this section—
information includes a document.
31 Insertion of new s 215A
After section 215—
insert—
215A Power to require information relevant to
monitoring or enforcement of particular
provisions
(1) This section applies if an authorised person
reasonably believes a person may be able to give
information relevant to the monitoring or
enforcement of section 65, 66, 67, 161, 161A or
209CE.
(2) The authorised person may, by written notice
given to the person, require the person to give the
authorised person information relevant to the
monitoring or enforcement of the provision
within a stated reasonable period.
(3) The person must comply with a requirement
under subsection (2), unless the person has a
reasonable excuse.
Maximum penalty—100 penalty units.
(4) It is a reasonable excuse for an individual to fail to
give information if giving the information might
tend to incriminate the individual.
(5) To remove any doubt, it is declared that this
section is not limited by, and does not limit,
section 215.
(6) In this section—
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Section retrieval-0003 - Tobacco and Other Smoking Products (Dismantling Illegal Trade) and Other Legislation Amendment Bill 2025 - Document excerpt 3 | Zoe