Part 9 — Transitional provisions for Tobacco Products Control Amendment Act 2018
Restricted investigators 70
Application of s. 119(1) to certain convictions 70
Glossary
Terms used 71
Notes
Compilation table 77
Uncommenced provisions table 78
Other notes 78
Defined terms
An Act to —
prohibit the supply of tobacco products and smoking implements to young persons;
regulate the sale and promotion of tobacco products;
prohibit the sale of products that resemble tobacco products;
reduce the exposure of people to tobacco smoke from tobacco products that are smoked by other people,
and to repeal the Tobacco Control Act 1990 1 and make consequential amendments to the Constitution Acts Amendment Act 1899 2 and Health Act 1911 2 and for related purposes.
Part 1 — Preliminary
1. Short title
This is the Tobacco Products Control Act 2006.
2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different provisions.
3. Purposes of Act
The purposes of this Act are to reduce the incidence of illness and death related to the use of tobacco products —
(a) by prohibiting the supply of tobacco products and smoking implements to young persons; and
(b) by discouraging the use of tobacco products; and
(c) by restricting the promotion of tobacco products and smoking generally; and
(d) by reducing the exposure of people to tobacco smoke from tobacco products that are smoked by other people.
[Section 3 inserted: No. 3 of 2016 s. 55.]
4. Terms used
The Glossary at the end of this Act defines or affects the meaning of some of the words and expressions used in this Act.
5. Application to Crown
This Act binds the Crown.
Part 2 — Sale and supply
Division 1 — Supply to people under 18
6. Supply etc. to people under 18 prohibited
A person must not sell, supply or deliver a tobacco product or smoking implement to a person who has not reached 18 years of age.
7. Purchase on behalf of people under 18 prohibited
A person must not purchase a tobacco product or smoking implement on behalf of a person who has not reached 18 years of age.
8. Vending machines not to be operated by people under 18
(1) A responsible person in relation to premises that are licensed premises or a mines amenity must ensure that a tobacco product cannot be obtained from a vending machine at the premises by a person who has not reached 18 years of age.
(2) A responsible person in relation to premises that are licensed premises or a mines amenity must ensure that a tobacco product cannot be obtained by a member of the public from a vending machine at the premises without the assistance of a responsible person or a person acting on behalf of a responsible person unless the operation of the vending machine can be supervised at all times during which the premises are open to members of the public.
9. Indirect sales, proof of age required for
A person who is requested to sell a tobacco product or smoking implement by way of an indirect sale must not authorise or allow the tobacco product or smoking implement to be delivered unless the person who is to take possession of the tobacco product or smoking implement produces evidence that he or she has reached 18 years of age.
10. Tobacco products etc. for delivery, markings on
A person who authorises a tobacco product or smoking implement to be delivered must ensure that the package is clearly marked with the words “tobacco product” unless —
(a) the tobacco product is in the manufacturer’s original package only and is labelled in accordance with the regulations as required by section 19; or
(b) the delivery is made to the holder of a licence.
11. Delivery of tobacco products etc.
A person must not deliver goods that are marked as a tobacco product or might reasonably be suspected to be a tobacco product or smoking implement unless —
(a) the person receiving the goods provides his or her full name, date of birth and signature on a delivery document to be kept by the deliverer; or
(b) the delivery is made to the holder of a licence.
12. Refusal of supply etc. if no proof of age
A person who is requested —
(a) at premises specified in a retailer’s licence to sell a tobacco product or smoking implement; or
(b) to assist a person to obtain a tobacco product from a vending machine; or
(c) to deliver goods that are marked as a tobacco product or that might reasonably be suspected to be a tobacco product or smoking implement,
may refuse to do so unless the person who is to take possession of the tobacco product or smoking implement produces evidence that he or she has reached 18 years of age.
13. Defence to s. 6, 7, 8(1) and 9 offences, age of receiver
receiver means —
(a) a person to whom a tobacco product or smoking implement was sold, supplied or delivered; or
(b) a person on whose behalf a tobacco product or smoking implement was purchased; or
(c) a person who obtained a tobacco product from a vending machine,
as is relevant to the case;
relevant time means the time at which an offence under section 6, 7, 8(1) or 9 is alleged to have been committed.
(2) If a person is charged with an offence under section 6, 7, 8(1) or 9 it is a defence to prove —
(a) that at the relevant time the person charged had no reason to believe that the receiver had not reached 18 years of age; and
(b) that at the relevant time the receiver had reached 14 years of age; and
(c) that at or before the relevant time the receiver had produced evidence that the receiver had reached 18 years of age; and
(d) that at the relevant time there was compliance with section 25(1) or (2), as is relevant to the case.
14. Defence to s. 6 and 11 offences for Australia Post workers
If a person is charged with an offence under section 6 or 11 in relation to the delivery of a tobacco product or smoking implement it is a defence to prove that at the time the offence is alleged to have been committed the person was an employee of Australia Post as defined in the Australian Postal Corporation Act 1989 of the Commonwealth —
(a) who was not required under a law (other than section 11(a)) or under the person’s contract of employment to obtain the signature of a person receiving the goods; and
(b) who delivered the goods by way of placing the goods in a letter box at the address stated on the parcel.
15. Proof of age for s. 9, 12 and 13(2)(c), what is
(1) For the purposes of sections 9, 12 and 13(2)(c) the following documents can be used as evidence that a person has reached 18 years of age —
(a) a current passport;
(b) a current Australian driver’s licence;
(c) a prescribed document,
that bears a photograph of the person and indicates by reference to the person’s date of birth or otherwise that the person has reached 18 years of age.
(2) A person must not, for the purpose of obtaining a tobacco product or smoking implement use —
(a) another person’s document of identification; or
(b) a document of identification that has been forged or tampered with.
Penalty: a fine of $100.
Division 2 — Sale of tobacco products
16. Retailers of tobacco products to be licensed
(1) A person must not sell a tobacco product by way of retail sale except under the authority of a retailer’s licence.
Penalty: a fine of $50 000.
(2) For the purposes of subsection (1), persons who sell tobacco products by way of retail sale —
(a) include a responsible person in relation to premises that are licensed premises or a mines amenity and at which there is a vending machine; but
(b) do not include an owner of a vending machine that is at premises that are licensed premises or a mines amenity if the owner of the vending machine is not also a responsible person in relation to those premises.
17. Wholesalers of tobacco products to be licensed
A person must not sell a tobacco product by way of wholesale sale except under the authority of a wholesaler’s licence.
18. Indirect sellers of tobacco products to be licensed
A person must not sell a tobacco product by way of indirect sale except under the authority of an indirect seller’s licence.
18A. No retail sale by person under 18 years
The holder of a retailer’s licence must not authorise or allow a person who has not reached 18 years of age to sell a tobacco product.
[Section 18A inserted: No. 21 of 2018 s. 4.]
19. Tobacco products for sale to be labelled
The holder of a licence must not sell, or authorise or allow to be sold, a tobacco product by way of retail sale or wholesale sale unless the tobacco product is in a package that is labelled in accordance with the regulations.
20. Only one sale place in each retail premises
(1) The holder of a retailer’s licence must ensure that tobacco products are not sold at more than one place in the premises specified in the licence.
(2) Subsection (1) does not apply to sales of tobacco products from vending machines.
21. No retail sale of cigarettes except in packages of at least 20
The holder of a retailer’s licence must not sell, or authorise or allow to be sold, a cigarette unless the cigarette is in a package that contains at least 20 cigarettes.
21A. No sale of cigarettes in certain packages
The holder of a licence must not sell, or authorise or allow to be sold, cigarettes in a package that is designed to be, or is capable of being, split into 2 or more portions each containing fewer than 20 cigarettes.
[Section 21A inserted: No. 21 of 2018 s. 5.]
21B. No sale of flavoured cigarettes
The holder of a licence must not sell, or authorise or allow to be sold, a cigarette that, when smoked, has a flavour or aroma of —
(a) any kind of fruit; or
(b) mint (but not menthol), chocolate, vanilla, caramel, coconut or any other flavour (but not a spice) commonly used in the production of confectionery.
[Section 21B inserted: No. 21 of 2018 s. 5.]
22. No display of tobacco products etc. in retail premises
(1) The holder of a retailer’s licence must ensure that a tobacco product, package or smoking implement is not displayed in the premises specified in the licence.
(2) If a person is charged with an offence under subsection (1) it is a defence to prove that the display was made to a specific customer at the customer’s request.
[Section 22 inserted: No. 22 of 2009 s. 4.]
23. Defence to s. 22(1) offence for specialist retailers
specialist retailer means a person who conducts a business selling tobacco products by way of retail sale if —
(a) the person or any other person had been conducting that business on 1 July 2005; and
(b) 80% or more of the average gross turnover of the business for the financial year 2004 to 2005 was derived from the sale of tobacco products; and
(c) the business is conducted separately from, not in conjunction with, and not within the premises of, any other business.
(2) If a person is charged with an offence under section 22(1) it is a defence to prove that at the time the offence is alleged to have been committed —
(a) the person was a specialist retailer; and
(b) the display was of a cigar or an implement designed to cut a cigar; and
(c) the display could not be seen from a public place outside the premises specified in the licence; and
(d) a health warning sign in accordance with the regulations was displayed immediately adjacent to the display.
[(3), (4) deleted]
[Section 23 amended: No. 22 of 2009 s. 5; No. 21 of 2018 s. 6.]
24. Information about availability etc. of tobacco products etc. in retail premises
(1) The holder of a retailer’s licence must not display, or authorise or allow to be displayed in, or in the vicinity of, the premises specified in the licence information about the availability or prices of tobacco products or smoking implements unless the information is displayed in accordance with the regulations.
(2) The holder of a retailer’s licence in relation to premises that are licensed premises or a mines amenity at which there is a vending machine must not display, or authorise or allow to be displayed in, on, or in the vicinity of, the vending machine information about the availability of tobacco products from the vending machine or the prices of those products unless the information is displayed in accordance with the regulations.
[Section 24 amended: No. 22 of 2009 s. 6.]
25. Warnings to be displayed at retail premises etc.
(1) The holder of a retailer’s licence must ensure that there is displayed at the premises specified in the licence signs —
(a) warning customers and employees that it is illegal to sell a tobacco product or smoking implement to a person who has not reached 18 years of age; and
(b) stating the penalty for selling a tobacco product or smoking implement to a person who has not reached 18 years of age; and
(c) advising that proof of age may be requested from purchasers of tobacco products or smoking implements; and
(d) that are in accordance with the regulations.
(2) The holder of a retailer’s licence in relation to premises that are licensed premises or a mines amenity at which there is a vending machine must ensure that there is displayed —
(a) on the vending machine signs about the purchase of tobacco products that are in accordance with the regulations; and
(b) on the vending machine, a health warning sign that is in accordance with the regulations.
(3) The holder of a retailer’s licence must ensure that if the price of a tobacco product is displayed, there is displayed, in close proximity to the price, a health warning sign that is in accordance with the regulations.
(4) The holder of an indirect seller’s licence must ensure that customers are —
(a) warned that it is illegal to sell or deliver a tobacco product or smoking implement to a person who has not reached 18 years of age; and
(b) informed of the penalty for selling or delivering a tobacco product or smoking implement to a person who has not reached 18 years of age; and
(c) advised that proof of age —
(i) will be requested before a tobacco product or smoking implement is delivered; and
(ii) may be requested at the time of delivery.
[Section 25 amended: No. 21 of 2018 s. 7.]
26. Information etc., provision of by CEO and some licensees
(1) The CEO may, at the CEO’s expense, make arrangements for the publication, in such form or forms as the CEO thinks is appropriate, of —
(a) information about the effects of smoking on health; and
(b) advice to assist persons to cease smoking.
(2) The holder of a retailer’s licence must, in accordance with the regulations —
(a) provide a person who purchases a tobacco product from the holder with an approved guide or guides; and
(b) make an approved guide or guides available to a person who purchases a tobacco product from the holder.
(3) A tobacco wholesaler must, in accordance with the regulations, provide holders of retailer’s licences with approved guides.
(4) Nothing in this section requires an approved guide to be provided or made available if the tobacco product is to be purchased from a vending machine.
27. Vending machines, where they can be placed
(1) A person must not place, or authorise or allow to be placed, in any premises a vending machine for operation by members of the public unless the premises are licensed premises or a mines amenity.
(2) A person must not place, or authorise or allow to be placed, in premises that are licensed premises or a mines amenity —
(a) more than the prescribed number of vending machines for the premises; or
(b) a vending machine having a size or capacity that is greater than the prescribed size or capacity; or
(c) a vending machine in a location on the premises that is not in accordance with the regulations.
28. People carrying tobacco products not to sell them
carried: includes carried on a tray or in a bag or other container.
(2) A person must not, in the course of conducting a business or in the course of the person’s employment, sell a tobacco product that is carried by the person.
(3) A person must not authorise or allow another person (the seller) to sell a tobacco product that is carried by the seller.
(4) Subsections (2) and (3) apply whether or not the tobacco product, or the tray on which or the bag or other container in which the tobacco product is being carried, is being carried by the person at the time of the sale.
29. Price discounting not to be advertised
A person who engages in price discounting to market tobacco products must not advertise the price discounting of a tobacco product.
30. Only tobacco prepared for smoking to be sold etc.
(1) A person must not manufacture or sell a tobacco product that is not a tobacco product prepared for smoking.
(2) Subsection (1) does not apply in relation to the manufacture or sale of prescribed tobacco products in prescribed circumstances.
Part 3 — Advertising and promotion
31. Tobacco advertisements restricted
(1) A person must not display or broadcast a tobacco advertisement in a public place.
(2) A person must not display or broadcast a tobacco advertisement that can be seen or heard from a public place.
(3) A person must not distribute to the public any unsolicited object that constitutes or contains a tobacco advertisement.
(4) A person must not sell or hire an object that constitutes or contains a tobacco advertisement.
Penalty applicable to subsections (1), (2), (3) and (4): see section 115.
(5) In proceedings for an offence under this section it is to be presumed, unless the contrary is proved, that if the thing that is alleged to constitute a tobacco advertisement contains the trade mark in respect of, or registered design or brand name of, a tobacco product or smoking implement then it promotes the tobacco product or smoking implement.
32. Exceptions to s. 31
(1) Section 31 does not apply in relation to any of the following —
(a) anything done by means of a radio or television broadcast; or
(b) a tobacco advertisement in a publication published outside Western Australia unless the sole or main purpose of the publication is to promote a tobacco product or smoking generally; or
(c) a tobacco advertisement in or on a package; or
(d) a tobacco advertisement comprising only information about the availability of tobacco products or smoking implements from premises specified in a retailer’s licence or a vending machine or the prices of those products or implements if the information is displayed in accordance with regulations mentioned in section 24(1) or (2); or
(e) a tobacco advertisement comprising only information about the availability of tobacco products from premises specified in a wholesaler’s licence or the prices of those products; or
(f) a tobacco advertisement that is an incidental accompaniment to the subject of a film, video tape, compact disc or digital versatile disc or live stage performance unless the sole or main purpose of the film, video tape, compact disc or digital versatile disc or live stage performance is to promote a tobacco product or smoking implement or smoking generally; or
(g) an invoice, statement, order, letterhead, business card, cheque, manual or other document that is ordinarily used in the course of business of a licence holder or tobacco company; or
(h) the appearance of the trade mark in respect of, or the registered design or brand name of, a tobacco product, or part of such a trade mark, registered design or brand name, in or on land or a building that is occupied by the tobacco company that manufactures the tobacco product; or
(i) the appearance of the trade mark in respect of, or the registered design or brand name of, a smoking implement, or part of such a trade mark, registered design or brand name, in or on land or a building that is occupied by the manufacturer of the smoking implement; or
(j) the appearance of —
(i) the business name of a licence holder at the premises specified in the licence; or
(ii) a description of the business of a licence holder at the premises specified in the licence; or
(iii) the name of a tobacco company in or on land or a building that is occupied by the tobacco company.
(2) Despite subsection (1)(b), section 31 applies to a tobacco advertisement that is provided in or with a publication if the advertisement comprises a separate document inserted or otherwise incorporated into or onto the publication.
(3) Section 31 does not apply in relation to the taking of any action to prevent a tobacco product or smoking implement (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.
[Section 32 amended: No. 22 of 2009 s. 7.]
33. Prizes etc. connected with sale of tobacco product prohibited
(1) A person must not, in connection with the sale of a tobacco product or for the purpose of promoting a tobacco product or smoking generally, supply to any person (whether or not the purchaser) —
(a) a prize, gift or other benefit; or
(b) 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, a prize, gift or other benefit.
(2) Subsection (1) applies —
(a) whether or not consideration is given or required for the prize, gift or benefit; and
(b) whether or not the prize, gift or other benefit has monetary value; and
(c) whether or not the entitlement or qualification is absolute or conditional.
(3) If a person is charged with an offence under subsection (1) it is a defence to prove —
(a) that the prize, gift or benefit supplied was only incidentally connected with the purchase of a tobacco product; and
(b) that equal opportunity to receive that prize, gift or benefit was afforded generally to persons who purchased products, whether or not they were tobacco products.
(4) In the case of a sale of tobacco products to the holder of a licence, subsection (1) does not apply to a discount provided in connection with that sale as long as the discount is based on, and only on, the quantity of tobacco products the subject of that sale.
33A. Tobacco products not to be included in loyalty programme
(1) A person must not establish or conduct —
(a) a programme or arrangement under which a gift or other benefit may be obtained by a purchaser of a tobacco product on the basis of the amount or type of the product purchased, whether or not the programme or arrangement extends to the purchase of other goods or services; or
(b) a programme or arrangement under which a purchaser of goods or services may be entitled to a gift of a tobacco product or any other benefit in relation to a tobacco product, whether or not the purchaser may choose to accept another type of gift or benefit.
Penalty for this subsection: see section 115.
(2) Subsection (1)(a) does not apply in relation to a programme or arrangement under which a gift or other benefit may be obtained on the sole basis of the method of payment used to purchase a tobacco product.
[Section 33A inserted: No. 21 of 2018 s. 8.]
34. Free samples of tobacco products not to be given etc.
A person must not, for the purpose of promoting a tobacco product or smoking generally, offer, give or distribute a free sample of a tobacco product to a member of the public.
35. Sponsorships in connection with promoting tobacco products etc. prohibited
sponsorship includes any of the following —
(a) a scholarship, prize, gift or other like benefit;
(b) a financial arrangement (other than bona fide contract of service or contract for services) for the direct promotion or publicising of one or more of the things mentioned in subsection (2)(a) or (b) through the medium of sporting, arts, youth, educational or other like activities.
(2) A person must not promote, or agree to promote —
(a) a tobacco product or smoking generally; or
(b) the name or interests of a licence holder or a tobacco company in association directly or indirectly with a tobacco product,
under a contract, or an arrangement (whether or not legally binding), under which a sponsorship is provided, or to be provided, by another person.
(3) A person must not provide, or agree to provide, a sponsorship under a contract or arrangement of a kind referred to in subsection (2).
(4) In proceedings for an offence under subsection (2)(b), it is to be presumed, unless the contrary is proved, that the name or interests of a licence holder or a tobacco company is in association directly or indirectly with the tobacco product if that name or those interests are commonly associated by members of the public with the tobacco product.
Part 4 — Licensing
Division 1 — Licensing procedures
36. Types and content of licences
(1) The CEO may issue one or more licences to an individual or a body corporate to sell tobacco products —
(a) by way of retail sale;
(b) by way of wholesale sale;
(c) by way of indirect sale.
(2) However, no more than one of each type of licence mentioned in subsection (1) is to be issued to a particular person in respect of the same premises.
(3) A licence —
(a) is to be in an approved form; and
(b) is to specify the premises to which it applies; and
(c) is to have an identifying number; and
(d) may be issued in combination with other licences.
37. Application for licence
(1) An application for the issue of a licence is to be —
(i) proof of the applicant’s identity including, in the case of a body corporate, proof of incorporation; and
(ii) other evidence of a nature or in a form that is prescribed; and
(iii) the prescribed application fee and the prescribed licence fee.
(2) The applicant must also provide any other information that the CEO requires for the proper consideration of a particular application.
38. How and when to apply for renewal
(1) An application for the renewal of a licence is to be —
(i) other evidence of a nature or in a form that is prescribed; and
(ii) the prescribed licence fee.
(2) The applicant must also provide any other information that the CEO requires for the proper consideration of a particular application.
(3) An application for the renewal of a licence is to be made no later than 28 days before the day on which the licence is due to expire or at such later time as the CEO allows.
[Section 38 amended: No. 21 of 2018 s. 9.]
39. Issuing and renewing licences, CEO’s functions
(1) The CEO is not to issue a licence if the applicant has not reached 18 years of age.
(2) The CEO is not to issue a retailer’s licence for the purpose of authorising the sale or supply of tobacco products at a sporting, cultural or other event.
(3) To determine the suitability of an applicant to be issued with a licence the CEO is to have regard to whether —
(a) the applicant has been refused, or disqualified from holding, a licence under this Act or a corresponding law; and
(b) the applicant is the holder of a licence, under this Act or a corresponding law, that is suspended; and
(c) the applicant has, at any time, been convicted of an offence under this Act, a corresponding law, or any legislation repealed by this Act; and
(d) the applicant has, in the 10 years before the application is made, been convicted anywhere in the world of an offence involving fraud or dishonesty; and
(e) the applicant is the subject of a pending charge anywhere in the world for an offence involving fraud or dishonesty; and
(f) the applicant is likely to carry on the activities of a licence holder honestly and fairly; and
(g) the applicant is a fit and proper person to hold a licence; and
(h) there is any other good reason for not issuing or renewing the licence.
(4) The CEO is not to renew a licence if in the CEO’s opinion there are sufficient grounds to make an allegation under section 47.
(5) Where an application is made for the issue or renewal of a licence to be held on behalf of a body corporate, the CEO is not to issue or renew the licence unless the CEO has regard to each of the matters referred to in subsection (1), (3) or (4), as the case may be, in relation to each of the following persons who is relevant to the application —
(a) the body corporate;
(b) the officers of the body corporate.
(6) The licence fee is to be refunded if an application for the issue or renewal of a licence is refused.
(7) If an application for the renewal of a licence is made no later than 28 days before the due day and the CEO does not renew or refuse to renew the licence before the due day —
(a) the licence continues in force under this subsection, without affecting any period of suspension, until the earlier of —
(i) the end of the period of 21 days beginning on the day immediately following the due day; or
(ii) the beginning of the day on which the CEO renews or refuses to renew the licence;
and
(b) any renewal of the licence is taken for all purposes to have taken effect on the day immediately following the due day.
[Section 39 amended: No. 21 of 2018 s. 10.]
40. Applicants to be notified of refusal etc.
(1) If the CEO refuses to issue a licence, or amend a licence under section 44 the CEO, no later than 28 days after the decision is made, is to give written notice to the applicant setting out the decision and the reasons for the decision.
(2) If the CEO refuses to renew a licence, the CEO must give written notice to the applicant setting out the decision and the reasons for the decision.
(2A) If a decision to refuse to renew a licence is made later than 14 days before the due day, the licence continues in force under this subsection, without affecting any period of suspension, until the end of the period of 14 days beginning on the day immediately following the day on which notice of the decision is given under subsection (2).
(3) A notice under this section is also to inform the applicant of the right to apply to the State Administrative Tribunal for a review of the decision.
[Section 40 amended: No. 21 of 2018 s. 11.]
41. Conditions and restrictions of general application
(1) It is a condition of every licence that the holder of the licence does not authorise or allow the sale of tobacco products at premises other than the premises specified in the licence.
(2) Regulations may prescribe conditions and restrictions that are to be taken to be attached to —
(a) all licences; or
(b) all licences of a particular type,
unless otherwise provided by the licence.
(3) The conditions imposed under subsection (2) may include conditions requiring licence holders to provide staff training about the requirements of this Act.
42. Conditions and restrictions of particular application
(1) The CEO may issue or renew a licence subject to conditions and restrictions set out in, or provided with, the licence.
(2) The CEO may decide to make an existing licence subject to a new condition or restriction or to change or remove a condition or restriction to which an existing licence is subject, but in that case —
(a) the CEO is to give written notice of the decision to the holder of the licence no later than 14 days after the decision is made and inform the holder of the right to apply to the State Administrative Tribunal for a review of the decision; and
(b) the CEO is to have regard to the submissions, if any, of the holder of the licence in relation to the proposal.
(3) A decision under subsection (2) takes effect 28 days after it is made, or at such later time as is set out in the notice unless —
(a) the CEO revokes the decision before that time; or
(b) the holder of the licence applies to the State Administrative Tribunal for a review of the decision.
(4) Subsection (2) does not apply to conditions and restrictions mentioned in section 41.
(5) The holder of a licence may apply in the approved form to the CEO for the removal of, or change to, a condition or restriction to which an existing licence is subject in which case subsection (2) applies to that application.
43. Duration of licence
A licence is to have effect for 12 months from the day of issue and may be renewed for consecutive periods of 12 months.
44. Amending licence to apply to different premises
(1) A licence —
(a) cannot be transferred to another person; but
(b) can be amended by the CEO so as to apply to different premises.
(2) An application for the amendment of a licence is to be —
(i) other evidence of a nature or in a form that is prescribed; and
(ii) the prescribed application fee.
(3) The applicant must also provide any other information that the CEO requires for the proper consideration of a particular application.
(4) The CEO may refuse to amend a licence if the CEO is satisfied that —
(a) the applicant has been disqualified from holding a licence; or
(b) the applicant is the holder of a licence that is suspended; or
(c) there is another good reason for not amending the licence.
(5) If the CEO decides to amend a licence —
(a) the CEO is to issue an amended licence; and
(b) the amendment takes effect on the day of the decision or such later day as is specified by the CEO in a notice given to the applicant.
45. Register of licences
(1) The CEO is to cause to be kept, in an approved form, a register of the following information in relation to each licence issued —
(a) the type of licence; and
(b) the name of the holder of the licence; and
(c) the address of the premises from which tobacco products may be sold under the licence; and
(d) the identifying number of the licence; and
(e) the day on which the licence was issued; and
(f) any particular condition or restriction that applies to the licence; and
(g) such other particulars as may be prescribed.
(2) The CEO is to allow any person to inspect the register during business hours.
(3) On application being made to the CEO and payment of the prescribed fee the CEO is to issue, in an approved form, an extract of the requested registered particulars.
Division 2 — Powers of courts and State Administrative Tribunal
46. Review by SAT of licensing decisions
(1) A person aggrieved by a reviewable decision of the CEO may apply to the State Administrative Tribunal for a review of the decision.
(2) In subsection (1) —
person aggrieved means a person whose licence is affected by a reviewable decision or who applies for the grant or renewal of a licence;
reviewable decision means a decision —
(a) to refuse to issue or renew a licence; or
(b) as to a condition or restriction which is attached to a licence (except a condition or restriction mentioned in section 41); or
(c) to make an existing licence subject to a new condition or restriction or to change or remove a condition or restriction to which an existing licence is subject under section 42(2); or
(d) to refuse to remove or change a condition or restriction to which an existing licence is subject under section 42(2); or
(e) to refuse to amend a licence under section 44.
47. Disciplinary action against licence holders by SAT
(1) The CEO may allege to the State Administrative Tribunal that there is proper cause for disciplinary action, as mentioned in subsection (2), against a licence holder.
(2) There is proper cause for disciplinary action against a licence holder —
(a) if the licence holder, or where the licence is held by a body corporate, if the body or any of the body’s officers, as the case may be —
(i) is the subject of a pending charge for an offence under this Act; or
(ii) has breached —
(I) a provision of this Act; or
(II) the licence or a condition or restriction to which the licence is subject;
or
(iii) has been convicted of an offence under this Act, a corresponding law, or any legislation repealed by this Act; or
(iv) is the subject of a pending charge anywhere in the world for an offence involving fraud or dishonesty; or
(v) is not or no longer likely to carry on the activities of a licence holder honestly and fairly; or
(vi) is not or no longer a fit and proper person to hold a licence;
or
(b) if the licence was issued or renewed in error in consequence of information provided with the application for the issue or renewal of the licence being false or misleading in a material particular.
(3) If, in a proceeding commenced by an allegation under subsection (1) against a licence holder, the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any of the following —
(a) suspend a licence of any type held by the licence holder for such period, not exceeding 3 months, as the Tribunal thinks fit;
(b) revoke a licence of any type held by the licence holder;
(c) disqualify the licence holder from holding any type of licence for such period as the Tribunal thinks fit or permanently.
48. Courts’ powers on conviction in addition to punishment
Where the holder of a licence is convicted by any court of an offence under this Act, the court may, in addition to any penalty imposed or order made in respect of the conviction —
(a) attach any condition or restriction to a licence of any type held by the licence holder for any period specified in the order; or
(b) suspend a licence of any type held by the licence holder for such period, not exceeding 3 months, as the court thinks fit; or
(c) revoke a licence of any type held by the licence holder; or
(d) disqualify the licence holder from holding any type of licence for such period as the court thinks fit or permanently.
49. Non-compliance with SAT’s order, SAT’s powers as to
(1) Where the State Administrative Tribunal makes an order against a licence holder and payment is not made in accordance with the order or the order is otherwise not complied with or is breached, the State Administrative Tribunal may suspend a licence of any type held by the licence holder until the payment is made, or for such period or upon such event occurring as the State Administrative Tribunal thinks fit.
(2) The power conferred on the State Administrative Tribunal by subsection (1) is in addition to, and does not derogate from, the powers conferred on it by the State Administrative Tribunal Act 2004.
50. Proceedings in court or SAT, general provisions about
(1) The State Administrative Tribunal may adjourn the hearing of an application made under section 46 or 47 until any charge for an offence under this Act pending in relation to a person who is a subject of the application has been determined.
(2) When making any order under section 48 a court may, if it thinks fit, defer the operation of the order pending an appeal.
(3) Where a court has made an order under section 48 the registrar of the court is to send to the CEO notice of the findings, penalty imposed and order made.
(4) On the determination of an application made under section 46 or 47 the executive officer of the State Administrative Tribunal is to send to the CEO a copy of any order in relation to the determination.
(5) A person to whom notice of suspension or revocation of a licence is given must comply with any directions of the CEO in relation to delivering up the licence issued to the person.
(6) If a licence is suspended it is to be treated as being of no effect during the period of suspension.
(7) A person who is disqualified from holding a licence of a type specified by a court or the State Administrative Tribunal cannot during the period of disqualification apply for a licence of that type.
Division 3 — Further obligations of licence holders
51. Breach of condition or restriction
The holder of a licence must comply with each condition or restriction attached to the licence.
52. Retailer’s licence to be displayed
(1) The holder of a retailer’s licence must display at all times the licence or a true copy of the licence —
(a) at the premises specified in the licence; and
(b) at the place where tobacco products are sold at the premises; and
(c) so that the licence or copy is clearly visible to members of the public.
(2) A person does not commit an offence under subsection (1) if there has been compliance with section 54(1).
53. Licence to be produced on request by investigator
The holder of a licence must, if requested by an investigator to do so, produce the licence for inspection as soon as is practicable.
54. Lost etc. licences, notice and replacement of
(1) The holder of a licence which has been lost or destroyed must notify the CEO of the loss or destruction within 14 days of becoming aware of the loss or destruction.
(2) If the CEO is satisfied that a licence has been lost or destroyed the CEO may issue a duplicate licence on payment of the prescribed fee.
55. Expired, amended etc. licences to be returned to CEO
(1) The holder of a licence that has not been renewed must return the expired licence to the CEO within 14 days of the expiry.
(2) The holder of a licence that has been amended under section 44 must return the original licence to the CEO within 14 days of receiving the amended licence.
(3) The holder of a licence who ceases to carry on the business in respect of which the licence was issued must return the licence to the CEO within 28 days of ceasing to carry on the business.
Penalty applicable to subsections (1), (2) and (3): see section 115.
(4) The holder of a current licence may return the licence to the CEO at any time, in which case —
(a) the licence ceases to have effect when it is received by the CEO; but
(b) this Act applies, for the purpose of enabling the person to be investigated or otherwise dealt with for a matter arising before the return, as if the licence had not been returned.
56. Licence details to be shown on invoices etc.
(1) The holder of a retailer’s licence, a wholesaler’s licence or an indirect seller’s licence must ensure that the particulars mentioned in subsection (3) are recorded on each invoice, order or other record of the purchase or receipt by the licence holder of a tobacco product intended for sale under the licence.
(2) The holder of a wholesaler’s licence or an indirect seller’s licence must ensure that the particulars mentioned in subsection (3) are recorded on each invoice, order or other record of the sale by the licence holder of a tobacco product.
(3) The particulars to be recorded for the purposes of subsections (1) and (2) are as follows —
(a) the name of the licence holder; and
(b) the address of the premises specified in the licence; and
(c) the identifying number of the licence; and
(d) such other particulars as are prescribed.
57. Wholesalers’ duties
(1) The holder of a wholesaler’s licence must not authorise or allow a tobacco product to be sold to a purchaser by way of wholesale sale unless the purchaser holds a licence.
(2) If a person is charged with an offence under subsection (1) it is a defence to prove that at or before the time at which the offence is alleged to have been committed the purchaser had produced evidence that might reasonably be accepted as showing that the purchaser held a licence.
(3) The holder of a wholesaler’s licence must not authorise or allow a tobacco product to be sold to the holder of a retailer’s licence by way of wholesale sale unless an invoice is issued in relation to the sale.
(4) The CEO may require the holder of a wholesaler’s licence to provide to the CEO, in the manner and within the period specified by the CEO —
(a) the name and address of any person to whom the licence holder has sold tobacco products under the licence during a period specified by the CEO;
(b) information as to the chemical composition of a tobacco product sold or available for sale under the licence;
(c) information as to the volume of sales made under the licence during a period specified by the CEO.
(5) The holder of a wholesaler’s licence must comply with a requirement made under subsection (4).
Penalty applicable to subsections (1), (3) and (5): a fine of $20 000.
(6) If a person is charged with an offence under subsection (5) it is a defence to prove that the accused could not, by the exercise of reasonable diligence, have complied with the requirement to which the charge relates.
58. Records to be kept by licence holders etc.
(1) The holder of a licence and an individual who at any time held a licence —
(a) must keep such records as are prescribed containing such particulars as are prescribed; and
(b) must not knowingly make any false or misleading entry in any record; and
(c) must preserve any record kept under this section for a period of 3 years after the last entry was made in it and must do so at premises of which notice is given under subsection (2).
(2) A person mentioned in subsection (1) must notify the CEO in writing of the address of the premises —
(a) at which records are preserved under subsection (1)(c); and
(b) to which records are moved.
(3) Premises referred to in subsection (2) must be in this State unless the CEO in writing approves otherwise.
Part 5 — Administration
[Heading inserted: No. 3 of 2016 s. 56.]
[Divisions 1, 2 and 3 (s. 59-73) deleted: No. 3 of 2016 s. 57.]
[Heading deleted: No. 3 of 2016 s. 58.]
74. CEO may delegate
(1) The CEO may delegate to a person any power or duty of the CEO under another provision of this Act.
(2) A delegation must be in writing executed by the CEO.
(3) A person to whom a power or duty is delegated under this section cannot delegate that power or duty.
(4) A person exercising or performing a power or duty that has been delegated to the person under this section is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(5) Nothing in this section limits the ability of the CEO to perform a function through an officer or agent.
75. CEO may carry out research etc.
The CEO may, for the purposes of this Act or a review under section 127 —
(a) cause to be carried out any kind of research, survey or operation, including a compliance survey under Part 6 Division 4; and
(b) use epidemiological or any other data or information obtained from the research, survey or operation.
Part 6 — Investigations
Division 1 — Investigators and investigation purposes
76. Investigators, appointment of
The CEO is to appoint by instrument in writing such persons employed in the Public Service under the Public Sector Management Act 1994 Part 3 as the CEO considers necessary to be investigators for the purposes of this Act.
77. Appointment of restricted investigators
enforcement agency means —
(a) the CEO; or
(b) a local government; or
(c) a person or body, or a person or body within a class of persons or bodies, prescribed by the regulations for the purposes of this definition.
(2) An enforcement agency may appoint, by instrument in writing, a person to be a restricted investigator.
(3) An enforcement agency must not appoint a person under subsection (2) unless the agency —
(a) considers that the person has the appropriate qualifications and experience to perform the functions referred to in section 78(1); and
(b) has regard to any guidelines issued under subsection (4).
(4) The CEO may issue guidelines that describe the qualifications and experience that are appropriate for a person to be appointed to be a restricted investigator under subsection (2).
(5) A person ceases to be a restricted investigator —
(a) when the period of the person’s appointment expires; or
(b) when the person’s appointment is revoked.
(6) An enforcement agency must —
(a) maintain a list of restricted investigators appointed by the agency; and
(b) give a copy of the list to the CEO if requested to do so.
[Section 77 inserted: No. 21 of 2018 s. 12.]
78. Restricted investigators, powers of
(1) A restricted investigator has the functions of an investigator that are specified in the instrument of appointment in respect of —
(a) the State; or
(b) the area of the State for which the restricted investigator is appointed.
(1A) A restricted investigator has the functions referred to in subsection (1) for the following purposes only —
(a) to seek evidence of a suspected offence under regulations made under section 125;
(b) to assess whether or not regulations made under section 125 are being complied with;
(c) any other purpose relevant to the administration of regulations made under section 125.
(2) The performance of a function by a restricted investigator may be made subject to any condition or limitation.
(3) A restricted investigator is to be taken to be an investigator appointed under section 76 to the extent provided by the instrument of appointment, and subject to that instrument.
(4) The powers that a restricted investigator may exercise are in addition to, and do not derogate from, the powers that an authorised officer has under regulations made under section 125 or under any other written law.
[Section 78 amended: No. 19 of 2016 s. 192; No. 21 of 2018 s. 13.]
79. Police have powers of investigator
(1) For the purposes of this Act a police officer —
(a) may exercise the powers, and perform the functions, of an investigator; and
(b) has the authorities of, and protections that apply under this Act to, an investigator.
(2) The powers that a police officer may exercise under this section are in addition to, and do not derogate from, the powers that the police officer has under any other law.
(3) Sections 81 and 82 do not apply to a police officer.
80. CEO has powers of investigator
In addition to performing the functions conferred on the CEO under this Act, the CEO may exercise the powers, and perform the functions, of an investigator.
81. Identity cards for investigators and restricted investigators
(1) The CEO is to issue an identity card to each investigator and restricted investigator.
(2) An identity card must contain —
(a) the name of the investigator or restricted investigator; and
(b) a statement to the effect that the person identified by the card is an investigator or restricted investigator for the purposes of this Act; and
(c) a photograph of the investigator or restricted investigator; and
(d) the expiry date or currency of the appointment of the investigator or restricted investigator.
(3) If a person to whom an identity card is issued ceases to be an investigator or restricted investigator, the person must immediately return the card to the CEO or to any other person authorised by the CEO to receive it.
[Section 81 amended: No. 21 of 2018 s. 14.]
82. Identity card etc. to be shown
(1) An investigator or restricted investigator must show their identity card to a person if —
(a) the investigator or restricted investigator has performed, or is about to perform, a function under this Act in relation to a person; and
(b) the person requests that the identity card be shown.
(2) An authorised officer must show the form of identification (if any) that is issued to that person as evidence of the person’s appointment as an authorised officer if —
(a) the authorised officer has performed, or is about to perform, a function under this Act in relation to a person; and
(b) the person requests that the identification be shown.
[Section 82 amended: No. 19 of 2016 s. 193; No. 21 of 2018 s. 15.]
83. Purposes for which investigations may be done
An investigation may be carried out under this Part for one or more of the following purposes —
(a) to seek evidence of a suspected offence under this Act;
(b) to assess whether or not the provisions of this Act are being complied with;
(c) any other purpose relevant to the administration of this Act.
Division 2 — Obtaining identifying information
84. Investigator may ask for name, address etc.
The office of investigator is prescribed to be a public officer for the purposes of the Criminal Investigation (Identifying People) Act 2002 and as such may exercise the powers in Part 3 of that Act for investigation purposes.
Division 3 — Powers in relation to premises
85. Power to enter premises
Subject to section 86, an investigator may, for investigation purposes, enter and remain on premises to exercise the investigator’s powers of investigation.
86. Residential premises, entry of
An investigator may not enter residential premises unless —
(a) the investigator enters the premises at a reasonable time with the consent of the occupier of the premises; or
(b) the investigator enters the premises in accordance with the authorisation conferred by a warrant.
87. Warrants to enter premises
(1) If a justice or magistrate is satisfied on application supported by evidence on oath that it is reasonably necessary for an investigator to enter premises for investigation purposes, the justice or magistrate may issue a warrant authorising an investigator —
(a) to enter the premises at a time or within a period stated in the warrant; and
(b) to exercise such of the powers set out in section 89(1) as are specified in the warrant.
(2) An investigator who applies to a justice or magistrate for a warrant under this section must produce the investigator’s identity card to the justice or magistrate.
(3) The authority conferred by a warrant may be exercised by the investigator who applied for the warrant or by any other investigator.
88. Identification and warrant (if any) to be shown on entry
An investigator must, on first encountering the occupier of premises entered for investigation purposes or a person apparently in a position of authority at the premises, and also on the reasonable request of any other person at the premises —
(a) display the investigator’s identity card to the person or persons respectively; and
(b) if the investigator has entered or is about to enter the premises under a warrant — display the warrant to the person or persons respectively.
89. Investigator’s powers as to premises
(1) When an investigator exercises the power of entry under section 85, the investigator may do any or all of the following —
(a) search the premises and examine anything at the premises, opening it if necessary and, if given specific prior authorisation in writing by the CEO with respect to those premises, breaking it open;
(b) take possession of, and remove from the premises, documents, tobacco products or products mentioned in section 106, samples of such products, vending machines, advertisements or anything else relevant to the investigation, found in the course of exercising the investigator’s powers under this Act;
(c) take extracts from or make copies of, or download or print‑out, any documents found in the course of carrying out the investigator’s functions under this Act;
(d) mark a document that is to be retained as a document that is being retained;
(e) photograph or film anything at the premises;
(f) measure or cause to be measured anything at the premises;
(g) if anything at the premises that is relevant to the investigation cannot be conveniently removed — secure it against interference;
(h) require any person who is at the premises —
(i) to operate or allow the investigator to operate equipment or facilities at the premises for taking extracts or making copies of documents or for other investigation purposes;
(ii) to provide anything necessary for the operation of equipment or facilities at the premises for investigation purposes;
(iii) to give the investigator any translation into the English language, code, password or other information necessary to gain access to or to interpret and understand any document or information located or obtained by the investigator in the course of exercising the investigator’s powers under this Act;
(iv) to give other assistance that the investigator reasonably requires to carry out the investigation.
(2) When an investigator exercises a power of entry pursuant to a warrant, the investigator may exercise only those powers set out in subsection (1) that the warrant specifically authorises the investigator to use.
(3) If a warrant authorises an investigator to exercise the power set out in section 89(1)(b) but limits that power to taking possession of a thing of a kind described in the warrant, the investigator may take possession of a thing of any other kind if the investigator believes, on reasonable grounds —
(a) that the thing is of a kind that could have been included in the warrant and will afford evidence of the commission of an offence under this Act; and
(b) that it is necessary to take possession of the thing in order to prevent its concealment, loss or destruction or its use in the commission of an offence under this Act.
90. Offences
(1) A person must not remove, tamper or otherwise interfere with a thing secured against interference under section 89(1)(g).
(2) A person must comply with a requirement made under section 89(1)(h).
Penalty applicable to subsections (1) and (2): a fine of $20 000.
(3) If a person is charged with an offence under subsection (2) it is a defence to prove that the accused could not, by the exercise of reasonable diligence, have complied with the requirement to which the charge relates.
91. Things in premises, investigator’s duties as to
(1) An investigator is not authorised to take anything from premises unless the investigator believes, on reasonable grounds, that the thing will afford evidence of the commission of an offence under this Act.
(2) If an investigator takes anything from premises and the occupier or a person apparently in a position of authority at the premises requests a receipt for the thing taken, the investigator is to give the person making the request a receipt in an approved form for the thing taken.
(3) If an investigator takes anything from premises and the occupier or a person apparently in a position of authority at the premises is not present, the investigator is to leave a receipt in an approved form for the thing taken, in an envelope addressed to the occupier, in a prominent position at the premises.
92. Access to, and return of, things taken from premises
(1) The CEO must ensure that a person from whom a document or other thing is taken from premises and who would otherwise be entitled to possession of it is given a copy of it, or reasonable access to it, as appropriate.
(2) If an investigator takes anything from premises the CEO must ensure that the thing is returned to the person entitled to possession of it as follows —
(a) if it was taken in connection with the prosecution or possible prosecution in relation to an alleged offence under this Act —
(i) if a person is charged with the offence and found not guilty of the offence, or the prosecution of the offence is discontinued — as soon as practicable after the relevant prosecution (including any relevant appeal) is completed or discontinued; or
(ii) if a person is charged with the offence and convicted of the offence — during the period of 3 months beginning on the day the relevant prosecution (including any relevant appeal) is completed (unless an order of forfeiture is made under section 119); or
(iii) if no prosecution is commenced — as soon as practicable after the decision to not prosecute is made;
or
(b) in any other case — within 28 days after it was taken.
(3) If a thing was taken in connection with the prosecution or possible prosecution in relation to more than one alleged offence under this Act then a reference in subsection (2)(a)(i) or (ii) to the offence is taken to be a reference to the offence the prosecution of which is completed (including any relevant appeal) or discontinued last.
[Section 92 amended: No. 21 of 2018 s. 16.]
93. Use of force by police officers
(1) A police officer may use reasonable force —
(a) to enter premises under this Part; or
(b) to exercise powers under section 89(1)(a) or (b).
(2) However, if the use of reasonable force is likely to cause damage to property, a police officer is not entitled to use force unless the CEO has, in the particular case, given the police officer prior authorisation in writing to do so.
Division 4 — Compliance surveys and controlled purchase operations
94. Terms used
In this Division —
compliance survey means a survey the intended purpose of which is to gather data as to the likelihood of a young person offence being committed if the opportunity to commit the offence is given;
controlled purchase officer means a person acting as a controlled purchase officer under this Division;
controlled purchase operation means an operation the intended purpose of which is to provide a person suspected of having committed a young person offence on one or more occasions with an opportunity to commit or to attempt to commit a young person offence;
young person offence means an offence under section 6, 7, 8(1) or 9.
95. Controlled purchase officers, authorisation of etc.
(1) The CEO may, in writing, authorise a suitable person, including a person who has not reached 18 years of age, to act as a controlled purchase officer and may in writing revoke that authority.
(2) A controlled purchase officer who has not reached 18 years of age must deliver to the person directing the compliance survey or controlled purchase operation any tobacco product or smoking implement obtained by the officer as a result of the survey or operation.
(3) The identity or purpose of a controlled purchase officer may, for the time being, be concealed or misrepresented for the purpose of a compliance survey or controlled purchase operation.
96. Compliance surveys and controlled purchase operations
(1) A controlled purchase officer may take any action that is specified in the authorisation given by the CEO for the purpose of a compliance survey or controlled purchase operation.
(2) If a controlled purchase officer takes any action that is specified in the authorisation given by the CEO for the purpose of a compliance survey or controlled purchase operation the controlled purchase officer, the CEO and any person directing the survey or operation do not commit an offence and are not liable as a party to an offence committed by another person.
(3) If a controlled purchase officer takes any action that is specified in the authorisation given by the CEO for the purpose of a controlled purchase operation the controlled purchase officer’s evidence in any proceedings against another person in connection with which the controlled purchase officer took the action is not the evidence of an accomplice.
97. Reports about compliance surveys etc., CEO’s duties as to
The CEO is required, whenever requested by the Minister to do so, to give the Minister a report in writing containing such particulars of compliance surveys and controlled purchase operation as the Minister requires.
Part 7 — Enforcement
Division 1 — Young persons with tobacco products or smoking implements
98. Terms used
In this Division —
parent, in relation to a young person, means a person who at law has responsibility for —
(a) the long‑term care, welfare and development of the young person; or
(b) the day to day care, welfare and development of the young person;
young person means a person who an investigator suspects on reasonable grounds has not reached 18 years of age.
99. Seizing tobacco products etc. from young persons
(1) An investigator may seize any tobacco product or smoking implement from a young person.
(2) A police officer may seize any tobacco product or smoking implement from a young person and use reasonable force to do so.
(3) The power under subsection (1) or (2) to seize a tobacco product or smoking implement is not to be exercised in respect of a person unless —
(a) the person has been requested to produce a document mentioned in section 15(1) showing that the person has reached 18 years of age; and
(b) the document was not produced at the time of the request.
(4) A tobacco product or smoking implement that is seized under subsection (1) or (2) —
(a) is to be returned to the person from whom it was seized if, within 7 days of the seizure, the person produces to the investigator a document mentioned in section 15(1) showing that the person had reached 18 years of age at the time of the seizure; or
(b) if not returned under paragraph (a), is to be destroyed in an approved manner.
100. Young person found smoking etc. to give information
(1) If an investigator finds a young person smoking or in possession of a tobacco product or smoking implement the investigator may do any of the following —
(a) require the young person to give his or her name and address;
(b) require the young person to give the name and address of a parent of the young person;
(c) require the young person to give information relating to the identity of any person who supplied the tobacco product or smoking implement to the young person.
(2) A person who has reached 14 years of age —
(a) must comply with a requirement made under subsection (1)(a), (b) or (c); and
(b) must not provide false or misleading information in response to a requirement.
Penalty: a fine of $100.
101. If young person found smoking etc., parent may be informed and approved guide provided
If an investigator finds a young person smoking or in possession of a tobacco product or smoking implement, or obtaining or attempting to obtain any tobacco product or smoking implement, the investigator may —
(a) notify a parent of the young person of the finding;
(b) provide the young person or a parent of the young person with an approved guide.
102. Powers in s. 84 unavailable for this Division
An investigator is not to exercise the powers mentioned in section 84 for the purposes of performing a function under this Division.
Division 2 — Offences
103. False or misleading information given to CEO etc.
(1) A person must not provide information under this Act to the CEO, an investigator or a police officer, knowing it to be false or misleading in a material particular.
(2) A person must not, in relation to an application for the issue, renewal or amendment of a licence, give information orally or in writing knowing it to be false or misleading in a material particular.
Penalty: a fine of $20 000.
104. False information about tobacco products etc.
A tobacco company or the holder of a licence must not provide to any person information that the tobacco company or licence holder knows to be incorrect about —
(a) the health effects of a tobacco product or tobacco products generally; or
(b) the legislation or enactment of any jurisdiction relating to tobacco control.
Penalty:
(a) for an individual, a fine of $50 000;
(b) for a body corporate, a fine of $250 000.
105. Licence holders not to possess certain tobacco products
The holder of a licence must not, without reasonable excuse, be in possession or control of any tobacco products that the licence holder knows or ought reasonably to know —
(a) are prohibited goods as defined in the Customs Act 1901 of the Commonwealth; or
(b) are excisable goods as defined in the Excise Act 1901 of the Commonwealth upon which excise duty has not been paid.
106. Products resembling tobacco products etc. not to be sold
A person must not sell any food, toy or other product that is not a tobacco product but is —
(a) designed to resemble a tobacco product or a package; or
(b) in packaging that is designed to resemble a tobacco product or a package.
107A. No smoking on beaches “between the flags”
A person must not smoke in an area that is between flags or other markers placed on a beach for the purpose of indicating a patrolled swimming area.
[Section 107A inserted: No. 22 of 2009 s. 9.]
107B. No smoking in outdoor eating areas
(1) A person must not smoke in an outdoor eating area unless the place in which the person is smoking is a smoking zone.
Penalty: a fine of $2 000.
(2) If a person commits an offence under subsection (1) the occupier of the outdoor eating area commits an offence.
Penalty: a fine of $2 000.
(3) If a person is charged with an offence under subsection (2) it is a defence to prove that —
(a) neither the accused nor any employee or agent of the accused was aware, or could reasonably be expected to have been aware, that the offence was occurring; or
(b) as soon as the accused or an employee or agent of the accused became aware that the offence was occurring, the accused or an employee or agent of the accused —
(i) informed the person concerned that the person was committing an offence; and
(ii) requested the person to stop smoking in the outdoor eating area and to extinguish, and properly dispose of, the tobacco product; and
(iii) if the person failed to comply with a request under subparagraph (ii), requested the person to leave the outdoor eating area until the person finished smoking the tobacco product.
(4) A responsible person in relation to licensed premises may allocate as a smoking zone for the premises one or more places in one or more outdoor eating areas to which a restaurant licence does not apply, but the total area of all the smoking zones for the premises must not exceed 50% of the total area of all the outdoor eating areas to which a restaurant licence does not apply.
(5) For the purposes of The Criminal Code section 338A(d) and any other written law, a person is lawfully entitled to abstain from working in a smoking zone when the smoking zone is open to, or being used by, the public or a section of the public.
[Section 107B inserted: No. 22 of 2009 s. 9.]
107C. No smoking near playground equipment
A person must not smoke within 10 m of children’s playground equipment that —
(a) is in a public place or a part of a public place; and
(b) is not in an enclosed public place.
[Section 107C inserted: No. 22 of 2009 s. 9.]
107D. No smoking in or on vehicles if under 17 year old present
child —
(a) means any boy or girl who has not reached 17 years of age; and
(b) in the absence of positive evidence as to age, means any boy or girl who apparently has not reached 17 years of age;
road means any highway, road or street open to, or used by, the public and includes every carriageway, footway, reservation, median strip and traffic island on it and any parking area in a public place;
vehicle means any thing used or capable of being used to transport people or goods on roads.
(2) A person must not smoke in or on a vehicle if —
(a) the vehicle is on a road; and
(b) any other person in or on the vehicle is a child.
[Section 107D inserted: No. 22 of 2009 s. 9.]
107E. Local government legislative power not affected
Nothing in section 107A, 107B or 107C is intended to limit the power conferred on a local government by the Local Government Act 1995 or any other Act to make local laws about matters mentioned in those sections.
[Section 107E inserted: No. 22 of 2009 s. 9.]
107F. Protection of employees refusing to work in smoking zone
employee and employer have the respective meanings given in the Industrial Relations Act 1979 section 7(1).
(2) An employer must not —
(a) dismiss an employee; or
(b) alter an employee’s position to the employee’s disadvantage; or
(c) refuse to promote or transfer an employee; or
(d) otherwise injure an employee in relation to the employee’s employment; or
(e) threaten to do any of those things,
for the reason, or for reasons that include the reason, that the employee does not consent to working in a smoking zone when the smoking zone is open to, or being used by, the public or a section of the public (the consent).
(3) In proceedings for a contravention of subsection (2), if it is proved that an employer took any course of action mentioned in that subsection against or in relation to an employee after the employee refused to give the consent, it is for the employer to prove that the course of action was taken for some reason other than because the employee refused to give the consent.
(4) Subsection (2) is a civil penalty provision for the purposes of the Industrial Relations Act 1979 section 83E.
(5) The Industrial Relations Act 1979 section 97YG applies as if the reference in that section to a contravention of section 97YF of that Act includes a reference to a contravention of the Tobacco Products Control Act 2006 section 107F(2).
[Section 107F inserted: No. 22 of 2009 s. 9.]
107. Obstruction of CEO etc.
(1) A person must not, when the CEO, an investigator or police officer is performing a function under this Act, hinder or obstruct the CEO, investigator or police officer.
Penalty: a fine of $20 000.
(2) If under this section a person is charged with an offence in relation to an investigator it is a defence to prove —
(a) that the investigator did not show the investigator’s identity card to the person or did not otherwise identify himself or herself to the person as an investigator; and
(b) that the person did not otherwise know that the investigator was an investigator.
108. Corporations or employers, conduct on behalf of
director of a body corporate, includes a constituent member of a body corporate incorporated for a public purpose by a written law or a law of the Commonwealth, another State or a Territory;
engaging in conduct includes failing or refusing to engage in conduct;
state of mind of a person includes —
(a) the knowledge, intention, opinion, belief or purpose of the person; and
(b) the person’s reasons for the intention, opinion, belief or purpose.
(2) This section applies to and in relation to proceedings for an offence under this Act.
(3) If it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show —
(a) that the conduct was engaged in by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority; and
(b) that the director, employee or agent had the relevant state of mind.
(4) Conduct engaged in on behalf of a body corporate by a director, employee or agent of the body corporate within the scope of his or her actual or apparent authority is taken to have been engaged in also by the body corporate, unless the body corporate establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.
(5) If it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show —
(a) that the conduct was engaged in by an employee or agent of the person within the scope of his or her actual or apparent authority; and
(b) that the employee or agent had the relevant state of mind.
(6) Conduct engaged in on behalf of an employer other than a body corporate by an employee or agent of the employer within the scope of his or her actual or apparent authority is taken to have been engaged in also by the employer unless the employer establishes that the employer took reasonable precautions and exercised due diligence to avoid the conduct.
109. Liability of officers for offence by body corporate
(1) The Criminal Code section 39 (which provides for the criminal liability of officers of a body corporate) applies to an offence under a provision of this Act listed in Table A.
Table A
s. 16(1)
s. 17
s. 18
s. 19
s. 20(1)
s. 21
s. 21A
s. 21B
s. 22(1)
s. 24(1) and (2)
s. 25(1), (2), (3) and (4)
s. 26(2) and (3)
s. 27(1) and (2)
s. 28(3)
s. 29
s. 30(1)
s. 34
s. 50(5)
s. 51
s. 57(1), (3) and (5)
s. 58(1) and (2)
s. 103(1) and (2)
s. 106
s. 107F(2)
(2) The Criminal Code section 41 (which provides for the criminal liability of officers of a body corporate) applies to an offence under a provision of this Act listed in Table B.
Table B
s. 31(1), (2), (3) and (4)
s. 33(1)
s. 35(2) and (3)
s. 104
s. 105
[Section 109 inserted: No. 9 of 2023 s. 148.]
110. Liability of employers
(1) If a person is charged with an offence under this Act, the person’s employer at the time the offence is alleged to have been committed may also be charged with the offence.
(2) If a person and the person’s employer are charged as permitted by subsection (1) and the employee is convicted of the offence, the employer is to be taken to have also committed the offence, subject to subsection (5).
(3) If a person commits an offence under this Act then, although the person is not charged with the offence, the person’s employer at the time the offence is alleged to have been committed may be charged with the offence.
(4) If an employer is charged as permitted by subsection (3) and it is proved that the person’s employee committed the offence, the employer is to be taken to have also committed the offence, subject to subsection (5).
(5) If under this section an employer is charged with an offence it is a defence to prove —
(a) that the offence was committed without the employer’s consent or connivance; and
(b) that the employer took all the measures to prevent the commission of the offence that the employer could reasonably be expected to have taken having regard to all the circumstances.
Division 3 — Prosecutions
111. When a prosecution can be commenced
A prosecution of a person for an offence under this Act must be commenced within 2 years after the date on which the offence was allegedly committed.
112. Consent required for certain prosecutions
(1) A person who is not a police officer cannot commence a prosecution for an offence under this Act without the written consent of the CEO or a person authorised by the CEO for the purposes of this section.
(2) A police officer who commences a prosecution for an offence under this Act is to inform the CEO in writing of that fact and of the outcome of the prosecution.
113. Evidentiary provisions
(1) In proceedings for an offence under this Act, an allegation in the prosecution notice of any of the following matters is, in the absence of evidence to the contrary, to be taken to be proved —
(a) that at a specified time a person held a specified office;
(b) that the prosecutor is authorised, and has the CEO’s consent, to commence the prosecution;
(c) that a specified substance is tobacco;
(d) that at a specified time a specified substance or article was a tobacco product;
(e) that at a specified time a person had not reached 18 years of age;
(f) that at a specified time a person had reached 14 years of age;
(g) that at a specified time premises were licensed premises as defined in the Liquor Control Act 1988 section 3(1);
(h) that at a specified time a person was a licensee as defined in the Liquor Control Act 1988 section 3(1);
(i) that at a specified time a person had the management or control, or was otherwise in charge, of a mines amenity;
(j) that at a specified time a person was or was not the holder of a licence of a specified type;
(k) that at a specified time a licence was subject to specified conditions and restrictions;
(l) that at a specified time a licence applied in relation to specified premises;
(m) that at a specified time, a licence was suspended or revoked or a person was disqualified from holding a licence.
(2) A certificate purporting to be signed by the CEO or the CEO’s delegate and stating that the person named in the certificate was, at the time or during the period specified in the certificate —
(a) an investigator, restricted investigator or authorised officer; or
(b) a person authorised under section 95 to act as a controlled purchase officer,
and authorised to do anything stated in the certificate is, without proof of any appointment, delegation, or signature, evidence of the facts stated in the certificate.
(3) In proceedings for an offence under this Act a licence, including the conditions and restrictions applying to the licence, may be proved by tendering a copy of the licence certified by the CEO to be a true copy of the original licence.
(4) In proceedings for an offence under this Act it is to be presumed, unless the contrary is proved, that a document purporting to have been signed or certified by the CEO, an investigator or a police officer was signed or certified by a person who at the time was the CEO, an investigator or a police officer, as the case may be.
(5) In proceedings for an offence under this Act it is to be presumed, unless the contrary is proved, that a document purporting to have been signed by a delegate of the CEO or the Foundation was signed by a person who at the time was such a delegate and was authorised to sign it.
(6) This section is in addition to and does not affect the operation of the Evidence Act 1906.
[Section 113 amended: No. 73 of 2006 s. 114; No. 19 of 2016 s. 194.]
114. Copies etc. of documents, evidentiary status of
(1) In proceedings under this Act, a copy of a notice or other document issued by the CEO —
(a) is, if produced by or on behalf of the CEO, admissible in the same way as the original; and
(b) has the same evidentiary value as the original.
(2) For the purposes of the law of evidence, if 2 or more documents are produced from the same computer data (or from computer data recording the same information), they are both or all to be regarded as originals.
(3) A copy of a document, possession of which is taken by an investigator under section 89(1)(b) or a warrant issued under section 87, is admissible in evidence if it is certified by the investigator as having been obtained under the relevant provision.
Division 4 — Penalties
115. General penalties
(1) For an offence under a provision of this Act specified in the Table to this subsection the penalty is —
(a) for an individual —
(i) for a first offence, a fine of $10 000;
(ii) for a second or subsequent offence, a fine of $20 000;
(b) for a body corporate —
(i) for a first offence, a fine of $40 000;
(ii) for a second or subsequent offence, a fine of $80 000.
Table
s. 6
s. 28(2), (3)
s. 7
s. 29
s. 8(1), (2)
s. 30(1)
s. 9
s. 31(1), (2), (3), (4)
s. 10
s. 33(1)
s. 11
s. 33A(1)
s. 15(2)
s. 34
s. 17
s. 35(2), (3)
s. 18
s. 50(5)
s. 18A
s. 51
s. 19
s. 52(1)
s. 20
s. 53
s. 21
s. 54(1)
s. 21A
s. 55(1), (2), (3)
s. 21B
s. 56(1), (2)
s. 22(1)
s. 58(1), (2)
s. 24(1), (2)
s. 105
s. 26(2), (3)
s. 106
s. 27(1), (2)
s. 107F(2)
(2) The provision in subsection (1) of a penalty for a body corporate does not affect the operation of the Sentencing Act 1995 section 40(5) in relation to an offence under a provision of this Act that is not specified in the Table to that subsection.
[Section 115 amended: No. 22 of 2009 s. 10; No. 21 of 2018 s. 17.]
116. Continuing offences, penalties for
For each separate and further offence committed by a person under the Interpretation Act 1984 section 71 the penalty is —
(a) for an individual, a fine of $10 000;
(b) for a body corporate, a fine of $40 000.
Division 5 — Seized things and forfeiture
117. Storage of seized things
(1) The CEO may arrange the location of, and manner in which, seized things are to be stored before they are returned under section 92(2) or forfeited to the Crown under section 119.
(2) The CEO may, on behalf of the State, enter into a written contract under which the contractor provides services in respect of the storage of seized things.
118. Storage expenses payable by convicted person
(1) A person who is convicted of an offence under this Act is liable to pay to the CEO all expenses reasonably incurred by the CEO in relation to the storage of a seized thing that was used in, the subject of, or otherwise involved in, the commission of the offence.
(2) The CEO may recover expenses for which a person is liable under subsection (1) from that person in a court of competent jurisdiction as a debt due to the CEO.
(3) This section applies whether or not a seized thing is forfeited to the Crown under section 119 but a person is not liable to pay storage expenses incurred on and from the day on which the thing is forfeited.
119. Forfeiture on conviction
(1) If a person is convicted of an offence under this Act, the court may, at any time during the period of 3 months beginning on the day on which the person was convicted of the offence, order the forfeiture to the Crown of anything that was used in, the subject of, or otherwise involved in, the commission of the offence.
(2) The court may make the order —
(a) whether or not the thing is a seized thing; and
(b) in the case of a seized thing, whether or not the thing has been returned to its owner.
(3) The court may make any order it considers appropriate to enforce the forfeiture.
[Section 119 amended: No. 21 of 2018 s. 18.]
120. Unclaimed seized things, CEO’s powers to deal with
(1) A seized thing is unclaimed if —
(a) the thing is not forfeited to the Crown under section 119; and
(b) the CEO cannot return the thing in accordance with section 92(2) despite making reasonable efforts to do so.
(2) After the expiry of the time for any relevant appeal an unclaimed seized thing —
(a) that is a tobacco product or smoking implement is to be destroyed in such manner as the CEO directs; or
(b) that is not a tobacco product or smoking implement may be destroyed, sold or otherwise disposed of in such manner as the court directs, or in the absence of a court direction, as the CEO directs.
Part 8 — Miscellaneous
121. Protection from liability for wrongdoing
(1) An action in tort does not lie against a person for anything that the person has done, in good faith, in the performance or purported performance of a function under this Act.
(2) The CEO, the Foundation and the Crown are also relieved of any liability that either of them might otherwise have had for another person having done anything as described in subsection (1).
(3) Subsection (1) does not relieve a contractor of any liability that the contractor might have for anything done, as described in that subsection, by the contractor or any other person.
(4) The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted.
(5) In this section, a reference to the doing of anything includes a reference to an omission to do anything.
(6) In subsection (3) —
contractor means a person who has entered into a contract with the CEO under section 117(2).
[122. Deleted: No. 3 of 2016 s. 59.]
123. Certain information not to be disclosed etc.
(1) A person must not record, disclose or make use of any information obtained by reason of a function that the person has, or at any time had, in the administration of this Act except —
(a) for the purpose of performing a function under this Act; or
(b) as required or allowed by this Act or under another written law; or
(c) for the purposes of any legal proceedings arising out of the administration of this Act; or
(d) for the purpose of assisting a person who is performing a function under a corresponding law; or
(e) with the written consent of the person to whom the information relates; or
(f) in prescribed circumstances.
Penalty: a fine of $10 000 and imprisonment for 12 months.
(2) Subsection (1) does not apply to the recording, disclosure or use of statistical or other information that could not reasonably be expected to lead to the identification of any person to whom it relates.
124A. Alleged offences of smoking near children, police to give CEO information about
(1) If a police officer suspects on reasonable grounds that a person has committed an offence under section 107C or 107D, the Commissioner of Police is to supply the CEO with the alleged offender’s name, address and date of birth and the date and details of the alleged offence, to the extent that the Commissioner has that information.
(2) Information supplied under subsection (1) may be used in the performance of any function that the CEO has under this Act or the Foundation has under the Western Australian Health Promotion Foundation Act 2016.
(3) Subsection (1) applies whether or not the person is charged with having committed the alleged offence, or otherwise dealt with for the alleged offence without being prosecuted.
[Section 124A inserted: No. 22 of 2009 s. 11; amended: No. 3 of 2016 s. 60.]
124. Regulations, general powers to make
(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed for giving effect to the purposes of this Act.
(2) Without limiting subsection (1) or the Interpretation Act 1984 Part VI, regulations may be made for all or any of the following purposes —
(a) prescribing matters in relation to the labelling of packages, including —
(i) the position of labels on packages;
(ii) the dimensions and colour of, and material constituting, labels or labelling on packages;
(iii) the statements or warnings that are to be the subject of labels on packages;
(iv) statements or other content that cannot be the subject of labels on packages;
(b) prescribing matters in relation to the display of tobacco products at places where tobacco products are sold by way of retail sale including —
(i) the number of packages of a particular product line that can be displayed at one time;
(ii) the dimensions, location and positioning of packages, and the display of warnings that are the subject of labels on packages;
(ca) prescribing matters in relation to the storage of tobacco products, packages and smoking implements at places where those items are sold by way of retail sale including the means to avoid or minimise attention being given to those items;
(c) prescribing matters relating to the number, location, content, dimensions, colour and positioning of, and materials constituting, signs, labels and tickets that give information about the availability or prices of tobacco products or smoking implements and the manner in which that information or content is set out or displayed;
(d) prescribing matters relating to the location, content, dimensions, colour and positioning of, and materials constituting, signs required under section 23 or 25 and the manner in which the content of the sign is set out or displayed;
(e) prescribing matters relating to the means by which approved guides are to be provided, or made available, for the purposes of section 26(2) or (3);
(f) prescribing the number of vending machines that may be permitted on premises and where vending machines may or cannot be placed;
(g) prescribing the labelling of vending machines;
(h) prescribing alternative means of effecting the service of documents (other than infringement notices) in addition to the means set out in the Interpretation Act 1984 section 76;
(i) creating offences and providing in respect of any such offence a penalty not exceeding a fine of $2 000.
(3) Regulations under this section may adopt or apply, with or without modification, any regulation made under the Trade Practices Act 1974 3 of the Commonwealth in relation to consumer product information standards for tobacco products that is in force or existing at the time when the regulations under this section take effect or as in force or existing from time to time.
[Section 124 amended: No. 22 of 2009 s. 12; No. 21 of 2018 s. 19.]
125. Regulations about smoking in public places
(1) The Governor may make regulations for the regulation or prohibition of smoking in public places.
(2) Without limiting subsection (1), the regulations may —
(a) require occupiers of public places to display signs about smoking, and may prescribe the location, content, dimensions, colour and positioning of, and materials constituting, those signs; and
(b) confer powers on police officers, investigators and authorised officers in relation to persons who are smoking in public places where smoking is prohibited.
(3) Nothing in the regulations is to be construed as creating or preserving a right of a person to smoke in a public place.
[Section 125 amended: No. 19 of 2016 s. 195.]
[126. Deleted: No. 3 of 2016 s. 61.]
127. Review of Act
(1) The Minister is to carry out a review of the operation and effectiveness of this Act as soon as is practicable after —
(a) 4 years have elapsed since Part 5 comes into operation; and
(b) every fourth anniversary of that date.
(2) Nothing in subsection (1) prevents the Minister from carrying out, at any time, a review of the operation and effectiveness of regulations made under section 125.
(3) The Minister is to prepare a report based on each review carried out under subsection (1) or (2) and is to cause the report to be laid before each House of Parliament as soon as is practicable after the report is prepared, and in any event in relation to a review under subsection (1), not later than 12 months after the requirement for the review arose.
Part 9 — Transitional provisions for Tobacco Products Control Amendment Act 2018
[Heading inserted: No. 21 of 2018 s. 20.]
128. Restricted investigators
(1) Subsection (2) applies to a person who, immediately before the day on which the Tobacco Products Control Amendment Act 2018 section 12 comes into operation, is a restricted investigator for the purposes of this Act.
(2) The person’s appointment as a restricted investigator continues, subject to section 77(5), for the remainder of the period of the appointment.
[Section 128 inserted: No. 21 of 2018 s. 20.]
129. Application of s. 119(1) to certain convictions
Section 119(1), as in effect on and after the day on which the Tobacco Products Control Amendment Act 2018 section 18 comes into operation, does not apply in relation to the conviction of a person before that day.
[Section 129 inserted: No. 21 of 2018 s. 20.]
[Schedule 1 deleted: No. 3 of 2016 s. 62.]
[Schedule 2 deleted: No. 3 of 2016 s. 63.]
Glossary
[s. 4]
Terms used
In this Act —
approved means approved by the CEO;
approved guide means a publication under section 26(1);
authorised officer means a person designated as an authorised officer under the Public Health Act 2016 section 24(1) whose designation has effect for the purposes of this Act;
carton means a package containing, or 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 cigars;
CEO means the chief executive officer of the Department as defined in the Health Legislation Administration Act 1984 section 3;
cigar means a roll of cut tobacco for smoking, enclosed in tobacco leaf or the leaf of another plant;
cigarette means a roll of cut tobacco for smoking, enclosed in paper;
corresponding law means a law of another State or of a Territory or of the Commonwealth that corresponds, or has similar purposes, to this Act;
customer includes a prospective customer;
due day, in relation to a licence, means the day on which the licence is due to expire, before the application of section 39(7) or 40(2A);
enclosed public place has the meaning given to that term in regulations mentioned under section 125 about smoking in public places as it may be amended from time to time;
Foundation means the Western Australian Health Promotion Foundation mentioned in the Western Australian Health Promotion Foundation Act 2016 section 5;
identity card means an identity card issued to an investigator or restricted investigator under section 81;
indirect sale means a sale by retail where the seller (or the seller’s employee or agent) and the purchaser are not in the same place at the time of the sale and includes a sale made by way of internet, electronic mail, telephone, facsimile or mail order but does not include a sale made by way of a vending machine;
indirect seller’s licence means a licence issued under section 36(1)(c);
investigation purposes means any or all of the purposes for which an investigation may be carried out under section 83;
investigator means a person appointed under section 76;
licence means a licence issued under this Act;
licensed premises has the meaning given to that term in the Liquor Control Act 1988 section 3(1);
mines amenity means premises that are set aside as a staff amenity area at a mine as defined in the Mines Safety and Inspection Act 1994 section 4(1);
occupier, in relation to a public place, means a person having the management or control, or otherwise being in charge, of that place;
officer, in relation to a body corporate, has the same meaning as in the Corporations Act 2001 of the Commonwealth but does not include an employee of the body unless the employee is concerned in the management of the body;
outdoor eating area means a public place or part of a public place —
(a) that is provided, on a commercial basis, as an area where food or drink may be consumed by people sitting at tables; and
(b) that is not an enclosed public place;
package means a package containing, or designed to contain, a tobacco product and includes a box, packet, pouch, tin, carton, and a wrapping other than a transparent outer wrapping;
premises means —
(a) land (whether built on or not); or
(b) a building or structure on land; or
(c) a vehicle,
and includes a part of premises;
product line means a kind of tobacco product distinguishable from other kinds by one or more of the following characteristics —
(a) brand name;
(b) nicotine or tar content;
(c) flavour;
(d) the number of items in the package containing the tobacco product,
but not by the dimensions of the package containing the tobacco product;
promote in relation to a tobacco product or smoking implement, includes to promote —
(a) the purchase or use of a tobacco product or smoking implement;
(b) a trade mark in respect of, or a registered design or brand name of, a tobacco product or smoking implement, or part of such a trade mark, registered design or brand name;
(c) a name of a tobacco company or licence holder that appears on a tobacco product, a package, a smoking implement or the packaging of a smoking implement, or part of such a name;
public place means a place or vehicle that—
(a) the public, or a section of the public, is entitled to use; or
(b) is open to, or is being used by, the public, or a section of the public,
whether on payment of money, by virtue of membership of a club or other body, by invitation, or otherwise;
record means any thing or process —
(a) upon or by which information is recorded or stored; or
(b) by means of which a meaning can be conveyed in a visible or recoverable form,
whether or not the use or assistance of some electronic, electrical, mechanical, chemical or other device or process is required to recover or convey the information or meaning;
registered design in relation to a tobacco product or smoking implement means a design that is registered under the Designs Act 2003 of the Commonwealth in relation to the tobacco product or smoking implement;
responsible person—
(a) in relation to licensed premises, means a licensee, as defined in the Liquor Control Act 1988 section 3(1), in relation to those premises;
(b) in relation to premises that are a mines amenity, means a person having the management or control, or otherwise being in charge, of the mines amenity;
restaurant licence, in relation to a place, means —
(a) a restaurant licence granted under the Liquor Control Act 1988 in relation to that place; or
(b) a condition of any other kind of licence, order or permit under the Liquor Control Act 1988 —
(i) to the effect that a provision of that Act relating to restaurant licences applies to that place; or
(ii) that otherwise has an effect in relation to that place that is similar to a provision of that Act relating to restaurant licences;
restricted investigator means a person appointed under section 77(2);
retailer’s licence means a licence issued under section 36(1)(a);
seized thing means a thing possession of which is taken under section 89(1)(b) or a warrant issued under section 87;
sell includes any of the following—
(a) barter or exchange;
(b) offer or expose for sale, barter or exchange;
(c) supply, or offer to supply, in circumstances in which the supplier derives, or would derive, a direct or indirect pecuniary benefit;
(d) supply, or offer to supply, gratuitously but with a view to gaining or maintaining custom or otherwise with a view to commercial gain;
(e) keep or have in possession for sale;
(f) agree to sell;
(g) send or deliver for sale;
smoke (when used as a verb) means smoke, hold, or otherwise have control over, an ignited tobacco product;
smoking implement means cigarette papers, a cigarette rolling machine, pipe, or other thing designed to be used in the process of smoking a tobacco product or preparing a tobacco product for smoking, but does not include matches or a cigarette lighter;
smoking zone means a place allocated under section 107B(4);
supply includes to provide, or offer to provide, whether or not gratuitously or with a view to commercial gain or maintaining custom;
tobacco advertisement means —
(a) any of the following that gives favourable publicity to, or otherwise promotes or is intended to promote, a tobacco product, a smoking implement or smoking generally —
(i) a word or set of words, still or moving picture, sign, symbol or other visual image (including a colour or scheme of colours) or other visual message; or
(ii) an audible message; or
(iii) any combination of those things;
or
(b) any of the following that is closely associated with a tobacco product or a smoking implement (whether or not also closely associated with another kind of product) —
(i) a word or set of words (for example a trade mark or brand name or part thereof); or
(ii) a design (including a colour or scheme of colours); or
(iii) any combination of those things;
tobacco company means —
(a) a public company, as defined in the Corporations Act 2001 of the Commonwealth, that is engaged in one or both of the following activities —
(i) tobacco growing;
(ii) manufacturing tobacco products;
(b) a proprietary company, as defined in the Corporations Act 2001 of the Commonwealth, that is a subsidiary or related body corporate (within the meaning of that Act) of a company referred to in paragraph (a);
tobacco product means any of the following—
(a) tobacco in a form prepared for human consumption or use; or
(b) a cigarette or cigar or any other product the main, or a substantial, ingredient of which is tobacco and which is designed for human consumption or use; or
(c) a product prepared for smoking that contains a herb or other plant matter, whether or not the product also contains tobacco,
but does not include —
(d) nicotine, or a product that contains nicotine, in a form that is a poison within the meaning of the Medicines and Poisons Act 2014 section 3; or
(e) a prohibited plant or a prohibited drug as those terms are defined in the Misuse of Drugs Act 1981 section 3(1) or a product containing a prohibited plant or a prohibited drug;
trade mark has the meaning given to that term in the Trade Marks Act 1995 of the Commonwealth;
vehicle means any thing used or capable of being used to transport people or goods by air or water or on rails or roads;
vending machine means a device from which a tobacco product can be obtained by the inserting of money, a card or a token or similar object;
wholesale means a sale, other than by way of retail, in any quantity;
wholesaler’s licence means a licence issued under section 36(1)(b).
[Glossary amended: No. 73 of 2006 s. 114; No. 77 of 2006 Sch. 1 cl. 168(5); No. 8 of 2008 s. 21 and 23(8); No. 22 of 2009 s. 13; No. 19 of 2010 s. 51; No. 13 of 2014 s. 189; No. 3 of 2016 s. 64; No. 19 of 2016 s. 196; No. 21 of 2018 s. 21.]
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Notes
This is a compilation of the Tobacco Products Control Act 2006 and includes amendments made by other written laws. For provisions that have come into operation, and for information about any reprints, see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.
Compilation table
Short title
Number and year
Assent
Commencement
Tobacco Products Control Act 2006
5 of 2006
12 Apr 2006
s. 1 and 2: 12 Apr 2006; Act other than s. 1-2, 16‑25, 26(2), (3) and (4), Pt. 4 and s. 103(2), 105 and 113(3): 31 Jul 2006 (see s. 2 and Gazette 25 Jul 2006 p. 2701); s. 19-25, 26(2), (3) and (4), Pt. 4, s. 103(2), 105 and 113(3): 28 Feb 2007 (see s. 2 and Gazette 28 Feb 2007 p. 677); s. 16‑18: 31 May 2007 (see s. 2 and Gazette 28 Feb 2007 p. 677)
Liquor and Gaming Legislation Amendment Act 2006 s. 114
73 of 2006
13 Dec 2006
7 May 2007 (see s. 2(2) and Gazette 1 May 2007 p. 1893)
Financial Legislation Amendment and Repeal Act 2006 s. 4 and Sch. 1 cl. 168
77 of 2006
21 Dec 2006
1 Feb 2007 (see s. 2(1) and Gazette 19 Jan 2007 p. 137)
Police Amendment Act 2008 s. 21 and 23(8)
8 of 2008
31 Mar 2008
s. 21: 1 Apr 2008 (see s. 2(1)); s. 23(8): 21 Jun 2008 (see s. 2(2) and Gazette 20 Jun 2008 p. 2706)
Reprint 1: The Tobacco Products Control Act 2006 as at 5 Dec 2008 (includes amendments listed above)
Tobacco Products Control Amendment Act 2009
22 of 2009
22 Sep 2009
s. 1 and 2: 22 Sep 2009 (see s. 2(a)); Act other than s. 1 and 2: 23 Sep 2010 (see s. 2(b))
Statutes (Repeals and Minor Amendments) Act 2009 s. 17
46 of 2009
3 Dec 2009
4 Dec 2009 (see s. 2(b))
Standardisation of Formatting Act 2010 s. 51
19 of 2010
28 Jun 2010
11 Sep 2010 (see s. 2(b) and Gazette 10 Sep 2010 p. 4341)
Public Sector Reform Act 2010 s. 89
39 of 2010
1 Oct 2010
1 Dec 2010 (see s. 2(b) and Gazette 5 Nov 2010 p. 5563)
Reprint 2: The Tobacco Products Control Act 2006 as at 8 Jul 2011 (includes amendments listed above)
Medicines and Poisons Act 2014 s. 189
13 of 2014
2 Jul 2014
30 Jan 2017 (see s. 2(b) and Gazette 17 Jan 2017 p. 403)
Western Australian Health Promotion Foundation Act 2016 Pt. 8 Div. 3
3 of 2016
21 Mar 2016
1 Sep 2016 (see s. 2(b) and Gazette 26 Jul 2016 p. 3145)
Public Health (Consequential Provisions) Act 2016 Pt. 3 Div. 27
19 of 2016
25 Jul 2016
24 Jan 2017 (see s. 2(1)(c) and Gazette 10 Jan 2017 p. 165)
Tobacco Products Control Amendment Act 2018
21 of 2018
18 Sep 2018
s. 1 and 2: 18 Sep 2018 (see s. 2(a)); Act other than s. 1, 2 and 4: 18 Mar 2019 (see s. 2(c)); s. 4: 18 Sep 2020 (see s. 2(b))
Directors’ Liability Reform Act 2023 Pt. 3 Div. 59
9 of 2023
4 Apr 2023
5 Apr 2023 (see s. 2(j))
Uncommenced provisions table
To view the text of the uncommenced provisions see Acts as passed on the WA legislation website.
Short title
Number and year
Assent
Commencement
Evidence Act 2025 s. 492(1)
15 of 2025
25 Sep 2025
To be proclaimed (see s. 2(e))
Tobacco Products Control Amendment Act 2026 Pt. 2
1 of 2026
17 Mar 2026
To be proclaimed (see s. 2(b))
Other notes
1 The provision in this Act repealing the Tobacco Control Act 1990 has been omitted under the Reprints Act 1984 s. 7(4)(f).