Smoke-free Environments Amendment Act 2003

1: Title
1: This Act is the Smoke-free Environments Amendment Act 2003.
2: In this Act, the Smoke-free Environments Act 1990 the principal Act
1: Preliminary
2: Commencement
1: Sections 9 22 26(6) 29
2: Section 6
3: Sections 3(2) 5 7 8 10 12 16 17 19(l) 20 24 26(4) 26(7) 26(8) 28
4: Section 25
5: Section 23
6: The rest of this Act comes into force on the day after the date on which it receives the Royal assent.
3: Interpretation
1: Section 2 distributor employer gaming hospital package permitted smoking area prison retailer to smoke workplace additive
a: in relation to a tobacco product, means a substance forming part of the product that is not cured tobacco leaf; and includes—
i: a substance forming part of the product that has been derived or refined from tobacco leaf (whether cured or not); and
ii: any wrapping forming part of the product that is not itself cured tobacco leaf; and
b: in relation to a herbal smoking product, means a substance forming part of the product that is not dried, or dried and cured, vegetable matter; and includes—
i: a substance forming part of the product that has been derived or refined from vegetable matter; and
ii: any wrapping forming part of the product that is not itself dried, or dried and cured, vegetable matter children's product
a: means a product (such as comics, games, and toys) marketed primarily for children; and
b: includes confectionery, ice-cream, soft drinks, and other similar products class 4 gambling venue licence section 4(1) of the Gambling Act 2003 coastal cargo section 198(6) of the Maritime Transport Act 1994 dedicated smoking room distributor early childhood centre section 308(1) of the Education Act 1989 employer
a: means a person who employs one or more employees; and
b: includes a person who arranges for volunteers to undertake work enforcement officer section 14 Parts 1 and 2 Parts 1 and 2 face
a: means a more or less flat area of the surface of the carton or package that is bounded by edges of the package; and
b: in the case of a tobacco package that is a pouch pack, includes a curved area of the surface of the package that is between 2 faces foreign ship herbal smoking product
a: is or contains vegetable matter; and
b: is intended to be smoked; but
c: contains no tobacco hospital care institution section 58(4) of the Health and Disability Services (Safety) Act 2001 internal area
a: a ceiling, roof, or similar overhead surface; and
b: walls, sides, screens, or other similar surfaces; and
c: those openings managers section 7A(4) New Zealand continental waters section 222(1) of the Maritime Transport Act 1994 New Zealand ship section 2(1) of the Ship Registration Act 1992 of the same kind subsection (2) open area operating taxi
a: it is carrying a passenger; or
b: its driver is—
i: travelling to begin plying for hire; or
ii: plying for hire; or
iii: travelling to pick up a passenger; or
iv: returning from carrying a passenger (otherwise than at the end of a shift); or
v: resting, eating, or drinking before beginning or resuming plying for hire package point of sale
a: means a checkout where tobacco products may be bought; and
b: includes a till or cashbox, where tobacco products may be bought, even if it is not at or part of a checkout prescribed petroleum operations Health and Safety in Employment Act 1992 prison
a: means a penal institution within the meaning of the Penal Institutions Act 1954
b: includes a facility attached to a prison pouch pack registered school section 2(1) of the Education Act 1989 residential disability care institution section 58(4) of the Health and Disability Services (Safety) Act 2001 retailer school premises
a: a registered school; or
b: facilities, grounds, structures, or other premises, controlled and managed by the managers of a registered school, and used principally for—
i: the enjoyment, recreation, or relaxation of the young people attending the school; or
ii: cultural or sporting activities (or both) involving, or undertaken for the benefit of, the young people attending the school ship section 2(1) of the Ship Registration Act 1992 ship on demise charter to a New Zealand-based operator section 4 of the Ship Registration Act 1992 to smoke
a: means to smoke, hold, or otherwise have control over an ignited tobacco product, weed, or plant; and
b: includes to smoke, hold, or otherwise have control over an ignited product or thing whose customary use is or includes the inhalation from it of the smoke produced from its combustion or the combustion of any part of it; but
c: does not include to hold or have control over an ignited product or thing customarily used as incense taxi section 2(1) of the Transport Services Licensing Act 1989 tobacco carton tobacconist's shop
a: means a retail shop that—
i: is held out as a specialist retail seller of tobacco products (even if it is also held out as a specialist retail seller of other products such as newspapers and magazines, or it also provides services such as hairdressing, or both); and
ii: obtains from the retail sale of tobacco products at least 60% of the gross revenue it obtains from retail sales; but
b: does not include any retail shop within premises in which petroleum products are sold to motorists tobacco package
a: contains a tobacco product or products; but
b: does not contain other tobacco packages within it tobacco packages in a visible stack
a: one is in front of, but does not completely obscure, the other or others; but
b: at least 88% of the total surface area of every package behind the front package is obscured toy tobacco product
a: looks like a tobacco product or a smoker's pipe, and can be used to simulate smoking; but
b: cannot be smoked, is not confectionery, and has a primary purpose other than to help people stop smoking variant volunteer
a: performs for an employer, otherwise than for hire or reward, any work arranged by or on behalf of the employer; or
b: performs for the master of a ship, otherwise than for hire or reward, any work arranged by or on behalf of the owner or master of the ship workplace
a: means an area that is—
i: an internal area, within or on a building or structure occupied by the employer, usually frequented by employees or volunteers during the course of their employment; or
ii: an internal area, within or on a ship (being a ship to which section 10
b: includes a cafeteria, corridor, lift, lobby, stairwell, toilet, washroom, or other common internal area attached to, forming part of, or used in conjunction with a work place within the meaning of paragraph (a)
c: includes an internal area within or on a vehicle that—
i: is not an aircraft, a ship, or a train; but
ii: is provided by the employer and normally used by employees or volunteers; and
d: includes an operating taxi; but
e: does not include—
i: a motel, or a bedroom or suite in a hotel; or
ii: a cabin or suite, for the time being assigned to a passenger or passengers, on a ship; or
iii: a sleeping compartment, for the time being assigned to a passenger or passengers, on a train; or
iv: a cabin, for the time being assigned to only one employee or volunteer, or to the master or owner, on a ship; or
v: a sleeping compartment, for the time being assigned to only one employee or volunteer, on a train; or
vi: a prison cell; or
vii: a dwellinghouse occupied by the employer.
2: Section 2 licensed premises licensed premises Sale of Liquor Act 1989 .
3: Section 2 subsections (2) (3)
2: For the purposes of the definition of of the same kind subsection (1)
a: tobacco packages, tobacco cartons, or packages of a herbal smoking product differ if they bear different brand names:
b: tobacco packages, tobacco cartons, or packages of a herbal smoking product differ if they bear the same brand name, but the products they contain differ in 1 or more of the following ways:
i: containing or not containing menthol:
ii: being otherwise differently flavoured:
iii: producing different quantities of tar:
iv: allegedly differing in mildness
v: having or not having filter tips or cork tips:
vi: containing different numbers of pieces:
vii: containing pieces of different length or mass:
c: tobacco cartons differ if they are sold under the same brand name, but they contain different numbers of tobacco packages.
3: For the purposes of paragraph (e)(vii) workplace subsection (1)
2: Amendments to
Part 2
4: New
section 4 The principal Act is amended by repealing section 4
1: Smoke-free workplaces and public areas
4: Purposes of this Part
The purposes of this Part are—
a: to prevent the detrimental effect of other people's smoking on the health of people in workplaces, or in certain public enclosed areas, who do not smoke or do not wish to smoke there; and
b: to prevent young people who are being taught or cared for in registered schools or early childhood centres from being influenced by seeing other people smoke there; and
c: to prevent the detrimental effect of other people's smoking on the health of young people who are being taught or cared for in registered schools or early childhood centres.
5: New
sections 5 to 6A The principal Act is amended by repealing sections 5 to 7
5: Smoking in workplaces prohibited
1: An employer must take all reasonably practicable steps to ensure that no person smokes at any time in a workplace that is not—
a: a vehicle in which smoking is permitted under section 5A
b: a dedicated smoking room in which smoking is permitted under section 6
2: No employee or volunteer may smoke at any time in a workplace that is not a vehicle in which smoking is permitted under section 5A
5A: Employer may permit smoking in vehicle with consent of users
An employer may permit smoking in a vehicle provided by the employer and normally used by employees or volunteers if—
a: the public does not normally have access to any part of it; and
b: all the employees and volunteers who use it regularly or from time to time have jointly or individually given the employer written notice—
i: asking the employer to permit smoking in it; or
ii: stating that they do not object to other employees and volunteers smoking in it; and
c: since last giving the employer notice to that effect, none of the employees and volunteers who use it regularly or from time to time has given the employer written notice that he or she—
i: no longer wishes the employer to permit smoking in it; or
ii: now objects to other employees and volunteers smoking in it.
6: Dedicated smoking rooms in hospital care institutions, residential disability care institutions, and rest homes
1: An employer may permit smoking by patients or residents of a workplace that is, or is part of, a hospital care institution, a residential disability care institution, or a rest home if—
a: the smoking takes place only in one or more dedicated smoking rooms; and
b: each dedicated smoking room is equipped with or connected to a mechanical ventilation system to which subsection (2)
c: the employer has taken all reasonably practicable steps to minimise the escape of smoke from the dedicated smoking rooms into any part of the workplace that is not a dedicated smoking room; and
d: for each dedicated smoking room, there is available for patients or residents who wish to socialise in a smokefree atmosphere an adequate equivalent room.
2: This subsection applies to a mechanical ventilation system with which a dedicated smoking room in a workplace is equipped if, and only if,—
a: the system is so designed, installed, and operating that it takes air from the room to a place outside the workplace where any smoke the air may contain will not enter any part of the workplace, either—
i: directly; or
ii: through one or more other dedicated smoking rooms; and
b: no part of the workplace that is not a dedicated smoking room is equipped with or connected to the system.
3: Subsection (1)
a: does not authorise an employer to permit a person who is not a patient or resident of the institution or home concerned to smoke in a dedicated smoking room; and
b: does not authorise a person who is not a patient or resident of the institution or home concerned to smoke in a dedicated smoking room.
6A: Smoking in prison cells
1: The superintendent of a prison must ensure that there is a written policy on smoking in the prison's cells, prepared for the protection of the health of employees and inmates.
2: The policy—
a: must be based on the principles that—
i: as far as is reasonably practicable, an employee or inmate who does not smoke, or does not wish to smoke in the prison, must be protected from smoke arising from smoking in the prison's cells:
ii: unless it is not reasonably practicable to do other wise, an inmate who does not wish to smoke in his or her cell must not be required to share it with an inmate who does wish to smoke in it; and
b: must state the procedure for making complaints under this Part.
3: The superintendent—
a: must ensure that the policy complies with subsection (2)
b: must take all reasonably practicable steps to ensure that the policy is complied with.
6: New
section 7A
1: The principal Act is amended by inserting, before section 8
7A: Smoking prohibited at schools and early childhood centres
1: The managers of school premises or premises to which subsection (4)
a: no person smokes in any part of the premises (whether an internal area or an open area) at any time on any day; and
b: a notice stating that smoking within the premises is forbidden at all times is prominently displayed at or immediately inside—
i: every entrance to the premises; and
ii: every outer entrance to every building or enclosed area forming part of the premises.
2: Subsection (1)(b)(ii)
a: a building or enclosed area not usually or from time to time used by young people attending the school or centre concerned or members of the public; or
b: an outer entrance used by young people attending the school or centre concerned or members of the public only temporarily or in emergencies.
3: The occupier of premises that are neither school premises nor premises to which subsection (4)
a: is being used as an early childhood centre; or
b: is so situated and ventilated that smoke from people smoking in it is likely to enter another area of the premises that is being used as an early childhood centre.
4: This subsection applies to premises—
a: that are used exclusively or primarily as an early childhood centre; or
b: that are facilities, grounds, structures, or other premises, controlled and managed by the managers of premises that are used exclusively or primarily as an early childhood centre, and used exclusively or primarily for—
i: the enjoyment, recreation, or relaxation of the children attending the centre; or
ii: cultural or sporting activities (or both) involving, or undertaken for the benefit of, the children attending the centre.
2: Section 17 subsection (2)
2A: The managers of any premises who fail to comply with section 7A(1)
a: in the case of managers who are a body corporate, to a fine not exceeding $4,000; and
b: in the case of managers who are not a body corporate, to a fine not exceeding $400 each.
2B: The occupier of any premises who fails to comply with section 7A(3)
a: in the case of an occupier who is a body corporate, to a fine not exceeding $4,000; and
b: in the case of an occupier who is not a body corporate, to a fine not exceeding $400.
7: Smoking restricted in passenger service vehicles
1: Section 9 subsection (1)
1A: The operator of an operating taxi must not permit any person to smoke in it.
1B: No person may smoke in an operating taxi, whether or not it is carrying passengers.
2: Section 9(3) service vehicle (other than an operating taxi)
8: New
sections 10 to 13B The principal Act is amended by repealing sections 10 to 13A
10: Application of Act to ships
This Act applies to a ship if, and only if, it is—
a: a New Zealand ship that is within New Zealand; or
b: a foreign ship that—
i: is a ship on demise charter to a New Zealand-based operator; and
ii: is carrying coastal cargo within New Zealand; or
c: a foreign ship that is carrying out prescribed petroleum operations in New Zealand continental waters.
11: Smoking prohibited in certain travel premises
1: This section applies to any area that—
a: is located within an enclosed travel terminal; and
b: is a booking area, passenger queuing area, passenger waitingroom, or passenger lounge.
2: The owner or occupier of an area to which this section applies must not permit any person to smoke in it.
3: No person may smoke in an area to which this section applies.
12: Smoking on licensed premises
1: The licensee of any licensed premises must take all reasonably practicable steps to ensure that no person smokes at any time in a part of the premises that is not an open area.
2: Subsection (l)
3: No person may smoke at any time in a part of any licensed premises that is not an open area.
13: Smoking in restaurants
1: The operator of a restaurant must take all reasonably practicable steps to ensure that no person smokes at any time in any part of the restaurant that is not an open area.
2: Subsection (1)
3: No person may smoke at any time in any part of a restaurant that is not an open area.
13A: Smoking in casinos
1: The holder of the casino operator's licence in respect of a casino must take all reasonably practicable steps to ensure that no person smokes at any time in any part of the casino that is not an open area.
2: Subsection (1)
3: No person may smoke at any time in any part of a casino that is not an open area.
13B: Smoking in certain gaming machine venues
1: The holder of a class 4 gambling venue licence in respect of a place must take all reasonably practicable steps to ensure that no person smokes at any time in any part of the place that is not an open area.
2: Subsection (1)
3: No person may smoke at any time in any part of a place in respect of which a class 4 gambling venue licence is held that is not an open area.
9: New
section 14 The principal Act is amended by repealing section 14
14: Enforcement officers
1: The Director-General must appoint to enforce this Part and Part 2
a: employees of the Ministry of Health, a local authority under the Local Government Act 1974 New Zealand Public Health and Disability Act 2000
b: employees or officers of some other person or body; or
c: officers designated under section 7A of the Health Act 1956
d: inspectors appointed under the Health and Safety in Employment Act 1992
2: A person may be appointed by name, or as the holder for the time being of a particular position.
3: The Director-General must not appoint a person under subsection (1)(b)
a: in the case of a named person, that he or she is suitably qualified and trained:
b: in the case of the holder for the time being of a particular position, that holders of the position are likely to be suitably qualified and trained.
4: Every enforcement officer must have an instrument of appointment identifying the holder as an enforcement officer appointed under this section.
5: The Director-General may do any or all of the following:
a: appoint people to enforce only some of the provisions of this Part and Part 2
b: appoint people to exercise only some of the powers given to enforcement officers by Part 2A enforcement powers
c: appoint people subject to limitations or restrictions on their exercise of enforcement powers.
6: An enforcement officer's instrument of appointment must state—
a: that he or she is appointed to enforce—
i: all the provisions of this Part and Part 2
ii: only stated provisions of this Part and Part 2
iii: all the provisions of this Part and Part 2
b: that he or she is appointed to exercise—
i: all enforcement powers; or
ii: only stated enforcement powers; or
iii: all enforcement powers other than certain stated powers; and
c: all limitations and restrictions on his or her exercise of enforcement powers imposed under subsection (5)(c)
10: Complaints relating to workplace smoking policies
1: Section 15 policies
2: Section 15(4) employee or volunteer
3: Section 15 subsection (6)
6: If within 40 working days after receiving the complaint the employer is unable to investigate it and resolve it by agreement, the employer must refer it, in writing, to the Director-General.
11: Complaints to Director-General
Section 16(2)(a)(ii) employee or volunteer
12: New
sections 17 17A The principal Act is amended by repealing section 17 section 6(2)
17: Offences in respect of smoking
1: An employer who fails to comply with section 5(1)
2A: The managers of any premises who fail to comply with section 7A(1)
2B: The occupier of any premises who fails to comply with section 7A(3)
3: The operator of an aircraft who, without reasonable excuse, permits a person to smoke in contravention of section 8(1)
4: The operator of a passenger service vehicle who, without reasonable excuse, permits a person to smoke in contravention of subsection (1) section 9
6: The owner or occupier of an area to which section 11
7: A licensee who fails to comply with section 12(1)
8: The operator of a restaurant who fails to comply with section 13(1)
8A: The holder of a casino operator's licence who fails to comply with section 13A(1)
8B: The holder of a class 4 gambling venue licence who fails to comply with section 13B(1)
8C: An employer who, without reasonable excuse, fails to comply with section 15(6)
9: A person who smokes in contravention of section 8(2)
17A: Penalties
1: The managers of any premises who commit an offence against section 17(2A)
a: in the case of managers who are a body corporate, to a fine not exceeding $4,000; and
b: in the case of managers who are not a body corporate, to a fine not exceeding $400 each.
2: A person who commits an offence against a provision of section 17 subsection (2A), subsection (8C), subsection (9), or subsection (10)
a: in the case of a person who is a body corporate, to a fine not exceeding $4,000; and
b: in the case of a person who is not a body corporate, to a fine not exceeding $400.
3: An employer who commits an offence against section 17(8C)
a: in the case of an employer who is a body corporate, to a fine not exceeding $1,000; and
b: in the case of an employer who is not a body corporate, to a fine not exceeding $100.
4: A person who commits an offence against section 17(9)
13: New
section 20A The principal Act is amended by inserting, after section 20
20A: Health and Safety in Employment Act 1992 Nothing in this Part, and no steps taken in compliance or purported compliance with this Part, limits or affects—
a: the Health and Safety in Employment Act 1992
b: the obligations of any person under that Act.
3: Other amendments
14: Heading to
Part 2 The heading to Part 2 Tobacco Products Control Control of smoking products
15: Purpose of this Part
Section 21(a)
iii: prohibiting the sale of toy tobacco products to people younger than 18 years; and .
16: Exemptions for retailers and vending machines
Section 23(1)
a: omitting the words all or any either or both
b: repealing paragraph (a)
17: New
section 23A The principal Act is amended by inserting, after section 23
23A: Compliant product display
1: A retailer of tobacco products must not expose a tobacco product for sale inside the retailer's place of business unless its exposure—
i: complies with this section; and
ii: complies with any regulations for the time being in force under section 39(1)(ia)
2: The exposure of tobacco products for sale inside a retailer's place of business complies with this section if, and only if,—
a: no tobacco product exposed for sale is visible from outside the place; and
b: unless the place of business is a tobacconist's shop, not more than 100 tobacco packages are exposed for sale at any point of sale; and
c: unless the place of business is a tobacconist's shop, not more than 40 tobacco cartons are exposed for sale at any point of sale; and
d: not more than 2 tobacco packages of the same kind are exposed for sale at any point of sale; and
e: not more than 2 tobacco cartons of the same kind are exposed for sale at any point of sale; and
f: no tobacco package (other than a pouch pack of loose tobacco) with a face that has an area greater than 66 cm2 is exposed for sale; and
g: no pouch pack of loose tobacco with a face that has an area greater than 105 cm2 is exposed for sale; and
h: no tobacco carton with a face that has an area greater than 266 cm2 is exposed for sale; and
i: either—
i: no tobacco product is exposed for sale within 1 metre of any children's product exposed for sale; or
ii: if, because of the size of the place, it is not reasonably practicable to keep all tobacco products exposed for sale at least I metre from any children's product exposed for sale, the retailer has taken all reasonably practicable steps to ensure that every tobacco product exposed for sale that is within 1 metre of any children's product exposed for sale is as far away from the children's product as possible; and
j: no tobacco product is exposed for sale on any counter top or similar surface; and
k: there is displayed at each point of sale where tobacco products are exposed for sale a rectangular sign, with its longer sides horizontal and its shorter sides vertical, and the message SMOKING KILLS Ka mate koe i to kai hikareti
i: within a black rectangular border that is no wider than an upper case letter i SMOKING KILLS
ii: on a white background within that border; and
iii: in the type face known as Helvetica; and
iv: in roman font; and
v: with the words SMOKING KILLS
vi: with the words Ka mate koe i to kai hikareti
A: beneath the words SMOKING KILLS
B: in a point size such that its risers are two-thirds the height of the words SMOKING KILLS
vii: in a type that is clear and legible, of normal weight, and of such a point size that the words Ka mate koe i to kai hikareti
3: The sign must have at least the lesser of the following areas:
a: 1 square metre:
b: 10% of the area of the display in which the tobacco products are exposed for sale.
4: The sign may include the attribution Ministry of Health Warning Ka mate koe i to kai hikareti
a: in upper case and lower case letters (as it is set out above); and
b: in an italic font in the type face known as Helvetica; and
c: in a point size such that its risers are no more than half the height of the words SMOKING KILLS
d: otherwise in accordance with subsection (2)(k)
5: The sign must not include anything that is not—
a: required by subsection (2)(k)
b: authorised by subsection (4)
6: For the purposes of subsection (2)(k)
a: in a display that forms part of a unit or counter of which that point of sale forms part; or
b: at a place that—
i: is within 2 metres of that point of sale; and
ii: is not closer to some other point of sale than to that point of sale.
18: New
section 23B The principal Act is amended by inserting, before section 24
23B: Exposure for sale
1: For the purposes of sections 23(1) and 23A
a: a tobacco product is exposed for sale if the tobacco package or tobacco carton it is in is exposed for sale; and
b: a tobacco package or tobacco carton is exposed for sale inside a retailer's place of business if it is for sale, and any part of it is visible—
i: from outside the place; or
ii: from an area inside the place to which members of the public are allowed access.
2: In determining for the purposes of section 23(l)
a: if there are 4 or fewer other packages behind it that are exposed for sale, the other packages must not be counted; and
b: if there are 5 or more other packages behind it that are exposed for sale, the first 4 of the other packages must not be counted.
19: Free distribution and rewards prohibited
1: Section 28 subsection (1)
1A: For the purposes of subsection (1)
a: if the charge for the product itself is reduced; or
b: if—
i: the product is distributed or supplied at a charge that is not or purports not to be reduced; but
ii: some other item is supplied, free or at a reduced charge, together with the product.
2: Section 28(3)
20: New
sections 29A 29B The principal Act is amended by inserting, before section 30
29A: Sale of tobacco products with other products prohibited
1: This subsection applies to a tobacco product if it is—
a: packed together with a product that is not a tobacco product; or
b: distributed or supplied, together with a product that is not a tobacco product, at a single price.
2: No manufacturer, distributor, importer, or retailer of tobacco products may,—
a: distribute a tobacco product to which subsection (1)
b: supply a tobacco product to which subsection (1)
c: in the case of a retailer, supply a tobacco product to which subsection (1)
29B: Restriction on use of automatic vending machines
1: No person may—
a: permit an automatic vending machine that dispenses or is capable of dispensing tobacco products or herbal smoking products to be located in a place to which members of the public have access; or
b: permit a tobacco product or herbal smoking product to be sold by way of an automatic vending machine in a place to which members of the public have access.
2: Subsection (1)
a: no individual sale can occur unless the machine is activated by the person who would otherwise be in breach of that subsection (or an employee or agent of that person); and
b: the device used to activate the machine is permanently located in a place from which any person using it can see the person to whom the sale is to be made.
3: For the purposes of this Act, a person who activates an automatic vending machine so that a sale of a tobacco product or herbal smoking product to another person occurs is a party to the sale of that product to the other person.
21: New
sections 30 30AA The principal Act is amended by repealing section 30
30: Sale of tobacco products and herbal smoking products to people under 18 prohibited
1: No person may sell a tobacco product or herbal smoking product to a person younger than 18 years.
2: It is a defence to a charge in respect of a contravention of subsection (1)
2A: For the purposes of subsection (2) subsection (1) section 2A of the Sale of Liquor Act 1989
2B: Subsection (2A) subsection (2)
3: It is not a defence to a charge in respect of a contravention of subsection (1)
a: that the person to whom the product concerned was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years; or
b: that the person charged believed on reasonable grounds that the person to whom the product concerned was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years.
6: Every person who sells by retail a tobacco product or herbal smoking product must display clearly for the public a notice to the effect that the sale of tobacco products and herbal smoking products to people who are younger than 18 years is prohibited.
30AA: Supplying tobacco products or herbal smoking products to people under 18 prohibited
1: No person may, in a public place (within the meaning of section 2 of the Summary Offences Act 1981
a: supply a tobacco product or herbal smoking product to a person younger than 18 years; or
b: supply a tobacco product or herbal smoking product to a person with the intention that it be supplied (directly or indirectly) to a person younger than 18 years.
2: It is a defence to a charge in respect of a contravention of subsection (1)
3: For the purposes of subsection (2) subsection (1) section 2A of the Sale of Liquor Act 1989
4: It is not a defence to a charge in respect of a contravention of subsection (1)
a: that the person younger than 18 years was acquiring the product concerned for or on behalf of, or as agent for, a person of or over the age of 18 years; or
b: that the person charged believed on reasonable grounds that the person younger than 18 years was acquiring the product concerned for or on behalf of, or as agent for, a person of or over the age of 18 years.
5: Subsection (1)
22: New
section 30AB The principal Act is amended by inserting, before section 30A
30AB: Certain repeat offenders may be ordered not to sell tobacco products
1: This section applies—
a: if a person—
i: has been convicted of and is to be sentenced in respect of an offence against section 30(1) section 21 of the Smoke-free Environments Amendment Act 2003 repeat offence
ii: within the 2 years before the conviction for the repeat offence was entered, had been convicted of an offence against section 30(1)
b: if a person has been convicted of and is to be sentenced in respect of an offence against section 36(7AA) non-compliance offence
2: When sentencing a person for a repeat offence or a non-compliance offence, the court may (in addition to any sentence it might impose and any other order in the nature of a penalty it might make) make an order—
a: prohibiting either or both of the following:
i: the sale of tobacco products by or on behalf of the person:
ii: the sale of tobacco products at a shop at which the offence occurred; or
b: prohibiting either or both of the following:
i: the sale of tobacco products of a stated kind by or on behalf of the person:
ii: the sale of tobacco products of a stated kind in the place in which the offence occurred; or
c: imposing any conditions or restrictions (or both) it thinks fit on either or both of the following:
i: the sale of tobacco products by or on behalf of the person:
ii: the sale of tobacco products at a shop at which the offence occurred.
3: The order must state—
a: the date it takes effect (which may be the date on which it is made or a later date); and
b: the date it expires (which must be a date at least 4 weeks and no more than 3 months after the date it takes effect).
23: Limits on harmful constituents
Section 31 tobacco product or herbal smoking product
24: New
sections 32 to 34 The principal Act is amended by repealing sections 32 to 34
32: Labelling and health messages for tobacco products
1: A manufacturer, importer, distributor, or retailer must not sell a tobacco product or offer a tobacco product for sale unless—
a: the package containing it displays, in accordance with regulations under this Part, as many of the following things as the regulations require:
i: a message relating to the effects of its use on health:
ii: a list of the harmful constituents of the product:
iii: if the tobacco product is intended for smoking, a list of the harmful constituents, and their respective quantities, present in the smoke:
iv: whether as part of or in addition to any message relating to the effects of its use on health, a photograph or picture intended to have effect as a warning relating to the effects of its use on health; and
b: if the regulations so require, there is placed inside the package with the product a leaflet containing—
i: information (prescribed by the regulations for tobacco products generally, or tobacco products of a class to which the product belongs) relating to the effects of the use of the product on health; and
ii: if the tobacco product is intended for smoking, as much of the following information (stated, as the regulations may require, by reference to the class of tobacco product to which it belongs, or its brand as a tobacco product of any class or variant of a brand of a tobacco product of any class) as the regulations require:
A: a list of the harmful constituents, and their respective quantities, present in the product:
B: a list of the additives, and their respective quantities, present in the product:
C: a list of the harmful constituents, and their respective quantities, present in the smoke.
2: In subsection (1) harmful constituent
3: A person who sells a tobacco product from an automatic vending machine that can be seen from a place to which members of the public have access must display on the machine, in accordance with regulations under this Act, any health message required by or under this Act (even if the machine is accessible only by the person or his or her employees or agents).
4: Subsection (3) section 29B
32AA: Labelling and health messages for herbal smoking products
1: No manufacturer, importer, distributor, or retailer may sell or offer for sale a herbal smoking product unless—
a: the package containing it displays, in accordance with regulations under this Part, as many of the following things as the regulations require:
i: a message relating to the effects of the use of herbal smoking products on health:
ii: a list of the harmful constituents, and their respective quantities, present in the product:
iii: a list of the constituents, and their respective quantities, present in the product:
iv: a list of the harmful constituents, and their respective quantities, present in the smoke:
v: whether as part of or in addition to any message relating to the effects of the use of herbal smoking products on health, a photograph or picture intended to have effect as a warning relating to the effects of the use of the herbal smoking products on health; and
b: if the regulations so require, a leaflet containing either or both of the following (as the regulations may require) is placed inside the package with the herbal smoking products:
i: information relating to the effects of the use of herbal smoking products on health:
ii: a list of the harmful constituents, and their respective quantities, present in the smoke.
2: In subsection (1) harmful constituent
3: A person who sells a herbal smoking product from an automatic vending machine that can be seen from a place to which members of the public have access must display on the machine, in accordance with regulations under this Act, any health message required by or under this Act (even if the machine is accessible only by the person or his or her employees or agents).
4: Subsection (3) section 29B
33: Annual testing for constituents
1: This section applies to each product prescribed for the purposes of this section by regulations under this Part.
2: Every manufacturer and every importer of a product to which this section applies must in each year conduct, in accordance with the regulations, either or both of the following (as the regulations require):
a: a test for the constituents of each brand of the product sold by the manufacturer or importer, and the respective quantities of those constituents:
b: if the product is intended to be smoked, a test for the constituents of the smoke of each brand of the product sold by the manufacturer or importer, and the respective quantities of those constituents.
3: If the regulations require it, each variant of the brand must be tested separately.
4: In this section and section 34
a: a tobacco product of any kind; or
b: herbal smoking products generally; or
c: herbal smoking products of any kind.
34: Director-General may require further testing
1: In addition to the annual test or tests required by section 33
2: The further test or tests must be conducted, in accordance with the regulations referred to in section 33
a: in a laboratory nominated by the Director-General; but
b: at the expense in all respects of the manufacturer or importer.
3: In any year, the Director-General must not require tests under this section in respect of more than 10% of the brands of products to which section 33
25: New
section 35 The principal Act is amended by repealing section 35
35: Returns and reports
1: Every manufacturer and every importer of tobacco products must, not later than 31 January in each year, file with the Director-General, in the form and manner prescribed by regulations under this Part,—
a: a return showing—
i: by class of tobacco product, or brand of tobacco product of any class, or variant of a brand of tobacco product of any class, (as the regulations may require) the weight of tobacco and of each additive used in the manufacture of the tobacco products sold by the manufacturer or importer during the previous year; and
ii: the quantity of each brand, and of each variant of a brand, of tobacco product sold by the manufacturer or importer during the previous year; and
iii: the recommended price of each brand, and of each variant of a brand, of tobacco product sold by the manufacturer or importer during the previous year; and
b: a report of the results of all tests that the manufacturer or importer conducted during the previous year for the purposes of section 33 or section 34
2: The Director-General—
a: must take all practicable steps to ensure that all returns and reports received under subsection (1)
b: may publish or make publicly available in any other way all or any part of any such return or report.
26: Offences in respect of tobacco products
1: The heading to section 36 tobacco smoking
2: Section 36 subsection (1)
1A: A retailer of tobacco products who, without reasonable excuse, exposes a tobacco product for sale inside the retailer's place of business otherwise than in compliance with section 23A
3: Section 36 subsection (4)
4A: It is a defence to a charge in respect of a contravention of section 28(1)
4: Section 36 subsection (5)
5A: Every person who, in contravention of section 29A(2) section 29A(1) section 29A(1) section 29A(1)
a: in the case of a manufacturer, an importer, or, a distributor, to a fine not exceeding $10,000; and
b: in any other case, to a fine not exceeding $5,000.
5B: Every person commits an offence and is liable to a fine not exceeding $2,000 who, in contravention of section 29B
a: permits an automatic vending machine that dispenses or is capable of dispensing tobacco products or herbal smoking products to be located in a place to which members of the public have access; or
b: permits a tobacco product or herbal smoking product to be sold by way of an automatic vending machine in a place to which members of the public have access.
5: Section 36 subsection (6)
6: Every person commits an offence and is liable to a fine not exceeding $2,000 who—
a: sells a tobacco product or herbal smoking product in contravention of section 30(1)
b: supplies a tobacco product or herbal smoking product in a public place in contravention of section 30AA(1)
6: Section 36 subsection (7A)
7AA: Every person commits an offence who fails to comply with an order under section 30AB(2)
a: in the case of a person who is a body corporate, to a fine not exceeding $10,000; and
b: in the case of a person who is a not a body corporate, to a fine not exceeding $4,000.
7: Section 36 subsection (9)
9A: Every manufacturer, importer, distributor, or retailer of herbal smoking products who sells or offers for sale a herbal smoking product knowing that it contravenes section 32AA(1)
a: in the case of a manufacturer, an importer, or a distributor, to a fine not exceeding $10,000; and
b: in the case of a retailer, to a fine not exceeding $4,000.
8: Section 36(10) section 32(3) of this Act section 32(3) or section 32AA(3)
27: New
section 36A The principal Act is amended by inserting, after section 36
36A: Toy tobacco products
1: No person may sell a toy tobacco product to a person younger than 18 years.
2: Every person who sells a toy tobacco product to a person younger than 18 years in contravention of subsection (1)
3: It is a defence to a charge in respect of a contravention of subsection (1)
4: For the purposes of subsection (3) subsection (1) section 2A of the Sale of Liquor Act 1989
5: Subsection (4) subsection (3)
6: It is not a defence to a charge in respect of a contravention of subsection (1)
a: that the person to whom the product concerned was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years; or
b: that the person charged believed on reasonable grounds that the person to whom the product concerned was sold was buying it for or on behalf of, or as agent for, a person of or over the age of 18 years.
28: Regulations
1: Section 39(1)
a: inserting in paragraph (e) tobacco products or herbal smoking products,
b: inserting in paragraph (f) tobacco products or herbal smoking products
c: inserting in paragraph (g) tobacco products or herbal smoking products
d: inserting in paragraph (ga) tobacco products or herbal smoking products
e: inserting in paragraph (h) tobacco products or herbal smoking products,
2: Section 39(1) paragraph (i)
ia: prescribing for the purposes of section 23(1)(a)(ii) .
3: Section 39
3: Regulations under subsection (1)(ia)
a: requirements that are not of the same kind as those in section 23A
b: requirements that are of the same kind as, but are more stringent than, those in section 23A
4: Regulations under subsection (1)(ia)
5: The Minister must not recommend the making of regulations under subsection (1)(ia)
a: organisations that, in the Minister's opinion, represent the interests of retailers of a kind who customarily sell tobacco products; and
b: every organisation (if any) that is known to the Minister to represent the interests of manufacturers, importers, or wholesalers of tobacco products; and
c: every manufacturer, importer, or wholesaler of tobacco products that is known to the Minister—
i: to be likely to be substantially affected by the regulations; and
ii: not to be represented by an organisation consulted under paragraph (b)
6: Regulations made under subsection (1)(ia)
7: This subsection applies to regulations under this section if they are the first regulations made after the commencement of section 28 of the Smoke-free Environments Amendment Act 2003
a: require tobacco products sold or offered for sale to display a photograph or picture intended to have effect as a warning relating to the effects of their use on health; or
b: require a leaflet to be placed inside packages of tobacco products sold or offered for sale; or
c: require herbal smoking products sold or offered for sale to display a message or list; or
d: require herbal smoking products sold or offered for sale to display a photograph or picture intended to have effect as a warning relating to the effects of their use on health; or
e: require a leaflet to be placed inside packages of herbal smoking products sold or offered for sale, or a warning relating to the effects of their use on health; or
f: require manufacturers and importers of herbal smoking products to conduct either or both of the following:
i: a test for the constituents of each brand of the product sold by the manufacturers or importers, and the respective quantities of those constituents:
ii: a test for the constituents of the smoke of each brand of the product sold by the manufacturers or importers that is intended to be smoked, and the respective quantities of those constituents; or
g: require manufacturers and importers of tobacco products or herbal smoking products conducting tests for the constituents of each brand sold by the manufacturers or importers, and the respective quantities of those constituents, to test each variant of the brand separately; or
h: require manufacturers and importers of tobacco products or herbal smoking products conducting tests for the constituents of the smoke of each brand of the product sold by the manufacturers or importers that is intended to be smoked, and the respective quantities of those constituents, to test each variant of the brand separately; or
i: require manufacturers and importers of tobacco products to file with the Director-General returns showing all additives used in the manufacture of the tobacco products sold by the manufacturer or importer; or
j: require manufacturers and importers of tobacco products to file with the Director-General returns showing by brand variant—
i: the weight of tobacco (or the weight of tobacco and of each additive) used in the manufacture of the tobacco products sold by the manufacturer or importer; and
ii: the quantity of each variant of a brand of tobacco product sold by the manufacturer or importer; and
iii: the recommended price of each variant of a brand of tobacco product sold by the manufacturer or importer during the previous year.
8: If regulations to which subsection (7)
9: If regulations to which subsection (7)
29: New
part 2A The principal Act is amended by inserting, after section 41
2A: Powers of enforcement officers
41A: Powers of entry and inspection
1: This section applies to a place if—
a: this Act imposes duties, restrictions, or prohibitions in respect of places of a kind to which it belongs; or
b: there is carried out in it, regularly or from time to time, an activity in respect of which this Act imposes duties, restrictions, or prohibitions.
2: An enforcement officer may at any reasonable time enter a place if—
a: he or she believes on reasonable grounds that it is a place to which this section applies; and
b: it is not a dwellinghouse or other residential accommodation.
3: An enforcement officer who enters a place under subsection (2)
a: bring a still or video camera, a device for taking samples of air, or both, with him or her:
b: inspect the place:
c: take photographs or videos with any camera he or she brings with him or her:
d: take samples of the air in the place with any device for that purpose he or she brings with him or her:
e: if the enforcement officer believes on reasonable grounds that the place is a place where tobacco products or herbal smoking products are sold from time to time,—
i: exercise the powers given by section 41B
ii: inspect any advertising or display material relating to tobacco products on display in the place, or on the outside of a building containing the place.
4: An enforcement officer exercising powers under this section may be accompanied by a member of the police.
5: Subsection (2)
a: under authority given by or under an enactment other than this section; or
b: with the consent of an occupier.
41B: Requirement to give identifying information
1: An enforcement officer who at any time believes on reasonable grounds that within the previous 14 days tobacco products or herbal smoking products have been sold to a person younger than 18 years in a place where tobacco products or herbal smoking products are sold from time to time—
a: may, while the person the officer believes on reasonable grounds to have sold the products is in the place, require the person to give the officer his or her name and address; and
b: may require a person in the place who appears to be in charge of the place or any part of it to give the officer the name and address of (or, if the address is not within the person's knowledge, the name and any other identifying information within the person's knowledge relating to) any person the officer believes on reasonable grounds to have sold the products other than a person in charge of the place.
2: An enforcement officer who suspects that a person is younger than 17 years must not under subsection (1)(a)
a: there is no other person in the place concerned who appears to be in charge of it; or
b: there is another person in the place who appears to be in charge of it, but the enforcement officer suspects that that person is also younger than 17 years.
3: An enforcement officer who suspects that a person is younger than 17 years must not under subsection (1)(b)
41C: Purposes for which powers may be used
1: The powers given by section 41A
a: finding out whether this Act is being complied with in and in respect of the place entered:
b: finding out the extent to which this Act is not being complied with in or in respect of the place entered:
c: exercising the powers given by section 41B
2: The powers given by section 41B
3: This section does not prevent an enforcement officer from using in proceedings for an offence against this Act evidence obtained during the lawful exercise of any of the powers given by sections 41A and 41B
41D: Duties of enforcement officers
1: An enforcement officer exercising powers under section 41A
a: if a person in charge of the place is present on initial entry, must identify himself or herself to the person in charge as an enforcement officer; and
b: if asked by a person in charge to do so, must produce to the person evidence of identity, his or her instrument of appointment as an enforcement officer, or both.
2: An enforcement officer exercising powers under section 41B
a: must identify himself or herself to the person as an enforcement officer; and
b: if asked by the person to do so, must produce to the person evidence of identity, his or her instrument of appointment as an enforcement officer, or both.
41E: Offences in respect of enforcement officers
Every person commits an offence, and is liable on summary conviction to a fine not exceeding $1,000, who—
a: intentionally obstructs, hinders, or resists an enforcement officer exercising or attempting to exercise powers under section 41A or section 41B
b: intentionally fails to comply with a requirement under section 41B
c: when required under section 41B
41F: Enforcement
1: It is the Director-General's duty to enforce this Part.
2: An information in respect of an offence against this Part must be laid by the Director-General or a person authorised by the Director-General.
3: An information in respect of an offence against this Part may be laid at any time within 1 year after the time the matter it relates to arose.
4: Subsection (3) section 14 of the Summary Proceedings Act 1957