Sale of Tobacco Act 2004

No. 6, 2004

Compilation No. 3

Compilation date:  13 August 2019

Includes amendments up to: Norfolk Island Continued Laws Ordinance 2015 (No. 2, 2015) as amended up to Norfolk Island Legislation Amendment (Fees and Other Matters) Ordinance 2019 (F2019L01048)

SALE OF TOBACCO ACT 2004

TABLE OF PROVISIONS

Section

PART 1   —   PRELIMINARY

 1. Short title

 2. Commencement

 3. Interpretation

PART 2   —   ADMINISTRATION

 4. Delegation

 5. Appointment of authorised officers

 6. Powers of authorised officers to enter premises, etc

 7. Licence to sell tobacco

 8. Supply, etc of tobacco products to or for persons under 18 years

 9. Vending machines

 10. Smokeless tobacco

 11. Confectionery or toys resembling tobacco products

 12. Quantity of cigarettes for sale

 13. Manufacture of tobacco products

PART 3   —   ADVERTISING AND SPONSORSHIP

 14. Certain advertising prohibited

 15. Removal of tobacco advertisements

 16. Prohibition of sponsorships

PART 4   —   SMOKE FREE AREAS

 17. Declaration of exempt premises, etc

 18. Owner to display signs

 19. Offence to smoke in smoke free areas

 20. Owner must not permit smoking in smoke free area

 21. Duty to prevent spread of smoke

 22. Authorised officers may make requirements

 23. No right to smoke in enclosed public place

 24. Failure to comply, etc

 25. Regulations

 26. Repeal

        Schedule

Sale of Tobacco Act 2004

An Act to regulate the sale of tobacco products, to provide a smoke free environment and for related purposes.

PART 1   —   PRELIMINARY

Short title

 1. This Act may be cited as the Sale of Tobacco Act 2004.

Commencement

 2. This Act shall commence on the day on which notification of its assent is published in the Gazette.

Interpretation

 3. (1) In this Act, unless the contrary intention appears  —

“approved” means approved by the Minister;

“authorised officer” means a person appointed to be an authorised officer under section 5;

“Court” means the Court of Petty Sessions;

“enclosed”, in relation to a public place, means having a ceiling or roof and, except for doors and passageways, completely or substantially enclosed, whether permanently or temporarily, and includes being enclosed by a tent;

“exempt premises” has the meaning given by section 17;

“licence” means a licence granted under section 7;

“occupier” in relation to premises or a part of premises means a person having the management or control, or otherwise being in charge, of those premises or part;

“owner” in relation to premises includes the occupier;

“premises” includes land and buildings on the land;

“prescribed” means prescribed by the regulations;

“public place” means a place or vehicle that the public, or a section of the public, is entitled to use or that 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, or otherwise);

“sell” includes —

(a) barter or exchange; and

(b) offer or expose for sale, barter or exchange; and

(c) supply, or offer to supply, in circumstances in which the supplier derives, or would derive, a direct or indirect pecuniary benefit; and

(d)               supply, or offer to supply, gratuitously but with a view to gaining or maintaining custom or otherwise with a view to commercial gain;

“smoke” means to smoke, hold or otherwise have control over, an ignited smoking product, and means inhaling or puffing the smoke of a cigarette or cigar of any composition, or tobacco in any form;

“smoke free area” is an area within the meaning of section 17; and

“smoking product” means tobacco or other product that is intended to be smoked;

“supply” when not falling within the definition of “sell” means to supply or offer to supply gratuitously in a non-commercial situation;

“theatre” means a place where any live entertainment or film is presented, performed or exhibited to which admission may or may not be procured by payment or by ticket or by any other means, token or consideration;

“tobacco advertisement” means writing or a picture, symbol, light or other visible device, object or sign, or a combination of them that gives publicity to or otherwise promotes  —

(a) the purchase or use of a tobacco product; or

(b) a trademark or brand name, or part of a trademark or brand name, of a tobacco product;

“tobacco product” means tobacco, a cigarette or cigar or any other product the main ingredient of which is tobacco and that is designed or manufactured for human consumption;

“vending machine” means a machine, device or contrivance that is constructed to contain tobacco products that may be obtained from it by an operation that involves the insertion of money or a token or similar object;

“vehicle” means a motor vehicle that may ply or stand for hire in a road or used, or intended to be used, for the conveyance of passengers for hire or for a consideration and includes a school bus, taxi and aeroplane.

  (2) In this Act, the words “Default penalty” and a nominated penalty unit placed at the end of a section or subsection means that, in addition to any other penalty for a breach or contravention of the section or subsection, the person who is convicted of the breach or contravention is liable to a penalty for each day during which the offence continues subsequent to the day on which the offence took place.

PART 2   —   ADMINISTRATION

Delegation

 4. (1) The Minister may by written instrument delegate to a person any of the powers or functions of the Minister under this Act, other than this power of delegation.

  (2) A power or function delegated under subsection 4(1) when exercised or performed by the delegate is, for the purposes of this Act, deemed to have been exercised or performed by the Minister.

  (3) A delegation under subsection 4(1) does not prevent the exercise of a power or the performance of a function by the Minister.

Appointment of authorised officers

 5. (1) The Chief Executive Officer may, by notice in the Gazette, appoint a person to be an authorised officer for the purposes of this Act.

  (2) An authorised officer has such functions as are conferred on the officer by this Act.

  (3) The Chief Executive Officer must issue to each person appointed to be an authorised officer a certificate of appointment that states the name of the officer.

  (4) A former authorised officer must not, without reasonable excuse, fail to return his or her certificate of appointment to the Chief Executive Officer as soon as practicable.

Penalty: 2 penalty units.

Powers of authorised officers to enter premises, etc

 6. (1) For the purposes of this Act, an authorised officer may, at a reasonable time, do one or more of the following  —

(a)                alone, or with such other persons as the officer considers necessary, enter and inspect premises;

(b)               examine and inspect apparatus or equipment in premises;

(c)                take photographs, films and audio, video and other records as the officer considers necessary;

(d)               for the purpose of analysis, take samples of a thing to determine whether, in relation to the premises, this Act is being complied with;

(e)                take samples of a thing, other than for the purposes of analysis, that the officer reasonably believes may be used as evidence that an offence has been, or is being, committed under this Act;

(f)                require records or documents to be produced for inspection;

(g)               examine, inspect and copy the records or documents and, for that purpose, take away and retain (for a time that may, for that purpose, be reasonably necessary) the records or documents.

  (2) An authorised officer who enters premises in accordance with this section must not remain on the premises if, on request by the occupier of the premises, the officer does not produce his or her certificate of appointment.

  (3) This section does not authorise entry by an authorised officer into a part of premises that is being used solely for residential purposes, except  —

(a)                with the consent of the occupier of the premises; or

(b)               under the authority of a search warrant.

Licence to sell tobacco

 7. (1) The Minister may on  —

(a)                application; and

(b)               payment of the approved fee,

grant to a person a licence in the approved form.

  (2) In relation to a licence granted under subsection 7(1)  —

(a)                the duration; and

(b)               the premises to which it relates; and

(c)                the conditions on which it is granted,

must be endorsed on the licence.

  (3) A person must not sell a tobacco product without a licence granted under subsection 7(1).

Penalty: (a) in the case of a natural person  —  10 penalty units.

Default penalty: 5 penalty units.

(b) in the case of a body corporate   —  20 penalty units.

Default penalty: 10 penalty units.

  (4) A person who holds a licence under subsection 7(1) must comply with the conditions endorsed on the licence.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Default penalty: 10 penalty units.

Supply, etc of tobacco products to or for persons under 18 years

 8. (1) A person must not sell, or cause or permit to be sold, a tobacco product to a person under the age of 18 years.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

  (2) The occupier of premises on which a vending machine is situated must not permit a person under the age of 18 years to obtain a tobacco product from the machine.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

  (3) A person must not purchase a tobacco product for use by a person under the age of 18 years.

Penalty: 10 penalty units.

  (4) A person must not supply a tobacco product to a person under the age of 18 years for use by a person under the age of 18 years.

Penalty: 10 penalty units.

  (5) It is a defence to a prosecution under this section if it is established that the defendant —

(a) had reasonable cause to believe that the person purchasing or obtaining the tobacco product had attained the age of 18 years; or

(b) had taken all reasonable precautions to ensure that the tobacco product was not sold or supplied to a person under the age of 18 years.

Vending machines

 9. (1) A person must not, without reasonable excuse, place, or cause, permit or authorise to be placed, a vending machine for operation by members of the public on any premises except licensed premises within the meaning of the Liquor Act 1960.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

  (2) A person who owns or possesses a vending machine must display in a conspicuous place on the front of the machine a notice in the prescribed form.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Smokeless tobacco

 10. A person must not manufacture or sell a tobacco product other than a product prepared for smoking.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Confectionery or toys resembling tobacco products

 11. (1) A person must not sell confectionery, or a toy, that is designed to resemble a tobacco product.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

  (2) A person must not sell confectionery, or a toy, contained in packaging that is designed to resemble a tobacco product or the packaging of a tobacco product.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Quantity of cigarettes for sale

 12. A person must not sell cigarettes other than packed in quantities not less than 20 cigarettes per pack.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Manufacture of tobacco products

 13. A person must not manufacture a tobacco product without the written permission of the Minister.

Penalty: (a) in the case of a natural person  —  10 penalty units.

Default penalty: 5 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Default penalty: 10 penalty units.

PART 3   —   ADVERTISING AND SPONSORSHIP

Certain advertising prohibited

 14. (1) A person must not for a direct or indirect pecuniary benefit  —

(a)                display, or cause, permit or authorise to be displayed, a tobacco advertisement in a theatre; or

(b)               sell, or cause, permit or authorise to be sold, a film or video tape that contains a tobacco advertisement; or

(c)                distribute, or cause, permit or authorise to be distributed, to the public an unsolicited leaflet, handbill or other document that is or that contains a tobacco advertisement; or

(d)               place or display,  or cause, permit or authorise to be placed or displayed, a tobacco advertisement so that it is visible in or from a public place; or

(e)                sell, or cause or permit or authorise to be sold, an object that is or that contains a tobacco advertisement.

Penalty: (a) in the case of a natural person  —  20 penalty units.

Default penalty: 10 penalty units.

(b) in the case of a body corporate  —  50 penalty units.

Default penalty: 25 penalty units.

  (2) This section does not apply in relation to  —

(a) a tobacco advertisement in or on  —

(i) a newspaper or magazine;

(ii) a book; or

(iii) a package containing a tobacco product; or

(b) a tobacco advertisement that is an accidental or incidental accompaniment to a film or video tape; or

(c) a tobacco advertisement that is displayed inside a shop or warehouse adjacent to a place where tobacco products are offered for sale; or

(d) a tobacco advertisement that is  —

(i) displayed outside the entrance to a place where tobacco products are offered for sale; and

(ii)               to the effect that tobacco products are offered for sale in that place,

if the advertisement does not contain  —  

(iii) a trademark or brand name, or part of a trademark or brand name, of a tobacco product; and

(iv) the name of a manufacturer or distributor of a tobacco product; or

(e) a document ordinarily used in the course of business; or

(f) tobacco advertising specified in, and according with the conditions (if any) specified in, a notice under subsection 14(3).

  (3) The Minister may, by notice in the Gazette, exempt specified tobacco advertising from the operation of subsection 14(1).

  (4) A notice under subsection 14(3) may include conditions to which the exemption is subject.

Removal of tobacco advertisements

 15. (1) If an authorised officer believes on reasonable grounds that a person has contravened paragraph 14(1)(d), the officer must give to the person a written notice stating that unless the relevant tobacco advertisement is removed, or obscured, in a prescribed manner within the prescribed period (not exceeding 2 days) after the notice is given, proceedings may be commenced against the person for an offence against the paragraph.

  (2) Proceedings must not be commenced against a person for an offence against paragraph 14(1)(d)  —

(a) unless a notice is given to the person under subsection 15(1); and

(b) until after the period specified in the notice; and

(c) if the relevant tobacco advertisement is removed or obscured in accordance with the notice.

  (3) If a person is convicted of an offence against paragraph 14(1)(d), the Court, in addition to imposing a penalty, may order that the relevant tobacco advertisement be removed or obscured by the Administration.

  (4) If a tobacco advertisement is not removed or not obscured in accordance with an order under subsection 15(3), the person convicted of the relevant offence must pay to the Administration the reasonable costs incurred in removing or obscuring the advertisement.

Prohibition of sponsorships

 16. (1) A person must not, under a contract, agreement, undertaking or understanding, whether or not legally binding, promote or agree to promote  —

(a)                a tobacco product; or

(b)               a trademark or brand name, or part of a trademark or brand name, of a tobacco product; or

(c)                the name or interests of a manufacturer or distributor of a tobacco product in association, whether directly or indirectly, with the tobacco product,

in exchange for a sponsorship, gift, prize, scholarship or similar benefit given or agreed to be given by another person.

Penalty: (a) in the case of a natural person  —  20 penalty units.

(b) in the case of a body corporate  —  50 penalty units.

  (2) A person must not, under a contract, agreement, undertaking or understanding, whether or not legally binding, give or agree to give a sponsorship, gift, prize, scholarship or similar benefit in exchange for a promotion, or an agreement to promote, referred to in paragraph 16(1)(a), 16(1)(b) or 16(1)(c).

Penalty: (a) in the case of a natural person  —  20 penalty units.

(b) in the case of a body corporate  —  50 penalty units.

  (3) This section does not apply in relation to  —

(a)                a scholarship given, or agreed to be given, by a manufacturer or distributor of a tobacco product to an employee, or a member of the family of an employee, of the manufacturer or distributor; or

(b)               a contract, agreement, undertaking or understanding specified in, and according with the conditions (if any) specified in, a notice under subsection 16(4).

  (4) The Minister may, by notice published in the Gazette, exempt a specified contract, agreement undertaking or understanding from the operation of subsection 16(1) or 16(2).

 (5) A notice under subsection (4) may include conditions to which the exemption is subject.

PART 4   —   SMOKE FREE AREAS

Declaration of exempt premises, etc

 17. (1) For the purposes of this Act  —

“smoke free area” includes an enclosed public place.

 (2) Without limiting the generality of subsection 17(1), a smoke free area includes a place or part of a place of a kind specified in the Schedule that is an enclosed public place (irrespective of the name by which the particular place is known).

(3)               The Minister may by notice in the Gazette declare premises or a place to be  —

 (b) a smoke free area.

 (4) A notice under subsection 17(3) may contain  —

(a)                a description of the premises or place; and

(b)               the period during which the declaration remains in force; and

(c)                conditions, if any.

Owner to display signs

 18. (1) The owner of a smoke free area must not within that area fail to display the prescribed signs.

Penalty: (a) in the case of a natural person  —  10 penalty units.

Default penalty: 5 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Default penalty: 10 penalty units.

 (2) The signs referred to in subsection 18(1) must be made of material that is impervious to water and of a permanent nature.

 (3) The owner must ensure that there is a sign referred to in subsection 18(1)  —

(a)                placed in close proximity to each pedestrian access way to each smoke free area; and

(b)               in the smoke free area, such that the number of signs displayed are sufficient that every person in the area can reasonably be expected to see a sign.

Penalty: (a) in the case of a natural person  —  10 penalty units.

Default penalty: 5 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Default penalty: 10 penalty units.

 (4) The Minister may, by notice in the Gazette, specify a public place to be exempt from the requirements of subsection 18(1) if, in the opinion of the Minister, it is a place  —

(a)                in which persons do not usually smoke; or

(b)               in respect of which persons would reasonably be expected to know, by custom or otherwise, that smoking is not permitted.

Offence to smoke in smoke free areas

 19. (1) A person must not smoke in a smoke free area.

Penalty: 10 penalty units.

  (2) A person who performs in a theatre or other performance space does not commit an offence under this section by smoking during the performance if smoking is a necessary part of the performance.

  (3) It is a defence to a prosecution for an offence under subsection 19(1) if the defendant proves that he or she did not know, and could not reasonably be expected to have known, that the place in which the person was smoking was a smoke free area.

Owner must not permit smoking in smoke free area

 20. (1) If a person smokes in a smoke free area in contravention of section 19, the owner of the smoke free area is guilty of an offence.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  50 penalty units.

  (2) It is a defence to a prosecution for an offence under subsection 20(1) if the defendant establishes that the defendant or an employee or agent of the defendant did not provide (otherwise than by sale) an ashtray, matches or lighter (or other thing that could facilitate smoking) in the smoke free area concerned and that  —

(a)                the defendant or an employee or agent of the defendant did not know, or could not reasonably be expected to have known, that the person concerned was smoking in the smoke free area; or

(b)               as soon as the defendant or an employee or agent of the defendant became aware that the person was smoking in the smoke free area, the defendant (or the employee or agent of the defendant)  —

(i) required the person to stop smoking in the smoke free area; and

(ii) informed the person that the person was committing an offence by smoking in the smoke free area; and

(iii) if the person continued to smoke after having been required to stop, required the person to leave the smoke free area.

  (3) A requirement under subsection 20(2)(b)(iii) that a person leave a smoke free area  —

(a)                does not affect a liability (whether arising under an Act, contract or otherwise) of the person to pay for food or beverage supplied to or ordered by the person (whether or not it has been consumed); and

(b)               may include a requirement that the person satisfy, or make arrangements for satisfying, any such liability before the person leaves the smoke free area.

Duty to prevent spread of smoke

 21. (1) If a smoke free area forms a part of premises in which smoking is permitted elsewhere, the occupier of the smoke free area must take reasonable steps to prevent smoke caused by smoking in the other parts of the premises from penetrating the smoke free area.

Penalty: (a) in the case of a natural person  —  10 penalty units.

Default penalty: 5 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Default penalty: 10 penalty units.

  (2) If a smoke free area forms a part of premises in which smoking is elsewhere permitted, the occupier of the other parts of the premises where smoking is permitted must take reasonable steps to prevent smoke caused by smoking in the other parts from penetrating the smoke free area. 

Penalty: (a) in the case of a natural person  —  10 penalty units.

Default penalty: 5 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

Default penalty: 10 penalty units.

  (3) The Minister may issue guidelines from time to time as to what constitutes reasonable steps to prevent the penetration of smoke into smoke free areas.

  (4) An owner who, in relation to premises or a part of premises, complies with the guidelines in force for the time being under subsection 21(3) is to be considered as having taken all reasonable steps as referred to in subsections 21(1) and 21(2) in relation to the premises or part of the premises.

Authorised officers may make requirements

 22. (1) An authorised officer may require a person who is smoking in contravention of subsection 19(1) to stop smoking.

  (2) An authorised officer may at any time require a person whom the officer believes on reasonable grounds is contravening or has contravened this Act, or who is apparently the occupier of premises where a contravention is occurring or evidently has occurred, to state his or her name and address and (if the person is not the occupier of the premises) the name of the occupier of the premises.

  (3) A person must not, without reasonable excuse, fail to comply with a requirement of an authorised officer.

Penalty: 10 penalty units.

No right to smoke in enclosed public place

 23. Nothing in this Act is to be construed as creating or preserving a right of a person to smoke in an enclosed public place.

Failure to comply, etc

 24. (1) A person must not, in connection with a requirement of an authorised officer under this Act provide information or produce a document that the person knows is false or misleading in a material particular.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  20 penalty units.

  (2) A person must not, without reasonable excuse, resist, obstruct, or attempt to obstruct, an authorised officer in the exercise of the officer’s functions under this Act.

Penalty: (a) in the case of a natural person  —  10 penalty units.

(b) in the case of a body corporate  —  50 penalty units.

  (3) A person must not personate an authorised officer.

Penalty: 10 penalty units.

Regulations

 25. (1) The Administrator may make regulations, not inconsistent with this Act, prescribing all matters —

(a)                 required or permitted by this Act to be prescribed; or

(b)                 necessary or convenient to be prescribed for carrying out or giving effect to this Act.

 (2) Without limiting the generality of subsection 24(1), the regulations may prescribe  —

(a) the particulars required for a declaration as a smoke free area or as exempt premises; and

(b) in relation to signs  —

(i)                 the form, content and dimensions; and

(ii) the manner of the display; and

(c) the exemption of a public place or class of public place  from the requirements of section  18  to display signs; and

(e) penalties not exceeding 20 penalty units for a contravention or breach of the regulations and if the offence is a continuing offence, the imposition of a penalty not exceeding 10 penalty units for each day on which the offence is committed.

 (3) The regulations may adopt all or a part of the Australian Standards relating to smoking and smoke free environment in force at a particular time or from time to time with necessary modifications and additions, if any, as prescribed.

Repeal

 26.  The Tobacco Act 1995 is repealed.

SCHEDULE

Smoke free enclosed public places

Subsection 17(2)