Public Health (Tobacco) Act 2008 No 94

An Act to regulate the sale, supply, advertising and promotion of tobacco products; and for other purposes.

Part 1 Preliminary

1 Name of Act

This Act is the Public Health (Tobacco) Act 2008.

2 Commencement

This Act commences on a day or days to be appointed by proclamation.

3 Objects of Act

(1)  The object of this Act is to reduce the incidence of smoking and other consumption of tobacco products and non-tobacco smoking products, particularly by young people, in recognition of the fact that the consumption of those products adversely impacts on the health of the people of New South Wales and places a substantial burden on the State’s health and financial resources.

(2)  This Act aims to achieve that object by—

(a)  regulating the packaging, advertising and display of tobacco products and non-tobacco smoking products, and

(b)  prohibiting the supply of tobacco products and non-tobacco smoking products to children, and

(c)  reducing the exposure of children to environmental tobacco smoke and aerosols or vapours from vaping goods.

s 3: Am 2015 No 16, Sch 1 [1] [2]; 2024 No 94, Sch 4[1].

4 Definitions

(1)  In this Act—

approved form, for Part 5—see section 31.

brand name includes any part of a brand name.

certificate of authority, for an inspector, means the certificate of authority issued to the inspector under section 43A(3).

display, in relation to a tobacco advertisement, includes cause or permit to be displayed.

exercise a function includes perform a duty.

function includes a power, authority or duty.

inspector means an inspector appointed under section 43A.

law enforcement agency means the following—

(a)  the NSW Police Force,

(b)  a Police Force of another State or a Territory of the Commonwealth,

(c)  the Australian Federal Police,

(d)  another authority or person responsible for the enforcement of the laws of the Commonwealth or the State, another State or a Territory of the Commonwealth.

licence means a retail licence or a wholesale licence.

licensed online retail shop, for Part 5—see section 31.

licensed retail outlet, for Part 5—see section 31.

licensed retailer means a person who holds a retail licence.

licensed wholesaler means a person who holds a wholesale licence.

non-tobacco smoking product means any product (other than a tobacco product) that is intended to be smoked, and includes any product known or described as herbal cigarettes.

occupier, in relation to premises or a part of premises, means—

(a)  a person who has the right to occupy the premises or part to the exclusion of the owner, or

(b)  the person who is the owner of the premises or part if there is no person with a right to occupy the premises or part to the exclusion of the owner,

even if the premises are, or the part is, vacant.

pack includes cause or permit to be packed.

package includes—

(a)  a box, carton, cylinder, packet, pouch or tin, or

(b)  a wrapping other than a transparent outer wrapping.

premises means—

(a)  a building or other structure on land, or

(b)  vacant land, or

(c)  a vessel, or

(d)  an aircraft.

public place means a place, vehicle or vessel 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).

relevant person, for Part 5—see section 31.

retail licence—see section 32(a).

Secretary means the Secretary of the Ministry of Health.

sell includes—

(a)  barter or exchange, or

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

(c)  keep for sale or have in possession for sale, or

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

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

show cause notice, for Part 5, Division 2, Subdivision 5—see section 39H(1).

show cause period, for Part 5, Division 2, Subdivision 5—see section 39H(2).

smoking accessory includes cigarette papers, pipes, cigarette holders, hookahs, water pipes or any other smoking implement.

tobacco advertisement means writing, or any still or moving picture, sign, symbol or other visual image or message or audible message, or a combination of two or more of them, that gives publicity to, or otherwise promotes or is intended to promote—

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

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

tobacco product means tobacco, or a cigarette or cigar, or any other product containing tobacco and designed for human consumption or use.

tobacco vending machine means a machine, device or contrivance from which tobacco products or non-tobacco smoking products can be obtained by an operation that involves inserting money, or a token or object, into the machine, device or contrivance, whether or not some other action is required to activate the machine.

trademark includes any part of a trademark.

vaping goods has the same meaning as in the Therapeutic Goods Act 1989 of the Commonwealth.

vending machine token means a token that is designed to be inserted into an tobacco vending machine to enable the purchase or supply of tobacco products or non-tobacco smoking products.

wholesale licence—see section 32(b).

word includes symbol.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

(2)  For the purposes of this Act—

(a)  every sale that is not a sale by wholesale or otherwise for the purposes of resale is taken to be a sale by retail, and

(b)  a sale is presumed to be a sale by retail unless it is established that the sale is a sale by wholesale or otherwise for the purposes of resale.

(3)  Notes included in this Act do not form part of this Act.

s 4: Am 2010 No 127, Sch 4.18; 2015 No 16, Sch 1 [3] [4]; 2015 No 38, Sch 5 [2]; 2020 No 32, Sch 7[1]–[3]; 2024 No 22, Sch 9[1]; 2024 No 87, Sch 1[1]; 2024 No 94, Sch 4[2].

Part 2 Tobacco and other smoking products and sales

Division 1 Tobacco packaging

5 Meaning of “health warning”

In this Part, health warning means a health warning that meets the requirements of Parts 2 and 9 of the Competition and Consumer (Tobacco) Information Standard 2011 made under the Competition and Consumer Act 2010 of the Commonwealth to the extent that those requirements relate to labelling, marking, display, position, prominence and rotation.

s 5: Am 2012 No 42, Sch 1.24.

6 Certain sales prohibited

(1)  A person must not sell a tobacco product that is not in the package in which it was packed by the manufacturer.

(2)  A person must not sell cigarettes as individual items or in a package containing fewer than 20.

(3)  This section does not apply to the sale of single cigars.

(4)  For the purposes of subsection (1), a quantity of tobacco product that exceeds the amount prescribed by the regulations is presumed to be for the purposes of sale if—

(a)  it is on premises where tobacco products are being sold, and

(b)  it is not in the package in which it was packed by the manufacturer.

Any such presumption is rebuttable.

Maximum penalty—

(a)  for a corporation—7,000 penalty units, or

(b)  for an individual—1,400 penalty units.

s 6: Am 2016 No 38, Sch 5 [3]; 2020 No 32, Sch 7[4]; 2024 No 87, Sch 1[2].

7 Packing and sale of tobacco product without health warning prohibited

(1)  A person must not pack a tobacco product into a package in which the product is to be sold unless the package is marked with a health warning.

(2)  A person must not sell a tobacco product unless the package in which the product is sold is marked with a health warning.

(3)  This section does not apply to the sale or packing of single cigars.

(4)  For the purposes of subsection (2), a quantity of tobacco product that exceeds the amount prescribed by the regulations is presumed to be for the purposes of sale if—

(a)  it is on premises where tobacco products are being sold, and

(b)  it is not in packaging marked with a health warning.

Any such presumption is rebuttable.

Maximum penalty—

(a)  for a corporation—7,000 penalty units, or

(b)  for an individual—1,400 penalty units.

s 7: Am 2016 No 38, Sch 5 [4]; 2020 No 32, Sch 7[4]; 2024 No 87, Sch 1[3].

7A Powers of inspector to seize and dispose of tobacco products exceeding prescribed amounts

(1)  An inspector may seize any tobacco product that the inspector reasonably believes contravenes section 6 (1) or 7 (2) if—

(a)  it is on premises where tobacco products are being sold, and

(b)  the quantity of tobacco product exceeds the amount prescribed by the regulations for the purposes of section 6 (4) or 7 (4) (as the case requires).

(2)  Any tobacco product seized under this section may, at the option of the inspector who made the seizure or of any inspector acting in his or her place, be detained in the place, vehicle or vessel where it was found or be removed to another place and detained there.

(3)  If the tobacco product is to be detained in the place, vehicle or vessel where it was found, the inspector may—

(a)  place it in a room, compartment or cabinet in that place, vehicle, or vessel, and

(b)  mark, fasten and seal the door or opening providing access to that room, compartment or cabinet.

(4)  A person must not retake or attempt to retake any tobacco product seized under this section or resist or attempt to prevent such a seizure.

Maximum penalty—

(a)  in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation, 1,000 penalty units for a first offence or 2,000 penalty units for a second or subsequent offence.

(5)  The seizure of tobacco products under this section does not subject the State, the Minister, the Secretary, an inspector or any other person to any action, liability, claim or demand.

(6)  Any tobacco products seized under this section must be returned to the person from whom they were seized (or to such other person as appears to the inspector to be entitled to them) if—

(a)  the person from whom they were seized makes an application to the Secretary within 28 days after seizure to have the tobacco products returned, and

(b)  the Secretary is satisfied that the tobacco products were, at the time they were seized, for personal use and not in the person’s possession, custody or control for the purposes of sale.

(7)  An inspector is required to dispose of the tobacco products seized under this section in any manner that the inspector considers appropriate if—

(a)  the person from whom they were seized makes an application to the Secretary within 28 days after seizure to have the tobacco products returned and the Secretary is satisfied that the tobacco products were, at the time they were seized, not for personal use but in the person’s possession, custody or control for the purposes of sale, or

(b)  the person from whom the tobacco products were seized does not make an application under subsection (6).

(8)  A person who is not an inspector may exercise the functions of an inspector under this section if the person—

(a)  is appointed as an inspector under the Poisons and Therapeutic Goods Act 1966, and

(b)  is on the premises in accordance with that Act.

s 7A: Ins 2016 No 38, Sch 5 [5]. Am 2023 No 37, Sch 8[1].

8 Prohibited words

(1)  A person must not—

(a)  pack a tobacco product into a package in which the product is to be sold, or

(b)  sell a tobacco product in a package,

if the package is marked with, or accompanied by, any material that contains any prohibited words.

Maximum penalty—

(a)  for a corporation—7,000 penalty units, or

(b)  for an individual—1,400 penalty units.

(2)  For the purposes of this section, the prohibited words are—

(a)  “non-injurious”, “non-hazardous”, “harmless to man” and “harmless to woman”, and

(b)  words of similar import to those specified in paragraph (a), and

(c)  words that directly or by implication contradict, qualify or modify a health warning that is marked, or required to be marked, on the package.

s 8: Am 2024 No 87, Sch 1[4].

Division 2 Sale and display of tobacco and other smoking products

8A (Repealed)

s 8A: Ins 2015 No 16, Sch 1 [5]. Rep 2024 No 94, Sch 4[3].

9 Display of tobacco products, non-tobacco smoking products and smoking accessories

(1)  A person who is the occupier of premises on which tobacco products or non-tobacco smoking products are sold must ensure that members of the public cannot see any of those products, or any smoking accessories, from inside or outside the premises.

Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation.

(2)  This section does not apply to—

(a)  the display of tobacco products, non-tobacco smoking products or smoking accessories to a customer of the business concerned at his or her request, or

(b)  the display of tobacco products, non-tobacco smoking products or smoking accessories by a customer of the business concerned, or

(c)  the display of tobacco products, non-tobacco smoking products or smoking accessories in such other circumstances as may be prescribed by the regulations as exempt from this section.

Note.

Lead-in periods for offences under this section are provided for existing businesses (see clause 5 of Schedule 1).

10 Tobacco products, non-tobacco smoking products and smoking accessories to be sold from one place on premises

(1)  The occupier of premises on which tobacco products or non-tobacco smoking products are sold must ensure that those products, and any smoking accessories, are sold from only one point of sale on those premises.

Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation.

(2)  For the purposes of this section, a point of sale includes a cash register but does not include a tobacco vending machine.

11 Sale of tobacco products by certain means and from certain premises prohibited

(1)  A person (the vendor) must not carry a tobacco product in any public place for the purpose of the sale of the product by retail to persons in the place.

(2)  A person must not cause or permit a vendor to carry a tobacco product in contravention of subsection (1) on premises under the person’s control.

(3)  If a vendor contravenes subsection (1)—

(a)  a person who is the employer of the vendor in the person’s capacity as vendor, or

(b)  a person who has entered into a contract with the vendor in the performance of which the vendor engaged in the activity that constituted the contravention,

is also guilty of an offence.

(4)  A person must not sell a tobacco product by retail from—

(a)  any booth, tent or other temporary enclosure (including a market stall or stand), whether or not part of the booth, tent or enclosure is permanent, or

(b)  any mobile structure, vehicle or vessel.

(5)  A person must not cause or permit another person to sell a tobacco product in contravention of subsection (4)—

(a)  on premises under the person’s control, or

(b)  on premises being used for a concert or other event organised by the person.

Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation.

Division 3 Tobacco vending machines

pt 2, div 3, hdg: Am 2015 No 16, Sch 1 [6]; 2024 No 94, Sch 4[4].

12 Places where tobacco vending machines may be placed

(1)  A person who owns or is the lessee of a tobacco vending machine must not place the vending machine, or cause or permit the vending machine to be placed, in any premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products unless the vending machine is placed in an area of the premises that is—

(a)  a bar area of a hotel or club premises within the meaning of the Liquor Act 2007, or

(b)  a bar area of a casino within the meaning of the Liquor Act 2007 as applied by the Casino Control Act 1992, or

(c)  a gaming machine area within the meaning of the Gaming Machines Act 2001.

(2)  A person who owns or is the lessee of a tobacco vending machine must not place the vending machine, or cause or permit the vending machine to be placed, in any of the following premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products if, as a result, more than one tobacco vending machine would be situated on those premises—

(a)  a hotel (within the meaning of the Liquor Act 2007),

(b)  club premises (within the meaning of the Liquor Act 2007),

(c)  a casino (within the meaning of the Casino Control Act 1992), including premises to be considered to form part of the casino by an order under section 89 (3) of that Act.

Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in any other case.

Note.

Continuing offences against subsections (1) and (2) are dealt with in section 52.

Note.

Lead-in periods for offences under this section are provided in relation to tobacco vending machines already situated in premises (see clause 6 of Schedule 1).

s 12: Am 2015 No 16, Sch 1 [7]; 2024 No 94, Sch 4[5].

13 Operation of tobacco vending machines to be controlled by staff

A person who owns or is the lessee of a tobacco vending machine must not place the vending machine, or arrange for or permit the vending machine to be placed, in any premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products unless—

(a)  the vending machine can only be activated by a member of staff of the hotel, club or casino in which the vending machine is situated, whether by remote control or some other means, or

(b)  a person intending to obtain products from the vending machine is required to use a vending machine token that is only available from a member of staff of the hotel, club or casino in which the vending machine is situated.

Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation.

Note.

Part 4 (Protection of juveniles) contains offences relating to the supply of tokens for vending machines to minors.

Note.

Continuing offences against this section are dealt with in section 52.

Note.

Lead-in periods for offences under this section are provided in relation to tobacco vending machines already situated in premises. (See clause 6 of Schedule 1.)

s 13: Am 2015 No 16, Sch 1 [8]; 2024 No 94, Sch 4[5] [6].

14 Regulation of product display on tobacco vending machines

(1)  A person who owns or is the lessee of a tobacco vending machine situated in premises in New South Wales for the purpose of the sale of tobacco products or non-tobacco smoking products must ensure that a statement in the form (if any) prescribed by the regulations is kept conspicuously displayed on the front of the vending machine.

(2)  A person who owns or is the lessee of a tobacco vending machine in New South Wales must ensure that—

(a)  the tobacco products contained in the vending machine are not displayed so as to be in view of members of the public, and

(b)  no information about tobacco products, or representation of a tobacco product or package of a tobacco product, is displayed on the vending machine other than permissible information.

(3)  For the purposes of this section, permissible information that may be displayed on a tobacco vending machine is—

(a)  any information, statement or symbol required by law to be displayed on the vending machine, and

(b)  the name and description of the tobacco products for sale in the vending machine, and their price, displayed in black writing on a white background and in letters or figures of not more than 1 centimetre in width and 1 centimetre in height.

Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation.

s 14: Am 2015 No 16, Sch 1 [9]; 2024 No 94, Sch 4[5] [7].

15 Responsibilities of occupiers for vending machines

(1)  If the owner or lessee of a tobacco vending machine contravenes a provision of this Division in relation to the tobacco vending machine, the occupier of the premises on which the vending machine was situated at the time of the contravention is taken to have contravened the same provision unless the occupier proves that—

(a)  the vending machine was placed on the premises in compliance with this Division and the occupier could not by the exercise of due diligence have prevented the contravention, or

(b)  the vending machine was placed and retained on the premises without the occupier’s knowledge or consent.

(2)  If a person sells or displays tobacco products or non-tobacco smoking products by means of a tobacco vending machine in contravention of a provision of this Act, the occupier of the premises on which the vending machine was situated at the time of the contravention is taken to have contravened the same provision unless the occupier proves that—

(a)  the vending machine was placed on the premises in compliance with this Division and the occupier could not by the exercise of due diligence have prevented the contravention, or

(b)  the vending machine was placed and retained on the premises without the occupier’s knowledge or consent.

(3)  The occupier of premises may be proceeded against and convicted under a provision of this Act by virtue of this section whether or not the owner or lessee of the tobacco vending machine, or person who sold or displayed the tobacco products or non-tobacco smoking products, has been proceeded against or convicted under the provision.

(4)  This section is not affected by the terms of any agreement or other arrangement with respect to the use or operation of the tobacco vending machine or the sale or display of tobacco products or non-tobacco smoking products by means of the machine (including an agreement or other arrangement entered into before the commencement of this section).

s 15: Am 2015 No 16, Sch 1 [10] [11]; 2024 No 94, Sch 4[8]–[11].

Part 3 Advertising and promotion of tobacco products

pt 3, hdg: Am 2015 No 16, Sch 1 [12]; 2024 No 94, Sch 4[12].

15A (Repealed)

s 15A: Ins 2015 No 16, Sch 1 [13]. Rep 2024 No 94, Sch 4[13].

16 Certain advertising prohibited

(1)  A person must not, in New South Wales and for any direct or indirect benefit, display a tobacco advertisement in, or so that it can be seen or heard from, a public place or a place prescribed by the regulations.

(2)  A person must not, in New South Wales—

(a)  distribute to the public any unsolicited object that constitutes or contains a tobacco advertisement, or

(b)  sell, hire or supply for any direct or indirect benefit any object to any person (other than a person, or the employee of a person, who is a manufacturer, distributor or retailer of a tobacco product) if the object constitutes or contains a tobacco advertisement.

(3)  This section does not apply in relation to any of the following—

(a)  anything done by means of a radio or television broadcast,

(b)  a tobacco advertisement in or on a newspaper or book—

(i)  printed and published outside New South Wales, or

(ii)  printed and published before 17 December 1991,

unless the sole or main purpose of the newspaper or book is the promotion or publicising of the purchase or use of a tobacco product or a trademark or brand name of a tobacco product,

(c)    (Repealed)

(d)  a tobacco advertisement that is an incidental accompaniment to the subject of a film, video tape or live stage performance unless the sole or main purpose of the film, video tape or performance is the promotion or publicising of the purchase or use of a tobacco product or a trademark or brand name of a tobacco product,

(e)  the display of retail prices and names of tobacco products within a retail outlet,

(f)  an invoice, statement, order, letterhead, business card, cheque, manual or other document that is ordinarily used in the course of the business of a manufacturer or distributor of a tobacco product.

(4)    (Repealed)

(5)  In any proceedings for an offence under this section, if there is present in the relevant tobacco advertisement, or the relevant object alleged to constitute or contain a tobacco advertisement—

(a)  the name of a person who manufactures or distributes any tobacco product, or

(b)  a trademark of which a person who manufactures or distributes any tobacco product is the registered owner or the authorised user within the meaning of the Trade Marks Act 1995 of the Commonwealth, or

(c)  a brand name, used by a person who manufactures or distributes any tobacco product,

it is to be presumed, until the contrary is proved, that that person displayed the tobacco advertisement, or distributed, sold, hired or supplied the object, for a direct or indirect benefit.

(6)  In any proceedings for an offence under this section, if the thing that is alleged to constitute a tobacco advertisement contains the trademark or brand name of a tobacco product, it is to be presumed, until the contrary is proved, to be designed to promote or publicise the tobacco product to which it relates.

(7)  In this section—

book includes any printed material in any language.

newspaper includes a copy of any magazine, journal or periodical or a copy of any other publication that contains—

(a)  news, information or reports of events, or

(b)  remarks, observations or comments about any news, information or events or about any other matter of interest to the public or to any section of the public,

that is printed in any language and published at regular or irregular intervals.

Maximum penalty—

(a)  in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation, 6,000 penalty units for a first offence or 10,000 penalty units for a second or subsequent offence.

Note.

Continuing offences against this section are dealt with in section 52.

Note.

Schedule 2.4 repeals subsections (3) (c) and (4) on a proclaimed day.

s 16: Am 2008 No 94, Sch 2.4; 2024 No 87, Sch 1[5].

16E Display of retail prices and names of tobacco products prohibited

(1)  A person must not, in New South Wales, display the retail prices or names of tobacco products in, or so that the display can be seen from, any of the following—

(a)  a public place,

(b)  a place prescribed by the regulations.

Maximum penalty—

(a)  for a corporation—500 penalty units, or

(b)  for an individual—100 penalty units.

(2)  Subsection (1) does not apply to the display of the retail prices or names of tobacco products within a retail outlet if the prices and names are displayed in a way that complies with any requirements for the display of retail prices and names of tobacco products prescribed by the regulations.

s 16E: Ins 2024 No 87, Sch 1[6].

17 Tobacco products promotions involving prizes or gifts

(1)  A person must not, in connection with the sale of a tobacco product or for the purpose of promoting the sale of a tobacco product, supply (whether from inside or outside New South Wales) to a person in New South Wales—

(a)  a prize, gift or other benefit, or

(b)  a stamp, coupon, token, voucher, ticket or other thing by virtue of which any person may become entitled to, or may qualify for, a prize, gift or other benefit (whether that entitlement or qualification is absolute or conditional).

(2)  Subsection (1) applies whether or not the person supplied with the benefit or thing concerned is a purchaser of a tobacco product.

(3)  Subsection (1) does not apply to the supply of a benefit or thing to a person who is, or is the employee of—

(a)  a manufacturer or distributor of tobacco products, or

(b)  a retailer of tobacco products, unless it is established that the benefit or thing was supplied for resupply to persons who purchase tobacco products from the retailer.

(4)  A benefit or thing supplied to a tobacco retailer, or an employee of a tobacco retailer, that is actually resupplied to a purchaser of tobacco products from the retailer (or any employee of the retailer) is taken, for the purposes of subsection (3) (b), to have been so supplied for resupply to such a purchaser.

(5)  A person must not, in connection with the sale of a tobacco product or for the purpose of promoting the sale of a tobacco product, conduct (whether from inside or outside New South Wales) a scheme—

(a)  declared by the regulations to be a scheme to promote the sale of a tobacco product or to promote smoking generally, and

(b)  the whole or any part of which is implemented in New South Wales.

(6)  It is a defence in proceedings for an offence under this section to prove that the benefit or thing supplied was only incidentally connected with the purchase of a tobacco product and that equal opportunity to receive that benefit or thing and to buy products other than tobacco products was afforded generally to persons who purchased products, whether or not they were tobacco products.

(7)  It is no defence in any such proceedings to prove that the benefit or thing concerned was of negligible or no value.

Maximum penalty—

(a)  in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation, 6,000 penalty units for a first offence or 10,000 penalty units for a second or subsequent offence.

Note.

Continuing offences against subsection (1) are dealt with in section 52.

18 Shopper loyalty programs

(1)  A person must not implement or conduct a shopper loyalty program.

Maximum penalty—100 penalty units, in the case of an individual and 500 penalty units, in the case of a corporation.

(2)  In this section, a shopper loyalty program means any of the following programs—

(a)  a program under which a gift or other benefit may be obtained by a purchaser of tobacco products or non-tobacco smoking products on the basis of the amount or type of those products purchased, regardless of whether the program extends to the purchase of other products or goods,

(b)  a program under which a purchaser of goods or products may be entitled to a gift of tobacco products or non-tobacco smoking products, regardless of whether the purchaser may choose to accept another type of gift instead.

(3)  However, a shopper loyalty program does not include the following—

(a)  any program under which a gift or other benefit may be obtained by a purchaser of goods on the basis of the method of payment used, such as the use of a particular credit card,

(b)  any program conducted by a manufacturer or distributor of tobacco products or non-tobacco smoking products where the gift or other benefit provided under the program is provided to a retailer of such products for the use of the retailer and is not intended for resupply.

19 Free samples

A person must not, for the purpose of inducing or promoting the sale of a tobacco product, offer, give or distribute to another person (not being a person who is, or is the employee of, a manufacturer, distributor or retailer of a tobacco product) a free tobacco product.

Maximum penalty—

(a)  in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation, 6,000 penalty units for a first offence or 10,000 penalty units for a second or subsequent offence.

Note.

Continuing offences against this section are dealt with in section 52.

20 Prohibition of sponsorships

(1)  A person must not promote or publicise, or agree to promote or publicise, in New South Wales any of the following under a contract, or an arrangement (whether or not legally binding), under which a sponsorship is provided, or to be provided, by another person—

(a)  a tobacco product or a trademark or brand name of a tobacco product,

(b)  the name or interests of a manufacturer or distributor of a tobacco product (whether or not that manufacturer or distributor also manufactures or distributes a product other than the tobacco product) in association directly or indirectly with the tobacco product.

(2)  A person must not provide, or agree to provide, a sponsorship under a contract or arrangement of a kind referred to in subsection (1).

(3)  For the purposes of subsection (1) (b), the name or interests of a manufacturer or distributor of a tobacco product are taken to be in association directly or indirectly with the tobacco product if that name or those interests are commonly associated by members of the public in New South Wales with the tobacco product.

(4)  In this section, sponsorship includes—

(a)  any scholarship, prize, gift or other benefit, and

(b)  any financial arrangement (other than a genuine contract of employment or a genuine contract for services) for the direction, promotion or publicity of one or more of the matters referred to in subsection (1) (a) and (b) through the medium of sporting, arts, youth, educational or other like activities.

Maximum penalty—

(a)  in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation, 6,000 penalty units for a first offence or 10,000 penalty units for a second or subsequent offence.

Note.

Continuing offences against this section are dealt with in section 52.

21 Smokeless tobacco, confectionery and toys

(1)  A person must not manufacture or sell in New South Wales a tobacco product designed for consumption otherwise than by smoking.

(1A)  For the purposes of subsection (1), a quantity of tobacco product that exceeds the amount prescribed by the regulations is presumed to be for the purposes of sale if—

(a)  it is on premises where tobacco products are being sold, and

(b)  it is a tobacco product designed for consumption otherwise than by smoking.

(1B)  The presumption referred to in subsection (1A) is rebuttable.

(2)  Subsection (1) does not apply to the manufacture or sale of any mixture or product, or mixture or product of a class, prescribed by the regulations if the manufacture or sale occurred in the circumstances prescribed by the regulations.

(3)  A person must not sell—

(a)  any confectionery or other food, or

(b)  any toy, amusement or other product,

that resembles a tobacco product or is packaged to resemble a tobacco product.

Maximum penalty—

(a)  in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation, 1,000 penalty units for a first offence or 2,000 penalty units for a second or subsequent offence.

Note.

Continuing offences against subsection (1) are dealt with in section 52.

s 21: Am 2020 No 32, Sch 7[5].

21A Powers of inspector to seize and dispose of smokeless tobacco products

(1)  An inspector may seize a tobacco product that the inspector reasonably believes is for sale in contravention of section 21(1) if—

(a)  it is on premises where tobacco products are being sold, and

(b)  the quantity of tobacco product exceeds the amount prescribed by the regulations for the purposes of section 21(1A).

(2)  A tobacco product seized under this section may, at the option of the inspector who made the seizure or of an inspector acting in place of that inspector, be detained in the place, vehicle or vessel where it was found or be removed to another place and detained there.

(3)  If the tobacco product is to be detained in the place, vehicle or vessel where it was found, the inspector may—

(a)  place it in a room, compartment or cabinet in that place, vehicle or vessel, and

(b)  mark, fasten and seal the door or opening providing access to that room, compartment or cabinet.

(4)  A person must not retake or attempt to retake a tobacco product seized under this section or resist or attempt to prevent a seizure.

Maximum penalty—

(a)  for an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or

(b)  for a corporation, 1,000 penalty units for a first offence or 2,000 penalty units for a second or subsequent offence.

(5)  The seizure of tobacco products under this section does not subject the State, the Minister, the Secretary, an inspector or another person to any action, liability, claim or demand.

(6)  Tobacco products seized under this section must be returned to the person from whom they were seized, or to another person who appears to the inspector to be entitled to them, if—

(a)  the person from whom they were seized makes an application to the Secretary within 28 days after seizure to have the tobacco products returned, and

(b)  the Secretary is satisfied that the tobacco products were, at the time they were seized, for personal use and not in the person’s possession, custody or control for the purposes of sale.

(7)  An inspector is required to dispose of tobacco products seized under this section in a manner that the inspector considers appropriate if—

(a)  the person from whom they were seized makes an application to the Secretary within 28 days after seizure to have the tobacco products returned and the Secretary is satisfied that the tobacco products were, at the time they were seized, not for personal use but in the person’s possession, custody or control for the purposes of sale, or

(b)  the person from whom the tobacco products were seized does not make an application under subsection (6).

(8)  A person who is not an inspector may exercise the functions of an inspector under this section if the person—

(a)  is appointed as an inspector under the Poisons and Therapeutic Goods Act 1966, and

(b)  is on the premises in accordance with that Act.

s 21A: Ins 2020 No 32, Sch 7[6]. Am 2023 No 37, Sch 8[2].

Part 4 Protection of juveniles

Division 1 Juvenile smoking

22 Sale of tobacco and non-tobacco smoking products to minors

(1)  A person must not sell a tobacco product to a person who is under the age of 18 years.

(2)  A person must not sell a non-tobacco smoking product to a person who is under the age of 18 years.

(2A)    (Repealed)

(2B)  A person who contravenes this section is guilty of an offence.

Maximum penalty—

(a)  for a corporation—

(i)  1,000 penalty units for a first offence, and

(ii)  2,000 penalty units for a second or subsequent offence, or

(b)  for an individual—

(i)  200 penalty units for a first offence, and

(ii)  1,000 penalty units for a second or subsequent offence.

(3)  It is a defence to a prosecution for an offence under this section if the court is satisfied that—

(a)  the person to whom the tobacco product or non-tobacco smoking product was sold was over the age of 14 years at the time of the sale, and

(b)  at or before the time of the sale there was produced to the defendant documentary evidence that might reasonably be accepted as applying to the person to whom the tobacco product or non-tobacco smoking product was sold and as proving that the person was at least 18 years of age.

(4)  In this section—

authorised product means a device or accessory (other than a device or accessory of a kind excluded by the regulations) that is—

(a)  a therapeutic good (as defined in the Therapeutic Goods Act 1989 of the Commonwealth)—

(i)  registered in the Australian Register of Therapeutic Goods maintained under section 9A of that Act, or

(ii)  the subject of an approval or authority under section 19 of that Act, or

(b)  supplied under a licence or authority in force under the Poisons and Therapeutic Goods Act 1966 or the regulations under that Act.

s 22: Am 2015 No 16, Sch 1 [14]–[16]; 2024 No 87, Sch 1[7]; 2024 No 94, Sch 4[14]–[16].

23 Purchasing tobacco products or non-tobacco smoking products on behalf of minors

(1)  A person of or above the age of 18 years must not purchase, on behalf of a person under the age of 18 years, a tobacco product or non-tobacco smoking product from premises where such products are sold.

Maximum penalty—20 penalty units.

(2)  It is a defence to a prosecution for an offence under this section if the court is satisfied that—

(a)  the person on whose behalf the relevant product was purchased was over the age of 14 years, and

(b)  at or before the time the relevant product was purchased there was produced to the defendant documentary evidence that might reasonably be accepted as applying to the person and as proving that the person was at least 18 years of age.

(3)    (Repealed)

s 23: Am 2015 No 16, Sch 1 [17] [18]; 2024 No 94, Sch 4[17]–[19].

24 Supplying vending machine tokens to minors and activating tobacco vending machines for minors

(1)  A manager or member of staff of premises on which a tobacco vending machine is situated must not supply a vending machine token to a person who is under the age of 18 years or activate a tobacco vending machine for a person under the age of 18 years.

Maximum penalty—

(a)  in the case of an individual, 100 penalty units for a first offence or 500 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence.

(2)  It is a defence to a prosecution for an offence under this section if the court is satisfied that—

(a)  the person to whom the relevant token was supplied or for whom the tobacco vending machine was activated was over the age of 14 years, and

(b)  at or before the time the relevant token was supplied or tobacco vending machine was activated there was produced to the defendant documentary evidence that might reasonably be accepted as applying to the person and as proving that the person was at least 18 years of age.

s 24: Am 2015 No 16, Sch 1 [19] [20]; 2024 No 94, Sch 4[20]–[22].

25 Obtaining vending machine tokens on behalf of minors

(1)  A person of or above the age of 18 years must not obtain, on behalf of a person under the age of 18 years, a vending machine token.

Maximum penalty—20 penalty units.

(2)  It is a defence to a prosecution for an offence under this section if the court is satisfied that—

(a)  the person on whose behalf the relevant token was obtained was over the age of 14 years, and

(b)  at or before the time the relevant token was obtained there was produced to the defendant documentary evidence that might reasonably be accepted as applying to the person and as proving that the person was at least 18 years of age.

s 25: Am 2015 No 16, Sch 1 [21].

26 Seizure of tobacco products or non-tobacco smoking products in possession of minors

(1)  A police officer may seize a tobacco product or non-tobacco smoking product in the possession of a person in a public place if the officer suspects on reasonable grounds that the person is under the age of 18 years.

(2)  Any tobacco product or non-tobacco smoking product seized under subsection (1) is forfeited to the Crown.

(3)  A tobacco product or non-tobacco smoking product may be seized under subsection (1) from a person’s possession even though the person is under the age of criminal responsibility.

(4)  The regulations may make provision for or with respect to the following—

(a)  the procedure to be followed for the seizure of tobacco products or non-tobacco smoking products under subsection (1),

(b)  without limiting paragraph (a), prescribing the circumstances in which, and the procedure by which, tobacco products or non-tobacco smoking products seized under this section are to be returned.

s 26: Am 2015 No 16, Sch 1 [22]; 2024 No 94, Sch 4[23]–[25].

27 Evidence of age

For the purposes of sections 22 (3), 23 (2), 24 (2) and 25 (2), documentary evidence includes an evidence of age document within the meaning of the Liquor Act 2007.

28 Liability of employers

(1)  If an employee contravenes section 22 or 24, the employer is taken to have contravened that section (whether or not the employee contravened the provision without the employer’s authority or contrary to the employer’s orders or instructions).

(2)  It is a defence to a prosecution against an employer for such a contravention if it is established—

(a)  that the employer had no prior knowledge of the contravention, and

(b)  that the employer could not, by the exercise of due diligence, have prevented the contravention.

(3)  An employer may be proceeded against and convicted under section 22 or 24 by virtue of this section whether or not the employee has been proceeded against or convicted under that provision.

(4)  For the purposes of this section, any person who authorised a person who contravenes section 22 to sell tobacco products or non-tobacco smoking products as the person’s agent is taken to be an employer of a person who contravenes section 22.

s 28: Am 2015 No 16, Sch 1 [23]; 2024 No 94, Sch 4[26].

Division 2 Other measures for the protection of juveniles

29 Prohibited tobacco products

(1)  The Minister may, by notice published in the Gazette, declare that a tobacco product, or a class of tobacco products, specified in the notice is a prohibited tobacco product or are prohibited tobacco products.

(2)  The Minister must not make a declaration under subsection (1) unless the Minister is satisfied that the tobacco product or products, or the smoke of the product or products, has a distinctive fruity, sweet or confectionery-like character that might encourage a minor to smoke.

(3)  The Minister may, by further notice published in the Gazette, vary or revoke a notice under this section.

(4)  A person must not sell a prohibited tobacco product.

Maximum penalty (subsection (4)): 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence.

Editorial note.

For notices under this section, see Gazettes No 11 of 15.1.2010, p 136 and No 135 of 17.12.2010, p 5910. From April 2021, PCO is no longer updating notes in provisions of in force titles about related gazette notices. To search for related gazette notices, please use the Gazette Search functionality.

30 Smoking in motor vehicle prohibited if juvenile present

(1)  A person must not smoke in a motor vehicle that is on a road or road related area if there is a person under the age of 16 years present in the vehicle.

Maximum penalty—10 penalty units.

(2)  The driver of a motor vehicle in which a person is smoking in contravention of subsection (1) is guilty of an offence.

Maximum penalty—10 penalty units.

(3)  The driver may be proceeded against and convicted of an offence against subsection (2) whether or not the person who was smoking has been proceeded against or convicted of an offence under subsection (1).

(4)  It is a defence to a prosecution for an offence under subsection (1) if the court is satisfied that, when the defendant was smoking, the defendant believed on reasonable grounds that no person in the motor vehicle was under the age of 16 years.

(5)  It is a defence to a prosecution for an offence under subsection (2) if the court is satisfied that the defendant believed on reasonable grounds that, when the person who contravened subsection (1) was smoking, no person in the motor vehicle was under the age of 16 years.

(6)  For the purposes of investigating whether an offence has been committed against this section, a police officer may do any or all of the following—

(a)  direct the driver of a motor vehicle to stop the vehicle,

(b)  require the driver of a motor vehicle who the police officer reasonably suspects has committed an offence against this section to produce his or her driver licence (within the meaning of the Road Transport Act 2013) and state his or her name and home address,

(c)  require a passenger in a motor vehicle who the police officer reasonably suspects has committed an offence against this section to state his or her name and home address.

(7)  If it is established in any proceedings for an offence against this section that at the time of the alleged commission of the offence there was present in the motor vehicle concerned a person who appeared to be under the age of 16 years, it is to be presumed in the absence of evidence to the contrary that the person was under the age of 16 years.

(8)  In this section—

drive has the same meaning as in the Road Transport Act 2013.

driver of a motor vehicle means any person driving the vehicle.

motor vehicle has the same meaning as in the Road Transport Act 2013, but does not include a public passenger vehicle within the meaning of the Passenger Transport Act 1990.

road or road related area has the same meaning as in section 4 (1) of the Road Transport Act 2013.

smoke means—

(a)  for a tobacco product or non-tobacco smoking product—to use, consume, hold or otherwise have control over the tobacco product or non-tobacco smoking product when the product is ignited, or

(b)  for a vaping good—to use, consume, hold or otherwise have control over the vaping good that is generating or releasing, whether or not by burning, smoke or an aerosol or vapour.

s 30: Am 2013 No 19, Sch 4.67 [1]–[3]; 2015 No 16, Sch 1 [24]; 2024 No 87, Sch 1[8]; 2024 No 94, Sch 4[27].

Part 5 Restrictions on tobacco retailing

pt 5, hdg: Am 2018 No 13, Sch 2 [1]; 2024 No 94, Sch 4[28].

Division 1 Preliminary

pt 5, div 1: Subst 2024 No 87, Sch 1[9].

31 Definitions

In this part—

approved form means a form approved by the Secretary under section 39M.

licensed online retail shop, in relation to a retail licence, means the website specified in the licence as the online retail shop through which the licence holder is authorised to sell tobacco products or non-tobacco smoking products under the licence.

licensed retail outlet, in relation to a retail licence, means the retail premises specified in the licence as the retail outlet from which the licence holder is authorised to sell tobacco products or non-tobacco smoking products under the licence.

relevant person, for an applicant for the grant or renewal of a licence, means a person who holds or will hold any of the following positions of the applicant or in a business through which the applicant will sell tobacco products or non-tobacco smoking products under the licence if the licence is granted or renewed—

(a)  director,

(b)  another position prescribed by the regulations.

retail premises means either of the following types of premises, whether or not the premises are used wholly or predominantly for the relevant purpose—

(a)  premises from which goods or services are available for supply, or are supplied, to a consumer, or

(b)  premises that are used in connection with the supply of goods or services to a consumer.

show cause notice, for Division 2, Subdivision 5—see section 39H(1).

show cause period, for Division 2, Subdivision 5—see section 39H(2).

s 31: Subst 2024 No 87, Sch 1[9].

s 31A: Ins 2018 No 13, Sch 2 [2]. Rep 2024 No 94, Sch 4[29].

Division 2 Licences for selling tobacco products or non-tobacco smoking products

pt 5, div 2: Subst 2024 No 87, Sch 1[9].

Subdivision 1 Retail and wholesale licences generally

pt 5, div 2, sdiv 1: Ins 2024 No 87, Sch 1[9].

32 Types of licences

The Secretary may grant the following types of licences under this division—

(a)  a retail licence that authorises the licence holder to sell, in accordance with this Act and the conditions of the licence, tobacco products or non-tobacco smoking products by retail either—

(i)  from a single licensed retail outlet, or

(ii)  through a single licensed online retail shop,

(b)  a wholesale licence that authorises the licence holder to sell, in accordance with this Act and the conditions of the licence, tobacco products or non-tobacco smoking products by wholesale.

s 32: Subst 2024 No 87, Sch 1[9].

33 Form of licences

A licence must be in the approved form and include the following details—

(a)  the type of licence,

(b)  the name of the licence holder,

(c)  for a retail licence—the licensed retail outlet or the licensed online retail shop for the licence,

(d)  any conditions imposed on the grant or renewal of the licence,

(e)  the expiry date for the licence.

s 33: Subst 2024 No 87, Sch 1[9].

34 Duration of licences

(1)  The Secretary may grant or renew a licence for—

(a)  a period of 12 months, or

(b)  a shorter period specified in the licence.

(2)  A licence—

(a)  takes effect on the day stated in the licence, and

(b)  remains in effect for the period for which the licence has been granted or renewed, unless sooner revoked or surrendered.

s 34: Subst 2024 No 87, Sch 1[9].

35 Licences cannot be transferred

A licence cannot be transferred from the licence holder to another person.

s 35: Subst 2024 No 87, Sch 1[9].

36 Licence conditions

(1)  The Secretary may, at any time, by written notice to a licence holder—

(a)  impose a condition on the licence, or

(b)  vary a condition imposed on the licence by the Secretary, or

(c)  revoke a condition imposed on the licence by the Secretary.

(2)  The regulations may impose standard conditions on licences.

s 36: Subst 2024 No 87, Sch 1[9].

Subdivision 2 Principal offences relating to sale of tobacco products or non-tobacco smoking products

pt 5, div 2, sdiv 2: Ins 2024 No 87, Sch 1[9].

37 Selling tobacco products or non-tobacco smoking products by retail without licence

(1)  A person must not sell tobacco products or non-tobacco smoking products by retail unless the person holds a retail licence that is in effect.

Maximum penalty—

(a)  for a corporation—2,000 penalty units, or

(b)  for an individual—

(i)  100 penalty units for a first offence, or

(ii)  400 penalty units for a second or subsequent offence.

(2)  A person does not commit an offence under subsection (1) if—

(a)  the person is employed by or otherwise engaged to work for a licensed retailer, and

(b)  the sale is made in accordance with—

(i)  this Act and the regulations, and

(ii)  a retail licence held by the licensed retailer.

(3)  A licensed retailer must not sell tobacco products or non-tobacco smoking products by retail other than in accordance with—

(a)  this Act and the regulations, and

(b)  a retail licence held by the licensed retailer.

Maximum penalty—

(a)  for a corporation—2,000 penalty units, or

(b)  for an individual—

(i)  100 penalty units for a first offence, or

(ii)  400 penalty units for a second or subsequent offence.

s 37: Subst 2024 No 87, Sch 1[9].

38 Selling tobacco products or non-tobacco smoking products by wholesale without licence

(1)  A person must not sell tobacco products or non-tobacco smoking products by wholesale unless the person holds a wholesale licence that is in effect.

Maximum penalty—

(a)  for a corporation—2,000 penalty units, or

(b)  for an individual—400 penalty units.

(2)  A person does not commit an offence under subsection (1) if—

(a)  the person is employed by or otherwise engaged to work for a licensed wholesaler, and

(b)  the sale is made in accordance with—

(i)  this Act and the regulations, and

(ii)  the wholesale licence held by the licensed wholesaler.

(3)  A licensed wholesaler must not sell tobacco products or non-tobacco smoking products by wholesale other than in accordance with—

(a)  this Act and the regulations, and

(b)  the wholesale licence held by the licensed wholesaler.

Maximum penalty—

(a)  for a corporation—2,000 penalty units, or

(b)  for an individual—400 penalty units.

s 38: Subst 2024 No 87, Sch 1[9].

Subdivision 3 Applications for licences

pt 5, div 2, sdiv 3: Ins 2024 No 87, Sch 1[9].

39 Applications for licences

(1)  A person (the applicant) may apply to the Secretary for—

(a)  a retail licence, or

(b)  a wholesale licence.

(2)  An application may not be made by an individual who is under the age of 18 years.

(3)  The application must—

(a)  be in the approved form, and

(b)  be accompanied by the fee, if any, prescribed by the regulations for the application, and

(c)  state the type of licence being applied for, and

(d)  state the applicant’s name and business address, and

(e)  for an application for a retail licence—

(i)  if the applicant proposes a single retail premises be specified as the licensed retail outlet for the retail licence—state the address of the retail premises, and

(ii)  if the applicant proposes a single website be specified as the licensed online retail shop for the retail licence—include the details of the website, and

(iii)  include the details of a person with the day-to-day responsibility for running the proposed licensed retail outlet or licensed online retail shop who is nominated by the applicant to be the designated person for the retail licence, and

(f)  include any other information required by the Secretary, and

(g)  otherwise be made in accordance with the regulations.

(4)  The Secretary may, at any time before deciding the application, require the applicant to give the Secretary further information in relation to the application.

(5)  If, before the application is decided by the Secretary, a change occurs in the information provided in or in connection with the application, the applicant must immediately notify the Secretary of the details of the change.

s 39: Am 2010 No 52, Sch 3.5; 2015 No 38, Sch 5 [6]. Subst 2018 No 13, Sch 2 [4]. Am 2024 No 94, Sch 4[31]–[37]. Subst 2024 No 87, Sch 1[9].

39A Deciding applications for licences

(1)  The Secretary must decide the application for the licence by—

(a)  granting the licence, or

(b)  refusing to grant the licence.

(2)  In deciding the application, the Secretary may consider the following—

(a)  whether the applicant, or a relevant person for the applicant, has been found guilty of an offence relating to the sale or supply of tobacco products, non-tobacco smoking products or vaping goods under—

(i)  this Act or the regulations, or

(ii)  another Act or law, including a law of the Commonwealth or another State or Territory,

(b)  any other matters prescribed by the regulations.

(3)  Despite subsection (1), the Secretary may refuse to decide the application if the applicant—

(a)  does not comply with a requirement to give information under section 39(4), or

(b)  fails to notify the Secretary of a change in information under section 39(5).

(4)  Without limiting the grounds on which the Secretary may refuse to grant a licence, the Secretary may refuse to grant a licence on one or more of the following grounds—

(a)  the applicant, or a relevant person for the applicant, has been found guilty of an offence relating to the sale or supply of tobacco products, non-tobacco smoking products or vaping goods under—

(i)  this Act or the regulations, or

(ii)  another Act or law, including a law of the Commonwealth or another State or Territory,

(b)  any information given by the applicant for this Act or the regulations is false or misleading in a material way,

(c)  the applicant has failed to comply with another retail or wholesale licence currently or previously held by the applicant,

(d)  on the recommendation of, or receipt of relevant information from, a law enforcement agency,

(e)  another ground prescribed by the regulations.

(5)  The Secretary may grant a licence with or without conditions.

(6)  As soon as practicable after deciding the application, the Secretary must—

(a)  give the applicant written notice of the decision, and

(b)  if the decision is to grant the licence—issue the applicant with a licence.

s 39A: Ins 2016 No 38, Sch 5 [7]. Am 2018 No 13, Sch 2 [5] [6]; 2024 No 94, Sch 4[38] [39]. Subst 2024 No 87, Sch 1[9].

Subdivision 4 Applications for renewal of licences

pt 5, div 2, sdiv 4: Ins 2024 No 87, Sch 1[9].

39B Applications to renew licences

(1)  A licence holder may, before the expiry of the licence, apply to the Secretary to renew the licence.

(2)  Despite subsection (1), the Secretary may accept an application to renew a licence made within 30 days after the expiry of the licence if the Secretary is satisfied it is reasonable to accept the application in the circumstances.

(3)  The application must—

(a)  be in the approved form, and

(b)  be accompanied by the fee, if any, prescribed for the application, and

(c)  include details of the licence sought to be renewed, and

(d)  include any other information required by the Secretary, and

(e)  otherwise be made in accordance with the regulations.

(4)  The Secretary may, at any time before deciding the application, require the applicant to give the Secretary further information in relation to the application.

s 39B: Ins 2024 No 87, Sch 1[9].

39C Deciding applications to renew licences

(1)  The Secretary must decide an application to renew a licence by—

(a)  renewing the licence, or

(b)  refusing to renew the licence.

(2)  In deciding the application, the Secretary must consider the following—

(a)  whether the applicant, or a relevant person for the applicant, has been found guilty of an offence relating to the sale or supply of tobacco products, non-tobacco smoking products or vaping goods under—

(i)  this Act or the regulations, or

(ii)  another Act or law, including a law of the Commonwealth or another State or Territory,

(b)  any other matters prescribed by the regulations,

(c)  any other matters the Secretary considers relevant.

(3)  Despite subsection (1), the Secretary may refuse to decide the application if the applicant does not comply with a requirement to give information under section 39B(3).

(4)  Without limiting the grounds on which the Secretary may refuse to renew a licence, the Secretary may refuse to renew a licence on 1 or more of the following grounds—

(a)  the applicant, or a relevant person for the applicant, has been found guilty of an offence relating to the sale or supply of tobacco products, non-tobacco smoking products or vaping goods under—

(i)  this Act or the regulations, or

(ii)  another Act or law, including a law of the Commonwealth or another State or Territory,

(b)  any information given by the applicant for this Act or the regulations is false or misleading in a material way,

(c)  the applicant has failed to comply with another retail or wholesale licence currently or previously held by the applicant,

(d)  on the recommendation of, or receipt of relevant information from, a law enforcement agency,

(e)  another ground prescribed by the regulations.

(5)  The Secretary may renew a licence with or without conditions.

(6)  As soon as practicable after deciding the application, the Secretary must—

(a)  give the applicant written notice of the decision, and

(b)  if the decision is to renew the licence—issue the applicant the renewed licence.

s 39C: Ins 2024 No 87, Sch 1[9].

39D Continuation of licences subject of renewal applications

(1)  This section applies if—

(a)  a licence holder has applied for the renewal of the licence under section 39B(1) and the Secretary has not decided the application before the expiry of the licence, or

(b)  the Secretary accepts an application for the renewal of a licence from a person after the expiry of the licence under section 39B(2).

(2)  Despite section 34(2)(b)—

(a)  for a licence referred to in subsection (1)(a)—the licence continues in effect from the date of the expiry of the licence until the Secretary gives the applicant written notice of the Secretary’s decision on the application for renewal under section 39C(6), or

(b)  for a licence referred to in subsection (1)(b)—the licence is taken to have continued in effect from the date of the expiry of the licence and continues in effect until the Secretary gives the applicant written notice of the Secretary’s decision on the application for renewal under section 39C(6).

s 39D: Ins 2024 No 87, Sch 1[9].

Subdivision 5 Revocation of licences

pt 5, div 2, sdiv 5: Ins 2024 No 87, Sch 1[9].

39E Definitions

In this subdivision—

show cause notice—see section 39H(1).

show cause period—see section 39H(2).

s 39E: Ins 2024 No 87, Sch 1[9].

39F Revoking licences

The Secretary may revoke a licence held by a licence holder in accordance with this subdivision.

s 39F: Ins 2024 No 87, Sch 1[9].

39G Grounds for revoking licences

The Secretary may revoke a licence on 1 or more of the following grounds—

(a)  the licence holder has been found guilty of an offence against—

(i)  this Act or the regulations or the provisions of another Act or regulation relating to the sale or supply of tobacco products, non-tobacco smoking products or vaping goods, or

(ii)  a law of the Commonwealth or another State or Territory that the Secretary reasonably considers to be similar to a law mentioned in subparagraph (i),

(b)  any information given by the licence holder for this Act or the regulations is false or misleading in a material way,

(c)  the licence holder has failed to comply with a condition of the licence,

(d)  the licence holder asks the Secretary to revoke the licence,

(e)  on the recommendation of, or receipt of relevant information from, a law enforcement agency,

(f)  another ground prescribed by the regulations.

s 39G: Ins 2024 No 87, Sch 1[9].

39H Show cause notice for proposed revocations

(1)  If the Secretary proposes to revoke a licence, the Secretary must, before deciding whether to revoke the licence, give the licence holder written notice (a show cause notice) setting out the following—

(a)  the details of the proposed revocation,

(b)  the grounds for the proposed revocation,

(c)  an outline of the facts and circumstances forming the basis for the grounds for the proposed revocation,

(d)  any other information prescribed by the regulations.

(2)  The show cause notice must include a statement that the licence holder may make written submissions to the Secretary in relation to the proposed revocation within a period, being not less than 14 days after the date the show cause notice is given to the licence holder, stated in the notice (the show cause period).

s 39H: Ins 2024 No 87, Sch 1[9].

39I Decision to revoke licences

(1)  If, after considering any written submissions made by the licence holder within the show cause period, the Secretary is satisfied a ground for revoking the licence has been established, the Secretary may decide to—

(a)  revoke the licence, or

(b)  take no further action.

(2)  If the Secretary decides to revoke the licence, the Secretary must give the licence holder written notice stating the following—

(a)  the date on which the revocation takes effect,

(b)  the reasons for the revocation.

s 39I: Ins 2024 No 87, Sch 1[9].

Subdivision 6 Surrender of licences

pt 5, div 2, sdiv 6: Ins 2024 No 87, Sch 1[9].

39J Licence holder may surrender licence

(1)  A licence holder may, by written notice to the Secretary in accordance with the regulations, surrender a licence to the Secretary.

(2)  The surrender of the licence takes effect on—

(a)  the day the licence holder gives the Secretary notice under subsection (1), or

(b)  if a later day is specified in the notice—the later day.

s 39J: Ins 2024 No 87, Sch 1[9].

Subdivision 7 Register of licences

pt 5, div 2, sdiv 7: Ins 2024 No 87, Sch 1[9].

39K Register of licences

(1)  The Secretary must keep a register of licences granted or renewed under this part.

(2)  The register must be kept in the way approved by the Secretary.

(3)  The Secretary may—

(a)  include in the register any information in relation to a licence the Secretary considers appropriate, and

(b)  correct any error in or omission from the register, and

(c)  on request, give information included in the register to members of the public in another way.

(4)  The regulations may make further provision about the register, including the following—

(a)  information that must, or must not, be included on the register,

(b)  the information included in the register that must be made publicly available, including on payment of a fee,

(c)  the circumstances in which information on the register must be made available to particular persons, including on payment of a fee.

s 39K: Ins 2024 No 87, Sch 1[9].

Subdivision 8 Miscellaneous

pt 5, div 2, sdiv 8: Ins 2024 No 87, Sch 1[9].

39L Offence of falsely claiming to be licensed

A person must not falsely claim to be a licensed retailer or a licensed wholesaler.

Maximum penalty—400 penalty units.

s 39L: Ins 2024 No 87, Sch 1[9].

39M Approved forms

The Secretary may approve forms for use under this part.

s 39M: Ins 2024 No 87, Sch 1[9].

Division 3

  (Repealed)

pt 5, div 3, hdg: Am 2018 No 13, Sch 2 [3]; 2024 No 94, Sch 4[30]. Rep 2024 No 87, Sch 1[9].

pt 5, div 3: Rep 2024 No 87, Sch 1[9].

Division 4 Seizure and forfeiture of tobacco products

40 Seizure of tobacco products for contravention of retailing prohibition

(1)  An inspector may seize any tobacco product that the inspector believes on reasonable grounds is in a person’s possession, custody or control in the course of committing, or for the purposes of committing, an offence under this part.

(2)  Any tobacco product seized under this section may, at the option of the inspector who made the seizure or of any inspector acting in his or her place, be detained in the place, vehicle or vessel where it was found or be removed to another place and detained there.

(3)  If the tobacco product is to be detained in the place, vehicle or vessel where it was found, the inspector may—

(a)  place it in a room, compartment or cabinet in that place, vehicle, or vessel and

(b)  mark, fasten and seal the door or opening providing access to that room, compartment or cabinet.

(4)  A person must not retake or attempt to retake any tobacco product seized under this section or resist or attempt to prevent such a seizure.

Maximum penalty—

(a)  in the case of an individual, 500 penalty units for a first offence or 1,000 penalty units for a second or subsequent offence, or

(b)  in the case of a corporation, 1,000 penalty units for a first offence or 2,000 penalty units for a second or subsequent offence.

(5)  The seizure of tobacco products under this section for which there was reasonable cause does not subject the State, the Minister, the Secretary, an inspector or any other person to any action, liability, claim or demand.

(6)  A person who is not an inspector may exercise the functions of an inspector under this section if the person—

(a)  is appointed as an inspector under the Poisons and Therapeutic Goods Act 1966, and

(b)  is on the premises in accordance with that Act.

s 40: Am 2023 No 37, Sch 8[3]; 2024 No 87, Sch 1[10].

41 Forfeiture of tobacco on conviction

(1)  If a court that convicts a person for an offence under Division 2 finds that any tobacco product seized under this Division was in any person’s possession, custody or control in the course of committing, or for the purposes of committing, the offence, the court is to order the tobacco product to be forfeited to the Crown unless the court is of the opinion that exceptional circumstances justify the court not ordering the tobacco product to be forfeited.

(2)  The court’s order operates to forfeit the tobacco products to the Crown.

42 Destruction of forfeited tobacco

(1)  The Secretary is to cause all tobacco products forfeited under this Division to be destroyed.

(2)  The person convicted of the offence that resulted in forfeiture of tobacco products is liable to pay to the Secretary the reasonable costs incurred in destroying the tobacco products, and any such costs may be recovered by the Secretary in a court of competent jurisdiction as a debt due to the Crown.

(3)  In proceedings for recovery of the costs of destroying tobacco products, a certificate signed by the Secretary certifying the amount of those costs and the manner in which they were incurred is evidence of the matters certified.

43 Return of seized tobacco

Any tobacco products seized under this Division must be returned to the person from whom they were seized (or to such other person as appears to the Secretary to be entitled to them) if—

(a)  proceedings for an offence under Division 2 have not been commenced against the person from whom they were seized within 42 days after seizure, or

(b)  proceedings for such an offence against the person have been commenced within that 42 days but the court that disposes of the proceedings does not convict the person or does not make an order for forfeiture of the tobacco products, or

(c)  the Secretary becomes satisfied that the tobacco products were not, at the time they were seized, in a person’s possession, custody or control in the course of committing, or for the purposes of committing, an offence under Division 2.

Part 6 Enforcement

43A Appointment and functions of inspectors

(1)  The Secretary may appoint the following persons as an inspector—

(a)  a member of staff of the Ministry of Health,

(b)  a member of the NSW Health Service, within the meaning of the Health Services Act 1997,

(c)  a person of a class prescribed by the regulations.

(2)  Subject to the instrument of appointment, an inspector has the functions conferred or imposed on the inspector by or under this Act or another Act.

(3)  The Secretary must ensure each inspector who is not a police officer is issued with a certificate of authority.

(4)  The certificate of authority must—

(a)  be in the form approved by the Secretary, and

(b)  contain a recent photograph of the inspector.

s 43A: Ins 2024 No 22, Sch 9[2].

44 Powers of inspectors to enter premises

(1)  For the purposes of this Act, an inspector may, at any reasonable time, do any one or more of the following—

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

(a1)  open and search a relevant place or receptacle if the inspector reasonably believes the relevant place or receptacle may be used to store a regulated product in accordance with section 9,

(b)  examine and inspect any apparatus or equipment in any premises,

(c)  take such photographs, films and audio, video and other recordings as the inspector considers necessary,

(d)  for the purpose of analysis, take samples of any thing to determine whether the provisions of this Act and the regulations are being complied with in relation to the premises,

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

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

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

(1A)  For this Act, an inspector may, at any reasonable time, direct a person, apparently in control of the premises, to open and give the inspector access to a relevant place or receptacle at the premises to allow the relevant place or receptacle to be inspected.

(2)  An inspector who enters any premises in accordance with this section that he or she is not otherwise entitled to enter (unless under the authority of a search warrant) is not to remain on the premises if, on request by the occupier of the premises, the inspector does not produce his or her certificate of authority.

(3)  This section does not authorise entry into any 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.

(4)  In this section—

regulated products means the following—

(a)  tobacco products,

(b)  smoking accessories.

relevant place or receptacle means the following—

(a)  a room or other area,

(b)  a cupboard, drawer, container or other receptacle.

s 44: Am 2023 No 37, Sch 8[4]–[6]; 2024 No 94, Sch 4[40].

45 Inspector may require information

(1)  An inspector may at any time require a person by whom the officer reasonably suspects any provision of this Act or the regulations is being or has been contravened, or who is apparently in charge of premises where such 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.

(2)  If the contravention concerns an advertisement or any object containing an advertisement, the inspector may require a person referred to in subsection (1) to produce for inspection any invoice or record relating to the advertisement or object or relating to any tobacco products in connection with which the material for the advertisement, or the object, was obtained.

46 Failure to comply with directions or requirements of inspectors

(1)  A person must not, without reasonable excuse, fail to comply with a requirement or direction of a police officer or an inspector duly made under this Act.

Maximum penalty—100 penalty units.

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

Maximum penalty—100 penalty units.

(3)  A requirement of an inspector under this Act is not duly made unless, at the time of the making of the requirement—

(a)  the inspector has identified himself or herself to the person of whom the requirement is made as an inspector and, on request, produced his or her certificate of authority, and

(b)  the person is informed by the inspector that a refusal or failure to comply with the requirement may constitute an offence.

47 Obstruction or impersonation of inspectors

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

Maximum penalty—100 penalty units.

(2)  A person must not impersonate an inspector.

Maximum penalty—100 penalty units.

s 47: Am 2024 No 87, Sch 1[11] [12].

48 Search warrants

(1)  An inspector may apply to an authorised officer for a search warrant if the inspector has reasonable grounds for believing that a provision of this Act or the regulations has been or is being contravened on premises.

(2)  An authorised officer to whom an application is made under this section may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the inspector named in the warrant, when accompanied by a police officer, and such other person (if any) as is named in the warrant—

(a)  to enter the premises concerned, and

(b)  to search the premises for evidence of a contravention of this Act or the regulations.

(3)  Division 4 of Part 5 of the Law Enforcement (Powers and Responsibilities) Act 2002 applies to a search warrant issued under this section.

(4)  In this section—

authorised officer has the same meaning as it has in the Law Enforcement (Powers and Responsibilities) Act 2002.

49 Removal of certain advertisements

(1)  If a tobacco advertisement is displayed in contravention of this Act or the regulations, the Local Court may order—

(a)  that the advertisement be removed or obscured by an inspector, and

(b)  if any person has been convicted of an offence against this Act or the regulations in relation to the placement or display of the advertisement, that the person pay the reasonable costs incurred by the inspector in removing or obscuring the advertisement.

(2)  An inspector may enter any premises in order to remove or obscure an advertisement in execution of an order under this section.

(3)  Any tobacco advertisement in the form of an article that is removed in accordance with an order under this section is taken to be the property of the person specified in the order.

(4)  Any costs payable under an order under this section may be recovered in a court of competent jurisdiction as a debt due to the Crown or a council, as the case requires.

s 49: Am 2009 No 106, Sch 4.24.

50 Penalty notices

(1)  An inspector may issue a penalty notice to a person if it appears to the inspector that the person has committed a penalty notice offence.

(2)  A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.

(3)  The Fines Act 1996 applies to a penalty notice issued under this section.

Note.

The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.

(4)  The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).

(5)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.

(6)  In this section, inspector includes a police officer.

s 50: Subst 2017 No 22, Sch 3.62.

Part 7 Proceedings for offences

51 Certain civil proceedings barred

An action at law or in equity does not lie against a person for—

(a)  the omission to do any thing the doing of which, or

(b)  the doing of any thing the omission to do which,

would constitute an offence under this Act or the regulations made under this Act.

52 Penalties for continuing offences

(1)  If a continuing state of affairs is created by an offence committed against section 12 (1) or (2) or 13, the offender is liable to a penalty of not more than—

(a)  50 penalty units in the case of an individual, or

(b)  200 penalty units in the case of a corporation,

in respect of each day on which that offence continues, in addition to the penalty specified in that section or subsection in respect of the offence.

(2)  If a continuing state of affairs is created by an offence committed against section 16 (1) or (2), 17 (1), 19, 20 (1) or (2) or 21 (1), the offender is liable to a penalty of not more than—

(a)  200 penalty units in the case of an individual, or

(b)  2,000 penalty units in the case of a corporation,

in respect of each day on which that offence continues, in addition to the penalty specified in that section or subsection in respect of the offence.

53 Offences by corporations

(1)  If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.

(2)  A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or has been convicted under the provision.

(3)  Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation under this Act or the regulations.

54 Proceedings for offences

(1)  Proceedings for an offence against this Act or the regulations are to be disposed of summarily before—

(a)  the Local Court, or

(b)  the Supreme Court in its summary jurisdiction.

(2)  If proceedings are brought before the Local Court, the maximum monetary penalty that the Local Court may impose for the offence is 2,000 penalty units, despite any higher maximum monetary penalty provided in respect of the offence.

(3)  Proceedings for an offence against this Act or the regulations that are brought before the Local Court may be brought at any time within 2 years after the date on which the offence was allegedly committed.

s 54: Am 2009 No 106, Sch 4.24; 2024 No 87, Sch 1[13] [14].

Part 8 Miscellaneous

55 Act to bind Crown

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.

56 Protection from personal liability

Anything done or omitted to be done by the Secretary or an inspector does not subject the Secretary or inspector personally to any action, liability, claim or demand if the thing was done, or omitted to be done, in good faith for the purpose of executing this Act or the regulations.

57 Service of documents

(1)  A document that is authorised or required by this Act or the regulations to be served on or given to any person may be served or given by—

(a)  in the case of a natural person—

(i)  delivering it to the person personally, or

(ii)  sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or

(iii)  sending it by facsimile transmission to the facsimile number of the person, or

(iv)  email to an email address specified by the person for the service of documents of that kind, or

(v)  any other method authorised by the regulations for the service of documents of that kind, or

(b)  in the case of a body corporate—

(i)  leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or

(ii)  sending it by facsimile transmission to the facsimile number of the body corporate, or

(iii)  email to an email address specified by the body corporate for the service of documents of that kind, or

(iv)  any other method authorised by the regulations for the service of documents of that kind.

(2)  Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on or given to a person in any other manner.

s 57: Am 2017 No 25, Sch 1.29 [1] [2].

58 Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular, for or with respect to any of the following—

(a)  the labelling of packages in which tobacco products or non-tobacco smoking products are packed by a manufacturer, including the position of labels on such packages and the size, colour, style and nature of such labels or labelling,

(b)  statements or warnings for the purpose of the labelling of any such packages,

(c)  any statements or warnings to be displayed inside shops and other retail outlets where tobacco products or non-tobacco smoking products are offered or exposed for sale,

(d)  the labelling of tobacco vending machines,

(e)  the duty of persons packing, or causing other persons to pack, specified tobacco products prepared for smoking or non-tobacco smoking products to label those products in a specified manner,

(f)  prohibiting the sale of packages containing specified tobacco products prepared for smoking or non-tobacco smoking products unless those packages are labelled in a specified manner,

(g)  the form of notices to be used in connection with the entry by inspectors on to any premises, and the manner and occasion of use of such notices,

(h)  generally regulating the form and content of tobacco advertisements and the matter that may appear on packages containing tobacco products or non-tobacco smoking products,

(i)  the form and content of signs relating to the provisions of this Act,

(j)  the display of the signs at places where tobacco products or non-tobacco smoking products are sold,

(k)  the display of price and other product information in relation to tobacco products, non-tobacco smoking products and smoking accessories,

(l)  eligibility requirements for retail and wholesale licences,

(m)  the standard terms and form of retail and wholesale licences,

(n)  the imposition, variation and revocation of standard conditions on retail or wholesale licences,

(o)  the renewal of retail or wholesale licences,

(p)  the payment of fees in relation to retail or wholesale licences, including the following—

(i)  annual fees for licences,

(ii)  fees for applications relating to licences,

(iii)  the waiving, discounting or refunding of fees,

(q)  the display of retail or wholesale licences, or licence information, at places where tobacco products, non-tobacco smoking products or vaping goods are sold,

(r)  the keeping, publication, inspection and sharing of documents or information relating to retail or wholesale licences,

(s)  the monitoring and enforcement of compliance with Part 5,

(t)  the review of decisions under Part 5,

(u)  any other matters relating to licences or licence holders.

(2)  The regulations may provide for what is taken to comprise premises or not comprise premises for the purposes of all provisions, or any specified provision, of this Act or the regulations.

(3)  The regulations may create offences punishable by a penalty not exceeding 25 penalty units.

(4)    (Repealed)

s 58: Am 2015 No 16, Sch 1 [25]; 2016 No 55, Sch 1.25 [1]–[4]; 2024 No 87, Sch 1[15]; 2024 No 94, Sch 4[41]–[44].

59 Savings, transitional and other provisions

Schedule 1 has effect.

60 Amendment of Acts

The Acts specified in Schedule 2 are amended as set out in that Schedule.

61 Review of certain provisions

(1)  The Minister must conduct a review of the reviewable provisions to identify if—

(a)  the policy objectives of the reviewable provisions remain valid, and

(b)  the terms of the reviewable provisions remain appropriate for securing the objectives.

(2)  The review must be commenced within 6 months after the period of 5 years after the commencement date.

(3)  A report on the outcome of the review must be tabled in each House of Parliament within 1 year after the last day by which the review must commence.

(4)  In this section—

commencement date means the date on which the amendments to Part 5 made by the Public Health (Tobacco) Amendment Act (No 2) 2024 commence.

reviewable provisions means the provisions inserted into Part 5 by the Public Health (Tobacco) Amendment Act (No 2) 2024.

s 61: Subst 2024 No 87, Sch 1[16].

62 Review of operation of amendments by Public Health (Tobacco) Amendment Act 2024

(1)  The Minister must cause an independent review to be conducted of the operation of—

(a)  the amendments to this Act, the Poisons and Therapeutic Goods Act 1966, the Medicines, Poisons and Therapeutic Goods Act 2022, the Criminal Procedure Act 1986 and the Smoke-free Environment Act 2000 by the Public Health (Tobacco) Amendment Act 2024, and

(b)  any regulations made for the purposes of those amendments.

(2)  The review must commence no later than 1 July 2026.

(3)  The person who conducts the review must give the Minister a written report on the outcome of the review within 6 months after commencing the review.

(4)  A copy of the report is to be tabled in each House of Parliament within 15 sitting days of the relevant House after the report is given to the Minister.

s 62: Ins 2024 No 94, Sch 4[45].

Schedule 1 Savings, transitional and other provisions

(Section 59)

Part 1 General

1 Regulations

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts—

this Act

any other Act that amends this Act

(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as—

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

(4)  The provisions of this Schedule are subject to the regulations.

Part 2 Provisions consequent on enactment of this Act

2 Existing regulations

The Public Health (Tobacco) Regulation 1999 is taken to have been made under this Act.

3 Existing authorised officers

(1)  A person who was authorised as an officer for the purposes of Part 6 of the Public Health Act 1991 by an order made by the Director-General and in force immediately before the repeal of that Part is taken to be an inspector for the purposes of this Act.

(2)  Nothing in subclause (1) prevents the Director-General from revoking the authorisation of a person referred to in that subclause as an inspector.

4 Existing declarations and consents

(1)  A declaration made under section 54A of the Public Health Act 1991 and in force immediately before the repeal of that section is taken to have been made under section 29 of this Act.

(2)  Section 61L of the Public Health Act 1991 (as in force immediately before its repeal) continues to apply to proceedings for offences under Division 4 of Part 6 of that Act (as in force immediately before its repeal) as if that section had not been repealed.

5 Lead-in periods for offences against section 9

(1)  This clause applies to persons engaged in tobacco retailing immediately before the introduction date.

(2)  A person to whom this clause applies does not commit an offence against section 9—

(a)  in the case of a person who, immediately before the introduction date, employed more than 50 people—during the period of 6 months after the commencement of that section, or

(b)  in the case of a person other than a person referred to in paragraph (a) or a specialist tobacconist—during the period of 12 months after the commencement of that section.

(3)  A person to whom this clause applies who is a specialist tobacconist does not commit an offence against section 9—

(a)  during the period of 12 months after the commencement of that section in relation to the display of tobacco products, non-tobacco smoking products and smoking accessories that can be seen by members of the public whether from inside or outside the premises at which they are sold, and

(b)  during a further period of 3 years from the expiration of the 12-month period referred to in paragraph (a) in relation to the display of tobacco products, non-tobacco smoking products and smoking accessories if those products and accessories are displayed on the premises at which they are sold in accordance with the regulations.

(4)  Subclause (3) (b) applies only to premises on which the specialist tobacconist concerned engaged in tobacco retailing immediately before the introduction date and, if the tobacconist moved that tobacco retailing business to new premises after that date, to the new premises, but does not apply to any additional premises opened after that date by the tobacconist.

(5)  For the purposes of this clause, a specialist tobacconist is a person who the Director-General determines carries on a business that had, for the year immediately preceding the introduction date (or, if the person had been engaged in tobacco retailing for less than a year before that date, for the period for which the person had been engaged in tobacco retailing), a gross turnover at least 80 per cent of which was obtained from the sale of tobacco products, non-tobacco smoking products or smoking accessories.

(6)  A determination under subclause (5) may only be made on an application made within 6 months after the commencement of section 9 and accompanied by the fee prescribed by the regulations.

(7)  The Director-General may request that an applicant for a determination under subclause (5) provide such information or documentation as the Director-General requires to determine the application. The Director-General may refuse to determine the application unless any such information or documentation is provided within the time required by the Director-General.

(8)  In this clause, introduction date means the day on which the Bill for this Act was introduced into Parliament.

6 Lead-in periods for other new offences

(1)  During the period of 6 months after the commencement of section 12 (1), a person does not commit an offence against that subsection in relation to a tobacco vending machine situated in premises set aside by an employer as a staff amenity area if the vending machine was lawfully placed on those premises before that commencement.

(2)  During the period of 6 months after the commencement of section 12 (2), a person does not commit an offence against that subsection in relation to a tobacco vending machine if the vending machine was lawfully placed on the premises concerned before that commencement.

(3)  A person does not commit an offence against section 13 during the period of 6 months after the commencement of that section.

7 Shopper loyalty programs

A shopper loyalty program referred to in section 18 is not enforceable and no compensation is payable to any person as a consequence of the enactment of that section or this clause.

8 Confiscation of proof of age cards

The following persons are authorised persons for the purposes of clause 21 (Confiscation of existing RTA proof of age cards) of Schedule 1 to the Liquor Act 2007—

(a)  any police officer,

(b)  a person who sells tobacco products or non-tobacco smoking products and any employee of that person (being a person or employee of or above the age of 18 years), but only while on, or in the immediate vicinity of, the premises where the tobacco products or non-tobacco smoking products are sold.

Part 3 Provisions consequent on enactment of Smoke-free Environment Amendment Act 2018

9 Definition

In this Part—

amending Act means the Smoke-free Environment Amendment Act 2018.

10 Existing tobacco retailers and e-cigarette retailers

(1)  A person who, immediately before the substitution of section 39 by the amending Act, had been issued a tobacco retailer notification number by the Secretary is taken to have notified the Secretary of an intention to engage in tobacco retailing under that section as so substituted.

(2)  A tobacco retailer notification number issued under section 39 before the substitution of that section is taken to be a retailer identification number for the purposes of that section.

(3)  A person who was engaged in e-cigarette retailing immediately before the substitution of section 39 by the amending Act does not commit an offence against section 39 if the person gives notice of the intention to engage in e-cigarette retailing within the period of 3 months after the day of that substitution.

Part 4 Provisions consequent on enactment of Health Legislation Amendment (Miscellaneous) Act 2024

11 Existing inspectors

(1)  A person who, immediately before the commencement date, was an inspector under this Act is taken, on the commencement date, to have been appointed as an inspector under section 43A.

(2)  This clause applies to an inspector who is an authorised officer within the meaning of the Public Health Act 2010 only if the authorised officer was appointed in relation to functions exercisable under this Act.

(3)  In this clause—

commencement date means the date on which section 43A, as inserted by the Health Legislation Amendment (Miscellaneous) Act 2024, commences.

Part 5 Provisions consequent on enactment of Public Health (Tobacco) Amendment Act (No 2) 2024

12 Definitions

In this part—

amended, in relation to a provision, means the provision as amended by the Public Health (Tobacco) Amendment Act (No 2) 2024.

commencement means the commencement of the Public Health (Tobacco) Amendment Act (No 2) 2024, Schedule 1[9].

relevant applicant means a person who—

(a)  has, before the commencement, applied to the Secretary for a retail licence or wholesale licence under this part, or

(b)  applies to the Secretary for a retail or wholesale licence within 3 months after the commencement.

transitional period, for a relevant applicant, means the period—

(a)  starting on the day on which the relevant applicant makes, or is taken to have made, the application for a retail licence or wholesale licence under amended Part 5, Division 2, Subdivision 3, and

(b)  ending on the earlier of the following days—

(i)  if the Secretary refuses to decide the application under section 39A(3)—the day on which the Secretary gives the relevant applicant written notice of the refusal,

(ii)  if the relevant applicant withdraws the application—the day on which the relevant applicant gives the Secretary written notice of the withdrawal,

(iii)  the day on which the Secretary gives the relevant applicant written notice of the Secretary’s decision on the application under section 39A(6).

13 Applications for retail or wholesale licences may be made before commencement

(1)  A person may apply to the Secretary for a retail licence or wholesale licence under amended Part 5, Division 2, Subdivision 3 before the commencement as if the provisions of amended Part 5 had commenced.

(2)  An application by a person under subclause (1) is taken to have been made on the commencement.

14 Application of amended Part 5 to applicants for retail and wholesale licences

(1)  During the transitional period for a relevant applicant, amended Part 5 applies in relation to the relevant applicant and persons employed by or otherwise engaged to work for the relevant applicant as follows—

(a)  if the relevant applicant has applied for a retail licence—

(i)  as if the relevant applicant holds a retail licence that—

(A)  is in force, and

(B)  is not subject to any conditions, and

(ii)  if the relevant applicant’s application proposes a single retail premises be specified as the licensed retail outlet for the retail licence—the premises specified in the application is the licensed retail outlet for the licence, and

(iii)  if the relevant applicant’s application proposes a single website be specified as the licensed online retail shop for the retail licence—as if the website specified in the application were the online retail shop for the licence,

(b)  if the relevant applicant has applied for a wholesale licence—as if the relevant applicant holds a wholesale licence that—

(i)  is in force, and

(ii)  is not subject to any conditions.

sch 1: Am 2018 No 13, Sch 2 [7] [8]; 2024 No 22, Sch 9[3]; 2024 No 87, Sch 1[17] (am 2025 No 48, Sch 2.10).

Schedule 2 (Repealed)

sch 2: Am 2011 No 27, Sch 4. Rep 2015 No 48, sec 4.