Tobacco and E-Cigarette Products (E-Cigarette and Other Reforms) Amendment Bill

Introduction and First Reading

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (15:57): Obtained leave and introduced a bill for an act to amend the Tobacco and E-Cigarette Products Act 1997. Read a first time.

Second Reading

The Hon. C.J. PICTON (Kaurna—Minister for Health and Wellbeing) (15:58): I move:

That this bill be now read a second time.

I rise to introduce the Tobacco and E-Cigarette Products (E-Cigarette and Other Reforms) Amendment Bill 2024. Tobacco smoking remains the leading preventable cause of disease and death in Australia. There are around 260,000 current adult smokers in South Australia and around two out of three of those people, if they do not quit, will be killed by their smoking.

We have made significant progress in reducing smoking prevalence in our community. From a time when the majority of people smoked and being exposed to someone else's smoke was a normal part of life, less than 9 per cent of South Australians now smoke and the community expects places to be smoke free.

Many South Australians would remember going out only a few decades ago when smoking was allowed in public places, including cafes, restaurants, pubs and clubs, and even as a non-smoker you would come home smelling like smoke. Now that is just a distant memory thanks to bold and brave legislation enacted right here in this very house. Yet the fight against the harms of tobacco continues. It has a huge impact on the health of individuals and families and demands on the health system. Smoking is estimated to cost our state health system in excess of $2 billion each year.

In recent years, our attention has also turned to e-cigarettes. E-cigarette use, or 'vaping', has increased rapidly in South Australia and across the country, especially among young children and young people. Recent research shows that the number of 15 to 29 year olds currently using e-cigarettes in South Australia increased to 15.1 per cent in 2023 from 8.4 per cent in 2022. Among 15 to 29 year olds, this is the first time there are more e-cigarette users than there are smokers. Worryingly, the research showed for those surveyed aged 15 and over, 6.7 per cent have reported current use of e-cigarettes compared with just 3.6 per cent the year prior. E-cigarette use is also rising amongst 30 to 59 year olds, up from 3.1 per cent in 2022 to 6.7 per cent in 2023.

Researchers keep learning more about e-cigarettes every month. What we know is that these products contain many chemicals that pose a significant risk to human health, including cancers and cardiovascular diseases. The government is not prepared to sit by and watch this public health emergency and the popularity of vaping explode among such a large proportion of our young people and do nothing.

I commend and support the reforms by the commonwealth government to address and stamp out vaping nationally. These initiatives include banning the importation of non-prescription e-cigarettes; regulating flavours, colours and other ingredients; requiring pharmaceutical-like packaging; reducing the allowed nicotine concentrations and volumes; banning disposable e-cigarettes; only allowing nicotine-containing e-cigarettes to be sold through pharmacies; and funding public awareness campaigns and service enhancements to help Australians quit smoking and vaping. These regulatory changes will balance the need to prevent adolescents and young people from taking up nicotine vaping while enabling access to nicotine vaping products as medically supervised smoking cessation aids.

The South Australian government has been an active player in the national vaping reforms as well, taking other strong action against this serious health problem, including: running hard-hitting media advertising campaigns about vaping across radio, outdoor and digital platforms, including Instagram, TikTok and YouTube; supporting schools with education campaign resources and staff training aimed at preventing children taking up vaping and helping those who want to quit; introducing new vape and smoke-free areas, which commenced on 1 March 2024, banning vaping and smoking in a variety of public outdoor areas, including our schools, childcare settings and under-18 sporting events; and imposing tougher licence conditions on retailers to reduce the illegal sales of tobacco and vapes.

Last year in 2023, public consultation was undertaken on a range of amendments to the Tobacco and E-Cigarette Products Act via the YourSAy engagement platform, with almost 80 per cent of respondents in support of expanding tobacco and vaping laws in South Australia. Following the public consultation, the submissions were reviewed by Dr Chris Reynolds, a public health law expert, who recommended some refinements to the act and regulations. The outcomes of the consultation and Dr Reynolds' recommendations have been incorporated into this bill, including:

amendment to the objects of the act to ensure it continues to reflect contemporary directions in tobacco control policy;

amendment to the definition of 'residential premises' to remove reference to sleeping or living areas in a prison or place of detention so that existing smoke-free laws apply to these areas;

inclusion of greater criteria about who may be a fit and proper person to hold a tobacco merchant's licence;

amendment to the licence provisions for the minister to impose conditions on a licence to any condition that is consistent with and furthers the objects of the act;

reintroduction of a wholesale tobacco licence;

creation of a new offence prohibiting the sale or supply of a tobacco product by a person under the age of 18;

banning the sale of tobacco products by vending machines;

amendment to the current smoking ban for covered public transport area to include any area within five metres of the covered area;

allowance for 'smoking permitted' signs to be displayed in a specific area of hospitality venues to provide clarification for patrons and allow for appropriate enforcement of smoke-free laws;

establishment of a power for an authorised officer to issue a notice to comply with the provisions of the act;

enshrining of controlled purchase operations into the legislation;

amendment of the confidentiality clause to allow for information sharing between SA Health and other agencies and jurisdictions, such as South Australia Police or the Therapeutic Goods Administration, as part of a coordinated compliance activity; and

increases to court powers to restrict, suspend or cancel a tobacco merchant's licence if a person is found guilty of selling or supplying tobacco or e-cigarette products to children.

In addition to these amendments, the bill also integrates the national vaping reforms passed by the commonwealth government in June 2024.

Despite the strength of the national vaping reforms, this bill seeks to go further by strengthening South Australian tobacco and vaping laws and the enforceability of these laws. Importantly, the bill introduces its own prohibition on the sale and supply of e-cigarette products, as well as the possession of e-cigarette products for the purpose of sale.

While this is similar to bans introduced through the federal Therapeutic Goods Act, having these offences in South Australian legislation maximises the opportunity for enforcement officers in this state, including to ensure that funds from the penalties are returned to the South Australian government where appropriate.

I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

South Australia remains committed to a national enforcement approach and continues to work with law enforcement and all jurisdictions in the development and implementation of the National Vaping Enforcement Framework to stamp out unlawful vapes in the community.

The Bill also introduces new penalties that are the toughest of any state or territory. This sends a clear message that the Government is very serious about cracking down on people selling illegal e-cigarettes or tobacco. We can't have penalties that are so low they are considered just a cost of business.

As examples, these new penalties include a maximum of $750,000 on the first offence and $1.1 million on second offence for selling tobacco without a merchant licence, and up to $1.5 million for selling a tobacco product to a minor. This compares with the current levels which are between $20,000 and $40,000. This ensures that if an operator chooses to sell tobacco without a licence or sell tobacco to a child, they run the risk of being hit with these very large penalties.

The Bill also removes clauses in the Act relating to the licensing of retailers to sell e-cigarettes, given that the sale of e-cigarettes is no longer lawful under Commonwealth law outside of therapeutic medical settings for the purposes of smoking and vaping cessation or treatment of nicotine addiction.

Along with the increase in e-cigarettes, Australia has also seen an increase in illicit tobacco products. This can involve the sale of counterfeit tobacco or tobacco that is packaged without health warnings or tobacco which has not gone through the correct excise pathways.

Just last year, we implemented new legislation aimed at tackling illicit tobacco sales in South Australia. These amendments to the Tobacco and E-Cigarette Products Act 1997 were brought to the Parliament by the Hon Connie Bonaros and strongly supported by the Government.

Despite these new laws, some of the toughest in the country, we have still seen illicit tobacco being sold across Australia. Therefore, this Government has committed a further $16 million over the next four years to tackle this growing trade in illicit tobacco and to take action against anyone thinking they can still sell e-cigarette products to our children and young people.

From 1 July 2024, Consumer and Business Services assumed responsibility of the licensing under the Tobacco and E-Cigarette Products Act 1997 and the enforcement functions related to illegal sales of e-cigarettes and illicit tobacco. They are now responsible for assessing new licence applications, ensuring existing licensees are complying with the law and investigating and prosecuting offenders.

This tougher compliance approach is necessary to tackle the criminal activities that are occurring and is more closely aligned with their current compliance work.

To strengthen the ability for Consumer and Business Services to take action against those selling illicit tobacco, e-cigarettes or other prohibited products, the Bill includes enforcement powers and processes that are consistent with those used by Consumer and Business Services for other State laws it is responsible for.

This Bill also introduces national leading penalties for selling, supplying and commercial possession of illicit tobacco products.

The introduction a wholesale tobacco licence in this Bill aims to ensure all the tobacco wholesalers supplying tobacco into retailers in South Australia have a licence, and fulfil the fit and proper person requirements to be supplying these products.

This opens up opportunities to establish a process for retailers and wholesalers to verify each other's licence status, thereby creating another barrier to selling tobacco illegally.

We have also seen other nicotine products hit the youth market, particularly nicotine pouches. For those members who haven't yet heard of nicotine pouches, they are a small pouch usually containing a synthetic nicotine and other ingredients such as sweeteners or flavours and are designed to be placed between the lip and the gum.

Each pouch can contain the same nicotine as a tobacco cigarette. They have started to become more popular among young people, particularly in the eastern states.

The South Australian Government plans to act fast so that these and other novel products aren't the next big thing, given the risk they pose to young people.

The Bill includes a new ministerial declaration power to enable a prohibition to restrict new and novel products, with a very high penalty against this offence. The Bill 'future proofs' the Act by extending this power to novel nicotine products that emerge in the future.

These measures support those retailers and wholesalers who do the right thing and follow the law.

As we know, however, compliance and enforcement are only one part of the equation when it comes to tobacco and e-cigarette products. An important way to drive down the prevalence of smoking and vaping is to provide pathways to make quitting more accessible and engaging for smokers and vapers.

This Government has committed to creating a new and independent agency, Preventive Health SA, with a mandate to develop evidence-based programs and policies to keep South Australians healthy. Tobacco and vaping are key priority areas for this new agency.

The work of Preventive Health SA includes the development of new and innovative public campaigns, motivating smokers and vapers to quit and is targeting young people to inform them of the dangers of e-cigarette use and helping them to quit vaping.

Preventive Health SA is also working with the Department for Education to support schools, teachers and, parents and carers to support young people to get off the vapes.

We are also including other minor amendments in the Bill, such as increasing the timeframe for short-term smoking bans so that more events can be declared smoke-free and vape-free events, and we're declaring a five-metre buffer at covered public transport stops to now be smoke-free and vape-free.

This additional buffer zone complements the smoke-free and vape-free areas that we introduced from the first of March this year that creates smoke-free and vape-free areas within ten metres of schools, childcare centres, hospitals and shopping centres among several other locations.

Smoke-free areas reduce the exposure to second-hand smoke and e-cigarette aerosols, reducing the health impacts for children and other vulnerable people. Research shows that strong smoke-free laws reduce likelihood of children and young people taking up smoking.

It is our responsibility to ensure that our children and young people do not take up smoking, or vaping, or the next thing that this relentless industry serves up.

Supporting this Bill is supporting South Australian children and young people by ensuring that we close down the supply chains for illicit tobacco products, e-cigarette products and new and emerging nicotine products, such as nicotine pouches.

I would like to thank the Minister for Consumer and Business Affairs for her support in developing this important legislation, as well as staff within Preventive Health SA, the Department for Health and Wellbeing and Consumer and Business Services for their work and contributions in preparing this Bill which is all about clamping down hard on these products and moving towards a smoke-free and vape-free future for our young people.

Let this be a warning to those doing the wrong thing. South Australia is closed for this type of business.

I commend this Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Tobacco and E-Cigarette Products Act 1997

3—Amendment of section 3—Objects of Act

This clause amends the objects of the Act to take account of amendments in the Bill.

4—Amendment of section 4—Interpretation

This clause makes various amendments to delete, amend and insert necessary definitions.

5—Insertion of sections 5 and 5A

This clause inserts 2 new sections:

5—Definition of e-cigarette product and related terms

The proposed section contains definitions of e-cigarette, e-cigarette accessory, e-cigarette product and vaping substance consistent with the definitions enacted in the Therapeutic Goods and Other Legislation Amendment (Vaping Reforms) Act 2024 of the Commonwealth.

5A—Provisions governing whether person is fit and proper

This provision sets out the circumstances in which a person will not be a fit and proper person for a particular purpose under the Act.

6—Substitution of Part 2

The provisions of existing Part 2 dealing with licences are updated and amended as follows:

Part 2—Licences

6—Requirement for licence

The proposed section sets out offence provisions for carrying on the business of selling tobacco products by retail or by wholesale or holding out as carrying on such a business without a retail or wholesale licence.

7—Licences

The proposed section sets out the manner in which a person may apply for a licence authorising the person (subject to the Act and the conditions of the licence) to sell tobacco—

by retail (being a sale to a consumer); or

by wholesale (being a sale for the purpose of resale).

The Minister must, before granting a licence, be satisfied that the applicant is a fit and proper person to hold the licence or if the applicant is a trust or corporate entity, that each person who occupies a position of authority in the trust or corporate entity is a fit and proper person.

8—Application for licence to be given to Commissioner of Police

The proposed section requires the Minister to—

give the Commissioner of Police a copy of each application for a licence; or

notify the Commissioner of Police of the identity of the applicant or, if the applicant is a trust or corporate entity, the identity of each person who occupies a position of authority in the trust or corporate entity.

The section further requires the Commissioner of Police to make available to the Minister information about criminal convictions relevant to whether the application for a licence should be granted or such other information to which the Commissioner has access that is relevant to whether the application should be granted.

9—Conditions of licence

The proposed section sets out the following in relation to the imposition of conditions of licence:

the manner and circumstances in which the Minister may impose, vary or revoke a condition on a licence;

the nature of such conditions;

that it is a condition of a licence that the holder must keep, retain and provide certain information relevant to the business carried out under the licence in accordance with the requirements of the regulations;

an offence with various penalties applying to the holder of a licence for contravention of a licence condition.

10—How licences are to be held

The proposed section sets out provisions applying in circumstances where 2 or more persons hold a licence.

11—Annual fee and return

The proposed section requires the holder of a licence to pay an annual fee and provide an annual return. Failure to pay the annual fee or provide the annual return may result in the cancellation of the licence.

12—Notification of certain changes in holder of licence

The proposed section requires the holder of a licence to notify the Minister of a change in certain information in relation to the licence, such as—

a person assuming or ceasing to occupy a position of authority in a trust or corporate entity that holds a licence;

the business or trading name under which the holder of the licence carries on business;

the contact details provided by the holder of the licence for purposes connected with the licence;

any other prescribed particulars.

13—Surrender of licence

The proposed section re-enacts the provisions in current section 11 of the Act to allow for a licence to be surrendered.

7—Amendment of heading to Part 3

This clause amends the heading to Part 3 to reflect the new proposed offence provisions.

8—Insertion of heading

This clause inserts a new heading to indicate the offences relating to tobacco products that follow.

9—Amendment of section 30—Restrictions on retail sale of tobacco products and e-cigarette products

The amendments in subclauses (1) and (5) are consequential on the removal of e-cigarette products from the licensing scheme established by the Act.

The amendments in subclauses (2) and (3) remove reference to retail sale, consequential on the other amendments in the measure which now distinguish between retail sale and wholesale.

Subclause (4) amends the penalty provisions to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence—

is committed by a body corporate or an individual;

is a first offence or a second or subsequent offence.

10—Amendment of section 31—Requirements for packaging tobacco products

This clause amends the current penalty provision to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence—

is committed by a body corporate or an individual;

is a first offence or a second or subsequent offence.

11—Amendment of section 32—Prohibition on sale or supply of certain tobacco products

This clause amends the penalty provision to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence—

is committed by a body corporate or an individual;

is a first offence or a second or subsequent offence.

12—Amendment of section 33—Possession of certain tobacco products

This clause amends the current penalty provision to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence—

is committed by a body corporate or an individual;

is a first offence or a second or subsequent offence.

13—Amendment of section 34A—Prohibited tobacco products

The amendments in subclause (1) are consequential on the other amendments which now distinguish between retail sale and wholesale.

Subclause (2) amends the penalty provision to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence—

is committed by a body corporate or an individual;

is a first offence or a second or subsequent offence.

14—Amendment of section 35—Sale of sucking tobacco

This clause amends the penalty provision and expiation fee to—

increase existing penalties and fees; and

provide for different penalties and fees to apply depending on whether—

an offence or alleged offence is committed by a body corporate or an individual;

an offence is a first offence or a second or subsequent offence.

15—Amendment of section 36—Products designed to resemble tobacco products

The amendments in subclause (1) are consequential on the other amendments in the measure which now distinguish between retail sale and wholesale.

Subclause (2) amends the penalty provision and expiation fees to—

increase existing penalties and fees; and

provide for different penalties to apply depending on whether—

an offence or alleged offence is committed by a body corporate or an individual;

an offence is a first offence or a second or subsequent offence.

16—Substitution of section 37 and 37A

This clause makes 2 amendments consequent on the removal of e-cigarettes from the licensing scheme. Section 37A which applied only to e-cigarette products is deleted. Section 37 is recast as follows:

37—Sale of tobacco products by vending machine

The proposed section prohibits the sale of cigarettes and other tobacco products by means of a vending machine. The penalty provisions applying for the offence—

are increased; and

provide for different penalties to apply depending on whether an offence is committed by a body corporate or an individual;

17—Amendment of section 38—Carrying tray etc of tobacco products or e-cigarette products for making of successive retail sales

This clause makes several amendments consequent on the removal of e-cigarettes from the licensing scheme. The clause also amends the penalty provision to:

increase existing penalties; and

provide for different penalties to apply depending on whether an offence is committed by a body corporate or an individual.

18—Amendment and redesignation of section 38A—Sale or supply of tobacco products or e-cigarette products to children

The amendments in subclauses (1) and (2) are consequential on the removal of e-cigarettes from the licensing scheme.

The amendments in subclauses (4), (5), (9) and (10) are consequential on the amendments made by clause 16.

Subclauses (3), (6) and (7) amends the penalty provisions and expiation fees to—

increase existing penalties and fees; and

provide for different penalties to apply depending on whether—

an offence or alleged offence is committed by a body corporate or an individual;

an offence is a first offence or a second or subsequent offence.

The amendments in subclause (8) adds several new provisions to provide offences for the sale or supply of an e-cigarette product or a prohibited product to a child. Subclause (11) redesignates the current section as s 39E and relocates it in the new Division where all offences relating to children are now to be located.

19—Amendment and redesignation of section 39

The amendments in this clause update the existing evidence of age provisions consequent on other amendments in the measure, increases existing penalties and expiation fees and redesignates and relocates the section so that it is located with other similar provisions in the Act.

20—Insertion of Part 3 Divisions 2, 3, 4 and heading to Division 5

This clause inserts a new heading to Division 5 for offences already in the Act. It also inserts new offence provisions under the following proposed Divisions:

Division 2—Offences relating to e-cigarette products

39A—Offence relating to sale or supply of e-cigarette products

The proposed section makes it an offence to sell or supply an e-cigarette product. The offence does not apply to a person who is authorised under any other Act or law to sell or supply e-cigarette products to allow for the sale and supply of e-cigarette products by medical practitioners and pharmacists as provided for under Commonwealth law.

39B—Offence relating to possession of e-cigarette products

The proposed section makes it an offence to be in possession of an e-cigarette product for the purpose of sale. The offence does not apply to the possession of an e-cigarette product by a person who is authorised under any other Act or law to sell or supply e-cigarette products to allow for the sale and supply of e-cigarette products by medical practitioners and pharmacists as provided for under Commonwealth law.

The provision allows for the regulations to provide that in proceedings for an offence against proposed subsection (1), if it is proved that the defendant had possession of a prescribed quantity of e-cigarette products, it is presumed, in the absence of proof to the contrary, that the defendant had possession of the e-cigarette products for the purposes of sale.

Division 3—Prohibited products

39C—Prohibited products

The proposed section allows the Minister to declare by notice in the Gazette that a product or a class of product specified in the notice is a prohibited product. The Minister must not declare a prohibited product unless satisfied that the product—

is presented or advertised in a manner that indicates that the product contains nicotine; or

may be used, or is presented or advertised, as an alternative to smoking.

The proposed section provides offence provisions for persons who sell or supply a prohibited product or have possession of a prohibited product for the purposes of sale.

Division 4—Offences relating to children

39D—Sale or supply of tobacco products by children

The proposed section creates an offence for a person to employ, authorise or allow a child to sell or supply a tobacco product. The section does not prevent the employment or authorisation of a child of or above the age of 16 years to sell or supply a tobacco product.

21—Amendment of section 40—Certain advertising prohibited

Subclauses (1) and (2) amend the penalty provisions and expiation fees to—

increase existing penalties and fees; and

provide for different penalties and fees to apply depending on whether—

an offence or alleged offence is committed by a body corporate or an individual;

an offence is a first offence or a second or subsequent offence.

The amendments in subclauses (3) and (4) are consequential on the removal of e-cigarettes from the licensing scheme and on the new distinction between retail sale and wholesale of tobacco products.

22—Amendment of section 41—Prohibition of certain sponsorships

This clause amends the current penalty provision and expiation fees to—

increase existing penalties; and

provide for different penalties and fees to apply depending on whether—

an offence or alleged offence is committed by a body corporate or an individual;

an offence is a first offence or a second or subsequent offence.

23—Amendment of section 42—Competitions and reward schemes etc

This clause amends the penalty provisions and expiation fees to—

increase existing penalties and fees; and

provide for different penalties and fees to apply depending on whether—

an offence or alleged offence is committed by a body corporate or an individual;

is a first offence or a second or subsequent offence.

24—Amendment of section 43—Free samples

This clause amends the penalty provision to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence—

is committed by a body corporate or an individual;

is a first offence or a second or subsequent offence.

25—Amendment of section 45—Business promotions to attract smokers

Subclauses (1) amends the penalty provisions and expiation fees to—

increase existing penalties and fees; and

provide for different penalties and fees to apply depending on whether an offence or alleged offence is committed by a body corporate or an individual.

Subclause (2) inserts a provision to disapply the section in relation to the display of a sign, in accordance with the requirements of the regulations, that indicates an area where smoking is not prohibited.

26—Amendment of section 46—Smoking banned in enclosed public places, workplaces and shared areas

This clause amends the penalty provisions and expiation fees to—

increase existing penalties and fees; and

provide for different penalties and fees to apply depending on whether an offence or alleged offence is committed by a body corporate or an individual.

27—Amendment of section 48—Smoking in motor vehicle if child present

This clause amends the current penalty provision and expiation fees to increase existing penalties and fees.

28—Amendment of section 49—Smoking banned in certain public transport areas

Subclause (1) amends the current penalty provision and expiation fees to increase existing penalties and fees. Subclause (2) extends the definition of prescribed public transport area to include any public area within 5 m of a place described in the existing definition.

29—Amendment of section 50—Smoking banned near certain playground equipment

This clause amends the penalty provision and expiation fee to increase existing penalties and fees.

30—Amendment of section 51—Smoking banned in certain public areas—short term bans

Subclause (1) increases the number of days that a short term smoking ban is able to be made under the section from 3 days to 90 days.

Subclause (3) requires that signage indicating areas within which a short term smoking ban applies must be of a kind prescribed in the regulations.

Subclauses (2) and (4) amend the current penalty provision and expiation fees to increase existing penalties and fees.

31—Amendment of section 52—Smoking banned in certain public areas—longer term bans

Subclause (1) amends the penalty provision and expiation fee to increase existing penalties and fees.

Subclause (2) recasts the existing offence of failing to indicate the effect of longer term smoking bans to increase penalties and require the signs to comply with the requirements of the regulations.

32—Amendment of section 63—Appointment of authorised officers

This clause makes a technical amendment.

33—Substitution of section 64

This amendment recasts the existing identification of authorised officer provisions as follows:

64—Identification of authorised officers

The proposed section requires that authorised officers be issued with a certificate of identity (rather than an identity card containing the person's name and photograph as in the current provision). The current requirement for an authorised officer to provide their certificate of identity on request by a person remains.

34—Amendment of section 65—Power to require information or records or attendance for examination

This clause amends the penalty provisions to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence is committed by a body corporate or an individual.

35—Amendment of section 66—Powers of authorised officers

These amendments expand the powers of an authorise officer to allow them to seize and retain any record or thing that affords evidence of an offence or that has been used in connection with the commission of an offence.

36—Insertion of sections 66A and 66B

This clause inserts new provisions as follows:

66A—Compliance direction

The proposed section sets out the manner and circumstances in which an authorised officer may give a compliance direction to a person for the purpose of securing compliance with a requirement under a licence or the Act. The section further provides for the review of such a decision by the Minister and an offence for failing to comply with a direction.

66B—Embargo notices

The proposed section sets out the manner and circumstances in which an authorised officer may issue an embargo notice where an authorised officer is authorised to seize a record or thing which cannot, or cannot readily, be physically sized and removed or stored. The section sets out a number of offence and defence provisions that may apply to a person doing things forbidden by an embargo notice.

37—Amendment of section 67—Offence to hinder etc authorised officers

This clause amends the current penalty provisions to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence is committed by a body corporate or an individual.

38—Substitution of section 69

The provisions of section 69 in relation to seized records or things is to be recast and updated to take account of current enforcement requirements and amendments in the measure as follows:

69—Powers in relation to seized records or things

The proposed section allows for the manner in which a seized record or thing is to be dealt with to be prescribed by the regulations.

39—Insertion of Parts 6, 6A and 6B

This clause inserts the following new provisions:

Part 6—Controlled purchase operations

69A—Interpretation

This section defines terms used in the proposed Part, which sets out a scheme the intended purpose of which is to provide a person suspected of having committed an offence against a prescribed provision on 1 or more occasions with an opportunity to commit or to attempt to commit an offence against a prescribed provision.

Prescribed provisions are to be listed in proposed Schedule 1 of the Act, and include those offences relating to prohibited sale of tobacco and e-cigarette products and the sale and supply of those products to children.

69B—Controlled purchase officer

The proposed section allows the Minister to authorise a person to be a controlled purchase officer (including a person under the age of 18 years) who is able to take any action specified by the Minister in their notice of authorisation.

69C—Controlled purchase operation

The proposed section makes provision for certain matters associated with the undertaking of a controlled purchase operation, including—

that a controlled purchase officer, an authorised officer and the Minister do not commit an offence against this Act or any other Act or law in connection with any action taken for the purposes of a controlled purchase operation as specified in a notice of authorisation; and

certain evidentiary provisions relating to actions of authorised officers and controlled purchase officers.

Part 6A—Disciplinary action against holder of licence

69D—Cause for disciplinary action

The proposed section sets out the following in relation to the taking of disciplinary action against the holder of a licence:

the grounds on which there is proper cause for disciplinary action against the holder of a licence;

actions that the Minister may take if the Minister believes that there are proper grounds for taking disciplinary action;

matters to which the Minister may have regard in determining whether there is proper cause for disciplinary action.

69E—Compliance notice

The proposed section sets out the manner in which the Minister may issue a compliance notice to the holder of a licence and the form that the notice must take. The proposed section creates an offence for the holder of a licence to fail to take the action specified in the notice within the time allowed in the notice.

69F—Default notice

The proposed section allows for the Minister to give a default notice to the holder of a licence. The notice specifies the grounds for disciplinary action to be taken against the holder of the licence and informs them that disciplinary action may be avoided by payment by a specified time of a specified sum not exceeding—

in the case of the holder of a licence who is a body corporate—$500,000; or

in any other case—$250,000.

69G—Disciplinary action

The proposed section sets out the manner in which the Minister may take disciplinary action against the holder of a licence, including by issuing a reprimand, cancelling or suspending the licence, issuing a fine or giving a direction. The proposed section provides that the notice must be given to the holder of the licence before such action is taken. It is an offence for the holder of a licence to fail to comply with a requirement, order or direction given by the Minister under the proposed section.

69H—Effect of criminal proceedings

The proposed section clarifies that the Minister may take disciplinary action under the proposed Part whether or not criminal proceedings have been, or are to be, taken in relation to the matters the subject of the action. The Minister must however, in imposing a fine, take into account any fine that has already been imposed in criminal proceedings.

Part 6B—Review

69I—Review by Minister

The proposed section sets out the manner in which a person who is dissatisfied with a decision of the Minister under proposed Part 2 or 6A may apply for a review of the decision.

69J—Review by SACAT

The proposed section sets out the manner in which a person who is dissatisfied with the decision of the Minister on a review may apply to SACAT for a review of the Minister's decision.

40—Amendment of section 70A—Confiscation of products from children

This amendment is consequential on the removal of e-cigarette products from the licensing scheme under the Act.

41—Amendment of section 71—Exemptions

These amendments allow for exemptions from provisions of the Act to be made by the Minister by notice in the Gazette, rather than by proclamation by the Governor.

42—Substitution of section 73

The existing provisions in relation to the keeping of a register are to be expanded as follows:

73—Register

The proposed section requires the Minister to maintain a register of licences granted under the Act, sets out the information that must be included in the register and requires that the register be made publicly available on a website determined by the Minister.

43—Amendment of section 75—False or misleading information

This clause amends the penalty provisions to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence is committed by a body corporate or an individual.

44—Amendment of section 76—Minister may require verification of information

This clause amends the penalty provisions to—

increase existing penalties; and

provide for different penalties to apply depending on whether an offence is committed by a body corporate or an individual.

45—Substitution of sections 77 and 78

Current section 77 is deleted as its contents are now to be included in provisions located under proposed Part 2 and 6A. Current section 78 is to be expanded in the manner set out in proposed section 78. This clause also inserts new proposed sections 76A and 77:

76A—Enforceable voluntary undertakings

The proposed section allows for the Minister to accept, by notice in writing, an undertaking given by a person in connection with a matter relating to a contravention or an alleged contravention by the person of the Act. It sets out the effect of such an undertaking, and creates an offence for a person to contravene an undertaking.

77—Criminal intelligence

The proposed provision sets out the manner in which information classified by the Commissioner of Police as criminal intelligence is to be managed.

78—Disclosure of information

The proposed section sets out the manner in which information obtained in the course of the administration of the Act may and may not be disclosed.

46—Amendment of section 79—General defence

This amendment allows a defence to apply to offences charged against a body corporate or against an individual where conduct or state of mind is imputed to the body corporate or individual as provided for in the Act.

47—Amendment of section 82—Prosecutions

This allows an expiation to be issued within 2 years after the date on which the offence is alleged to have been committed.

48—Insertion of section 82A

This clause inserts a new section:

82A—Court may make certain orders

The proposed section sets out the orders that may be made by a court against a person who is found guilty of an offence under the Act, and that the Registrar of the relevant court must notify the Minister of the details of such an order.

49—Amendment of section 85—Evidence

This amendment adds a new subsection (3) that provides that in proceedings for an offence against this Act by a body corporate, a statement made by an officer of the body corporate is admissible as evidence against the body corporate.

50—Substitution of section 86

Section 86 is deleted as its contents are now covered in section 51 of the Legislation Interpretation Act 2021. A new section is proposed as follows:

86—Imputation of conduct or state of mind of officer, employee etc

The proposed section sets out the manner in which the conduct and state of mind of officers, employees or agents acting within the scope of their actual, usual or ostensible authority may be imputed to an individual or a body corporate (as the case may be) in proceedings for an offence against the Act.

51—Insertion of section 86B

This clause inserts a new section:

86B—Exclusion of compensation

The proposed section provides that no right to compensation arises as a result of the expropriation or diminution of rights of the holder of a licence by the amendments in this measure.

52—Amendment of section 87—Regulations

The amendments in this clause make several changes to the existing general regulation making power in the Act.

53—Substitution of Schedule

This clause deletes the existing Schedule which contains obsolete provisions and substitutes the following Schedule in connection with the operation of proposed Part 6:

Schedule 1—Controlled purchase operations—prescribed provisions

This Schedule lists the provisions of the Act in relation to which a controlled purchase operation may be undertaken.

Schedule 1—Saving and transitional provisions

1—Interpretation

This clause defines terms used in the Schedule.

2—Existing licences

This clause provides for saving and transitional arrangements for existing licences.

3—Requirement for wholesale licence

This clause provides for an exemption from the requirement to hold a wholesale licence for a period of 6 months after the day on which proposed Part 2 commences.

4—Licence applications

This clause makes provisions for the consideration of application for licences that have been made but not yet determined on the commencement of proposed Part 2.

5—Licence conditions

This clause make provision in relation to conditions of licence in force before the commencement of proposed Part 2.

6—Annual returns

This clause sets out the requirements in relation to the provision of annual returns for existing licence holders.

7—Seized products

This clause clarifies the manner in which products seized under Part 5 may be dealt with.

8—Review proceedings

This clause makes provision in relation to review proceedings that have commenced but not finally determined before the commencement of the measure that amend those provisions.

9—Register

This clause provides for the continuation of the register maintained under the provisions of the current Act.

Debate adjourned on motion of Mr Batty.