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1
Tobacco Products (Prevention of Supply to Children)
TOBACCO PRODUCTS (PREVENTION
OF SUPPLY TO CHILDREN) BILL 1997
EXPLANATORY NOTE
GENERAL OUTLINE
Policy Objectives of the Bill
The primary objective of the Bill is to reduce the number of children in
Queensland who take up smoking.
Youth smoking is a serious problem in Queensland. Research released
in September 1997 shows that 20 per cent of school students in grades 7 to
12 (over 55,000 children) are smokers1. Studies have shown that the earlier
a person takes up smoking, the more difficult he or she will find it to quit.
Also, because the health effects of smoking are cumulative, the longer a
person smokes, the more likely it is that the person will develop heart
disease, cancer or one of the other health problems linked with smoking. A
child who starts smoking before he or she is 14 years old is 15 times more
likely to die of lung cancer than someone who has never smoked2. Of
every four children who take up smoking now, one will die in middle age
of a smoking-related illness, and one will die in old age of a smoking
related illness3.
The Commonwealth Department of Health and Family Services has
estimated that smoking costs the Australian community $12.7 billion
1 Lowe JB, Walker DM, Ballard R and Stanton WR (1997) Smoking and Skin Protection
among Year 7 to 12 students in Queensland 1996 Centre for Health Promotion and Cancer
Prevention Research, University of Queensland, Brisbane
2 Winstanley M, Woodward S and Walker N (1995) Tobacco in Australia: Facts and
Issues 1995 Victorian Smoking and Health Program, Melbourne
3 Petro R (1994) Smoking and Death: the Past 40 years and the next 40 British Medical
Journal 309 at pp.937-938
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Tobacco Products (Prevention of Supply to Children)
dollars per annum4.
Seventy-eight per cent of Queenslanders who currently smoke first tried
smoking as children5. Reducing the number of children who take up
smoking is the most effective way of reducing the incidence of smoking in
the community, and reducing the deaths and illnesses caused by smoking
and the resultant demands on the health care system.
The number of children taking up smoking can be reduced by reducing
demand for tobacco amongst young people (eg. through public health
campaigns, and information provided through schools), and by reducing
supply of tobacco to young people.
How the policy objectives will be achieved
The policy objectives of the Bill will be mainly achieved by reducing the
availability of tobacco products to children. Making it more difficult for
children to obtain tobacco has been shown to reduce the number of children
who take up smoking. Reducing the availability of tobacco to children also
re-enforces the message that tobacco use has serious health consequences.
The Bill controls the availability of tobacco to children in three main
areas--
· supply of tobacco to children as part of a business activity (eg.
"over the counter" sales, commercial distribution of free
samples). In this area the Bill will--
- make it an offence for a tobacco product supplier, or their
employee, to supply tobacco to a child;
- provide for a fair division of responsibility between tobacco
product suppliers and employees in relation to any such
offences; and
4 Collins DJ and Lapsley HM (1996) The Social Costs of Drug Abuse in Australia in 1988
and 1992 Report prepared for the Commonwealth Department of Human Services and
Health, National Drug Strategy Monograph Series No. 30, Canberra
5 Commonwealth Department of Health and Family Services (1996) National Drug
Strategy Household Survey: Table Set 2 Geographical Characteristics Commonwealth
Department of Health and Family Services, Canberra
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Tobacco Products (Prevention of Supply to Children)
- specify the measures a tobacco product supplier should take
to ensure that the supplier's employees do not supply
tobacco to children;
· supply of tobacco to children via vending machines. In this area
the Bill will--
- restrict the location of tobacco vending machines to premises
which are licensed premises under the Liquor Act 1992;
- make it an offence for a person in charge of a vending
machine to allow a child to obtain tobacco from a vending
machine; and
- specify the measures a person in charge of a vending
machine should take to prevent children obtaining tobacco
from the machine; and
· supply of tobacco to children other than as part of a business
activity or via a vending machine (eg. supply of tobacco to a child
by an 18 year old acquaintance of the child). In this area the Bill
will make it an offence for an adult to supply tobacco to a child.
The Bill will also--
· raise the age at which people may legally be sold tobacco from 16
to 18 (in line with all other Australian States and Territories);
· make it clear that when supplying tobacco to a person as part of a
business activity or via a vending machine, if there is doubt about
the person's age, the person should be asked for proof of age;
· require people who supply tobacco to the public to display signs
about the prohibition on sales to children at the point of sale;
· prohibit certain conduct which makes tobacco more easily
obtainable, or more desirable, to children (eg. the sale of single
cigarettes, or food or toys which resemble tobacco products);
· provide appropriate enforcement powers for authorised persons;
and
· repeal the Juvenile Smoking Suppression Act 1905.
The Bill is part of a package aimed at reducing youth smoking. The
package will include public awareness (eg. to alert people to the fact that
they may be asked for proof of age before being able to purchase tobacco
products) and retailer and vending machine operator education. The retailer
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Tobacco Products (Prevention of Supply to Children)
and vending machine operator education component of the package will
include free signage, a "plain English" explanation of the Bill, and
information for employees.
Estimated cost for Government implementation
The campaign to support the Bill (i.e. public awareness campaign, retailer
and vending machine operator education, free signage and training for
authorised persons) will cost approximately $500,000 in the 1997/98
financial year. The Government is currently also considering options for a
broader campaign targeted at reducing demand for tobacco among young
people.
Consistency with Fundamental Legislative Principles
Aspects of the Bill which raise possible fundamental legislative
principles issues are outlined below.
Clause 15 Restriction on the location of tobacco product vending
machines
Clause 15 of the Bill will make it illegal to possess a tobacco product
vending machine other than in premises which are licensed premises under
the Liquor Act 1992 (except where the machine is being stored, repaired,
transported etc.). Over 95% of vending machines in Queensland are
already in licensed premises, because the tobacco companies which hold the
majority of the market-share in vending machine leasing do not lease
machines to be used in premises other than licensed premises. However,
there are a small number of businesses which lease vending machines to be
placed in other areas (eg. tourist information kiosks, service stations).
Those businesses will experience a reduction in the range of premises to
which they can lease tobacco product vending machines, and may
experience a resulting loss in income. Lessees of vending machines who
do not currently place the vending machine in a licensed premises may also
experience a loss in income.
This aspect of the Bill raises a fundamental legislative principle issue in
that it affects existing contractual arrangements of lessees and lessors of
vending machines. It could therefore be argued that clause 15 infringes the
principle that legislation should not adversely affect rights and liberties, or
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Tobacco Products (Prevention of Supply to Children)
impose obligations, retrospectively.
Queensland Health has minimised the impact of this aspect of the Bill by
giving vending machine lessors notice of the proposed restriction on the
location of vending machines, and providing for delayed commencement of
the relevant provision in the Bill. Restricting the location of vending
machines to licensed premises was an option discussed in a discussion
paper released to the public in 1993. The Director-General of Queensland
Health wrote to all known vending machine lessors in Queensland in
October 1997, informing them that legislation is being developed to restrict
the location of vending machines. The Bill provides that the provision
restricting the location of vending machines to licensed premises will
commence 6 months after the other provisions of the Bill. This will give
vending machine lessors 9 to 10 months after the Bill is passed (and
approximately a year after they were informed about the new legislation by
the Director-General of Queensland Health) to find alternative locations for
vending machines. It also gives vending machine lessees time to sell
remaining stock.
In order to restrict children's access to tobacco, it is essential to ensure
that vending machines cannot be placed in unsupervised areas. A
Queensland Health survey in 1993 found that children were successful in
97% of their attempts to purchase tobacco from vending machines6. A
1992 study in New South Wales found that children perceive vending
machines as the easiest source of tobacco7. In recognition of this, the
Senate Community Affairs References Committee, in its 1995 report The
Tobacco Industry and the Costs of Tobacco-related Illness recommended
that vending machines be banned all together. This recommendation is
under consideration by the Federal Government.
Legislation restricting children's access to tobacco in "over the counter"
situations will be ineffective if it is not accompanied by legislation
preventing children obtaining tobacco from vending machines.
Licensed premises are generally not left open to the public while
unsupervised. Children are not allowed on some licensed premises, and are
6 Health Advancement Branch (1993) Youth Purchase Survey 1993 Queensland Health,
unpublished
7 Sanson-Fisher R et al (1992) Availability of Cigarettes to Minors Australian Journal of
Public Health 16, 4, p.356
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Tobacco Products (Prevention of Supply to Children)
usually accompanied by adults in others. Staff in licensed premises already
have responsibility for ensuring that children are not supplied with alcohol,
and can be expected to properly exercise responsibilities for ensuring that
children are not supplied with tobacco. Premises such as service stations
and information kiosks do not have these characteristics, and a vending
machine located in such an area could quickly become a prime source of
tobacco for local children. This would defeat the object of the Bill.
Clause 25 Liability of person for conduct of representatives
Under clause 22 of the Bill, it will be an offence to sell cigarettes other
than in a package of 20 or more cigarettes. It will also be an offence to sell
cut tobacco (i.e. roll your own tobacco) in quantities of less than 25g (clause
23). The rationale for these provisions is that very small packages of
cigarettes, or very small quantities of cut tobacco, are attractive to children
(as children have low disposable income levels). It will be illegal to sell
cigarettes or cut tobacco in less than minimum quantities to any person, not
only to a child.
It will also be an offence under clause 24 of the Bill to sell food or toys
which resemble a tobacco product (eg chocolate cigarettes). The rationale
for this provision is that studies have shown that children who have used
such products are more likely to experiment with tobacco than children who
have not used such products. It will be illegal to sell food or a toy
resembling a tobacco product to any person, not only a child.
It is likely that any actual sales of tobacco or food or toys in
contravention of these provisions would be made not by the owners of the
store at which the sale occurred, but by their employee. However, it is
appropriate the liability for these offences should rest with the owner rather
than with the employee. This is because these products are illegal in
themselves (and not only when sold to children). Products of this nature
should not be available for sale in shops at all. Therefore it is appropriate
that primary liability for sales of such products will be placed with the
owner of the shop.
As with most provisions to this effect, the owner of the shop will have a
defence where he or she can show that he or she took reasonable steps to
prevent the sale by the employee of the items concerned.
This provision may constitute a reversal of the onus of proof, because the
shop owner is presumed to be responsible for the conduct of his or her
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Tobacco Products (Prevention of Supply to Children)
employee unless the shop owner is able to establish that he or she took
reasonable steps to prevent that conduct. However, for the reasons outlined
above, it is appropriate for these offences that primary responsibility be
placed on shop owners rather than on their employees.
Clause 36 Power to require name and address
When an authorised person sees a person supply tobacco to a child in a
commercial situation, an offence against the Bill may have been committed
either by the person or, if the person is the employee of another person, by
the person's employer (called a "tobacco product supplier" under the Bill).
Who will be liable for the offence will depend upon whether the tobacco
product supplier has taken the "prevention measures" set out in the Bill in
relation to the employee. The "prevention measures" are that the supplier
has instructed the employee not to supply tobacco to children, to ask for
proof of age, and warned the employee that if he or she disregards these
instructions he or she will commit an offence, and that the employee has
acknowledged these instructions in writing.
The supply of tobacco to a child is an offence by an employee where the
supplier has completed the prevention measures in relation to the employee,
and an offence by the supplier where the supplier has not completed the
prevention measures in relation to the employee. An authorised person
who observes a sale of tobacco to a minor will not be in a position to
determine whether the offence was committed by an employee or by the
supplier because the authorised person will not know whether or not the
prevention measures have been taken.
Most Acts enable authorised persons to demand the name and address of
a person the authorised person observes committing, or suspects has just
committed, an offence against the Act. A provision of this nature would be
inadequate in this Bill, however, because forming a "reasonable suspicion"
that an offence had been committed would necessarily involve the
formation of a suspicion that the prevention measures had, or had not, been
taken. An authorised person would not be in a position to form a
reasonable suspicion on this matter where the authorised person had merely
witnessed tobacco being supplied to a child. Determination of whether or
not the prevention measures were completed would occur as part of the later
investigation of the offence.
The Bill therefore provides that where an authorised person finds a
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Tobacco Products (Prevention of Supply to Children)
person in circumstances that lead the authorised person to reasonably
suspect the person or the person's employer has just committed an offence
against the Bill, the authorised person may require the person to state his or
her name and address.
This provision may be seen to impinge on the rights and liberties of
individuals because it allows an authorised person to demand name and
address from a person who may not necessarily have committed an offence
against the Bill. However, as is explained above, it is necessary to include a
provision of this nature in order to enable an authorised person to determine
whether the employee or the supplier is liable for the offence. It will not be
an offence not to state name and address if neither the employee nor the
tobacco product supplier is proved to have committed an offence against the
Bill.
Clause 37 Power to require evidence of age, name and address of
person observed being supplied a tobacco product
The Discussion Paper on the Availability and Marketing of Tobacco
Products to Children and Adolescents proposed that it should be an offence
for a child to purchase or attempt to purchase tobacco. This was a
problematic proposal because enforcement would have involved police and
other authorised persons in "disciplining" children who had been
experimenting with tobacco. In addition, this proposal was strongly
opposed by groups representing young people.
One effect of there being an offence for a child purchasing tobacco is that
if an authorised person observed a young-looking person being supplied
with tobacco, the authorised person would have the power to ask the person
for his or her name and address (since the authorised person would have
reasonable grounds to suspect that the person had just committed an
offence). The ability to obtain the name and address of a young-looking
person observed purchasing tobacco is important because the name and
address can be used to establish that that person was in fact under 18 years
of age. This would be essential to bringing a successful prosecution under
the Bill.
Since it is not an offence for a child to purchase tobacco, authorised
persons would not have the power to obtain the name and address of a
young-looking person observed purchasing tobacco without the inclusion in
the Bill of a provision expressly providing that power. Without such a
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Tobacco Products (Prevention of Supply to Children)
provision, an authorised person who reasonably suspects that he or she has
witnessed an offence against the Bill would have no means of establishing
whether the person observed purchasing tobacco was or was not a child.
This would make the Bill very difficult to enforce.
Clause 37 therefore provides that where an authorised person observes a
person being supplied with tobacco, and the authorised person reasonably
suspects that the person is a child, the authorised person may ask that
person to show acceptable evidence of age. If the person cannot show
acceptable evidence of age (eg. because he or she does not have a driver's
license, passport or proof of age card) or shows acceptable evidence of age
which indicates that the person is a child, the authorised person may
demand the person's name and address. It will be an offence for the person
not to state his or her name and address (unless the person has a reasonable
excuse).
This provision may be seen to have a negative impact on the rights and
liberties of young-looking people observed purchasing tobacco. In relation
to this, the following points should be noted:
· The power is only available where a person has been observed
being supplied with tobacco. It would not, for example, allow an
authorised person to approach a young-looking person smoking
in public and ask where he or she obtained the cigarettes.
· The power is essential to the effective enforcement of the Bill. It
would not be appropriate for an authorised person to observe an
offence but have no way of establishing that the young-looking
person observed obtaining tobacco was a child. The only other
option for effective enforcement (i.e. creating an offence for
children purchasing tobacco) is far more intrusive to the rights
and liberties of young people.
· Under the procedures to be followed by authorised persons in
enforcing the Bill, people who are asked for proof of age, and
name and address under this provision will be informed that it is
not an offence for a child to purchase tobacco. If such a person
co-operates with the authorised person, he or she will not have
committed any offence.
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Tobacco Products (Prevention of Supply to Children)
Consultation
The Bill is the result of an extensive public consultation process. A
discussion paper on The Availability and Marketing of Tobacco Products to
Children and Adolescents was released in October 1993. There have been
several rounds of consultation since that time. The most recent round was
undertaken in October 1997. Consultation was undertaken with the
Queensland Cancer Fund, the Australian Medical Association and the
National Heart Foundation. Consultation was also undertaken with--
· representatives of hotels and licensed clubs;
· representatives of tobacco retailers (including newsagents, service
stations, tobacconists and small and large shops);
· tobacco companies;
· youth advocacy groups; and
· unions.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Bill.
Clause 2 provides that the Bill (other than clause 15) commences on a
day to be fixed by proclamation. Clause 15 makes it an offence for the
occupier of premises other than premises licensed under the Liquor Act
1992 to have a tobacco product vending machine at those premises. Clause
15 will commence 6 months after the other provisions of the Bill.
The delayed commencement of clause 15 is explained on page 5 of these
Notes
Clause 3 sets out the main object of the Bill. The object is to reduce the
number of children who take up smoking. "Child" means an individual
who is under 18. The current Queensland legislation (the Juvenile Smoking
Suppression Act 1905) applies to people under 16 years of age.
Clause 3 also sets out how the object of the Bill is to be achieved. The
object of the Bill, and how it is to be achieved, are discussed on pages 1 to 3
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Tobacco Products (Prevention of Supply to Children)
of these Notes.
Clause 4 provides that particular words used in the Bill are defined in the
dictionary in the schedule to the Bill (located at the end of the Bill).
Clause 5 defines the term "responsible adult". This term is relevant to
clause 19. Clause 19 provides that an adult must not supply a tobacco
product to a child. However, it is not an offence for an adult to supply a
tobacco product to a child for whom the person is a "responsible adult"
within the meaning of clause 5. A responsible adult in relation to a child is
a parent, step-parent or guardian of the child, or an adult with parental rights
and responsibilities for the child.
Clause 19 is intended to apply to situations such as that where an older
acquaintance of a child purchases tobacco on behalf of the child and
supplies the tobacco to the child. Responsible adults are exempted from
clause 19 so that the State does not intrude into domestic relationships.
Clause 6 sets out what acceptable evidence of age means. The meaning
of this term is similar to that in section 6 of the Liquor Act 1992. The terms
"driver's licence" and "proof of age card" are defined in the dictionary in
the schedule to the Bill.
Clause 7 provides that the Bill binds all persons (which includes the
State).
PART 2--SUPPLY OF TOBACCO PRODUCTS
Division 1--Tobacco product suppliers and employees
Clause 8 provides that division 1 of part 2 does not apply to the supply
of tobacco products from tobacco product vending machines. Division 2 is
the operative division in relation to the supply of tobacco products from
tobacco product vending machines.
Division 1 applies to the supply of tobacco products by tobacco product
suppliers and their employees. "Tobacco product supplier" means a person
who, as part of a business activity, supplies tobacco products to the public,
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Tobacco Products (Prevention of Supply to Children)
but does not include a person who supplies tobacco products to the public
as the employee of another person.
The reference to "as part of a business activity" is intended to distinguish
supply of tobacco in a commercial or business-like situation from supply of
tobacco in a social situation (supply of tobacco in a social situation is
covered by part 2, division 3). It is not necessary that the business activity
involve the sale of tobacco (eg. a person distributing free samples of
tobacco as part of a business activity would be a tobacco product supplier).
It is also not necessary that a person owns, or derives a personal profit
from, the business activity for the person to be a tobacco product supplier.
However, the definition of tobacco product supplier excludes a person who
supplies tobacco to the public as the employee of another person.
To be a tobacco product supplier, a person needs to supply tobacco to the
public. The term therefore excludes a person who, for example, only
supplies tobacco to retail outlets.
Clause 9 sets out what the term "prevention measures" means for the
purposes of part 2, division 1. The prevention measures are relevant in
determining whether a tobacco product supplier, or the supplier's employee,
has committed an offence if the supplier's employee supplies tobacco to a
child.
If an employee of a tobacco product supplier supplies tobacco to a child,
the tobacco product supplier only commits an offence under clause 11(1) if
the tobacco product supplier has not undertaken the prevention measures in
relation to the employee (clause 11(2)).
If the employee of a tobacco product supplier supplies tobacco to a child
after the tobacco product supplier has undertaken the prevention measures
in relation to the employee, the employee commits an offence under clause
12.
The intention of clauses 11 and 12 is to ensure that there is a fair division
of responsibility between tobacco product suppliers and their employees in
relation to the supply of tobacco to children by ensuring that--
· employees will only be liable for supplying tobacco to children
where the employee has first been instructed of his or her
responsibilities under the Bill;
· tobacco product suppliers will not be liable for offences
committed by employees who have been properly instructed not
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Tobacco Products (Prevention of Supply to Children)
to supply tobacco to children, and who disobey those instructions;
and
· it will generally be straightforward to determine whether the
supplier or the employee is liable for a particular offence. This
will avoid the situation where the supplier and the employee
dispute liability for a particular offence (which is disadvantageous
to both suppliers and employees).
The prevention measures are a series of measures which, if taken, will
ensure that employees understand their responsibilities under the Bill. The
first aspect of the prevention measures is that employees are instructed--
· not to supply tobacco products to children in any circumstances,
even if the supply is for, or is claimed to be for, an adult; and
· to sight acceptable evidence of age for a person before supplying
a tobacco product to the person, unless satisfied that the person is
an adult.
This aspect of the prevention measures is intended to prepare employees
to deal with situations that may arise in relation to the supply of tobacco (eg.
so that employees know that if in doubt about a person's age, they should
ask for proof of age, and that they must not supply tobacco to a child who
claims to have a note from a parent allowing the child to obtain tobacco for
the parent).
Clause 9 requires that employees be instructed of these requirements.
This is intended to require that the tobacco product supplier explains these
requirements to employees and not, for example, merely has employees
sign a form containing the instructions without giving employees a proper
opportunity to read the form and ask questions.
The second aspect of the prevention measures is that the employee is
warned that if the employee supplies tobacco to children in disregard of the
instructions, the employee will commit an offence against the Bill. Again,
the warning requires some element of explanation or opportunity to ask
questions, and not the mere signing of a form.
The third aspect of the prevention measures is that the employee
acknowledges in writing that he or she has been given the instructions and
warnings outlined above. This aspect of the prevention measures is
intended to ensure that there is a record of the tobacco product supplier
having given the necessary warnings and instructions, to avoid future
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Tobacco Products (Prevention of Supply to Children)
disputes between suppliers and employees.
Clause 10 provides that a tobacco product supplier who is an individual
must not supply a tobacco product to a child. This provision applies where
a tobacco product supplier supplies tobacco to a child personally, and not
through an employee. Clause 10 necessarily excludes tobacco product
suppliers who are bodies corporate because bodies corporate cannot act
"personally".
Clause 26 of the Bill contains a defence to the offence in clause 10.
The penalty for a breach of clause 10 is 1 penalty unit for a first offence,
and 2 penalty units for a second or later offence. Clause 13 (which allows a
court to prohibit a tobacco product supplier from supplying tobacco) will
also apply in relation to a second offence under clause 10 or clause 11.
Clause 11 provides that a tobacco product supplier must ensure an
employee of the tobacco product supplier does not supply tobacco to a
child.
If an employee of a tobacco product supplier supplies tobacco to a child,
and the tobacco product supplier took the prevention measures in relation to
the employee prior to the supply, the tobacco product supplier does not
commit an offence against this provision. "Prevention measures" are
explained under clause 9 above.
Clause 26 of the Bill contains a defence to the offence in clause 11.
The penalty for a breach of clause 11 is 1 penalty unit for a first offence,
and 2 penalty units for a second or later offence. Clause 13 (which allows a
court to prohibit a tobacco product supplier from supplying tobacco to the
public) will also apply in relation to a second offence under clause 11 or
clause 10.
Clause 12 provides that an employee of a tobacco product supplier must
not supply a tobacco product to a child. This provision only applies if the
tobacco product supplier has taken the prevention measures in relation to the
employee before the employee supplies tobacco to the child. "Prevention
measures" are explained under clause 9 above.
Clause 26 of the Bill contains a defence to the offence in clause 12.
The penalty for a breach of clause 12 is 1 penalty unit for a first offence,
and 2 penalty units for a second or later offence.
Clause 13 enables a court sentencing a tobacco product supplier for
offences against this division, in certain circumstances, to prohibit or restrict
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Tobacco Products (Prevention of Supply to Children)
the supply of tobacco by that supplier. A court may make such an order
where--
· a tobacco product supplier is convicted of an offence against
clause 10 or 11 of the Bill; and
· within 2 years after the conviction, the supplier is again convicted
of an offence against either clause.
The court may make an order of at least two months, but not longer than
one year's duration. The order may--
· prohibit the supply of all or specified tobacco products by the
supplier; or
· impose conditions or restrictions on the supply of tobacco
products by the supplier.
The intention of this provision is to allow a court to impose a more
serious sanction for repeat offenders under the Bill.
Subclause (4) of clause 13 provides that if the supplier supplies tobacco
products to the public at more than one outlet, the order may only apply to
the outlets where the offences happened.
The intention of this subclause is to restrict a court's discretion in making
an order to those outlets where the offences occurred. In the absence of this
subclause a court could, theoretically, make an order affecting all outlets in a
chain of stores when the offences occurred at one or two outlets.
Division 2--Tobacco product vending machines
Clause 14 sets out two definitions relevant to this division. This division
relates to the supply of tobacco products via tobacco product vending
machines.
"Tobacco product vending machine" means a coin-operated vending
machine used, or intended for use, for selling tobacco products, whether or
not it is also used, or intended for use, for selling other products.
"Coin-operated vending machine" means a machine or device operated by
money, token, debit card or credit card. The definition of coin-operated
vending machine is intended to exclude dispensing machines linked to cash
registers and operated electronically by tobacco product suppliers or their
employees.
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Tobacco Products (Prevention of Supply to Children)
A "person in charge" of a tobacco product vending machine is the
licensee of the licensed premises at which the vending machine is situated.
"Licensee" means a licensee under the Liquor Act 1992. The definition is
limited to licensees because, under clause 15, it is an offence to have a
tobacco product vending machine on premises other than licensed premises.
Clause 15 is subject to delayed commencement, and some transitional
provisions are required in relation to division 2 as a result. These
transitional provisions are explained under clause 52.
A person in charge of a tobacco product vending machine commits an
offence if the person allows a child to obtain tobacco from the vending
machine (clause 16(1)). However, the person in charge will not commit an
offence if, prior to the child obtaining tobacco from the vending machine,
the person has undertaken the prevention measures in relation to the
vending machine (clause 16(2)).
Clause 14 sets out what is meant by prevention measures in relation to a
vending machine. The first aspect of the prevention measures is that the
vending machine is located so that its use can be observed by the person's
employees. This aspect of the prevention measures will be satisfied where
the machine is within the line of sight of an area (such as a serving area in a
bar, or a reception area in a restaurant) which is usually attended by a staff
member or members. It would not be satisfied, for example, where the
machine is placed in a corridor or entry area and is not usually visible to
staff members.
The second aspect of the prevention measures is that employees are
instructed--
· to take reasonable steps to ensure that a child does not obtain a
tobacco product from the vending machine, even if the supply is
for, or is claimed to be for, an adult; and
· to sight acceptable evidence of age for a person before allowing
the person to obtain a tobacco product from the vending machine,
unless satisfied that the person is an adult.
This aspect of the prevention measures is intended to prepare employees
to deal with situations that may arise in relation to the supply of tobacco via
a vending machine (eg. so that employees know that if in doubt about a
person's age, they should ask for proof of age, and that they must take
reasonable steps to ensure a child does not obtain tobacco from the vending
machine even where the child claims to have a note from a parent allowing
17
Tobacco Products (Prevention of Supply to Children)
the child to obtain tobacco for the parent).
Unlike in "over the counter" situations, an employee will not always be
able to prevent a child from obtaining tobacco from a vending machine.
The person in charge of the vending machine therefore only needs to
instruct employees to take reasonable steps to prevent a child obtaining
tobacco from the machine. Reasonable steps might be, for example, telling
the child to move away from the machine and, if the child refuses to do so,
calling for assistance from a senior staff member.
As with the instructions and warnings discussed in relation to clause 9,
the giving of instructions under clause 14 requires some element of
explanation or opportunity to ask questions, and not the mere signing of a
form by the employee.
It is not necessary that the person in charge of the tobacco product
vending machine gives the instructions outlined in clause 14 to all the
person's employees. The instructions only need to be given to employees
whose employment requires them to work near a tobacco product vending
machine, and who in performing their duties, can observe the use of the
vending machine (this is the effect of the definition of "employee" in clause
14).
The third aspect of the prevention measures is that employees
acknowledge in writing that they have been given the instructions outlined
above. This aspect of the prevention measures is intended to ensure that
there is a record of the person in charge of a vending machine having given
the necessary instructions.
Clause 15 provides that an occupier of premises that is not licensed
premises must not have a tobacco product vending machine at the premises.
"Licensed premises" is defined in the dictionary in the schedule to the Bill
to have the meaning provided for in section 4 of the Liquor Act 1992. The
penalty for breach of this provision is 1 penalty unit.
An occupier of premises that is not licensed premises will not commit an
offence against clause 15 if the machine is not being used by anyone to
supply tobacco products (eg. if the machine is being stored, transported or
repaired).
The rationale for this clause is set out on page 5 of these Notes. Clause
15 is to commence 6 months after the rest of the Bill. The delayed
commencement of this clause is explained on page 4 of these Notes.
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Tobacco Products (Prevention of Supply to Children)
Clause 16 provides that a person in charge of a vending machine must
not allow a child to obtain a tobacco product from the vending machine.
If a child obtains tobacco from the vending machine, and the person in
charge of the vending machine took the prevention measures in relation to
the vending machine prior to the supply, the person in charge does not
commit an offence against this provision. "Prevention measures" are
explained under clause 14 above.
Clause 26 of the Bill contains a defence to the offence in clause 16.
The penalty for a breach of clause 16 is 1 penalty unit for a first offence,
and 2 penalty units for a second or later offence. Clause 17 (which allows a
court to prohibit a person in charge of a tobacco product vending machine
from possessing a tobacco product vending machine) will also apply in
relation to a second or subsequent offence under clause 16.
It should be noted that the Bill does not make employees of persons in
charge of vending machines liable for supply of tobacco to children via a
vending machine. This is because, unlike "over the counter" and similar
situations, no individual employee could be considered to be directly
responsible for allowing a child to obtain tobacco from a vending machine
(since an employee would not be personally involved in the transaction).
Clause 17 enables a court sentencing a person in charge of a tobacco
product vending machine for offences against this Division, in certain
circumstances, to prohibit or restrict the possession or use of tobacco
product vending machines by that person. A court may make such an order
where--
· a person in charge of a tobacco product vending machine is
convicted of an offence against clause 16 of the Bill; and
· within 2 years after the conviction, the supplier is again convicted
of an offence against that clause.
The court may make an order of at least two months, but not longer than
one year's duration. The order may--
· prohibit the person from possessing tobacco product vending
machines; or
· impose conditions or restrictions on the possession or use of
tobacco product vending machines by the person.
The intention of this provision is to allow a court to impose a more
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Tobacco Products (Prevention of Supply to Children)
serious sanction for repeat offenders under the Bill.
Subclause (4) of clause 17 provides that if the person is in charge of a
tobacco product vending machine at more than one licensed premises, the
order may only apply to the licensed premises where the offences
happened.
The intention of this subclause is to restrict a court's discretion in making
an order to those licensed premises where the offences occurred. In the
absence of this subclause a court could, theoretically, make an order
affecting all licensed premises in a chain of licensed premises when the
offences occurred at one or two premises.
Division 3--Supply of tobacco products by adults to children
Clause 18 provides that part 2, division 3 does not apply to the supply of
tobacco products--
· by tobacco product suppliers or their employees (covered by
division 1); or
· from tobacco product vending machines (covered by division 2).
Clause 19 provides that an adult must not supply a tobacco product to a
child. The maximum penalty for this offence is 1 penalty unit.
However, a responsible adult for a child may supply a tobacco product to
that child without committing an offence against this clause.
The rationale for this clause, and for the exemption for responsible
adults, is set out under clause 5.
A defence will apply where the adult who supplied tobacco to a child
honestly and reasonably believed that the child was an adult. This defence
provision operates slightly differently to the defence which applies in
"commercial" situations (clause 26). Under clause 26, proof that the
defendant or the defendant's employee did not ask the person to whom
tobacco was supplied to produce acceptable evidence of age is evidence that
any belief that the person was an adult was not reasonable. Clause 19
covers social rather than commercial situations, and it would be unfair for a
person to be expected to ask for proof of age in a social situation.
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Tobacco Products (Prevention of Supply to Children)
Division 4--Signage
Clause 20 provides that a tobacco product supplier must display
prohibition signs at each place at which the supplier supplies tobacco
products. A "prohibition sign" is a sign about the supply of tobacco
products to children which complies with the requirements prescribed under
a regulation. The details as to what signs are to say (eg. that it is illegal to
supply tobacco to people under 18 years of age, and that proof of age may
be requested), and where they are to be placed (eg. in a conspicuous place
clearly visible from each point of sale) will be set out in a regulation under
the Bill.
The maximum penalty for a breach of this clause is 1 penalty unit.
Subclause (2) of clause 20 is intended to make it clear that clause 21 (and
not clause 20) is the operative provision for the signage which should be
affixed to or displayed on a tobacco product vending machine.
Clause 21 provides that a person in charge of a tobacco product vending
machine must attach prohibition signs to, or display prohibition signs near,
the vending machine. As with clause 20, details as to what signs are to say,
and where they are to be placed, will be set out in a regulation under the Bill.
The maximum penalty for a breach of this clause is 1 penalty unit.
Division 5--Minimum saleable quantities of tobacco products
Clause 22 makes it an offence to sell cigarettes--
· other than in a package (eg. it is an offence to sell single
cigarettes); or
· in a package containing less than 20 cigarettes.
"Cigarette" is defined in the dictionary in the schedule to the Bill. Cigars
are excluded from the definition of cigarette, and therefore from the
coverage of this provision. For the purposes of this clause, "package"
means a package packed by the manufacturer or importer of the cigarettes.
It should be noted that this clause prohibits the sale of cigarettes not in
packages, or below the minimum package size, to any person, not only to a
child. The rationale for this clause is that very small packages of cigarettes
21
Tobacco Products (Prevention of Supply to Children)
are attractive to children (as children have low disposable income levels).
The clause therefore provides an additional means of reducing the
availability of tobacco to children.
The clause applies only to "sale" and not to "supply" because it is not
intended that the giving of cigarettes (eg. as samples) be restricted by this
clause. A tobacco product supplier who gives cigarettes to a child commits
an offence under clause 10 of the Bill (or clause 11 if the supply is by the
tobacco product supplier's employee).
The maximum penalty for breach of this clause is 1 penalty unit.
Clause 23 provides that a tobacco product supplier must not sell
prepackaged loose tobacco in quantities of less than 25 grams.
"Prepackaged loose tobacco" means tobacco product for smoking that is
cut and packaged for retail sale, but does not include a cigarette or cigar.
"Roll your own" tobacco and pipe tobacco are examples of prepackaged
loose tobacco.
The rationale for, and operation of, this clause are similar to that for
clause 22 discussed above.
The maximum penalty for breach of this clause is 1 penalty unit.
Division 6--Supply of things resembling tobacco products
Clause 24 provides that a person must not, as part of a business activity,
supply to a person food or a toy which resembles a tobacco product.
Subclause (2) of clause 24 sets out when food or a toy will resemble a
tobacco product. Examples of food or toys which resemble tobacco
products include chocolate cigarettes, candy cigars, toy cigarettes and toys
which resemble a package of cigarettes (whether or not the package contains
toy cigarettes). A regulation may declare a particular food or toy to
resemble a tobacco product.
The reference in clause 24 to "as part of a business activity" is intended
to distinguish the supply of food or a toy resembling a tobacco product in a
commercial or business-like situation from supply of tobacco in a social
situation. The clause prohibits the supply of food or a toy which resembles
a tobacco product to any person, not only to a child.
The rationale for this clause is that studies have shown that children who
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Tobacco Products (Prevention of Supply to Children)
have used such products are more likely to experiment with tobacco than
children who have not used such products.
Division 7--Liability for certain offences against part
Clause 25 sets out the circumstances in which a person may be liable for
a breach of clauses 22, 23 or 24 committed by the person's representative.
The terms "representative" and "state of mind" are defined in the dictionary
in the schedule to the Bill. The operation of this clause is discussed on page
6 of these Notes.
Clause 26 provides a defence to the offences set out in clauses 10, 11, 12
and 16. Those clauses relate to the supply of tobacco to a child. Where a
tobacco product supplier, or the supplier's employee, has supplied tobacco
to a child in breach of clauses 10, 11 or 12, the supplier or employee will
have a defence under clause 26 if the supplier or employee honestly and
reasonably believed that the child was an adult. Where a person in charge
of a vending machine has allowed a child to obtain tobacco from the
vending machine, the person will have a defence under clause 26 if the
person, or an employee of the person who dealt with the child, honestly and
reasonably believed that the child was an adult.
Subclause (3) of clause 26 provides that proof that the defendant or the
defendant's employee did not ask the child to produce acceptable evidence
of age is evidence that any belief that the relevant person was an adult was
not reasonable. Failure to ask for proof of age is not conclusive evidence
that the belief that the child was an adult was unreasonable. The intention of
this provision is to re-enforce that in commercial situations the rule should
be "when in doubt ask for proof of age".
An example of a situation where a tobacco product supplier or the
supplier's employee could have an honest and reasonable belief that a child
was in fact an adult is where, prior to being supplied with tobacco, the child
showed the supplier or employee a convincing, but false, driver's license
which indicated that the child was over 18. An example of a situation
where a person in charge of a tobacco product vending machine could have
an honest and reasonable belief that a child was in fact an adult is where the
vending machine is located in an area only accessible to adults, and the child
had obtained entry using a convincing, but false, driver's license which
indicated that the child was over 18.
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Tobacco Products (Prevention of Supply to Children)
PART 3--MONITORING AND ENFORCEMENT
Division 1--Appointment of authorised persons and other matters
Clause 27 gives the chief executive of Queensland Health the ability to
appoint authorised persons under the Bill. Under subclause (3) of clause
27, police officers are automatically authorised persons.
Subclause (2) of clause 27 requires that persons appointed as authorised
persons have the necessary expertise or experience to be an authorised
person.
Clause 28 sets out some "machinery" provisions in relation to the term
of appointment of authorised persons (other than police officers).
Clause 29 provides for the chief executive of Queensland Health to give
authorised persons (other than police officers) identity cards, and sets out
the information to be included on an identity card. An authorised person
who ceases to be an authorised person must return his or her identity card to
the chief executive of Queensland Health.
Clause 30 provides that an authorised person (other than a uniformed
police officer) may exercise a power under the Bill in relation to someone
only if the authorised person first produces appropriate identification, or has
his or her identification displayed.
Clause 31 is a "standard" provision protecting authorised persons and
persons acting under the direction of authorised persons from civil liability
for acts done honestly and without negligence under the Bill. Such liability
will attach to the State instead of the authorised person or person acting
under the direction of an authorised person.
Division 2--Powers of authorised persons
Clause 32 sets out the meaning of the term "occupier" for the purposes
of division 2 of part 3. A separate definition of "occupier" is required for
this division, because the term "occupier" is used in a broader sense in this
division than it is in clause 15 of the Bill.
Clause 33 is a "standard provision" setting out the circumstances in
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Tobacco Products (Prevention of Supply to Children)
which an authorised person may enter a place. Subclause (2)(a) provides
that an authorised person may, without the occupier's consent or a warrant,
enter a public place when the place is open to the public. "Public place"
means a place that the public is entitled to use, is open to the public or is
used by the public (whether or not on payment of money). Subclause
(2)(b) provides that an authorised person may, without the occupier's
consent or a warrant, enter a licensed premises or an outlet of a tobacco
product supplier while it is open for carrying on business.
Clause 34 is a "standard provision" setting out how an authorised person
may apply to a magistrate for a warrant, and the grounds on which a
magistrate may grant a warrant. An example of a situation in which a
warrant might be sought under the Bill is where a warrant is required to
enable an authorised person to investigate a report of a tobacco product
vending machine on unlicensed premises.
Clause 35 sets out what an authorised person who has entered a place
under clause 33 may do while in that place. For example, this section
would allow an authorised person who suspected that packages of
prepacked loose tobacco were being sold at the place in less than the
minimum quantity required under clause 23 to weigh the packages of
tobacco.
Division 3--Other enforcement powers of authorised persons
Clause 36 gives an authorised person power to demand the name and
address of a person observed committing, or reasonably suspected to have
just committed, an offence against the Bill. The Bill is generally similar to
"name and address" provisions in other Queensland legislation, except that
an authorised person may demand the name and address of a person where
the authorised person reasonably suspects that the person's employer has
committed an offence against the Act. The rationale for this aspect of clause
36 is outlined on pages 6 and 7 of these Notes.
Clause 37 gives an authorised person power to require a person to show
acceptable evidence of age where the authorised person observes the person
being supplied a tobacco product, and the authorised person suspects that
the person is a child. If the person cannot provide acceptable evidence of
age, or provides acceptable evidence of age which shows that the person is
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Tobacco Products (Prevention of Supply to Children)
under 18, the authorised person may require the person to state his or her
name and address. It is an offence not to comply with a requirement to
state name and address (the maximum penalty is 1 penalty unit). The
rationale for this provision is outlined on pages 8 and 9 of these Notes.
Clause 38 gives an authorised person the power, in certain limited
circumstances, to seize a tobacco product from a person who the authorised
person has observed being supplied with the tobacco product. The seizure
power is only available where the authorised person suspects on reasonable
grounds that the person is a child. The authorised person must also have
asked the person to show acceptable evidence of age, and the person must
have been unable to do so, or must have produced acceptable evidence of
age that showed that the person was under 18. In addition, the authorised
person must reasonably believe that the tobacco product supplied to the
person is evidence of an offence against the Bill.
Clause 37 is directed to enabling an authorised person to establish that a
young-looking person who the authorised person has observed being
supplied with tobacco is in fact a child. Clause 38 is directed to enabling an
authorised person to establish that the item supplied to the child was in fact
tobacco. The rationale for this provision is similar to that for clause 37
(discussed on pages 8 and 9 of these Notes).
An authorised person who seizes a tobacco product under clause 38 is
subject to clause 40 in relation to the procedures to be followed in dealing
with the seized item.
Division 4--Seizure of evidence
Clause 39 sets out the powers of authorised officers in relation to the
seizure of evidence.
Clause 40 sets out the procedures to be followed in relation to seized
items.
Clause 41 allows a court, on the conviction of a person for an offence
under the Bill, to order the forfeiture to the State of anything used to commit
the offence, or anything else the subject of the offence. For example, since
food and toys resembling tobacco products cannot be legally sold in
26
Tobacco Products (Prevention of Supply to Children)
Queensland, it might be appropriate for the court to order the forfeiture of
such items where a person has been convicted under clause 24.
Clause 42 makes it clear that, upon forfeiture of an item under clause 41,
the item becomes the property of the State.
Division 5--Other enforcement matters
Clause 43 provides that a person must not provide false or misleading
information to an authorised person. This would cover the situation where,
for example, a person gave false or misleading information to an authorised
person investigating a complaint against the person, as well as the situation
where a person makes a false complaint to an authorised person about a
person contravening the Bill.
Clause 44 provides that a person must not give an authorised person a
document containing information the person knows is false, misleading or
incomplete in a material particular. This will cover similar situations in
relation to documents to those covered by clause 43 in relation to
statements.
Clause 45 is a "standard provision" requiring an authorised person who
damages something while exercising a power under Part 3 of the Bill to
give notice of the damage to the appropriate person.
Clause 46 is a "standard provision" enabling a person who incurs loss or
expense because of the exercise or purported exercise of a power under part
3 of the Bill to claim compensation from the State for that loss or expense.
Clause 47 makes it an offence for a person to impersonate an authorised
person. The maximum penalty for this offence is 10 penalty units.
Clause 48 makes it an offence for a person to obstruct an authorised
person in the exercise of a power under the Bill, unless the person has a
reasonable excuse. The maximum penalty for this offence is 5 penalty
units.
PART 4--MISCELLANEOUS
Clause 49 is an evidentiary provision which provides that a thing labelled
27
Tobacco Products (Prevention of Supply to Children)
as a tobacco product, or labelled in a way a reasonable person would take to
be labelled as a tobacco product (eg. a flip top pack with a recognised
cigarette brand name on it), is evidence the thing is or contains a tobacco
product.
Clause 50 provides that the Governor in Council may make regulations
under the Bill. For example, it is intended that a regulation will be made to
set out the requirements in relation to the signage to be displayed under
clauses 20 and 21.
PART 5--REPEAL AND TRANSITIONAL
Clause 51 repeals the Juvenile Smoking Suppression Act 1905 (the
legislation which controlled the availability of tobacco to children prior to
this Bill).
Clause 52 is a transitional provision relating to tobacco product vending
machines. Clause 15 of the Bill will prohibit the possession of vending
machines in places other than premises which are licensed premises under
the Liquor Act 1992. This provision is scheduled to commence 6 months
after the rest of the Bill, so people other than licensees will be able to retain
vending machines for six months after proclamation of the Bill. (The
rationale for the delayed commencement of clause 15 is outlined on page 5
of these Notes.)
Under clauses 16 and 21, a person in charge of a vending machine (i.e. a
licensee of licensed premises on which there is a vending machine) must
not "allow" a child to obtain tobacco from the machine, and must place
signs on the machine. It is necessary that similar controls be placed on
people in charge of vending machines in non-licensed premises for the six
months while vending machines are allowed to be on non-licensed
premises.
Therefore, the effect of clause 52 is to extend the application of clauses
16 and 21, as well as clause 14 (which defines "prevention measures" in
relation to vending machines) and clause 26 (which provides a defence to
clause 16) to cover an occupier of premises other than licensed premises in
which a tobacco product vending machine is located.
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Tobacco Products (Prevention of Supply to Children)
Clause 52 will operate for the six months while vending machines are
allowed in premises other than licensed premises, and will then expire. The
expiry of clause 52 will occur on the same day the clause prohibiting the
possession of vending machines other than on licensed premises (i.e. clause
15) becomes operative.
Clause 53 provides for the expiry of part 5.
© The State of Queensland 1997