2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Health)

2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Health)

An Act to amend the Tobacco Act 1927

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Tobacco (Compliance Testing) Amendment Act 2006.

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This Act amends the Tobacco Act 1927.

In this part:

approved procedures means procedures approved under section 42D (1) for carrying out an approved program of compliance testing.

approved program means a program of compliance testing approved under section 42C (1).

authorised officer does not include a police officer.

conduct—see the Criminal Code, section 13.

compliance test—see section 42B.

engage in conduct—see the Criminal Code, section 13.

purchase assistant—see section 42B (1) (a).

young person—see the Children and Young People Act 1999, section 8.

Note The Children and Young People Act 1999, s 8 defines a young person to be a person who is 12 years old or older, but not yet an adult.

(1) A compliance test—

(a) involves a young person (a purchase assistant), under the supervision of an authorised officer, purchasing, or trying to purchase, tobacco products from tobacco licence-holders; and

(b) is carried out to obtain evidence that may lead to the prosecution of a person, or other action being taken against a person, for an offence against section 14 (Supply of smoking product to under 18 year olds) in relation to a tobacco product; and

disciplinary action under division 7.3 against a tobacco licence-holder

(c) may involve the purchase assistant and the authorised officer engaging in conduct that would, apart from section 42F (Lawfulness of compliance testing), be an offence against a territory law.

(2) In this section:

tobacco licence—see section 43.

tobacco licence-holder means someone who holds a tobacco licence.

(1) The Minister may approve a program of compliance testing.

(2) However, the Minister must not approve a program of compliance testing unless—

(a) the Minister is satisfied that the program is necessary to deter the sale of tobacco products to children in the area where the program will operate; and

(b) the program states the area where the program will operate and when the program begins and ends; and

(c) the program is not longer than 3 months; and

(d) the Minister has approved procedures under section 42D.

1 evidence of sales to children in the area where the program will operate

2 the success of other enforcement methods

3 the results of previous compliance tests in the area where the program will operate

4 the period since compliance testing was previously carried out in the area where the program will operate

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The Minister may approve procedures for carrying out approved programs of compliance testing.

(2) The Minister must not approve procedures under subsection (1) unless satisfied that the procedures—

(a) provide that, in carrying out a compliance test, a purchase assistant’s welfare is paramount; and

(b) appropriately protect a purchase assistant’s health and safety; and

(c) allow a purchase assistant to stop taking part in a compliance test at any time during the test; and

(d) ensure that, as far as practicable, a purchase assistant’s identity is protected during a compliance test; and

(e) require a purchase assistant to be, as far as practicable, indistinguishable from other purchasers and to look like a young person; and

(f) require a purchase assistant not to lie to anyone about how old the assistant is during a compliance test; and

(g) only allow a compliance test to take place during normal business hours or at any other time when the premises where the test takes place is being used in relation to the seller’s normal business; and

(h) comply with anything else prescribed by regulation.

(3) An approval under subsection (1) is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) An authorised officer may carry out a compliance test in accordance with an approved program and the approved procedures.

(2) An authorised officer may use a young person as a purchase assistant in a compliance test only if the young person, and at least 1 person who has parental responsibility under the Children and Young People Act 1999 for the young person, have given informed consent to the young person being a purchase assistant.

Note If 2 or more people have parental responsibility for a young person, each of the people may act alone in discharging the responsibility (see Children and Young People Act 1999, s 19 (2)).

(3) Each consent under subsection (2) must be in writing.

(4) In this section:

informed consent, by a person, means consent given by the person after the following matters have been explained to the person:

(a) a purchase assistant’s role in a compliance test, including the assistant’s role in any prosecution of a person for an offence against section 14 (Supply of smoking product to under 18 year olds);

(b) the effect of section 42F and section 42G (Indemnification of authorised officers and purchase assistants);

(c) anything else required by the approved procedures.

(1) Despite any other territory law, conduct engaged in honestly by an authorised officer is not unlawful, and is not an offence by the officer, if the conduct is engaged in for the purpose of carrying out a compliance test in accordance with an approved program and the approved procedures.

(2) Despite any other territory law, conduct engaged in honestly by a purchase assistant is not unlawful, and is not an offence by the assistant, if—

(a) the conduct is engaged in for the purpose of carrying out a compliance test; and

(b) the assistant acts in accordance, or substantially in accordance, with the instructions (if any) of an authorised officer supervising the compliance test.

(3) However, this section does not—

(a) authorise a purchase assistant to enter or be in a place that it would be otherwise unlawful for the assistant to enter or be in; or

(b) prevent action being taken against an authorised officer under the Public Sector Management Act 1994, part 9 (Discipline) in relation to a failure by the authorised officer or a purchase assistant to comply with approved procedures.

a gaming area under the Gaming Machine Act 2004

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) An authorised officer is not civilly liable for conduct engaged in for the purpose of carrying out a compliance test in accordance with an approved program and the approved procedures.

(2) A purchase assistant is not civilly liable for conduct engaged in for the purpose of carrying out a compliance test if the assistant acts in accordance, or substantially in accordance, with the instructions of an authorised officer for the test.

(3) However, this section does not prevent action being taken against an authorised officer under the Public Sector Management Act 1994, part 9 (Discipline) in relation to a failure the authorised officer or a purchase assistant to comply with approved procedures.

(4) Any liability that would, apart from this section, attach to an authorised officer or purchase assistant attaches instead to the Territory.

The chief executive must include the following information in an annual report of the chief executive under the Annual Reports (Government Agencies) Act 2004:

(a) the number of compliance tests carried out during the financial year;

(b) the number of contraventions of section 14 (Supply of smoking product to under 18 year olds) detected by the tests;

(c) the action taken in relation to the contraventions.

approved procedures, for part 6A (Tobacco compliance testing)—see section 42A.

approved program, for part 6A (Tobacco compliance testing)—see section 42A.

authorised officer—

(a) means an authorised officer under section 32; but

(b) for part 6A (Tobacco compliance testing)—see section 42A.

compliance test, for part 6A (Tobacco compliance testing)—see section 42B.

conduct, for part 6A (Tobacco compliance testing)—see the Criminal Code, section 13.

engage in conduct, for part 6A (Tobacco compliance testing)—see the Criminal Code, section 13.

purchase assistant, for part 6A (Tobacco compliance testing)—see section 42B (1) (a).

young person, for part 6A (Tobacco compliance testing)—see the Children and Young People Act 1999, section 8.

Presentation speech made in the Legislative Assembly on 2006.

Notified under the Legislation Act on 2006.

For the latest republication of amended laws, see www.legislation.act.gov.au.