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CLAUSE NOTES
Public Health Amendment (Healthy Tasmania) Bill 2017
PART 1 - Preliminary
Clause 1 Provides the short title.
Clause 2 Provides that the Bill commences on a day to be proclaimed in regulations.
PART 2 – Amendments to the Public Health Act 1997
Clause 3 Provides that the Act amended is the Public Health Act 1997 (the Act).
Clause 4 Amends section 3 (interpretation) by adding and amending definitions.
Changes include:
Personal vaporiser product
This new term describes what a personal vaporiser product is. It
captures the device itself as well as things for use with the device, such
as liquids and cartridges.
Regulations made under the Act can extend the definition by prescribing
other things as personal vaporiser products. This ensures there are no
loopholes if their design or technology changes over time.
Exempt device
This new term describes devices that are not personal vaporiser
products, such as devices regulated under the Misuse of Drugs Act 2001,
devices to deliver oxygen, and devices on the TGA register.
Smoke
This term has been amended to include the smoking of, and smoke
from, a personal vaporiser product and any other non-tobacco product.
This ensures smoke-free areas under the Act can be enforced no matter
the substance being smoked or the device used to smoke it.
Non-tobacco cigarette
This term has been amended so the cigarette need not be produced by
a commercial process. This removes a loophole for the use of such a
product in smoke-free areas. The term also includes a reference to herb
or other plant matter for added clarity.
Smoking product
This is a new term that covers tobacco products and personal vaporiser
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products.
Most of the amendments to the Act involve replacing the term ‘tobacco
products’ with ‘smoking products’, which extends the operation of the
provision to include personal vaporiser products.
Smoking product licence
This is a new term that replaces ‘tobacco seller’s licence’. A person may
hold a smoking product licence that authorises the sale of tobacco
products or personal vaporiser products or both.
Clause 5 Amends a heading.
Clause 6 Incorporates personal vaporiser products into the operation of section 63
(ban on child smoking, using, possessing smoking product).
Clause 7 Incorporates personal vaporiser products into the operation of section
64 (including ban on sale/supply to children).
Increases the penalties for section 64 offences from 50 and 100 penalty
units for a first and subsequent offence, to 120, 240, and 360 penalty units
for a first, second, and subsequent offence.
Clause 8 Incorporates personal vaporiser products into the operation of section
66 (seizure of smoking products by enforcement officers).
Clause 9 Incorporates personal vaporiser products into the operation of section 67
(warnings and information to a child).
Clause 10 Removes prisons from the list of areas that are not smoke-free.
Clause 11 Incorporates personal vaporiser products into the operation of section 69
(ban on using marketing devices or schemes for smoking products).
Clause 12 Incorporates personal vaporiser products into the operation of section
69A (display of notices). Includes a reference to multiple notices for added
clarity. Introduces the requirement for retailers to give customers buying
a smoking product certain information if guidelines issued under the Act
require it.
Clause 13 Amends a heading.
Clause 14 Incorporates personal vaporiser products into the operation of section 71
(location and appearance of sales units).
Clause 15 Incorporates personal vaporiser products into the operation of section
72 (ban on display of smoking products by retailers).
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Clause 16 Incorporates personal vaporiser products into the operation of section
73 (packaging in accordance with guidelines).
Clause 17 Incorporates personal vaporiser products into the operation of section 74
(ban on providing false information relating to legislation) and adds the
term retailer so it is clear the section applies to all suppliers (as well as
manufacturers).
Clause 18 As above, amends section 74AA (ban on providing false information on
the health effects of tobacco products) to include the term retailer for
added clarity.
Clause 19 Amends a heading.
Clause 20 Incorporates personal vaporiser products into the operation of section
74A (ban on selling smoking products without a licence) and includes a
drafting change not affecting the operation of the provision (using the term
authorised to sell).
Clause 21 Incorporates personal vaporiser products into the operation of section
74B (licence application process) and includes a requirement for the
application to note whether it is for a licence to sell tobacco products or
personal vaporiser products or both.
Clause 22 Incorporates personal vaporiser products into the operation of section
74C (grant or refusal of licence).
Clause (b) includes the existing matters the Director of Public Health can
take into account when determining a licence application and introduces
a fit and proper test.
For that purpose, the Director may make enquiries with relevant agencies
in other jurisdictions and, if the applicant consents, with police. If a person
does not consent the Director may refuse to determine the licence
application.
The Director can take into account the results of those enquiries, criminal
convictions, and other matters the Director considers relevant.
Clause (e) adds to the circumstances in which the Director cannot grant
an application - to include where the application relates to the sale of
personal vaporiser products in specialist tobacconist premises. Under
existing provisions of the Act, specialist tobacconists are dedicated stores
that can sell only tobacco products, matches, and cigarette or pipe lighters.
Clause 23 Incorporates personal vaporiser products into the operation of section
74D (issue of licence). It also adds a requirement for the Director to
specify on the licence the type of smoking product authorised for sale
(tobacco products, personal vaporiser products, or both).
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Clause 24 Incorporates personal vaporiser products into the operation of section
74E (duration of licence).
Clause 25 Incorporates personal vaporiser products into the operation of section
74F (licence renewal process).
Introduces a requirement for licensees to provide the Director of Public
Health with any information they are required to collect under a licence
condition. The information must be provided with the renewal
application, otherwise the application may be refused. The intention is to
include a standard condition for licences that requires information on sales
volumes to be collected and kept (and thus provided to the Director
when the licence is renewed).
Clause 26 Incorporates personal vaporiser products into the operation of section
74G (varying a licence).
Clause 27 Incorporates personal vaporiser products into the operation of section
74GA (other licence features).
Clause 28 Incorporates personal vaporiser products into the operation of section
74I (selling smoking products) and includes a drafting change not
affecting the operation of the provision (using the term authorised to
sell).
Clause 29 Incorporates personal vaporiser products into the operation of section 67
(warnings and information to a child).
Clause 30 Incorporates personal vaporiser products into the operation of section 74J
(register of licences).
Clause 31 Incorporates personal vaporiser products into the operation of section
74L (ban on selling from premises not listed on the licence).
Clause 32 Incorporates personal vaporiser products into the operation of section
74M (ban on including in smoking products in shopper loyalty programs).
Clause 33 Section 154 currently provides for maximum penalties of a 100 penalty
unit fine or 6 months imprisonment for failing to comply with a
requirement of an authorised officer, nominated officer or police officer.
Clause 33 amends section 154 so that a child is only subject to the
maximum fine, rather than imprisonment.
Clause 34 Incorporates personal vaporiser products into the operation of section
160A (review of licence decisions).
Clause 35 Incorporates personal vaporiser products into the operation of section
194A (evidence relating to a smoking product).
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PART 3 – Work Health and Safety Regulations 2012 Amended
Clause 36 Provides the regulations amended are the Work Health and Safety
Regulations 2012.
Clause 37 Makes a consequential amendment to regulation 328(6)(b) to include
personal vaporiser products in the exemptions from Part 7.1 (use, handling
and storage at a workplace).
PART 4 – Miscellaneous Amendments
Clause 38 Transitions existing tobacco seller’s licences and applications to smoking
product licences and applications (to sell tobacco products).
Clause 39 A standard clause repealing the Amendment Act, as its substance is
incorporated into the Principal Act on commencement.
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