AMENDMENT OF THE TOBACCO PRODUCTS CONTROL REGULATIONS 2006 CONSEQUENTIAL TO THE TOBACCO PRODUCTS CONTROL AMENDMENT ACT 2009

Position Paper B Smoking Restrictions Part 1: Proposals for Amendment

Tobacco Control Branch, Department of Health May 2010

Foreword The Tobacco Control Branch (TCB) is part of the Department of Health (DOH), Environmental Health Directorate, Public Health Division, and is generally responsible for: state-wide tobacco control policy development, coordination and strategic planning; administration and monitoring of tobacco control legislation; co-ordination and funding of tobacco cessation services including the Quitline telephone cessation service and production and distribution of cessation self help material; and monitoring and collating evaluation of the performance of tobacco control programs.

The DOH assists the Minister for Health in the administration of the Tobacco Products Control Act 2006 (the Act). The intent of the Act amongst other things is to prohibit the supply of tobacco products and smoking implements to young persons, regulate the sale and promotion of tobacco products, prohibit the sale of products that resemble tobacco products and reduce the exposure of people to tobacco smoke from tobacco products that are smoked by other people. A stated purpose of the Act is to reduce the incidence of illness and death related to the use of tobacco products by prohibiting the supply of tobacco products and smoking implements to young persons; discouraging the use of tobacco products; restricting the promotion of tobacco products and smoking generally; and reducing the exposure of people to tobacco smoke from tobacco products that are smoked by other people. The Tobacco Products Control Amendment Act 2009 (Amendment Act) assented to on 22 September 2009 amends the Act to implement new restrictions on smoking in certain public places and in cars with children under 17 years of age present and a ban on the display of tobacco products in retail premises. The new restrictions are to commence on 22 September 2010. The Tobacco Products Control Regulations 2006 (the Regulations) prescribes matters about the sale and supply of tobacco products, licences, smoking in enclosed public places, the Western Australian Health Promotion Foundation and miscellaneous matters. This Position Paper commences a process of consultation with stakeholders and details DOH proposals to amend the Regulations consequential to the amendments contained in the Amendment Act. The DOH welcomes comments on the proposals from stakeholders with the process for lodging submission provided at the end of this Position Paper. Jim Dodds DIRECTOR ENVIRONMENTAL HEALTH

1. INTRODUCTION The Tobacco Products Control Amendment Act 2009 (the Amendment Act) implements a ban on the display of tobacco products and smoking implements in retail premises and a ban on smoking in the following places public outdoor eating areas; between the flags at patrolled beaches; within 10 m of childrens playground equipment at public places; and in private vehicles if children under 17 years of age are in the vehicle.

The bans commence on 22 September 2010. This Position Paper details DOH proposals to amend the Tobacco Products Control Regulations 2006 (the Regulations) to support changes implemented by the Amendment Act in relation to the new restrictions on smoking. Options are presented under each proposal, considered on the basis of legislative intent, Government policy, public health policy or operational effectiveness or a combination of one or more of those considerations. Industry stakeholders are invited to comment on the proposals and details of the process for lodging submissions are provided at the end of this Position Paper. 2. BACKGROUND The Tobacco Products Control Amendment Bill 2008 (the Bill) was introduced into the Western Australian Parliament by Independent Dr Janet Woollard MLA in November 2008 and assented to on 22 September 2009. During the Parliamentary process the Government raised a number of issues in relation to the scope of the Bill and operational application, most of which were addressed by way of amendments during passage of the Bill through the Parliament. However due to the layout of the Act some outstanding matters are required to be dealt with by way of regulations. It is also necessary to review the existing regulations to ascertain what regulations are no longer relevant or require amendment and to identify what new regulations, if any, may be required. Although not initiated by the Government, the provisions of the Amendment Act received broad general support of all political parties in both houses of the Parliament. The DOH assisted with the legislative process by providing advice to the Government on the efficacy of the Bill in relation to the Act and assisting Dr Woollard with matters of legislative application. A copy of the Amendment Act downloaded from the State Law Publisher web site at www.slp.wa.gov.au is provided at Attachment 1. Please note the following disclaimer provided by the State Law Publisher-

Disclaimer
The materials presented on the State Law Publisher web site are provided by the State Law Publisher as a service to the community. The information and advice provided is made available in good faith and is derived from sources believed to be reliable and accurate at the time of release on the Internet. However, the information is provided solely on the basis that readers will be responsible for making their own assessment of the matters contained or discussed herein and readers are advised to verify all relevant representations, statements, information and advice. Changes in circumstances after a document is placed on the Internet may impact on the accuracy of information. Additionally, materials may be maliciously vandalised. No assurance is given as to the accuracy of any representation, statement, information or advice contained after the publication on the Internet. Material on the State Law Publisher web site includes links to external Internet sites. These external information sources are outside the State Law Publishers control. It is the responsibility of the Internet user to make his or her own decisions about the accuracy, currency, reliability and correctness of information found. Neither the State Law Publisher nor the State of Western Australia nor any employee or agent of the State Law Publisher or of the State shall be responsible or liable for any loss, damage or injury (including death) however caused (whether caused by any negligent or other unlawful act or omission of, by or on the part of the State Law Publisher, the State, or any agent or employee of the State Law Publisher or the State) arising from the use of or reliance on any information, data or advice (including incomplete, out of date, wrong, inaccurate or misleading information, data or advice) expressed or implied in, or coming from, the State Law Publishers web site, by any person whosoever.

3. CONSIDERATIONS There are a number of issues to be considered with regard to proposals to amend the Regulations. 3.1. Legislative power or authority Any amendments to the Regulations can only be intra vires, which is, within the power or authority provided by the Act or the Amendment Act. Options proposed in this Position Paper reference the relevant power or authority. 3.2. Legislative and policy considerations Amongst other things, the Amendment Act amends the Act to prohibit smoking in a number of places by adding news sections to the Act or amending existing provisions of the Act to allow regulations to be made in relation to those smoking prohibitions. Some associated matters currently contained in the regulations are now in the Act and while being detailed in this Position Paper are generally not subject to review and are identified accordingly. They have been included as they may impact or have relevance to other proposals. Similarly, some meanings currently contained in the Regulations have been included in the Amendment Act and it is necessary to consider if those meanings contained in the Regulations may be deleted.

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3.3. New or amended regulations consequential to the Amendment Act Notwithstanding the general policy of maintaining current best practice, it may be necessary to amend current regulations or to add new regulations to prescribe matters regarding smoking as a result of the new restrictions implemented by the Amendment Act or to address considerations of industry. 3.4. Operational considerations smoking restrictions The Amendment Act implements restrictions on smoking in certain outdoor public places and in cars when children under 17 years of age are present. The Act and the Amendment Act allow regulations to be made about these matters. The current regulations about smoking are limited to enclosed public places. In relation to the new smoking restrictions implemented by the Amendment Act, it is necessary to consider if any current regulations about smoking in enclosed public places may have relevance or application and whether additional regulations are required. 4. LAYOUT This Position Paper deals with matters relating to the prohibitions on smoking in a number or outdoor areas and in cars with children under 17 years of age present. Part 1: Presents the regulations for consideration and provides the Department of Healths (DOH) preferred option and relevant background and/or rationale. Part 2: Is a matrix which summarises proposed amendments to the current regulations. Part 3: Feedback forms for stakeholders to return. Attachment A: Copy of the Amendment Act. A separate paper (Position Paper A) will be circulated concerning matters relating to bans on tobacco display. If applicable you will receive a copy.

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AMENDMENT ACT SUMMARY POSITION PAPER B SECTION 9 OF THE AMENDMENT ACT PROHIBITIONS ON SMOKING

Currently under section 125 of the Act, regulations contained in the Tobacco Products Control Regulations 2006 prescribe matters about smoking in enclosed public places. Section 9 of the Amendment Act adds new sections 107A-F to the Act which creates offences in relation to smoking in a number of outdoor areas and in cars with children under 17 years of age present. Specifically, under the Amendment Act new section 107A prohibits smoking between the flags or other markers placed on a beach indicating a patrolled swimming area; 107(B) prohibits smoking in outdoor eating areas; 107C prohibits smoking within 10 m of childrens playground equipment; 107D prohibits smoking in a vehicle when there is another person in the car who is under 17;

In relation to the new smoking restrictions, the Amendment Act section 8 also amends the Act to allow persons as determined by local government to enforce some of the new smoking bans; and section 13 also adds new meanings to the Glossary of the Act. This Position Paper deals only with provisions of the Amendment Act about smoking prohibitions and which the DOH considers appropriate to have supporting regulations.

PART 1 - REGULATION AMENDMENTS FOR CONSIDERATION

REGULATION 7:

TERMS USED IN PART 3 OF THE REGULATIONS

Currently regulation 7 provides meanings to words and terms used in Part 3 of the regulations which deals with matters about smoking in enclosed public places. Current regulation 12(4) also provides a meaning of the term restaurant licence for the purposes of regulation 12(3). Section 13 of the Amendment Act adds new meanings to the Glossary of the Act, in particular meanings of occupier and restaurant licence. Generally any meanings provided for words or expressions in an Act have the same meaning in regulations made under that Act and there is not any need to duplicate meanings in regulations. Subject to further consideration by the DOH is proposing to delete the meanings of occupier and restaurant licence under regulations 7 and 12(4) respectively. This proposal does not form part of this consultation process and is included for information only and is provided for information only.

AMENDMENT ACT SECTION 9 Part 3 of the regulations currently deals with matters about smoking in enclosed public places and amongst other things contains requirements to display no smoking signs and the content and specifications of those signs, and details the calculations required to ascertain if an area is enclosed public place. The proposals below consider whether new regulations should be made to support the new prohibitions on smoking implemented by the Amendment Act. Section 9 of the Amendment Act details the areas in which the new smoking bans are to apply.

NEW SECTION 107A - PROHIBITION ON SMOKING BETEEEN THE FLAGS

Question 1: Should there be a requirement to display signs to indicate that smoking is prohibited between the flags at patolled beaches?
New section 107A implemented by section 9 of the Amendment Act states107A. Prohibition on smoking between the flags A person must not smoke in an area that is between flags or other markers placed on a beach for the purpose of indicating a patrolled swimming area. Penalty: a fine of $1000.

There are two possible requirements for signs in relation to this new prohibition, being the identification of the area and the display of no-smoking signs. In relation to identification of the area where smoking is prohibited, under the Amendment Act, for the offence to apply the area must be marked by flags or other markers which broadly identify part of a swimming area which is patrolled. While the area on the beach is not exactly delineated by borders but rather broadly falls within an area defined by flags or other means, the DOH does not consider it is necessary to require any other form of markers to delineate the no smoking area or to provide complex calculations in regulations on how the area is defined by specific borders, which in itself may be problematic. In relation to whether no smoking signs should be displayed, the DOH is of the view that such signs should be voluntary and at the discretion of the authority having responsibility for the beach. Regulations, if any, should only provide guidance on the content of such signs so that there is uniformity and consistency state-wide. DOH Proposal 1: No. However there should be new regulations that provide guidance on the minimum content only of voluntary no smoking signs, such as that prescribed for no smoking signs for enclosed public places under current regulation 12(2). The DOH should establish a process of monitoring complaints received by local governments.

NEW SECTION 107B - PROHIBITION ON SMOKING IN OUTDOOR EATING AREAS

Questions 2 & 2a: Should there be a requirement to display signs to indicate that smoking is not permitted in outdoor eating areas?
There are a number of issues to consider in assessing whether or not there should be signs which indicate an area is an outdoor eating area and the content of those of those signs, if any. New section 107B of the Act implemented by section 9 of the Amendment Act states in part(1) A person must not smoke in an outdoor eating area unless the place in which the person is smoking is a smoking zone. Penalty: a fine of $2 000. (2) If a person commits an offence under subsection (1) the occupier of the outdoor eating area commits an offence. Penalty: a fine of $2 000. A meaning of the term outdoor eating area is provided in section 13 of the Amendment Act outdoor eating area means a public place or part of a public place (a) that is provided, on a commercial basis, as an area where food or drink may be consumed by people sitting at tables; and (b) that is not an enclosed public place; Under new section 107B(1) an exemption applies if the area is a smoking zone, a meaning of which is provided in the Amendment Act under new section 107B(4)(4) A responsible person in relation to licensed premises may allocate as a smoking zone for the premises one or more places in one or more outdoor eating areas to which a restaurant licence does not apply, but the total area of all the smoking zones for the premises must not exceed 50% of the total area of all the outdoor eating areas to which a restaurant licence does not apply.

The term responsible person (licensed premises) is currently defined in the Act to mean(a) in relation to licensed premises, means a licensee, as defined in the Liquor Control Act 1988 section 3(1), in relation to those premises; The following are examples of outdoor eating areas an outdoor area at licensed premises that has tables and chairs in the area; and an area outside a takeaway food shop or deli where a table(s) and chair(s) is provided.

Examples of areas that are not outdoor eating areas are an area in a public park which has tables and chairs provided for general community use, as it is not provided on a commercial basis (however this may not be the case if the area is hired or rented). areas in private residences; and outdoor areas of business premises that are not open to the public. Guidance on these issues will be provided prior to commencement of the Amendment Act. Therefore generally, there are three different types of areas at premises to which the ban applies outdoor eating areas at non-licensed premises; outdoor eating areas at licensed premises which are the subject of a restaurant licence or the subject of licence which has similar conditions as a restaurant licence; and outdoor eating areas at licensed premises which are allocated as smoking zones. The areas in dot points one and two can be considered the same. In this context there are only two different types of areas, which should be considered separately in regards to requirements for signs. In relation to all premises generally, due to the smoking prohibition being new, there should be information provided in a practicable and workable form to inform people that smoking is not permitted in the area which should be located in such a place that it is easily associated with the area to which it is intended to apply. As the smoking ban applies to an area, for reasons of providing clarity to customers and for enforcement practicalities, at licensed premises, where a smoking zone immediately adjoins a no smoking outdoor eating area and there is not any physical barrier separating the two areas which would prevent the spread of smoke between the two areas, there should be information provided which indicates the boundaries of one of those areas, or some other means that clearly distinguishes each area. It is acknowledged that some licensees may for various reasons wish to change those areas over any period of time and it is not intended that such means be permanent. DOH Proposal 2: Yes. There should be a sign located in or adjacent to an outdoor eating area so that it is clearly visible to the public to indicate that the area is a no smoking area, or alternatively by placing signs on tables. DOH Proposal 2a: Yes. In relation to licensed premises, where a smoking zone immediately adjoins a no smoking outdoor eating area and there is not any physical barrier separating the two areas which would prevent the spread of smoke, there should be signs or other means provided, which indicate as a minimum, the boundaries of one of those areas. It is acknowledged that some licensees may for various reasons wish to change or swap those areas over any period of time.

NEW SECTION 107C - PROHIBITION ON SMOKING NEAR PLAYGROUND EQUIPMENT

Question 3: Should there be a requirement to display signs to indicate that smoking is prohibited within 10 m of childrens playground equipment?
New section 107C implemented by section 9 of the Amendment Act states107C. Prohibition on smoking near playground equipment A person must not smoke within 10 metres of childrens playground equipment that (a) is in a public place or a part of a public place; and (b) is not in an enclosed public place. Penalty: a fine of $1000. There are two possible requirements for signs in relation to this new prohibition, being the identification of the area and the display of no-smoking signs. In relation to identification of the area where smoking is prohibited, under the Amendment Act, for the offence to apply a person must be smoking within 10m of childrens playground equipment. The DOH does not consider it is necessary to require signs or other means to delineate the 10m distance as it would be impracticable and problematic. In relation to whether no smoking signs should be displayed, the DOH is of the view that a sign should be displayed with the minimum content to be determined in consultation with local governments as most playground equipment is located on council property. DOH Proposal 3: Yes. Subject to consultation with local government there should be new regulations that prescribe the minimum content of no smoking signs to be displayed at playground areas.

NEW SECTION 107D - PROHIBITION ON SMOKING IN OR ON VEHCILES IF UNDER 17 YEAR OLD PRESENT New section 107D of the Act implemented by section 9 of the Amendment Act states 107D. Prohibition on smoking in or on vehicles if under 17 year old present (1) In this section child (a) means any boy or girl who has not reached 17 years of age; and (b) in the absence of positive evidence as to age, means any boy or girl who apparently has not reached 17 years of age; vehicle means any thing used or capable of being used to transport people or goods on roads; road means any highway, road or street open to, or used by, the public and includes every carriageway, footway, reservation, median strip and traffic island on it and any parking area in a public place. (2) A person must not smoke in or on a vehicle if (a) the vehicle is on a road; and (b) any other person in or on the vehicle is a child. Penalty: a fine of $1 000. Enforcement of the new prohibition on smoking in cars when there is another person present who is under the age of 17 years can only by enforced by police officers who have powers under the Criminal Code in relation to the stopping of vehicles to investigate offences. The DOH is consulting with WA Police on this matter and will consider the need for any regulations. This matter does not form part of this consultation process and is included for information only.

NEW REGULATIONS - INFRINGEMENT NOTICES There is to be a system of modified penalties by way of infringement notices prescribed in regulations. The amount of the modified penalty for a particular offence is yet to be determined by the Government and does not form part of this consultation process and is included for information only. A modified penalty cannot exceed 20 per cent of the penalty stated in the Act.

4. CONCLUSION The Amendment Act has been applied and many of the regulations that relate to the display of tobacco products will now need to be changed. This Position Paper describes the changes proposed to the regulations and provides stakeholders the opportunity to comment. The new restrictions and bans implemented by the Amendment Act will commence on 22 September 2010 so a prompt reply is needed to allow consideration of your comments.

5. LODGING SUBMISSIONS Comments from stakeholders are invited on the questions and proposals outlined above. Submissions may be forwarded to the Department of Health by mail or email to the addresses detailed below. The close off date for submissions is 4:00 pm Monday, 31 May 2010. Please address submissions toProject Officer - Amendment Act Tobacco Control Branch Department of Health Post: PO Box 8172 PERTH BC WA 6849 Fax: If you wish to forward a submission by fax, please first contact 0438 970 925 or 0438 533 972 to obtain the current fax number. Email: tcb@health.wa.gov.au SUBJECT Consultation 6. CONFIDENTIALITY While the Department of Health will not make publicly available any submissions received, please note that information may be requested by interested persons under freedom of information laws.