Legislative Council—No 263A As reported with amendments, report adopted, Standing Orders suspended and passed remaining stages, 3 April 2025

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South Australia

Statutes Amendment (Tobacco and E-Cigarette Products—Closure Orders and Offences) Bill 2025

A BILL FOR An Act to amend the Retail and Commercial Leases Act 1995 and the Tobacco and E-Cigarette Products Act 1997.

Statutes Amendment (Tobacco and E-Cigarette Products—Closure Orders and Offences) Bill 2025 Contents

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Contents Part 1—Preliminary 1 Short title 2 Commencement

Part 2—Amendment of Retail and Commercial Leases Act 1995 3 Insertion of section 47

47 Long term closure order 4 Saving and transitional provisions

Part 3—Amendment of Tobacco and E-Cigarette Products Act 1997 5 Amendment of section 33—Possession of certain tobacco products 6 Amendment of section 39B—Offence relating to possession of e-cigarette products 7 Insertion of Part 3 Division 6

Division 6—Miscellaneous 45A Possession and supply of certain quantities of prescribed product 45B Offence related to engaging in prohibited conduct on premises

8 Insertion of section 66AA 66AA Further powers of police officers

9 Amendment of section 69—Powers in relation to seized records or things 9A Amendment of section 69CA—Interpretation 9B Amendment of section 69CB—Interim closure order 9C Amendment of section 69CB—Interim closure order 9D Insertion of section 69CBA

69CBA Short term closure order 10 Amendment of section 69CC—Long term closure order 10A Amendment of section 69CD—Tobacco of e-cigarette products not to be sold or supplied

at closed premises 11 Insertion of section 69CE and 69CF

69CE Certain information relating to closure orders may be made publicly available 69CF Protection from liability

12 Amendment of section 78—Disclosure of information 13 Insertion of section 78A

78A Commissioner of Police may provide information to Minister 14 Insertion of Schedule A1

Schedule A1—Prohibited conduct 15 Transitional provisions

The Parliament of South Australia enacts as follows:

Part 1—Preliminary 1—Short title

This Act may be cited as the Statutes Amendment (Tobacco and E-Cigarette Products—Closure Orders and Offences) Act 2025. 5

Statutes Amendment (Tobacco and E-Cigarette Products—Closure Orders and Offences) Bill 2025

Preliminary—Part 1

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2—Commencement This Act comes into operation on a day to be fixed by proclamation.

Part 2—Amendment of Retail and Commercial Leases Act 1995 3—Insertion of section 47

After section 46 insert: 5

47—Long term closure order If a long term closure order under section 69CC of the Tobacco and E-Cigarette Products Act 1997 is in effect in relation to premises to which a retail shop lease applies, the lease will be taken to include the following provisions: 10

(a) the lessor or the lessee may terminate the lease because of the long term closure order by giving not less than 28 days written notice to the other (or such shorter period as agreed between the parties);

(b) if a dispute arises between the parties to the retail shop lease 15 as a consequence of the long term closure order, the Magistrates Court may, on application by a party to the lease, make such orders (including orders for the payment of compensation) or do anything necessary or desirable as the Court thinks fit to resolve the dispute. 20

4—Saving and transitional provisions (1) The amendments to the Retail and Commercial Leases Act 1995 made under this Part

apply in relation to a retail shop lease irrespective of whether the lease was entered into before or after the commencement of this Part.

(2) Section 47 of the Retail and Commercial Leases Act 1995 as inserted by this Act 25 applies in respect of a long term closure order in effect in relation to premises to which a retail shop lease applies irrespective of whether the order was made before or after the commencement of that section.

(3) In this section—

long term closure order means a long term closure order made under section 69CC of 30 the Tobacco and E-Cigarette Products Act 1997;

retail shop lease has the same meaning as in the Retail and Commercial Leases Act 1995.

Statutes Amendment (Tobacco and E-Cigarette Products—Closure Orders and Offences) Bill 2025 Part 3—Amendment of Tobacco and E-Cigarette Products Act 1997

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Part 3—Amendment of Tobacco and E-Cigarette Products Act 1997

5—Amendment of section 33—Possession of certain tobacco products Section 33(3)—delete "prescribed quantity of prescribed tobacco products" and substitute: 5

quantity of prescribed tobacco products that equals or exceeds the prescribed quantity

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

Section 39B(3)—delete "prescribed quantity of e-cigarette products" and substitute: 10

quantity of e-cigarette products that equals or exceeds the prescribed quantity

7—Insertion of Part 3 Division 6 After Part 3 Division 5 insert:

Division 6—Miscellaneous 45A—Possession and supply of certain quantities of prescribed 15

product (1) A person who, without lawful excuse—

(a) has possession of a commercial quantity of a prescribed product; or

(b) supplies to another person a commercial quantity of a 20 prescribed product,

is guilty of an offence. Maximum penalty:

(a) in the case of a body corporate—

(i) for a first offence—$2 225 000; 25

(ii) for a second or subsequent offence—$4 500 000;

(b) in the case of an individual—

(i) for a first offence—$1 050 000;

(ii) for a second or subsequent offence—$2 100 000.

(2) A person who, without lawful excuse— 30

(a) has possession of a large commercial quantity of a prescribed product; or

(b) supplies to another person a large commercial quantity of a prescribed product,

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is guilty of an offence. Maximum penalty:

(a) in the case of a body corporate—

(i) for a first offence—$4 500 000;

(ii) for a second or subsequent offence—$6 600 000; 5

(b) in the case of an individual—

(i) for a first offence—$2 100 000;

(ii) for a second or subsequent offence—$4 200 000.

(3) In this section—

commercial quantity of a prescribed product means a quantity of the 10 product that equals or exceeds the amount prescribed for the purposes of this definition;

large commercial quantity of a prescribed product means a quantity of the product that equals or exceeds the amount prescribed for the purposes of this definition; 15

prescribed product means—

(a) an e-cigarette product; or

(b) a prescribed tobacco product within the meaning of section 33(2); or

(c) a prohibited product. 20

45B—Offence related to engaging in prohibited conduct on premises

(1) A person who, being the owner of premises or having the management or control of premises, knowingly causes or permits another to engage in prohibited conduct on the premises is guilty of 25 an offence. Maximum penalty:

(a) in the case of a body corporate—

(i) for a first offence—$25 000;

(ii) for a second or subsequent offence—$50 000; 30

(b) in the case of an individual—

(i) for a first offence—$10 000;

(ii) for a second or subsequent offence—$20 000.

(2) In this section—

prohibited conduct means conduct constituting an offence against a 35 provision set out in Schedule A1.

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8—Insertion of section 66AA After section 66 insert:

66AA—Further powers of police officers (1) A police officer may carry out general drug detection under the

Controlled Substances Act 1984 in relation to premises that the 5 police officer reasonably suspects are being used for the purposes of, or in connection with, the unlawful sale of tobacco products or e-cigarette products (and, for the purposes of the Controlled Substances Act 1984, such premises will be taken to be an area to which section 52A of that Act applies). 10

(2) A police officer may carry out a random weapon and explosive search in relation to premises that the police officer reasonably suspects are being used for the purposes of, or in connection with, the unlawful sale of tobacco products or e-cigarette products.

(3) A police officer may, in carrying out a search under this section, 15 do 1 or more of the following:

(a) enter and remain in the premises;

(b) inspect or search the premises, any person on the premises and any equipment or other thing on the premises;

(c) examine any substance, equipment or device; 20

(d) take and remove from the premises samples of any substance or goods;

(e) carry out tests;

(f) take photographs or films or make audio, visual or audiovisual records; 25

(g) if the officer suspects on reasonable grounds that an offence against this Act has been committed—seize and remove from the premises anything that the officer has reasonable cause to suspect affords evidence of the offence;

(h) give such directions as are reasonably necessary for, or 30 incidental to, the effective exercise of the officer's powers under this section.

(4) Nothing in this section authorises a police officer to conduct or require an intimate search, an intrusive search or an intimate intrusive search of a person. 35

(5) A police officer may, in exercising powers under this section, use a detection dog, a metal detector or an electronic detection system.

(6) Nothing in this section limits any powers a police officer may have under the Firearms Act 2015, the Explosives Act 1936, the Summary Offences Act 1953 or any other Act or law. 40

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(7) In this section—

detection dog means a dog that has completed training of a kind approved by the Commissioner of Police for the purpose of detecting the presence of firearms or explosive;

electronic detection system means— 5

(a) an electronic device of a kind approved by the Commissioner of Police; or

(b) a system, of a kind approved by the Commissioner of Police, that involves the use of an electronic device,

for the purpose of detecting the presence of firearms or explosive; 10

general drug detection has the same meaning as in the Controlled Substances Act 1984;

intimate intrusive search means an intrusive search of the rectum or vagina;

intimate search means a search of the body that involves exposure 15 of, or contact with the skin of, the genital or anal area, the buttocks or, in the case of a female, the breasts, and includes an intimate intrusive search;

intrusive search means an internal search involving the introduction of anything into a bodily orifice. 20

9—Amendment of section 69—Powers in relation to seized records or things Section 69(2)—after paragraph (a) insert:

(ab) the taking and testing of a sample of any thing seized under this Part;

9A—Amendment of section 69CA—Interpretation (1) Section 69CA, definition of closure order—after paragraph (a) insert: 25

(ab) a short term closure order; or

(2) Section 69CA—after the definition of prescribed product insert:

short term closure order—see section 69CBA.

9B—Amendment of section 69CB—Interim closure order Section 69CB(4)—delete subsection (4) and substitute: 30

(4) The interim closure order has effect from the time specified in the order until 72 hours after the time specified in the order (but nothing prevents the making of a subsequent interim closure order in respect of the same premises).

9C—Amendment of section 69CB—Interim closure order 35 Section 69CB—after subsection (5) insert:

(6) For the purposes of this section, the Minister is not required to act in accordance with the principles of procedural fairness.

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9D—Insertion of section 69CBA After section 69CB insert:

69CBA—Short term closure order (1) The Minister may, by notice in writing, order that specified premises

be closed (a short term closure order) if the Minister reasonably 5 suspects that—

(a) prescribed products are being, or are likely to be, sold or supplied at the premises as part of a business being carried on at the premises; or

(b) tobacco products or e-cigarette products are being, or are 10 likely to be, unlawfully sold or supplied at the premises as part of a business being carried on at the premises.

(2) A short term closure order has effect for a period of 28 days from the day specified in the order (but nothing prevents the making of a subsequent short term closure order in respect of the same premises). 15

(3) The Minister may, by notice in writing, vary or revoke a short term closure order.

(4) A notice under this section must be—

(a) given to the person apparently in charge of the premises; or

(b) given to the owner of the premises; or 20

(c) posted in a conspicuous place—

(i) in the case of premises other than mobile premises—at the entrance to the premises; or

(ii) in the case of mobile premises—

(A) on the mobile premises; or 25

(B) at the entrance to premises that are connected to the business carried on from the mobile premises.

(5) A short term closure order may be made regardless of whether an interim closure order is, or has been, in effect in relation to the 30 premises.

(6) For the purposes of this section, the Minister is not required to act in accordance with the principles of procedural fairness.

10—Amendment of section 69CC—Long term closure order (1) Section 69CC(1)—delete "A Magistrate" and substitute: 35

The Magistrates Court

(1a) Section 69CC(1)—delete "6 months" and substitute:

12 months

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(2) Section 69CC(1)—delete "Magistrate" and substitute:

Court

(2a) Section 69CC(2)—after "interim closure order" insert:

or a short term closure order

(2b) Section 69CC(2)—delete "under section 69CB" 5

(3) Section 69CC(3)—after "so" insert:

(and the owner of the premises may, on application to the Magistrates Court, be a party to the proceedings before the Court in relation to the application)

(4) Section 69CC—after subsection (4) insert:

(5) The Magistrates Court may, on application by the owner of premises, 10 amend or revoke a long term closure order in effect in relation to those premises (and the Minister will be a party to the proceedings in relation to such an application).

10A—Amendment of section 69CD—Tobacco of e-cigarette products not to be sold or supplied at closed premises 15

(1) Section 69CD, heading—delete "Tobacco or e-cigarette products not to be sold or supplied at" and substitute:

Offences relating to

(2) Section 69CD—after its present contents (now to be designated as subsection (1)) insert: 20

(2) Subject to subsection (3), a person who is present on premises in relation to which a closure order is in effect is guilty of an offence. Maximum penalty:

(a) in the case of a body corporate—$500 000;

(b) in the case of an individual—$250 000. 25 Expiation fee:

(a) in the case of a body corporate—$10 000;

(b) in the case of an individual—$2 500.

(3) The Minister may, by notice in writing (an exemption notice), exempt a person from the operation of subsection (2) in relation to 30 specified premises on terms and conditions specified in the notice.

(4) An exemption notice must—

(a) be given to the person to whom the exemption applies; and

(b) specify the closed premises in relation to which the exemption applies; and 35

(c) set out the details of the condition of the exemption specified in subsection (5).

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(5) It is a condition of an exemption under subsection (3) that the person to whom the exemption applies must not carry on a business, or cause or permit another to carry on a business, on the closed premises specified in the exemption notice.

11—Insertion of section 69CE and 69CF 5 After section 69CD insert:

69CE—Certain information relating to closure orders may be made publicly available

The following information in relation to each closure order may be made publicly available by the Minister in a manner determined by 10 the Minister:

(a) whether the order is an interim closure order or a long term closure order;

(b) a description of the premises to which the closure order relates (including the address of the location of the 15 premises);

(c) the date on which the order was made;

(d) the period for which the closure order is to be in effect;

(e) a general description of the reason for the making of the closure order; 20

(f) any other prescribed particulars.

69CF—Protection from liability Despite section 86A, the Crown incurs no liability for a decision of the Minister, or by any person acting on behalf of the Minister, to exercise or not to exercise powers under this Part. 25

12—Amendment of section 78—Disclosure of information Section 78—after subsection (2) insert:

(2a) Subsection (1) does not apply to the disclosure of information by an authorised person in relation to premises—

(a) in respect of which a closure order under Part 6AA is in 30 effect; or

(b) that the authorised person reasonably suspects are being used in connection with an offence against this Act,

if the person to whom the disclosure is made is—

(c) the owner or occupier of the premises; or 35

(d) an agent of the owner or occupier of the premises; or

(e) a person of a kind prescribed by the regulations for the purposes of this paragraph.

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(2b) Despite section 86A, the Crown incurs no liability as a consequence of a disclosure of information of a kind authorised under subsection (2a).

13—Insertion of section 78A After section 78 insert: 5

78A—Commissioner of Police may provide information to Minister

Without limiting any other Act or law that requires or authorises the Commissioner of Police to disclose information, the Commissioner of Police may disclose to the Minister any information on any matter 10 relevant to the operation or enforcement of this Act.

14—Insertion of Schedule A1 Before Schedule 1 insert:

Schedule A1—Prohibited conduct Section 30(1) 15

Section 31

Section 32

Section 33(1)

Section 34A(4)

Section 35 20

Section 39A(1)

Section 39B(1)

Section 39C(4)

Section 39E(5a) or (5b)

Section 45A(1) or (2) 25

15—Transitional provisions (1) The owner of premises in relation to which an application for a long term closure

order has been made may, in accordance with section 69CC(3) of the Tobacco and E-Cigarette Products Act 1997 as amended by section 10(3) of this Act, apply to the Magistrates Court to be a party to the proceedings in relation to the application 30 irrespective of whether the application for the making of the long term closure order was made before or after the commencement of that amendment.

(2) An application may be made to the Magistrates Court to amend or revoke a long term closure order under section 69CC(5) of the Tobacco and E-Cigarette Products Act 1997 as inserted by section 10(4) of this Act irrespective of whether the long term 35 closure order to which the application relates was made before or after the commencement of that amendment.