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6 2002

PUBLIC HEALTH (TOBACCO) ACT, 2002

PART 2

Office of Tobacco Control

Establishment of Office of Tobacco Control.

9. —(1) There is hereby established a body to be known as the Office of Tobacco Control (in this Act referred to as the “Office”) to perform the functions assigned to it by this Act.

(2) The Office shall be a body corporate with perpetual succession and an official seal and shall have power to sue, and may be sued, in its corporate name and, with the consent of the Minister and the Minister for Finance, shall have power to acquire, hold and dispose of land or an interest in land, and to acquire, hold and dispose of any other property.

(3) The seal of the Office shall be authenticated by the signature of the chairperson of the Office, or by the signatures of both an ordinary member and a member of the staff of the Office authorised by the Office to act in that behalf.

(4) Judicial notice shall be taken of the seal of the Office and every document purporting to be an instrument made by, and to be sealed with the seal of, the Office (purporting to be authenticated in accordance with this section) shall be received in evidence and be deemed to be such instrument without proof unless the contrary is shown.

Functions of Office.

10. —(1) The general functions of the Office shall be to—

(a) advise the Minister in relation to the formulation, and assist him or her in the implementation, of policies and objectives of the Government concerning the control and regulation of the manufacturing, sale, marketing and smoking of tobacco products,

(b) consult with such national or international bodies or agencies having a knowledge or expertise in the field of smoking prevention for the purpose of identifying measures designed to eliminate, reduce the incidence of, or discourage smoking.

(c) make such recommendations to the Minister as it deems appropriate in relation to measures that the Office considers should be taken in order to reduce or eliminate smoking or its effects in the State.

(d) undertake, sponsor or commission, or provide financial or other assistance for, research aimed at identifying measures that when adopted are likely to reduce the incidence of smoking or its effects,

(e) prepare and publish, in such manner as it thinks fit, reports on any research undertaken, sponsored or commissioned, or for which financial or other assistance was given, under paragraph (d),

(f) furnish advice to the Minister, whenever he or she so requests, on matters relating to the control and regulation of the manufacture, importation, sale or supply of tobacco products and on measures to reduce, eliminate or discourage smoking,

(g) provide, and where appropriate exchange with the Garda Síochána and the Revenue Commissioners, information relating to the control and regulation of the manufacture, sale, supply, importation and distribution of tobacco products,

(h) prepare and implement a plan for the coordination nationally of the activities of the Office and of health boards in relation to this Act and the cooperation of the Office and the health boards in the performance of their functions under this Act,

(i) furnish advice to the Minister, whenever he or she so requests, on matters relating to—

(i) strategies employed by manufacturers, importers, distributors or retailers of tobacco products in the marketing, sale or promotion of such products,

(ii) technology used in the manufacture, production or marketing of tobacco products,

(iii) any innovations on the part of manufacturers, importers, distributors or retailers of tobacco products relating to the manufacture, production or marketing of those products,

(j) coordinate and implement a programme for the inspection of all premises in which tobacco products are manufactured, stored, subjected to any process or sold by retail, and all premises to which the public have access, either as of right or with the permission of the occupier or person in charge of the premises concerned, for the purposes of ensuring that there is compliance with the provisions of this Act,

(k) collect or disseminate such information as may reasonably be necessary for the effective performance of its functions,

(l) furnish, whenever the Office considers it appropriate or is so requested by the Minister, advice or information to a Minister of the Government (including the Minister) in relation to any matter connected with its functions.

(2) The Office shall have all such powers as are necessary or expedient for the performance of its functions.

(3) The Office may perform any of its functions through or by a member of the staff of the Office duly authorised by the Office to act in that behalf.

Conferral of additional functions on Office.

11. —(1) The Minister may, with the consent of the Minister for Finance and after consultation with such other Minister of the Government (if any) as he or she considers appropriate, by order confer on the Office such additional functions connected with the functions for the time being of the Office as he or she thinks fit, subject to such conditions (if any) as may be specified in the order.

(2) An order under this section may contain such incidental, supplementary and consequential provisions as may, in the opinion of the Minister, be necessary to give full effect to the order.

(3) (a) The Minister may, by order, amend or revoke an order under this section (including an order under this subsection).

(b) An order under this subsection shall be made in the like manner, and its making shall be subject to the like consent and consultations (if any) as the order that it is amending or revoking.

Membership of Office.

12. —(1) The Office shall consist of the following members, that is to say, a chairperson and 11 ordinary members.

(2) The members of the Office shall be appointed by the Minister.

(3) The chairperson of the Office shall hold office for a period of 5 years from the date of his or her appointment.

(4) An ordinary member of the Office shall hold office for such period not exceeding 5 years as the Minister may determine when appointing him or her.

(5) A member of the Office whose term of office expires by the effluxion of time shall be eligible for reappointment to the Office.

Conditions of office of members of Office.

13. —(1) The Minister may at any time remove from office a member of the Office.

(2) A member of the Office may resign from office by notice in writing given to the Minister and the resignation shall take effect on the date on which the Minister receives the notice.

(3) A member of the Office shall cease to be qualified for office and shall cease to hold office if—

(a) he or she is adjudicated bankrupt,

(b) he or she makes a composition or arrangement with creditors,

(c) he or she is convicted of any indictable offence in relation to a company,

(d) he or she is convicted of an offence involving fraud or dishonesty, whether in connection with a company or not,

(e) he or she is the subject of an order under section 160 of the Companies Act, 1990 , or

(f) he or she is sentenced to a term of imprisonment by a court of competent jurisdiction.

(4) A member of the Office shall, subject to the provisions of this Act, hold office upon such terms and conditions (including terms and conditions relating to remuneration and allowances) as may be determined by the Minister, with the consent of the Minister for Finance.

Casual vacancies among members of Office.

14. —(1) If a member of the Office dies, resigns, ceases to be qualified for office and ceases to hold office or is removed from office, the Minister may appoint a person to be a member of the Office to fill the casual vacancy so occasioned in the same manner as the member of the Office who occasioned the casual vacancy was appointed.

(2) A person appointed to be a member of the Office pursuant to this section shall hold office for that period of the term of office of the member who occasioned the casual vacancy concerned that remains unexpired at the date of his or her appointment and shall be eligible for reappointment as a member of the Office on the expiry of the said period.

Remuneration of members of Office.

15. —The chairperson and ordinary members of the Office shall be paid by the Office such remuneration (if any) and such allowances for expenses as the Minister, with the approval of the Minister for Finance, may determine.

Meetings and procedure.

16. —(1) The Office shall hold such and so many meetings as may be necessary for the due fulfilment of its functions.

(2) At a meeting of the Office—

(a) the chairperson of the Office shall, if present, be the chairperson of the meeting, or

(b) if and so long as the chairperson of the Office is not present, or if that office is vacant, the members of the Office who are present shall choose one of their number to be chairperson of the meeting.

(3) Every question at a meeting shall be determined by a majority of the votes of the members of the Office present and voting on the question and, in the case of an equal division of votes, the chairperson of the meeting shall have a second or casting vote.

(4) The Office may act notwithstanding one or more vacancies among its members.

(5) Subject to the provisions of this Act, the Office shall regulate its procedure by rules or otherwise.

(6) The quorum for a meeting of the Office shall, unless the Minister otherwise directs, be 7.

Membership of either House of Oireachtas or European Parliament.

17. —(1) Where a member of the Office is—

(a) nominated as a member of Seanad Éireann,

(b) elected as a member of either House of the Oireachtas or to be a representative in the European Parliament, or

(c) regarded pursuant to Part XIII of the Second Schedule to the European Parliament Elections Act, 1997 , as having been elected to that Parliament,

he or she shall thereupon cease to be a member of the Office.

(2) Where a member of the staff of the Office is—

(a) nominated as a member of Seanad Éireann,

(b) elected as a member of either House of the Oireachtas or to be a representative in the European Parliament, or

(c) regarded pursuant to the said Part XIII, as having been elected to that Parliament,

he or she shall thereupon stand seconded from employment by the Office and shall not be paid by, or be entitled to receive from, the Office any remuneration or allowances in respect of the period commencing on such nomination or election, or when he or she is so regarded as having been elected (as the case may be), and ending when such person ceases to be a member of either such House or a representative in such Parliament.

(3) A person who is for the time being entitled under the Standing Orders of either House of the Oireachtas to sit therein or who is a representative in the European Parliament shall, while he or she is so entitled or is such a representative, be disqualified for membership of the Office or for employment in any capacity by the Office.

(4) A period mentioned in subsection (2) shall not, for the purposes of any superannuation benefit, be reckoned as service with the Office.

Disclosure by members of Office of certain interests.

18. —(1) Where at a meeting of the Office any of the following matters arises, namely—

(a) an arrangement to which the Office is a party or a proposed such arrangement, or

(b) a contract or other agreement with the Office or a proposed such contract or other agreement,

then, any member of the Office present at the meeting who otherwise than in his or her capacity as such a member has an interest in the matter shall—

(i) at the meeting disclose to the Office the fact of such interest and the nature thereof,

(ii) neither influence nor seek to influence a decision to be made in relation to the matter,

(iii) absent himself or herself from the meeting or that part of the meeting during which the matter is discussed,

(iv) take no part in any deliberation of the Office relating to the matter, and

(v) not vote on a decision relating to the matter.

(2) Where an interest is disclosed pursuant to this section, the disclosure shall be recorded in the minutes of the meeting concerned and, for so long as the matter to which the disclosure relates is being dealt with by the meeting, the member by whom the disclosure is made shall not be counted in the quorum for the meeting.

(3) Where at a meeting of the Office a question arises as to whether or not a course of conduct, if pursued by a member of the Office, would constitute a failure by him or her to comply with the requirements of subsection (1), the question may be determined by the chairperson of the meeting, whose decision shall be final, and where such a question is so determined, particulars of the determination shall be recorded in the minutes of the meeting.

(4) Where the Minister is satisfied that a member of the Office has contravened subsection (1), the Minister may, if he or she thinks fit, remove that member from office and, in case a person is removed from office pursuant to this subsection, he or she shall thenceforth be disqualified for membership of the Office.

Disclosure by members of staff of certain interests.

19. —(1) Where a member of the staff of the Office has an interest, otherwise than in his or her capacity as such a member, in any contract, agreement or arrangement, or proposed contract, agreement or arrangement, to which the Office is a party, that person shall—

(a) disclose to the Office his or her interest and the nature thereof,

(b) take no part in the negotiation of the contract, agreement or arrangement or in any deliberation by the Office or members of the staff of the Office in relation thereto, or

(c) neither influence nor seek to influence a decision to be made in the matter nor make any recommendation in relation to the contract, agreement or arrangement.

(2) Subsection (1) shall not apply to contracts or proposed contracts of employment of members of the staff of the Office with the Office.

(3) Where a person contravenes this section the Office may make such alterations to the person's terms and conditions of employment as it considers appropriate or terminate the person's contract of employment.

Prohibition of unauthorised disclosure of confidential information.

20. —(1) A person shall not disclose confidential information obtained by him or her while performing functions as—

(a) a member or member of the staff of, or an adviser or consultant to, the Office, or

(b) a member of a committee established under section 21 ,

unless he or she is duly authorised by the Office to so do.

(2) A person who contravenes subsection (1) shall be guilty of an offence.

(3) In this section “confidential information” includes—

(a) information that is expressed by the Office to be confidential either as regards particular information or as regards information of a particular class or description, and

(b) proposals of a commercial nature or tenders submitted to the Office by contractors, consultants or any other person.

Committees of Office.

21. —(1) The Office may establish committees to advise it in relation to the performance of any or all of its functions and may determine the terms of reference and regulate the procedure of any such committee.

(2) A committee established under this section may include persons who are not members of the Office.

(3) A member of a committee established under this section may be removed from office at any time by the Office.

(4) The Office may at any time dissolve a committee established under this section.

(5) The Office may appoint a person to be chairperson of a committee established under this section.

(6) There may be paid by the Office to members of a committee established under this section such allowances for expenses (if any) incurred by them as the Office may, with the consent of the Minister and the Minister for Finance, determine.

Tobacco Free Council.

22. —(1) The Office shall establish a body to be known as the Tobacco Free Council (hereafter in this section referred to as the “Council”).

(2) The Council shall make themselves available to be consulted by the Office in relation to the performance by the Office of functions (of such a class as may be determined by the Office, with the consent of the Minister) and may give advice or an opinion to the Office regarding any matter (of such a class as may, with the consent of the Minister, be determined by the Office) falling to be decided by the Office or the performance by it of such functions.

(3) The Council shall consist of not more than 24 members of whom—

(a) 12 shall be appointed by the Minister, of whom not less than one shall be a person or persons nominated by such body or bodies as the Minister may determine being—

(i) (where the Minister makes a determination in relation to one body only) a body that has as its principal object, or

(ii) (where the Minister makes a determination in relation to more than one body) bodies that have as their principal objects,

the promotion of abstinence from smoking, and

(b) the remainder shall be appointed by the Office.

(4) The Office shall, after consultation with the Minister, determine the terms of reference and regulate the procedure of the Council.

(5) A member of the Council may be removed from office at any time—

(a) in the case of a member who is appointed by the Minister, by the Minister after consultation with the Office, and

(b) in the case of a member who was appointed by the Office, by the Office after consultation with the Minister.

(6) There may be paid by the Office to members of the Council such allowances for expenses (if any) incurred by them as the Office may, with the consent of the Minister and the Minister for Finance, determine.

(7) The Office shall have regard to any advice or opinion given by the Council in relation to any matter (of such a class as may be determined by the Office, with the consent of the Minister) falling to be decided by the Office or in relation to the performance of any function (of such a class as may be determined by the Office, with the consent of the Minister).

(8) The Office may publish any advice or opinion given to it by the Council.

(9) The failure of the Office to consult the Council or to have regard to any advice or opinion of the Council in relation to any matter falling to be decided by the Office or the performance of any function by the Office shall not invalidate any decision taken or anything done by the Office.

(10) The Office and the Minister shall endeavour to ensure that, in so far as is practicable, there are equal numbers of men and women on the Council.

(11) The Office and the Minister shall, in so far as is practicable, endeavour to ensure that persons who have experience or expertise in matters relating to public health, entertainment, communications, sport, or who are representative of persons carrying on such trades, professions or commercial or industrial activities as the Office and the Minister may determine, are represented on the Council.

Grants to Office.

23. —The Minister may, with the consent of the Minister for Finance, advance to the Office out of moneys provided by the Oireachtas such sums as the Minister may determine.

Accounts and audits.

24. —(1) The Office shall keep in such form and in respect of such accounting periods as may be approved by the Minister, with the consent of the Minister for Finance, all proper and usual accounts of moneys received or expended by it, including an income and expenditure account, a cash flow statement and a balance sheet, and, in particular, shall keep in such form as aforesaid all such special accounts as the Minister may, with the consent of the Minister for Finance, or at his or her request shall, from time to time direct.

(2) Accounts kept in pursuance of this section shall be submitted not later than 3 months after the end of the accounting period to which they relate by the Office to the Comptroller and Auditor General for audit and, immediately after the audit, a copy of the accounts, statement and balance sheet and of such other (if any) accounts kept pursuant to this section as the Minister, after consultation with the Minister for Finance, may direct, and a copy of the report of the Comptroller and Auditor General on the accounts shall be presented to the Minister who shall cause copies thereof to be laid before each House of the Oireachtas.

(3) In this section “cash flow statement” means, in relation to an accounting period, an account showing the derivation of all moneys received by the Office during that period and the purposes to which they were applied.

Annual report.

25. —The Office shall not later than 3 months after the end of each financial year prepare and submit to the Minister a report on its activities in the immediately preceding financial year and the Minister shall, as soon as may be, cause copies of the report to be laid before each House of the Oireachtas.

Power to borrow.

26. —(1) The Office may, for the purpose of providing for current expenditure, from time to time borrow money (whether on the security of the assets of the Office or otherwise), but shall not do so without the consent of the Minister and the Minister for Finance.

(2) The aggregate at any time of borrowings under subsection (1) shall not exceed €250,000.

Gifts.

27. —(1) The Office may accept gifts of money, land or other property upon such trusts or conditions (if any) as may be specified by the donor.

(2) The Office shall not accept a gift if the trusts or conditions attached to it would be inconsistent with its functions.

Chief executive.

28. —(1) There shall be a chief executive officer of the Office (who shall be known as and is referred to in this Act as the “chief executive”).

(2) The chief executive shall carry on and manage, and control generally, the administration of the Office and perform such other functions (if any) as may be determined by the Office.

(3) The chief executive shall be appointed, and may be removed from office, by the Office, with the consent of the Minister.

(4) The chief executive shall hold office upon and subject to such terms and conditions (including terms and conditions relating to remuneration and allowances) as may be determined by the Office with the consent of the Minister and the Minister for Finance.

(5) The chief executive shall not hold any other office or employment or carry on any business without the consent of the Office.

(6) The chief executive may attend meetings of the Office and may make submissions, orally or in writing, to and otherwise advise the Office at such meetings in accordance with the procedures of the Office under section 16 (5).

Staff.

29. —(1) The Office shall appoint, with the consent of the Minister and the Minister for Finance, such and so many persons to be members of the staff of the Office as it may from time to time determine.

(2) The terms and conditions of service of a member of the staff of the Office shall, with the consent of the Minister and the Minister for Finance, be such as may be determined from time to time by the Office.

(3) There shall be paid by the Office to the members of its staff such remuneration and allowances as, from time to time, the Office, with the consent of the Minister and the Minister for Finance, determines.

Remuneration of staff.

30. —The Office, in determining the remuneration or allowances for expenses to be paid to members of its staff or the other terms or conditions subject to which such members hold or are to hold their employment, shall have regard to Government or nationally agreed guidelines which are for the time being extant and to Government policy concerning remuneration and conditions of employment which is so extant and, in addition to the foregoing, the Office shall comply with any directives with regard to such remuneration, allowances, terms or conditions which the Minister may give to the Office with the consent of the Minister for Finance.

Transfer of staff to Office.

31. —(1) Every person (whether an officer of the Minister or not) who immediately before the commencement of this section is assigned to perform duties in relation to that part of the Department of State for which the Minister has charge known as the Office of Tobacco Control, and who is designated by the Minister for employment by the Office shall be transferred to and become a member of the staff of the Office on such day as may be specified by the Minister after consultation with the Office.

(2) Save in accordance with a collective agreement negotiated with any recognised trade union or staff association concerned, a person referred to in subsection (1) shall not, while in the service of the Office be subject to less beneficial conditions of service (including conditions in relation to tenure of office) or of remuneration than the conditions of service (including conditions in relation to tenure of office) or remuneration to which he or she was subject immediately before the commencement of this section.

(3) In relation to persons transferred to the Office under subsection (1), previous service in the civil service shall be reckonable for the purposes of, but subject to any exceptions or exclusions in, the Redundancy Payments Acts, 1967 to 2001, the Protection of Employees (Part-Time Work) Act, 2001 , the Organisation of Working Time Act, 1997, the Minimum Notice and Terms of Employment Acts, 1973 to 2001, and the Unfair Dismissals Acts, 1977 to 2001.

Superannuation.

32. —(1) As soon as may be after its establishment, the Office shall prepare and submit to the Minister a scheme or schemes for the granting of superannuation benefits to or in respect of such of its staff (including the chief executive) as the Office shall think fit.

(2) Every such scheme shall fix the time and conditions of retirement for all persons to, or in respect of whom, superannuation benefits are payable under the scheme, and different times and conditions may be fixed in respect of different classes of persons.

(3) The Office may at any time prepare and submit to the Minister a scheme amending a scheme previously submitted and approved under this section.

(4) A scheme or amending scheme submitted to the Minister under this section shall, if approved by the Minister with the consent of the Minister for Finance, be carried out by the Office in accordance with its terms.

(5) If any dispute arises as to the claim of any person to, or the amount of, any superannuation benefit in pursuance of a scheme under this section, such dispute shall be submitted to the Minister who shall refer it to the Minister for Finance whose decision shall be final.

(6) No superannuation benefit shall be granted by the Office to or in respect of any of its staff (including the chief executive) who are members of a scheme under this section, nor shall any other arrangement be entered into for the provision of any superannuation benefit to such persons on their ceasing to hold office, other than in accordance with such scheme or schemes submitted and approved under this section.

(7) Where, in the period beginning on the commencement of section 9 and ending immediately before the commencement of a scheme under this section, a superannuation benefit falls due for payment to or in respect of a person who was transferred to the staff of the Office under section 31 , the benefit shall be calculated by the Office in accordance with such scheme, or such enactments in relation to superannuation, as applied to the person immediately before the commencement of the said section 9 or such day as may be specified by the Minister under section 31 (1) and, for that purpose, his or her pensionable service with the Office shall be aggregated with his or her previous pensionable service and shall be paid by the Office.

(8) The Minister shall cause every scheme submitted and approved under this section to be laid before each House of the Oireachtas as soon as may be after it is approved, and if either such House within the next 21 days on which that House has sat after the scheme is laid before it, passes a resolution annulling the scheme, the scheme shall be annulled accordingly, but without prejudice to anything previously done thereunder.