Tobacco Plain Packaging Act 2011, Australia, WIPO Lex

Main text(s)

English Tobacco Plain Packaging Act 2011

Tobacco Plain Packaging Act 2011

Note: An electronic version of this Act is available in ComLaw (http://www.comlaw.gov.au/)

Tobacco Plain Packaging Act 2011

No. 148, 2011

An Act to discourage the use of tobacco products, and for related purposes

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Contents Chapter 1—Preliminary 2 Part 1—Preliminary 2

1 Short title ...........................................................................................2 2 Commencement.................................................................................2 3 Objects of this Act .............................................................................3 4 Definitions.........................................................................................4 5 Definition of package a tobacco product for retail sale ...................10 6 Rules relating to surfaces of cigarette packs and cigarette

cartons .............................................................................................11 7 References to contraventions of civil penalty provisions.................12 8 Act extends to external Territories...................................................12 9 Act binds the Crown........................................................................12 10 Inconsistency with other Commonwealth legislation ......................12 11 Operation of State and Territory laws..............................................13

Part 2—Simplified outlines 14 12 Simplified outline for this Act .........................................................14 13 Simplified outline for this Chapter ..................................................14

Part 3—Constitutional provisions 16 14 Additional operation of this Act ......................................................16 15 Acquisition of property....................................................................17 16 Implied freedom of political communication...................................17

Chapter 2—Requirements for plain packaging and appearance of tobacco products 18

Part 1—Simplified outline 18 17 Simplified outline ............................................................................18

Part 2—Requirements for retail packaging and appearance of tobacco products 20

Division 1—Requirements for retail packaging of tobacco products 20

18 Physical features of retail packaging ...............................................20 19 Colour and finish of retail packaging ..............................................21 20 Prohibition on trade marks and marks generally appearing on

retail packaging ...............................................................................22

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21 Requirements for brand, business, company or variant names, and relevant legislative requirements ..................................23

22 Requirements for wrappers..............................................................25 23 Retail packaging not to have inserts or onserts................................25 24 Retail packaging not to produce noise or scent................................26 25 Retail packaging must not change after retail sale...........................26

Division 2—Requirements for appearance of tobacco products 27 26 Requirements for appearance of tobacco products ..........................27

Division 3—Miscellaneous 28 27 Regulations may prescribe additional requirements ........................28 27A Legal effect of sections 18 to 27......................................................28 28 Effect on the Trade Marks Act 1995 of non-use of trade mark

as a result of this Act .......................................................................28 29 Effect on the Designs Act 2003 of failure to make products

as a result of this Act .......................................................................30

Chapter 3—Offences and civil penalty provisions 31 Part 1—Simplified outline 31

30 Simplified outline ............................................................................31

Part 2—General offences and civil penalty provisions for non-compliant retail packaging and tobacco products 33

Division 1—Non-compliant retail packaging of tobacco products 33 31 Selling or supplying tobacco products in non-compliant

retail packaging ...............................................................................33 32 Purchasing tobacco products in non-compliant retail

packaging ........................................................................................34 33 Packaging tobacco products in non-compliant retail

packaging ........................................................................................35 34 Manufacturing non-compliant retail packaging of tobacco

products ...........................................................................................37 35 Manufacturing tobacco products that are packaged in

non-compliant retail packaging .......................................................38 36 Certain supplies of tobacco products that have not been

packaged for retail sale ....................................................................39

Division 2—Non-compliant tobacco products 41 37 Selling or supplying non-compliant tobacco products.....................41 38 Purchasing non-compliant tobacco products ...................................42 39 Manufacturing non-compliant tobacco products .............................43

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Part 3—Offences and civil penalty provisions relating to constitutional corporations 45

Division 1—Non-compliant retail packaging of tobacco products 45 40 Selling or supplying tobacco products to a constitutional

corporation in non-compliant retail packaging ................................45 41 Purchasing tobacco products from a constitutional

corporation in non-compliant retail packaging ................................46 42 Packaging tobacco products in non-compliant retail

packaging under a contract with a constitutional corporation..........48 43 Manufacturing non-compliant retail packaging of tobacco

products under a contract with a constitutional corporation ............49 44 Packaging tobacco products in non-compliant retail

packaging bearing identifying mark of a constitutional corporation ......................................................................................50

45 Manufacturing non-compliant retail packaging of tobacco products that bears identifying mark of a constitutional corporation ......................................................................................51

46 Certain supplies, by or to a constitutional corporation, of tobacco products that have not been packaged for retail sale ..........53

Division 2—Non-compliant tobacco products 55 47 Selling or supplying non-compliant tobacco products to a

constitutional corporation ................................................................55 48 Purchasing non-compliant tobacco products from a

constitutional corporation ................................................................56

Part 4—Export exception and physical elements of offences 58 49 Export exception for non-compliant tobacco products ....................58 50 Physical elements of offences..........................................................59

Chapter 4—Powers to investigate contraventions of this Act 60

Part 1—Simplified outline 60 51 Simplified outline ............................................................................60

Part 2—Search warrants 61 Division 1—Search powers 61

52 Authorised officer may enter premises by consent or under a warrant.............................................................................................61

53 Search powers of authorised officers...............................................61 54 Powers relating to electronic equipment..........................................62 55 Seizing other evidential material .....................................................63 56 Persons assisting authorised officers ...............................................64

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57 Use of force in executing a warrant .................................................64

Division 2—Powers of authorised officers to ask questions and seek production of documents 65

58 Authorised officer may ask questions and seek production of documents........................................................................................65

Division 3—Obligations and incidental powers of authorised officers 67

59 Consent............................................................................................67 60 Announcement before entry under warrant .....................................67 61 Authorised officer to be in possession of warrant............................68 62 Details of warrant etc. to be given to occupier ................................68 63 Completing execution of warrant after temporary cessation............69 64 Completing execution of warrant stopped by court order................70 65 Expert assistance to operate electronic equipment...........................70 66 Compensation for damage to electronic equipment.........................71

Division 4—Occupier’s rights and responsibilities 73 67 Occupier entitled to observe execution of warrant ..........................73 68 Occupier to provide authorised officer with facilities and

assistance .........................................................................................73

Division 5—General provisions relating to seizure 74 69 Copies of seized things to be provided ............................................74 70 Receipts for seized things ................................................................74 71 Return of seized things ....................................................................74 72 Issuing officer may permit a seized thing to be retained..................75 73 Disposal of seized things .................................................................76 74 Compensation for acquisition of property .......................................77

Division 6—Issue of warrants 78 75 Issue of warrants..............................................................................78 76 Warrants by telephone, fax etc. .......................................................79 77 Authority of warrant ........................................................................80 78 Offence relating to warrants by telephone, fax etc. .........................81

Division 7—Powers of issuing officers 82 79 Powers of issuing officers................................................................82

Part 3—Power to require persons to give information, produce documents or answer questions 84

80 Power to require persons to give information, produce documents or answer questions .......................................................84

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Part 4—Miscellaneous 86 81 Appointment of authorised officers .................................................86 82 Identity cards ...................................................................................86 83 Self-incrimination............................................................................87

Chapter 5—Enforcing compliance with this Act 88 Part 1—Simplified outline 88

84 Simplified outline ............................................................................88

Part 2—Civil penalty provisions 89 Division 1—Obtaining a civil penalty order 89

85 Civil penalty orders .........................................................................89 86 Civil enforcement of penalty ...........................................................90 87 Conduct contravening more than one civil penalty provision..........90 88 Multiple contraventions...................................................................90 89 Proceedings may be heard together .................................................91 90 Civil evidence and procedure rules for civil penalty orders.............91 91 Contravening a civil penalty provision is not an offence.................91

Division 2—Civil proceedings and criminal proceedings 92 92 Civil proceedings after criminal proceedings ..................................92 93 Criminal proceedings during civil proceedings ...............................92 94 Criminal proceedings after civil proceedings ..................................92 95 Evidence given in civil proceedings not admissible in

criminal proceedings .......................................................................92

Division 3—Miscellaneous 94 96 Ancillary contravention of civil penalty provisions.........................94 97 Mistake of fact.................................................................................94 98 State of mind ...................................................................................95 99 Civil penalty provisions contravened by employees, agents

or officers ........................................................................................95

Part 3—Infringement notices 96 100 When an infringement notice may be given ....................................96 101 Matters to be included in an infringement notice.............................96 102 Extension of time to pay amount .....................................................97 103 Withdrawal of an infringement notice .............................................98 104 Effect of payment of amount ...........................................................99 105 Effect of this Part...........................................................................100

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Chapter 6—Miscellaneous provisions 101 Part 1—Simplified outline 101

106 Simplified outline ..........................................................................101

Part 2—Miscellaneous provisions 102 107 Delegation .....................................................................................102 108 Reports to Parliament ....................................................................102 109 Regulations....................................................................................102

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Tobacco Plain Packaging Act 2011

No. 148, 2011

An Act to discourage the use of tobacco products, and for related purposes [Assented to 1 December 2011]

The Parliament of Australia enacts:

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Chapter 1—Preliminary

Part 1—Preliminary

1 Short title

This Act may be cited as the Tobacco Plain Packaging Act 2011.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 16 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent. 1 December 2011

2. Sections 17 to 27A

1 October 2012. 1 October 2012

3. Sections 28 and 29

The day this Act receives the Royal Assent. 1 December 2011

4. Sections 30 to 32

1 December 2012. 1 December 2012

5. Sections 33 to 36

1 October 2012. 1 October 2012

6. Sections 37 and 38

1 December 2012. 1 December 2012

7. Section 39 1 October 2012. 1 October 2012 8. Sections 40 1 December 2012. 1 December

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Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details and 41 2012 9. Sections 42 to 46

1 October 2012. 1 October 2012

10. Sections 47 and 48

1 December 2012. 1 December 2012

11. Sections 49 to 80

1 October 2012. 1 October 2012

12. Sections 81 and 82

The day this Act receives the Royal Assent. 1 December 2011

13. Sections 83 to 105

1 October 2012. 1 October 2012

14. Sections 106 to 109

The day this Act receives the Royal Assent. 1 December 2011

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Objects of this Act

(1) The objects of this Act are: (a) to improve public health by:

(i) discouraging people from taking up smoking, or using tobacco products; and

(ii) encouraging people to give up smoking, and to stop using tobacco products; and

(iii) discouraging people who have given up smoking, or who have stopped using tobacco products, from relapsing; and

(iv) reducing people’s exposure to smoke from tobacco products; and

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(b) to give effect to certain obligations that Australia has as a party to the Convention on Tobacco Control.

(2) It is the intention of the Parliament to contribute to achieving the objects in subsection (1) by regulating the retail packaging and appearance of tobacco products in order to:

(a) reduce the appeal of tobacco products to consumers; and (b) increase the effectiveness of health warnings on the retail

packaging of tobacco products; and (c) reduce the ability of the retail packaging of tobacco products

to mislead consumers about the harmful effects of smoking or using tobacco products.

4 Definitions

(1) In this Act:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

Australia includes all the external Territories.

authorised officer means a person appointed under section 81 as an authorised officer.

cigarette means a roll of cut tobacco for smoking, enclosed in paper.

cigarette carton means any container for retail sale that contains smaller containers in which cigarettes are directly placed. Note: See also the definition of container.

cigarette pack means any container for retail sale in which cigarettes are directly placed. Note: See also the definition of container.

civil penalty order has the meaning given by section 85.

civil penalty provision (other than in paragraph 11(2)(b)) means a provision of this Act if:

(a) either:

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(i) the provision sets out at its foot a pecuniary penalty, or penalties, indicated by the words “Civil penalty”; or

(ii) another provision of this Act provides that the provision is a civil penalty provision; and

(b) the provision is a subsection, or a section that is not divided into subsections.

Note: See section 7 for references to contraventions of civil penalty provisions.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means: (a) trade or commerce between Australia and places outside

Australia; or (b) trade or commerce among the States; or (c) trade or commerce within a Territory, between a State and a

Territory or between 2 Territories.

container includes (without limitation) any pack, carton, box, tin, packet, bag, pouch, tube or other container.

Convention on Tobacco Control means the WHO Framework Convention on Tobacco Control, done at Geneva on 21 May 2003. Note: The text of the Convention is set out in Australian Treaty Series 2005

No. 7 ([2005] ATS 7). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Deputy President of the Administrative Appeals Tribunal has the meaning given by section 3 of the Administrative Appeals Tribunal Act 1975.

evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

evidential material means: (a) in respect of an offence against this Act:

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(i) any thing with respect to which the offence has been committed or is suspected, on reasonable grounds, to have been committed; or

(ii) any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the commission of the offence; or

(iii) any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of committing the offence; and

(b) in respect of a contravention of a civil penalty provision: (i) any thing with respect to which the civil penalty

provision has been contravened or is suspected, on reasonable grounds, of having been contravened; or

(ii) any thing as to which there are reasonable grounds for suspecting that it will afford evidence as to the contravention of the civil penalty provision; or

(iii) any thing as to which there are reasonable grounds for suspecting that it is intended to be used for the purpose of contravening the civil penalty provision.

Federal Court means the Federal Court of Australia.

filter tip of a cigarette means the part of the end of the cigarette that acts as a filter, or purports to act as a filter.

fire risk statement means any statement that is required to appear on the retail packaging of tobacco products by:

(a) regulation 14 of the Trade Practices (Consumer Product Safety Standard) (Reduced Fire Risk Cigarettes) Regulations 2008; or

(b) a safety standard made under section 104, or declared under section 105, of Schedule 2 to the Competition and Consumer Act 2010, to the extent that the standard relates to fire risk; or

(c) an information standard made under section 134, or declared under section 135, of Schedule 2 to the Competition and Consumer Act 2010, to the extent that the standard relates to fire risk.

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health warning means any message, information, graphic or other thing that is required to appear on the retail packaging of tobacco products by:

(a) the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004; or

(b) a safety standard made under section 104, or declared under section 105, of Schedule 2 to the Competition and Consumer Act 2010, to the extent that the standard relates to the health effects of smoking or using tobacco products; or

(c) an information standard made under section 134, or declared under section 135, of Schedule 2 to the Competition and Consumer Act 2010, to the extent that the standard relates to the health effects of smoking or using tobacco products.

imitation cork tip of a cigarette means the part of the paper over the filter tip of the cigarette that is printed brown to resemble cork.

inner surface of a cigarette carton has a meaning affected by subsection 6(2).

insert means any thing (other than a tobacco product) placed inside packaging (within the ordinary meaning of the word), but does not include the lining of a cigarette pack if the lining complies with the requirements of this Act.

inside lip of a cigarette pack means the part of the outer surfaces of the pack that is obscured when the flip-top lid is closed.

issuing officer means: (a) a Judge of a court created by the Parliament; or (b) a Federal Magistrate; or (c) a Deputy President of the Administrative Appeals Tribunal;

or (d) a non-presidential member of the Administrative Appeals

Tribunal who: (i) is enrolled as a legal practitioner of the High Court, or

the Supreme Court of a State or Territory; and (ii) has been so enrolled for at least 5 years.

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just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

mark: (a) includes (without limitation) any line, letters, numbers,

symbol, graphic or image; but (b) (other than when referring to a trade mark) does not include a

trade mark.

measurement mark means any information that is required to appear on the retail packaging of tobacco products by regulations made under the National Measurement Act 1960.

non-presidential member of the Administrative Appeals Tribunal has the meaning given by section 3 of the Administrative Appeals Tribunal Act 1975.

offer a tobacco product for sale has a meaning affected by subsection (2) of this section.

onsert means any thing affixed or otherwise attached to packaging (within the ordinary meaning of the word), but does not include the lining of a cigarette pack if the lining complies with the requirements of this Act. Note: A sound chip embedded in the cardboard of a cigarette pack is an

example of an onsert.

outer surface of a cigarette pack has a meaning affected by subsection 6(1).

package a tobacco product for retail sale has the meaning given by section 5.

person assisting has the meaning given by section 56.

relevant legislative requirement means any of the following: (a) a health warning; (b) a fire risk statement; (c) a trade description; (d) a measurement mark.

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relevant tobacco law has the meaning given by section 11.

retail packaging of a tobacco product means: (a) any container for retail sale in which the tobacco product is

directly placed; or (b) any container for retail sale that contains a smaller container

in which the tobacco product is directly placed; or (c) any plastic or other wrapper that covers any retail packaging

of the tobacco product (within the meaning of paragraph (a) or (b) of this definition); or

(d) any plastic or other wrapper that covers the tobacco product, being a tobacco product that is for retail sale; or

(e) any insert that is placed inside the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of this definition); or

(f) any onsert that is affixed or otherwise attached to the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of this definition).

Note: See also the definition of container.

search powers has the meaning given by sections 53, 54 and 55.

Secretary means the Secretary of the Department.

sign (when used as a noun) has the meaning given by subsection 6(1) of the Trade Marks Act 1995.

this Act includes the regulations.

tobacco advertising and promotion has the meaning given by the Convention on Tobacco Control.

tobacco product means processed tobacco, or any product that contains tobacco, that:

(a) is manufactured to be used for smoking, sucking, chewing or snuffing; and

(b) is not included in the Australian Register of Therapeutic Goods maintained under the Therapeutic Goods Act 1989.

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Note: Loose tobacco for roll-your-own cigarettes is an example of processed tobacco. A cigar or cigarette is an example of a product that contains tobacco.

tobacco product requirement means the following requirements in relation to the retail packaging or appearance of tobacco products:

(a) a requirement specified in Part 2 of Chapter 2; (b) a requirement prescribed by regulations made under Part 2 of

Chapter 2; (c) if subsection 15(2) applies (acquisition of property)—a

requirement prescribed by regulations made under section 15.

trade description means any trade description that is required to appear on the retail packaging of tobacco products by regulations made under the Commerce (Trade Descriptions) Act 1905.

variant name for a tobacco product means the name used to distinguish that kind of tobacco product from other tobacco products that are supplied under the same brand, business or company name, by reference to one or more of the following:

(a) containing or not containing menthol; (b) being otherwise differently flavoured; (c) purporting to differ in strength; (d) having or not having filter tips or imitation cork tips; (e) being of different length or mass.

warrant means: (a) a warrant issued by an issuing officer under section 75; or (b) a warrant signed by an issuing officer under section 76.

(2) In this Act, a reference to offering a tobacco product for sale includes (without limitation) a reference to:

(a) exposing, displaying or advertising the product for sale; and (b) making the product available for sale even if the product is

not visible to the public.

5 Definition of package a tobacco product for retail sale

A person packages a tobacco product for retail sale if:

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(a) the person places the tobacco product directly into a container for retail sale; or

(b) the person places a container, in which the tobacco product has been directly placed, into a larger container for retail sale; or

(c) the person covers the retail packaging of the tobacco product (within the meaning of paragraph (a) or (b) of the definition of retail packaging) with a plastic or other wrapper; or

(d) the person covers the tobacco product, being a tobacco product that is for retail sale, with a plastic or other wrapper; or

(e) the person places an insert inside the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of the definition of retail packaging); or

(f) the person affixes or otherwise attaches an onsert to the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of the definition of retail packaging).

Note 1: See also the definition of container.

Note 2: Other grammatical forms of the word package (such as packaged) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).

6 Rules relating to surfaces of cigarette packs and cigarette cartons

Surfaces of cigarette packs

(1) A reference in this Act to an outer surface of a cigarette pack (such as the front outer surface) is a reference to all of that outer surface, including the part of that outer surface that forms part of the flip-top lid.

Surfaces of cigarette cartons

(2) If a cigarette carton has one or more flaps with surfaces that become visible only when the carton is opened, those surfaces are taken to be inner surfaces of the carton.

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7 References to contraventions of civil penalty provisions

(1) For the purposes of this Act, if: (a) a provision of this Act refers to:

(i) a contravention of a civil penalty provision; or (ii) a person contravening a civil penalty provision; and

(b) the civil penalty provision is in a section in Chapter 3; the reference includes a reference to a contravention of, or a person contravening, subsection (1) of that section.

(2) Subsection (1) of this section does not apply to section 91 (contravening a civil penalty provision is not an offence).

8 Act extends to external Territories

This Act extends to all the external Territories.

9 Act binds the Crown

(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.

(2) This Act does not make the Crown liable to be: (a) prosecuted for an offence; or (b) subject to civil proceedings for a civil penalty order; or (c) given an infringement notice.

10 Inconsistency with other Commonwealth legislation

The following prevail to the extent of any inconsistency with this Act:

(a) the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004;

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11 Operation of State and Territory laws

(1) This Act does not exclude or limit the operation of a relevant tobacco law of a State or Territory that is capable of operating concurrently with this Act.

(2) This Act does not exclude or limit the application of a relevant tobacco law of a State or Territory to particular conduct if:

(a) that conduct constitutes an offence against, or a contravention of a civil penalty provision in, this Act; and

(b) that conduct also constitutes an offence against, or a contravention of a civil penalty provision (however described) in, the relevant tobacco law.

(3) In this Act:

relevant tobacco law means a law, or a provision of a law, that regulates the retail packaging or appearance of tobacco products.

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Part 2—Simplified outlines

12 Simplified outline for this Act

The following is a simplified outline of this Act:

• This Act regulates the retail packaging and appearance of tobacco products in order to:

(a) improve public health; and

(b) give effect to certain obligations in the Convention on Tobacco Control.

• Part 2 of Chapter 2 specifies requirements for the retail packaging and appearance of tobacco products. (If there is an acquisition of property otherwise than on just terms, regulations made under section 15 might also specify requirements.)

• The retail packaging and appearance of tobacco products must comply with the requirements of this Act.

• Offences and civil penalties apply if tobacco products are supplied, purchased or manufactured and either the retail packaging, or the products themselves, do not comply with the requirements.

13 Simplified outline for this Chapter

The following is a simplified outline of this Chapter:

• Part 1 of this Chapter contains definitions and general rules about the operation of this Act.

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• Part 3 of this Chapter contains provisions relating to the constitutional basis of this Act.

• This Act relies on the external affairs power of the Constitution by implementing certain obligations in the Convention on Tobacco Control. However, if this Act is not supported by that power, then this Act will apply in more limited circumstances by relying on the corporations power, the trade and commerce power and the Territories power.

• This Act does not apply to the extent that its operation would infringe certain constitutional protections (such as by acquiring property otherwise than on just terms).

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Part 3—Constitutional provisions

14 Additional operation of this Act

(1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.

Corporations power

(2) Part 2 of Chapter 3 has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person that is a constitutional corporation. Note: Part 2 of Chapter 3 contains general offences and civil penalty

provisions for non-compliant retail packaging and tobacco products.

Trade and commerce power

(3) Part 2 of Chapter 3 has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, constitutional trade or commerce.

(4) Subsection (3) does not apply to the extent (if any) that its application would infringe section 92 of the Constitution. Note: Section 92 of the Constitution requires trade among the States to be

absolutely free.

Territories power

(5) Part 2 of Chapter 3 has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place wholly or partly in a Territory.

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15 Acquisition of property

(1) This Act does not apply to the extent (if any) that its operation would result in an acquisition of property from a person otherwise than on just terms.

(2) In particular, if, apart from this section, this Act would result in such an acquisition of property because it would prevent the use of a trade mark or other sign on or in relation to the retail packaging of tobacco products, or on tobacco products, then despite any other provision of this Act, the trade mark or sign may be used on or in relation to the retail packaging of tobacco products, or on tobacco products, subject to any requirements that may be prescribed in the regulations for the purposes of this subsection. Note: Offences and civil penalties apply to the supply, purchase and

manufacture etc. of tobacco products that do not comply with any requirements specified in the regulations (see Chapter 3).

(3) To avoid doubt, any tobacco product requirement (within the meaning of paragraph (a) or (b) of the definition of tobacco product requirement) that does not result in such an acquisition of property continues to apply in relation to:

(a) the retail packaging of tobacco products; and (b) the appearance of tobacco products.

16 Implied freedom of political communication

This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

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Chapter 2—Requirements for plain packaging and appearance of tobacco products

Part 1—Simplified outline

17 Simplified outline

The following is a simplified outline of this Chapter:

• Part 2 of this Chapter specifies requirements for the retail packaging and appearance of tobacco products.

• Offences and civil penalties in Chapter 3 apply in certain circumstances if retail packaging or tobacco products do not comply with the requirements.

• Division 1 of Part 2 sets out requirements for:

(a) the physical features of retail packaging; and

(b) the colour and finish of retail packaging; and

(d) wrappers; and

(e) retail packaging after retail sale.

• Division 2 of Part 2 also prohibits trade marks from generally appearing on the tobacco products themselves.

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Section 17

Tobacco Plain Packaging Act 2011 No. 148, 2011 19

• Division 3 of Part 2 allows additional regulations to be made in relation to the retail packaging and appearance of tobacco products. That Division also sets out the relationship between this Act, the Trade Marks Act 1995 and the Designs Act 2003.

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Chapter 2 Requirements for plain packaging and appearance of tobacco products Part 2 Requirements for retail packaging and appearance of tobacco products Division 1 Requirements for retail packaging of tobacco products

Section 18

20 Tobacco Plain Packaging Act 2011 No. 148, 2011

Part 2—Requirements for retail packaging and appearance of tobacco products

Division 1—Requirements for retail packaging of tobacco products

18 Physical features of retail packaging

Retail packaging of all tobacco products

(1) The retail packaging of tobacco products must comply with the following requirements:

(a) the outer surfaces and inner surfaces of the packaging must not have any decorative ridges, embossing, bulges or other irregularities of shape or texture, or any other embellishments, other than as permitted by the regulations;

(b) any glues or other adhesives used in manufacturing the packaging must be transparent and not coloured.

Cigarette packs and cigarette cartons

(2) A cigarette pack or cigarette carton must comply with the following requirements:

(a) the pack or carton must be rigid and made of cardboard, and only cardboard (subject to paragraphs (1)(b) and (3)(d));

(b) when the pack or carton is closed: (i) each outer surface of the pack or carton must be

rectangular; and (ii) the surfaces of the pack or carton must meet at firm 90

degree angles; (c) all edges of the pack or carton must be rigid, straight and not

rounded, bevelled or otherwise shaped or embellished in any way, other than as permitted by the regulations.

(3) A cigarette pack must comply with the following requirements:

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Requirements for retail packaging of tobacco products Division 1

Section 19

Tobacco Plain Packaging Act 2011 No. 148, 2011 21

(a) the dimensions of the pack must comply with the requirements prescribed by the regulations;

(b) the only opening to the pack must be a flip-top lid which must:

(i) be hinged only at the back of the pack; and (ii) have straight edges;

and neither the lid, nor the edges of the lid, may be rounded, bevelled or otherwise shaped or embellished in any way;

(c) the inside lip of the cigarette pack must have straight edges, other than corners which may be rounded, and neither the lip, nor the edges of the lip, may be bevelled or otherwise shaped or embellished in any way;

(d) if the pack contains lining—the lining of the pack must be made only of foil backed with paper, or any other material prescribed by the regulations.

19 Colour and finish of retail packaging

(1) This section applies to the following things: (a) all outer surfaces and inner surfaces of the retail packaging of

tobacco products (within the meaning of paragraph (a) or (b) of the definition of retail packaging);

(b) both sides of any lining of a cigarette pack. Note: For the requirements for wrappers, inserts and onserts, see sections 22

and 23.

(2) The things mentioned in subsection (1): (a) must have a matt finish; and (b) except as provided by subsection (3):

(i) if regulations are in force prescribing a colour—must be that colour; and

(ii) otherwise—must be drab dark brown.

(3) The following are not required to be the colour mentioned in paragraph (2)(b):

(a) the health warnings; (b) the text of:

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22 Tobacco Plain Packaging Act 2011 No. 148, 2011

(i) the brand, business or company name, or variant name (if any), for the tobacco products; and

(ii) the relevant legislative requirements (other than the health warnings).

Note: The regulations might require the brand, business, company or variant name, or a relevant legislative requirement, to be a particular colour.

20 Prohibition on trade marks and marks generally appearing on retail packaging

No trade marks

(1) No trade mark may appear anywhere on the retail packaging of tobacco products, other than as permitted by subsection (3). Note: This section does not apply to wrappers (see subsection (4)).

No marks

(2) No mark may appear anywhere on the retail packaging of tobacco products, other than as permitted by subsection (3). Note: For the definition of mark, see section 4.

Permitted trade marks and marks

(3) The following may appear on the retail packaging of tobacco products:

(a) the brand, business or company name for the tobacco products, and any variant name for the tobacco products;

(b) the relevant legislative requirements; (c) any other trade mark or mark permitted by the regulations.

Note: For requirements for brand, business, company or variant names, and relevant legislative requirements, see section 21.

Section not to apply to wrappers

(4) This section does not apply to a plastic or other wrapper that covers:

(a) the retail packaging of tobacco products; or (b) a tobacco product that is for retail sale.

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Requirements for plain packaging and appearance of tobacco products Chapter 2 Requirements for retail packaging and appearance of tobacco products Part 2

Requirements for retail packaging of tobacco products Division 1

Section 21

Tobacco Plain Packaging Act 2011 No. 148, 2011 23

Note: For the requirements for wrappers, see section 22.

21 Requirements for brand, business, company or variant names, and relevant legislative requirements

Requirements for brand, business, company or variant name— general

(1) Any brand, business or company name, or any variant name, for tobacco products that appears on the retail packaging of those products must comply with any requirements prescribed by the regulations. Note: This section does not apply to wrappers (see subsection (5)).

Requirements for brand, business, company or variant name— cigarette packs and cigarette cartons

(2) Any brand, business or company name, or any variant name, for cigarettes that appears on a cigarette pack or cigarette carton:

(a) must not obscure any relevant legislative requirement; and (b) must not appear more than once on any of the following outer

surfaces of the pack or carton: (i) for a cigarette pack—the front, top and bottom outer

surfaces of the pack; (ii) for a cigarette carton—the front outer surface of the

carton, and the 2 smallest outer surfaces of the carton; and

(d) must appear across one line only; and (e) must comply with the requirements in the table in

subsection (3).

(3) The following table has effect:

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Section 21

24 Tobacco Plain Packaging Act 2011 No. 148, 2011

Requirements for brand, business, company or variant names Item If this name ... appears on this

surface ... the name ...

1 a brand, business or company name

the front outer surface of a cigarette pack

must appear: (a) horizontally below, and in the

same orientation as, the health warning; and

(b) in the centre of the space remaining on the front outer surface beneath the health warning.

2 a brand, business or company name

the front outer surface of a cigarette carton

must appear: (a) in the same orientation as the

health warning; and (b) in the centre of the space on

the front outer surface that is not occupied by the health warning.

3 a brand, business or company name

any outer surface of a cigarette pack or cigarette carton (other than a front outer surface)

must appear: (a) horizontally; and (b) in the centre of the outer

surface of the pack or carton.

4 variant name any outer surface of a cigarette pack or cigarette carton

must appear: (a) horizontally and immediately

below the brand, business or company name; and

(b) in the same orientation as the brand, business or company name.

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Requirements for retail packaging of tobacco products Division 1

Section 22

Tobacco Plain Packaging Act 2011 No. 148, 2011 25

Requirements for relevant legislative requirements (other than health warnings)

(4) Any relevant legislative requirement (other than the health warnings) must comply with any requirements prescribed by the regulations.

Section not to apply to wrappers

(5) This section does not apply to a plastic or other wrapper that covers:

(a) the retail packaging of tobacco products; or (b) a tobacco product that is for retail sale.

Note: For the requirements for wrappers, see section 22.

22 Requirements for wrappers

(1) This section sets out the requirements that a plastic or other wrapper must comply with if the wrapper covers:

(a) the retail packaging of tobacco products (within the meaning of paragraph (a) or (b) of the definition of retail packaging); or

(b) a tobacco product that is for retail sale.

(2) For the purposes of subsection (1), the wrapper must comply with the following requirements:

(a) the wrapper must be transparent and not coloured, marked, textured or embellished in any way, other than as permitted by the regulations;

(b) no trade mark may appear anywhere on the wrapper, other than as permitted by the regulations;

23 Retail packaging not to have inserts or onserts

The retail packaging of tobacco products (within the meaning of any of paragraphs (a) to (d) of the definition of retail packaging)

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26 Tobacco Plain Packaging Act 2011 No. 148, 2011

must not have any inserts or onserts, other than as permitted by the regulations.

24 Retail packaging not to produce noise or scent

No part of the retail packaging of tobacco products may make a noise, or contain or produce a scent, that could be taken to constitute tobacco advertising and promotion. Note: For the definition of tobacco advertising and promotion, see

section 4.

25 Retail packaging must not change after retail sale

The retail packaging of tobacco products must not include any features designed to change the packaging after retail sale, including (without limitation) the following:

(a) heat activated inks; (b) inks or embellishments designed to appear gradually over

time; (c) inks that appear fluorescent in certain light; (d) panels designed to be scratched or rubbed to reveal an image

or text; (e) removable tabs; (f) fold-out panels.

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Requirements for plain packaging and appearance of tobacco products Chapter 2 Requirements for retail packaging and appearance of tobacco products Part 2

Requirements for appearance of tobacco products Division 2

Section 26

Tobacco Plain Packaging Act 2011 No. 148, 2011 27

Division 2—Requirements for appearance of tobacco products

26 Requirements for appearance of tobacco products

(1) No trade mark may appear anywhere on a tobacco product, other than as permitted by the regulations.

(2) No mark may appear anywhere on a tobacco product, other than as permitted by the regulations. Note: For the definition of mark, see section 4.

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Chapter 2 Requirements for plain packaging and appearance of tobacco products Part 2 Requirements for retail packaging and appearance of tobacco products Division 3 Miscellaneous

Section 27

28 Tobacco Plain Packaging Act 2011 No. 148, 2011

Division 3—Miscellaneous

27 Regulations may prescribe additional requirements

(1) To further the objects of this Act, the regulations may prescribe additional requirements in relation to:

(a) the retail packaging of tobacco products; and (b) the appearance of tobacco products.

Note 1: The objects of this Act are set out in section 3.

Note 2: Offences and civil penalties apply to the supply, purchase and manufacture etc. of tobacco products that do not comply with the requirements (see Chapter 3).

(2) Divisions 1 and 2 of this Part do not limit subsection (1).

27A Legal effect of sections 18 to 27

Sections 18 to 27 have no legal effect other than to specify requirements, and provide for regulations specifying requirements, for the purposes of the definition of tobacco product requirement in subsection 4(1). Note: Chapters 3 and 5 contain the offences and civil penalty provisions for

failing to comply with a tobacco product requirement.

28 Effect on the Trade Marks Act 1995 of non-use of trade mark as a result of this Act

(1) For the purposes of the Trade Marks Act 1995, and regulations made under that Act, an applicant for the registration of a trade mark in respect of tobacco products is taken to intend to:

(a) use the trade mark in Australia in relation to those products; or

(b) authorise another person to use the trade mark in Australia in relation to those products; or

(c) assign the trade mark to a body corporate that is about to be constituted with a view to the body corporate using the trade mark in Australia in relation to those products;

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Miscellaneous Division 3

Section 28

Tobacco Plain Packaging Act 2011 No. 148, 2011 29

if the applicant would intend to do so but for the operation of this Act.

(2) To avoid doubt, for the purposes of paragraph 42(b) of the Trade Marks Act 1995, this Act does not have the effect that the use of a trade mark in relation to tobacco products would be contrary to law.

(3) To avoid doubt, for the purposes of sections 38 and 84A of the Trade Marks Act 1995, and regulations 17A.27 and 17A.42A of the Trade Marks Regulations 1995:

(a) the operation of this Act; or (b) the circumstance that a person is prevented, by or under this

Act, from using a trade mark on or in relation to the retail packaging of tobacco products, or on tobacco products;

are not circumstances that make it reasonable or appropriate: (c) not to register the trade mark; or (d) to revoke the acceptance of an application for registration of

the trade mark; or (e) to register the trade mark subject to conditions or limitations;

or (f) to revoke the registration of the trade mark.

(4) For the purposes of paragraph 100(1)(c) of the Trade Marks Act 1995, an opponent is taken to have rebutted an allegation if the opponent establishes that the registered owner would have used the trade mark in Australia on or in relation to the retail packaging of tobacco products, or on tobacco products, but for the operation of this Act.

Trade Marks regulations applying provisions of Trade Marks Act

(5) Subsections (1) to (4) also apply in relation to regulations made under the Trade Marks Act 1995 that:

(a) apply provisions of the Trade Marks Act 1995 that are affected by this section, including where the regulations apply those provisions in modified form; and

(b) provide in similar terms to provisions of the Trade Marks Act 1995 that are affected by this section.

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Chapter 2 Requirements for plain packaging and appearance of tobacco products Part 2 Requirements for retail packaging and appearance of tobacco products Division 3 Miscellaneous

Section 29

30 Tobacco Plain Packaging Act 2011 No. 148, 2011

29 Effect on the Designs Act 2003 of failure to make products as a result of this Act

A failure to make a product that embodies a registered design merely as a result of complying with the requirements of this Act does not provide the basis for making an order:

(a) under section 90 of the Designs Act 2003, requiring the grant of a licence in relation to the design; nor

(b) under section 92 of that Act, revoking the registration of the design.

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Offences and civil penalty provisions Chapter 3 Simplified outline Part 1

Section 30

Tobacco Plain Packaging Act 2011 No. 148, 2011 31

Chapter 3—Offences and civil penalty provisions

Part 1—Simplified outline

30 Simplified outline

The following is a simplified outline of this Chapter:

• A person must not:

(a) supply or purchase tobacco products in retail packaging that does not comply with the requirements of this Act; nor

(b) be involved in the packaging of tobacco products for retail sale if the packaging does not comply with those requirements; nor

(d) supply tobacco products that are not packaged for retail sale without certain contractual prohibitions.

• A person who does so:

(a) may commit a fault-based offence (that is, an offence where fault elements apply to the physical elements of the offence); and

(b) may also commit a strict liability offence (that is, an offence where no fault elements apply to the physical elements of the offence); and

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Section 30

32 Tobacco Plain Packaging Act 2011 No. 148, 2011

• It is up to the Commonwealth to decide whether to prosecute a person for one of the offences or bring proceedings in relation to the contravention of the civil penalty provision. (Division 2 of Part 2 of Chapter 5 has rules about bringing civil proceedings and criminal proceedings.)

• Part 3 of this Chapter contains specific offences and civil penalty provisions in relation to constitutional corporations (for example, supplying non-compliant tobacco products to constitutional corporations).

• Part 4 of this Chapter creates an exception to some of the offences and civil penalty provisions in this Chapter for non-compliant tobacco products that are for export. That Part also clarifies what the physical elements of offences are in this Chapter.

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tobacco products Part 2 Non-compliant retail packaging of tobacco products Division 1

Section 31

Tobacco Plain Packaging Act 2011 No. 148, 2011 33

Part 2—General offences and civil penalty provisions for non-compliant retail packaging and tobacco products

Division 1—Non-compliant retail packaging of tobacco products

31 Selling or supplying tobacco products in non-compliant retail packaging

(1) A person contravenes this subsection if: (a) the person:

(i) sells a tobacco product; or (ii) offers a tobacco product for sale; or

(iii) otherwise supplies (whether or not for consideration) a tobacco product; and

(b) at the time the product is sold, offered for sale, or otherwise supplied, the product has been packaged for retail sale; and

Note 1: There is an exception to this subsection in section 49 (non-compliant tobacco products for export).

Note 2: See subsection 4(2) for an extended meaning of offer.

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).

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Section 32

34 Tobacco Plain Packaging Act 2011 No. 148, 2011

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

32 Purchasing tobacco products in non-compliant retail packaging

(1) A person contravenes this subsection if: (a) the person purchases a tobacco product; and (b) at the time the product is purchased, the product has been

packaged for retail sale; and (c) the retail packaging does not comply with a tobacco product

requirement.

(2) Subsection (1) does not apply to an individual who purchases the tobacco product for his or her personal use. Note: There is another exception to subsection (1) in section 49

(non-compliant tobacco products for export).

Fault-based offence

(3) A person commits an offence if the person contravenes subsection (1).

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tobacco products Part 2 Non-compliant retail packaging of tobacco products Division 1

Section 33

Tobacco Plain Packaging Act 2011 No. 148, 2011 35

Penalty: 2,000 penalty units. Note 1: See section 50 in relation to the physical elements of the offence.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(4) For the purposes of subsection (3), strict liability applies to paragraph (1)(b). Note: For strict liability in relation to a physical element of an offence, see

subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

(7) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

33 Packaging tobacco products in non-compliant retail packaging

(1) A person contravenes this subsection if: (a) the person packages a tobacco product for retail sale; and

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36 Tobacco Plain Packaging Act 2011 No. 148, 2011

(b) the retail packaging does not comply with a tobacco product requirement.

Note: There is an exception to this subsection in section 49 (non-compliant tobacco products for export).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to the element of the offence that the tobacco product is packaged for retail sale. Note: For strict liability in relation to a physical element of an offence, see

subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

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tobacco products Part 2 Non-compliant retail packaging of tobacco products Division 1

Section 34

Tobacco Plain Packaging Act 2011 No. 148, 2011 37

34 Manufacturing non-compliant retail packaging of tobacco products

(1) A person contravenes this subsection if: (a) the person manufactures any of the following retail

packaging of tobacco products: (i) a container for retail sale;

(ii) a container for retail sale that contains or will contain smaller containers;

(iii) a plastic or other wrapper that covers or will cover a container or containers for retail sale;

(iv) a plastic or other wrapper that covers or will cover a tobacco product that is for retail sale; and

(b) a tobacco product is packaged for retail sale in the retail packaging by another person; and

Note: There is an exception to this subsection in section 49 (non-compliant tobacco products for export).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to the element of the offence that the packaging is retail packaging. Note: For strict liability in relation to a physical element of an offence, see

subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

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38 Tobacco Plain Packaging Act 2011 No. 148, 2011

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

35 Manufacturing tobacco products that are packaged in non-compliant retail packaging

(1) A person contravenes this subsection if: (a) the person (the manufacturer) manufactures a tobacco

product; and (b) the manufacturer enters into a contract or arrangement, or

arrives at an understanding, for another person to package the tobacco product for retail sale; and

(d) the retail packaging does not comply with a tobacco product requirement.

(2) Subsection (1) does not apply if the manufacturer took all reasonable steps to ensure that the retail packaging complied with the tobacco product requirements. Note: There is another exception to subsection (1) in section 49

(non-compliant tobacco products for export).

Fault-based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note 1: See section 50 in relation to the physical elements of the offence.

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tobacco products Part 2 Non-compliant retail packaging of tobacco products Division 1

Section 36

Tobacco Plain Packaging Act 2011 No. 148, 2011 39

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

(6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

36 Certain supplies of tobacco products that have not been packaged for retail sale

(1) A person contravenes this subsection if: (a) the person:

(i) sells a tobacco product; or (ii) otherwise supplies (whether or not for consideration) a

tobacco product; to another person (the purchaser); and

(b) the product is not packaged for retail sale; and (c) at the time of the supply, the person does not have a contract

with the purchaser that prohibits the purchaser from

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40 Tobacco Plain Packaging Act 2011 No. 148, 2011

supplying the product in Australia in retail packaging that does not comply with the tobacco product requirements.

(2) To avoid doubt, the contract may allow the purchaser to supply the tobacco product without having packaged the product for retail sale.

Fault-based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(4) For the purposes of subsection (3), strict liability applies to paragraph (1)(b). Note: For strict liability in relation to a physical element of an offence, see

subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

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tobacco products Part 2 Non-compliant tobacco products Division 2

Section 37

Tobacco Plain Packaging Act 2011 No. 148, 2011 41

Division 2—Non-compliant tobacco products

37 Selling or supplying non-compliant tobacco products

(1) A person contravenes this subsection if: (a) the person:

(i) sells a tobacco product; or (ii) offers a tobacco product for sale; or

(iii) otherwise supplies (whether or not for consideration) a tobacco product; and

(b) the product does not comply with a tobacco product requirement.

Note 1: There is an exception to this subsection in section 49 (non-compliant tobacco products for export).

Note 2: See subsection 4(2) for an extended meaning of offer.

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

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42 Tobacco Plain Packaging Act 2011 No. 148, 2011

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

38 Purchasing non-compliant tobacco products

(1) A person contravenes this subsection if: (a) the person purchases a tobacco product; and (b) the product does not comply with a tobacco product

requirement.

(2) Subsection (1) does not apply to an individual who purchases the tobacco product for his or her personal use. Note: There is another exception to subsection (1) in section 49

(non-compliant tobacco products for export).

Fault-based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note 1: See section 50 in relation to the physical elements of the offence.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

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tobacco products Part 2 Non-compliant tobacco products Division 2

Section 39

Tobacco Plain Packaging Act 2011 No. 148, 2011 43

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

(6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

39 Manufacturing non-compliant tobacco products

(1) A person contravenes this subsection if: (a) the person manufactures a tobacco product; and (b) the product does not comply with a tobacco product

requirement. Note: There is an exception to this subsection in section 49 (non-compliant

tobacco products for export).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

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Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

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Part 3—Offences and civil penalty provisions relating to constitutional corporations

Division 1—Non-compliant retail packaging of tobacco products

40 Selling or supplying tobacco products to a constitutional corporation in non-compliant retail packaging

(1) A person contravenes this subsection if: (a) the person:

(i) sells a tobacco product; or (ii) offers a tobacco product for sale; or

(iii) otherwise supplies (whether or not for consideration) a tobacco product;

to another person; and (b) that other person is a constitutional corporation; and (c) at the time the product is sold, offered for sale, or otherwise

supplied, the product has been packaged for retail sale; and (d) the retail packaging does not comply with a tobacco product

requirement. Note 1: There is an exception to this subsection in section 49 (non-compliant

tobacco products for export).

Note 2: See subsection 4(2) for an extended meaning of offer.

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b) and (c).

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Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

41 Purchasing tobacco products from a constitutional corporation in non-compliant retail packaging

(1) A person contravenes this subsection if: (a) the person purchases a tobacco product from another person;

and (b) the other person is a constitutional corporation; and (c) at the time the product is purchased, the product has been

packaged for retail sale; and (d) the retail packaging does not comply with a tobacco product

requirement.

(2) Subsection (1) does not apply to an individual who purchases the tobacco product for his or her personal use. Note: There is another exception to subsection (1) in section 49

(non-compliant tobacco products for export).

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Fault-based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note 1: See section 50 in relation to the physical elements of the offence.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(4) For the purposes of subsection (3), strict liability applies to paragraphs (1)(b) and (c). Note: For strict liability in relation to a physical element of an offence, see

subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

(7) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

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42 Packaging tobacco products in non-compliant retail packaging under a contract with a constitutional corporation

(1) A person contravenes this subsection if: (a) the person packages a tobacco product for retail sale; and (b) the product is packaged under a contract with a constitutional

corporation; and (c) the retail packaging does not comply with a tobacco product

requirement. Note: There is an exception to this subsection in section 49 (non-compliant

tobacco products for export).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to: (a) the element of the offence that the tobacco product is

packaged for retail sale; and (b) paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

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Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

43 Manufacturing non-compliant retail packaging of tobacco products under a contract with a constitutional corporation

(1) A person contravenes this subsection if: (a) the person (the manufacturer) manufactures any of the

following retail packaging of tobacco products: (i) a container for retail sale;

(ii) a container for retail sale that contains or will contain smaller containers;

(iii) a plastic or other wrapper that covers or will cover a container or containers for retail sale;

(iv) a plastic or other wrapper that covers or will cover a tobacco product that is for retail sale; and

(b) the retail packaging is manufactured under a contract with a constitutional corporation; and

(d) the retail packaging does not comply with a tobacco product requirement.

Note: There is an exception to this subsection in section 49 (non-compliant tobacco products for export).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to: (a) the element of the offence that the packaging is retail

packaging; and

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(b) paragraph (1)(b). Note: For strict liability in relation to a physical element of an offence, see

subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

44 Packaging tobacco products in non-compliant retail packaging bearing identifying mark of a constitutional corporation

(1) A person contravenes this subsection if: (a) the person packages a tobacco product for retail sale; and (b) the trade mark, brand, business or company name, or other

identifying mark, of a constitutional corporation appears on the retail packaging; and

Note: There is an exception to this subsection in section 49 (non-compliant tobacco products for export).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

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Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to: (a) the element of the offence that the tobacco product is

packaged for retail sale; and (b) paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

45 Manufacturing non-compliant retail packaging of tobacco products that bears identifying mark of a constitutional corporation

(1) A person contravenes this subsection if: (a) the person (the manufacturer) manufactures any of the

following retail packaging of tobacco products: (i) a container for retail sale;

(ii) a container for retail sale that contains or will contain smaller containers;

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(iii) a plastic or other wrapper that covers or will cover a container or containers for retail sale;

(iv) a plastic or other wrapper that covers or will cover a tobacco product that is for retail sale; and

(b) the trade mark, brand, business or company name, or other identifying mark, of a constitutional corporation appears on the retail packaging; and

(d) the retail packaging does not comply with a tobacco product requirement.

Note: There is an exception to this subsection in section 49 (non-compliant tobacco products for export).

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to: (a) the element of the offence that the packaging is retail

packaging; and (b) paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

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Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

46 Certain supplies, by or to a constitutional corporation, of tobacco products that have not been packaged for retail sale

(1) A person contravenes this subsection if: (a) the person:

(i) sells a tobacco product; or (ii) otherwise supplies (whether or not for consideration) a

tobacco product; to another person (the purchaser); and

(b) either the person or the purchaser is a constitutional corporation; and

with the purchaser that prohibits the purchaser from supplying the product in Australia in retail packaging that does not comply with the tobacco product requirements.

(2) To avoid doubt, the contract may allow the purchaser to supply the tobacco product without having packaged the product for retail sale.

Fault-based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

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(4) For the purposes of subsection (3), strict liability applies to paragraphs (1)(b) and (c). Note: For strict liability in relation to a physical element of an offence, see

subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

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Division 2—Non-compliant tobacco products

47 Selling or supplying non-compliant tobacco products to a constitutional corporation

(1) A person contravenes this subsection if: (a) the person:

(i) sells a tobacco product; or (ii) offers a tobacco product for sale; or

(iii) otherwise supplies (whether or not for consideration) a tobacco product;

to another person; and (b) the other person is a constitutional corporation; and (c) the product does not comply with a tobacco product

requirement. Note 1: There is an exception to this subsection in section 49 (non-compliant

tobacco products for export).

Note 2: See subsection 4(2) for an extended meaning of offer.

Fault-based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b). Note: For strict liability in relation to a physical element of an offence, see

subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

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56 Tobacco Plain Packaging Act 2011 No. 148, 2011

Penalty: 60 penalty units. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

48 Purchasing non-compliant tobacco products from a constitutional corporation

(1) A person contravenes this subsection if: (a) the person purchases a tobacco product from another person;

and (b) the other person is a constitutional corporation; and (c) the product does not comply with a tobacco product

requirement.

(2) Subsection (1) does not apply to an individual who purchases the tobacco product for his or her personal use. Note: There is another exception to subsection (1) in section 49

(non-compliant tobacco products for export).

Fault-based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units. Note 1: See section 50 in relation to the physical elements of the offence.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(4) For the purposes of subsection (3), strict liability applies to paragraph (1)(b).

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Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units. Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units. Note: It is not necessary to prove a person’s state of mind in proceedings for

a contravention of a civil penalty provision, except in limited circumstances (see section 98).

(7) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

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58 Tobacco Plain Packaging Act 2011 No. 148, 2011

Part 4—Export exception and physical elements of offences

49 Export exception for non-compliant tobacco products

(1) Subsection (1) of any of sections 31 to 48 (other than section 36 or 46) does not apply if:

(a) a person (the relevant person): (i) engages in the conduct to which that subsection applies

in relation to a tobacco product; or (ii) manufactures retail packaging, and a tobacco product is

packaged for retail sale in the retail packaging by another person; and

(b) a contract or arrangement has been entered into, or an understanding has been arrived at, for the tobacco product to be exported (whether or not the relevant person is a party to that contract, arrangement or understanding); and

(c) the relevant person engages in that conduct, or manufactures that retail packaging, in the course of, or for the purposes of, the tobacco product being exported; and

(d) if the relevant person supplies or purchases the tobacco product, or offers to supply the tobacco product:

(i) the supply is not a retail sale; or (ii) the relevant person does not purchase the product in the

course of a retail sale; or (iii) the relevant person does not offer the product for retail

sale; (as the case requires).

Note: A defendant bears an evidential burden in relation to the matters in subsection (1) (see subsection 13.3(3) of the Criminal Code).

(2) A person who wishes to rely on subsection (1) in proceedings for a civil penalty order bears an evidential burden in relation to the matters in that subsection.

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50 Physical elements of offences

For the purposes of applying Chapter 2 of the Criminal Code to an offence in a section in this Chapter, the physical elements of the offence are set out in subsection (1) of the section. Note: Chapter 2 of the Criminal Code sets out general principles of criminal

responsibility.

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Chapter 4—Powers to investigate contraventions of this Act

Part 1—Simplified outline

51 Simplified outline

The following is a simplified outline of this Chapter:

• An authorised officer may enter premises under Part 2 of this Chapter if there are reasonable grounds for suspecting that there may be material on the premises related to the commission of an offence or the contravention of a civil penalty provision in this Act.

• Entry must be with the consent of the occupier of the premises or under a warrant.

• An authorised officer who enters premises may exercise search powers. The authorised officer may be assisted by other persons if that assistance is necessary and reasonable.

• The occupier of the premises has certain rights and responsibilities.

• An authorised officer can require information or documents to be produced under Part 3 of this Chapter.

• Authorised officers are appointed by the Secretary under Part 4 of this Chapter.

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Part 2—Search warrants

Division 1—Search powers

52 Authorised officer may enter premises by consent or under a warrant

(1) If an authorised officer has reasonable grounds for suspecting that there may be evidential material on any premises, the authorised officer may:

(a) enter the premises; and (b) exercise the search powers (set out in sections 53, 54 and 55).

(2) However, an authorised officer is not authorised to enter the premises unless:

(a) the occupier of the premises has consented to the entry and the authorised officer has shown his or her identity card if required by the occupier; or

(b) the entry is made under a warrant. Note: If entry to the premises is with the occupier’s consent, the authorised

officer must leave the premises if the consent ceases to have effect (see section 59).

53 Search powers of authorised officers

The following are the search powers that an authorised officer may exercise in relation to premises under section 52:

(a) if entry to the premises is with the occupier’s consent—the power to search the premises and any thing on the premises for the evidential material the authorised officer has reasonable grounds for suspecting may be on the premises;

(b) if entry to the premises is under a warrant: (i) the power to search the premises and any thing on the

premises for the kind of evidential material specified in the warrant; and

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(ii) the power to seize evidential material of that kind if the authorised officer finds it on the premises;

(c) the power to inspect, examine, take measurements of, conduct tests on or take samples of evidential material referred to in paragraph (a) or (b);

(d) the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph (a) or (b);

(e) the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers in relation to the premises;

(f) the powers set out in subsections 54(1) and (2) and section 55.

54 Powers relating to electronic equipment

(1) The search powers include the power to operate electronic equipment on the premises if the authorised officer has reasonable grounds for suspecting that:

(a) the equipment; or (b) a disk, tape or other storage device that:

(i) is on the premises; and (ii) can be used with the equipment or is associated with it;

contains evidential material referred to in paragraph 53(a) or (b).

(2) The search powers include the following powers in relation to evidential material described in subsection (1) found in the exercise of the power under that subsection:

(a) if entry to the premises is under a warrant—the power to seize the equipment and the disk, tape or other storage device referred to in that subsection;

(b) the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises;

(c) the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that:

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(i) is brought to the premises for the exercise of the power; or

(ii) is on the premises and the use of which for that purpose has been agreed in writing by the occupier of the premises;

and remove the disk, tape or other storage device from the premises.

(3) An authorised officer may operate electronic equipment as mentioned in subsection (1) or (2) only if he or she believes on reasonable grounds that the operation of the equipment can be carried out without damage to the equipment. Note: For compensation for damage to electronic equipment, see section 66.

(4) An authorised officer may seize equipment or a disk, tape or other storage device as mentioned in paragraph (2)(a) only if:

(a) it is not practicable to put the evidential material in documentary form as mentioned in paragraph (2)(b) or to transfer the evidential material as mentioned in paragraph (2)(c); or

(b) possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of the Commonwealth.

55 Seizing other evidential material

The search powers include seizing a thing from premises if: (a) entry to the premises is under a warrant; and (b) the authorised officer finds the thing in the course of

searching for the kind of evidential material specified in the warrant; and

(d) the authorised officer believes on reasonable grounds that it is necessary to seize the thing in order to prevent its concealment, loss or destruction.

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56 Persons assisting authorised officers

Authorised officers may be assisted by other persons

(1) An authorised officer may be assisted by other persons in exercising powers or performing functions or duties under this Part, if that assistance is necessary and reasonable. A person giving such assistance is a person assisting the authorised officer.

Powers of a person assisting the authorised officer

(2) A person assisting the authorised officer: (a) may enter the premises; and (b) may exercise powers and perform functions and duties under

this Part in relation to evidential material; and (c) must do so in accordance with a direction given to the person

assisting by the authorised officer.

(3) A power exercised by a person assisting the authorised officer as mentioned in subsection (2) is taken for all purposes to have been exercised by the authorised officer.

(4) A function or duty performed by a person assisting the authorised officer as mentioned in subsection (2) is taken for all purposes to have been performed by the authorised officer.

(5) If a direction is given under paragraph (2)(c) in writing, the direction is not a legislative instrument.

57 Use of force in executing a warrant

In executing a warrant, an authorised officer, or a person assisting an authorised officer, may use such force against things as is necessary and reasonable in the circumstances.

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Division 2—Powers of authorised officers to ask questions and seek production of documents

58 Authorised officer may ask questions and seek production of documents

Entry with consent—officer may ask questions etc.

(1) If an authorised officer is authorised to enter premises because the occupier of the premises consented to the entry, the authorised officer may ask the occupier to:

(a) answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and

(b) produce any document relating to the reasons for the authorised officer entering the premises that is requested by the authorised officer.

Entry under a warrant—officer may require answers etc.

(2) If an authorised officer is authorised to enter premises by a warrant, the authorised officer may require any person on the premises to:

(a) answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and

(b) produce any document relating to the reasons for the authorised officer entering the premises that is requested by the authorised officer.

Note: For self-incrimination, see section 83.

Offence for failure to comply when entry under warrant

(3) A person commits an offence if: (a) the person is subject to a requirement under subsection (2);

and

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(b) the person fails to comply with the requirement.

Penalty for contravention of this subsection:30 penalty units.

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Division 3—Obligations and incidental powers of authorised officers

59 Consent

(1) Before obtaining the consent of an occupier of premises for the purposes of paragraph 52(2)(a), an authorised officer must inform the occupier that the occupier may refuse consent.

(2) A consent has no effect unless the consent is voluntary.

(3) A consent may be expressed to be limited to entry during a particular period. If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.

(4) A consent that is not limited as mentioned in subsection (3) has effect until the consent is withdrawn.

(5) If an authorised officer has entered premises because of the consent of the occupier of the premises, the authorised officer, and any person assisting the authorised officer, must leave the premises if the consent ceases to have effect.

60 Announcement before entry under warrant

(1) Before entering premises under a warrant, an authorised officer must:

(a) announce that he or she is authorised to enter the premises; and

(b) show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and

(2) However, an authorised officer is not required to comply with subsection (1) if he or she believes on reasonable grounds that immediate entry to the premises is required:

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(a) to ensure the safety of a person; or (b) to ensure that the effective execution of the warrant is not

frustrated.

(3) If: (a) an authorised officer does not comply with subsection (1)

because of subsection (2); and (b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises; the authorised officer must show his or her identity card to the occupier or other person, as soon as practicable after entering the premises.

61 Authorised officer to be in possession of warrant

An authorised officer who is executing a warrant must be in possession of:

(a) the warrant issued by the issuing officer under section 75 (ordinary warrants), or a copy of the warrant as so issued; or

(b) the form of warrant completed under subsection 76(6) (telephone warrants), or a copy of the form as so completed.

62 Details of warrant etc. to be given to occupier

(1) An authorised officer must comply with subsection (2) if: (a) a warrant is being executed in relation to premises; and (b) the occupier of the premises, or another person who

apparently represents the occupier, is present at the premises.

(2) The authorised officer must, as soon as practicable: (a) do one of the following:

(i) if the warrant was issued under section 75 (ordinary warrants)—make a copy of the warrant available to the occupier or other person (which need not include the signature of the issuing officer who issued it);

(ii) if the warrant was signed under section 76 (telephone warrants)—make a copy of the form of warrant completed under subsection 76(6) available to the occupier or other person; and

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(b) inform the occupier or other person of the rights and responsibilities of the occupier or other person under Division 4.

63 Completing execution of warrant after temporary cessation

(1) This section applies if an authorised officer, and all persons assisting, who are executing a warrant in relation to premises temporarily cease its execution and leave the premises.

(2) The authorised officer, and persons assisting, may complete the execution of the warrant if:

(a) the warrant is still in force; and (b) the officers and persons assisting are absent from the

premises: (i) for not more than 1 hour; or

(ii) if there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer under subsection (5); or

(iii) for a longer period if the occupier of the premises consents in writing.

Application for extension in emergency situation

(3) An authorised officer, or person assisting, may apply to an issuing officer for an extension of the 12-hour period mentioned in subparagraph (2)(b)(ii) if:

(a) there is an emergency situation; and (b) the officer or person assisting believes on reasonable grounds

that the officer and the persons assisting will not be able to return to the premises within that period.

(4) If it is practicable to do so, before making the application, the authorised officer or person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension.

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Extension in emergency situation

(5) An issuing officer may extend the period during which the authorised officer and persons assisting may be away from the premises if:

(a) an application is made under subsection (3); and (b) the issuing officer is satisfied, by information on oath or

affirmation, that there are exceptional circumstances that justify the extension; and

64 Completing execution of warrant stopped by court order

An authorised officer, and any persons assisting, may complete the execution of a warrant that has been stopped by an order of a court if:

(a) the order is later revoked or reversed on appeal; and (b) the warrant is still in force when the order is revoked or

reversed.

65 Expert assistance to operate electronic equipment

(1) This section applies to premises to which a warrant relates.

Securing equipment

(2) An authorised officer may do whatever is necessary to secure any electronic equipment that is on premises if he or she believes on reasonable grounds that:

(a) there is on the premises evidential material of the kind specified in the warrant; and

(b) that evidential material may be accessible by operating the equipment; and

(c) expert assistance is required to operate the equipment; and (d) the evidential material may be destroyed, altered or otherwise

interfered with, if the authorised officer does not take action under this subsection.

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The equipment may be secured by locking it up, placing a guard or any other means.

(3) The authorised officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:

(a) his or her intention to secure the equipment; and (b) the fact that the equipment may be secured for up to 24

hours.

Period equipment may be secured

(4) The equipment may be secured until the earlier of the following happens:

(a) the 24-hour period ends; (b) the equipment has been operated by the expert.

Note: For compensation for damage to electronic equipment, see section 66.

Extensions

(5) The authorised officer may apply to an issuing officer for an extension of the 24-hour period if he or she believes on reasonable grounds that the equipment needs to be secured for more than that period.

(6) Before making the application, the authorised officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of his or her intention to apply for an extension. The occupier or other person is entitled to be heard in relation to that application.

(7) The provisions of this Part relating to the issue of warrants apply, with such modifications as are necessary, to the issue of an extension.

(8) The 24-hour period may be extended more than once.

66 Compensation for damage to electronic equipment

(1) This section applies if:

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(a) as a result of electronic equipment being operated as mentioned in this Part:

(i) damage is caused to the equipment; or (ii) the data recorded on the equipment is damaged; or

(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

(b) the damage or corruption occurs because: (i) insufficient care was exercised in selecting the person

who was to operate the equipment; or (ii) insufficient care was exercised by the person operating

the equipment.

(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.

(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

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Division 4—Occupier’s rights and responsibilities

67 Occupier entitled to observe execution of warrant

(1) The occupier, or another person who apparently represents the occupier, is entitled to observe the execution of a warrant if the occupier or other person is present at the premises while the warrant is being executed.

(2) The right to observe the execution of the warrant ceases if the occupier or other person impedes that execution.

(3) This section does not prevent the execution of the warrant in 2 or more areas of the premises at the same time.

68 Occupier to provide authorised officer with facilities and assistance

(1) The occupier of premises to which a warrant relates, or another person who apparently represents the occupier, must provide:

(a) an authorised officer executing the warrant; and (b) any person assisting the authorised officer;

with all reasonable facilities and assistance for the effective exercise of their powers, and the effective performance of their functions and duties.

Offence

(2) A person commits an offence if: (a) the person is subject to subsection (1); and (b) the person fails to comply with that subsection.

Penalty for contravention of this subsection:30 penalty units.

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Division 5—General provisions relating to seizure

69 Copies of seized things to be provided

(1) This section applies if: (a) a warrant is being executed in relation to premises; and (b) an authorised officer seizes one or more of the following

from the premises under this Part: (i) a document, film, computer file or other thing that can

be readily copied; (ii) a storage device, the information in which can be

readily copied.

(2) The occupier of the premises, or another person who apparently represents the occupier and who is present when the warrant is executed, may request the authorised officer to give a copy of the thing or the information to the occupier or other person.

(3) The authorised officer must comply with such a request as soon as practicable after the seizure.

(4) However, the authorised officer is not required to comply with such a request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of the Commonwealth.

70 Receipts for seized things

(1) An authorised officer must provide a receipt for a thing that is seized under this Part.

(2) One receipt may cover 2 or more things that are seized.

71 Return of seized things

(1) The Secretary must take reasonable steps to return a thing seized under this Part when the earliest of the following happens:

(a) the reason for the thing’s seizure no longer exists;

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(b) it is decided that the thing is not to be used in evidence; (c) the period of 60 days after the thing’s seizure ends.

Note: See subsections (2) and (3) for exceptions to this rule.

Exceptions

(2) Subsection (1): (a) is subject to any contrary order of a court; and (b) does not apply if the thing:

(i) is forfeited or forfeitable to the Commonwealth; or (ii) is the subject of a dispute as to ownership.

(3) The Secretary is not required to take reasonable steps to return a thing because of paragraph (1)(c) if:

(a) proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

(b) the thing may continue to be retained because of an order under section 72; or

(c) the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.

Return of thing

(4) A thing that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).

72 Issuing officer may permit a seized thing to be retained

Application to retain seized thing

(1) The Secretary may apply to an issuing officer for an order permitting the retention of a thing seized under this Part for a further period if proceedings in respect of which the thing may afford evidence have not commenced before the end of:

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(a) 60 days after the seizure; or (b) a period previously specified in an order of an issuing officer

under this section.

(2) Before making the application, the Secretary must: (a) take reasonable steps to discover who has an interest in the

retention of the thing; and (b) if it is practicable to do so, notify each person whom the

Secretary believes to have such an interest of the proposed application.

Order to retain seized thing

(3) The issuing officer may order that the thing may continue to be retained for a period specified in the order if the issuing officer is satisfied that it is necessary for the thing to continue to be retained:

(a) for the purposes of investigating whether: (i) an offence has been committed against this Act, or the

Crimes Act 1914 or the Criminal Code to the extent that it relates to this Act; or

(ii) a civil penalty provision in this Act has been contravened; or

(b) to enable evidence of such an offence or contravention to be secured for the purposes of a prosecution or action.

(4) The period specified must not exceed 3 years.

73 Disposal of seized things

(1) The Secretary may dispose of a thing seized under this Part if: (a) the Secretary has taken reasonable steps to return the thing to

a person; and (b) either:

(i) the Secretary has been unable to locate the person; or (ii) the person has refused to take possession of the thing.

(2) The Secretary may dispose of the thing in any manner that he or she thinks appropriate.

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74 Compensation for acquisition of property

(1) If the operation of section 73 would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

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Division 6—Issue of warrants

75 Issue of warrants

Application for warrant

(1) An authorised officer may apply to an issuing officer for a warrant under this section in relation to premises.

Issue of warrant

(2) The issuing officer may issue the warrant if the issuing officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises.

(3) However, the issuing officer must not issue the warrant unless the authorised officer or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.

Content of warrant

(4) The warrant must: (a) state the offence or offences, or civil penalty provision or

civil penalty provisions, to which the warrant relates; and (b) describe the premises to which the warrant relates; and (c) state that the warrant is issued under this Division; and (d) specify the kind of evidential material that is to be searched

for under the warrant; and (e) state that the evidential material specified, and any other

evidential material found in the course of executing the warrant, may be seized under the warrant; and

(f) name one or more authorised officers; and (g) authorise the authorised officers named in the warrant:

(i) to enter the premises; and

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(ii) to exercise the powers set out in this Part in relation to the premises; and

(h) state whether entry is authorised to be made at any time of the day or during specified hours of the day; and

(i) specify the day (not more than 1 week after the issue of the warrant) on which the warrant ceases to be in force.

76 Warrants by telephone, fax etc.

Application for warrant

(1) An authorised officer may apply to an issuing officer by telephone, fax or other electronic means for a warrant under section 75 in relation to premises:

(a) in an urgent case; or (b) if the delay that would occur if an application were made in

person would frustrate the effective execution of the warrant.

(2) The issuing officer may require communication by voice to the extent that it is practicable in the circumstances.

(3) Before applying for the warrant, the authorised officer must prepare an information of the kind mentioned in subsection 75(2) in relation to the premises that sets out the grounds on which the warrant is sought. If it is necessary to do so, the authorised officer may apply for the warrant before the information is sworn or affirmed.

Issuing officer may complete and sign warrant

(4) The issuing officer may complete and sign the same warrant that would have been issued under section 75 if the issuing officer is satisfied that there are reasonable grounds for doing so:

(a) after considering the terms of the information; and (b) after receiving such further information (if any) as the issuing

officer requires concerning the grounds on which the issue of the warrant is being sought.

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(5) After completing and signing the warrant, the issuing officer must inform the authorised officer, by telephone, fax or other electronic means, of:

(a) the terms of the warrant; and (b) the day on which, and the time at which, the warrant was

signed.

Obligations on authorised officer

(6) The authorised officer must then do the following: (a) complete a form of warrant in the same terms as the warrant

completed and signed by the issuing officer; (b) state on the form the following:

(i) the name of the issuing officer; (ii) the day on which, and the time at which, the warrant

was signed; (c) send the following to the issuing officer:

(i) the form of warrant completed by the authorised officer; (ii) the information referred to in subsection (3), which

must have been duly sworn or affirmed.

(7) The authorised officer must comply with paragraph (6)(c) by the end of the day after the earlier of the following:

(a) the day on which the warrant ceases to be in force; (b) the day on which the warrant is executed.

Issuing officer to attach documents together

(8) The issuing officer must attach the documents provided under paragraph (6)(c) to the warrant signed by the issuing officer.

77 Authority of warrant

(1) A form of warrant duly completed under subsection 76(6) is authority for the same powers as are authorised by the warrant signed by the issuing officer under subsection 76(4).

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(2) In any proceedings, a court is to assume (unless the contrary is proved) that an exercise of power was not authorised by a warrant under section 76 if:

(a) it is material, in those proceedings, for the court to be satisfied that the exercise of power was authorised by that section; and

(b) the warrant signed by the issuing officer authorising the exercise of the power is not produced in evidence.

78 Offence relating to warrants by telephone, fax etc.

An authorised officer must not: (a) state in a document that purports to be a form of warrant

under section 76 the name of an issuing officer unless that issuing officer signed the warrant; or

(b) state on a form of warrant under that section a matter that, to the authorised officer’s knowledge, departs in a material particular from the terms of the warrant signed by the issuing officer under that section; or

(c) purport to execute, or present to another person, a document that purports to be a form of warrant under that section that the authorised officer knows departs in a material particular from the terms of a warrant signed by an issuing officer under that section; or

(d) give to an issuing officer a form of warrant under that section that is not the form of warrant that the authorised officer purported to execute.

Penalty: Imprisonment for 2 years.

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Division 7—Powers of issuing officers

79 Powers of issuing officers

Consent to conferral of powers

(1) An issuing officer may, by writing, consent to have powers conferred by this Part.

Nomination by Attorney-General

(2) The Attorney-General may, by writing, nominate an issuing officer in relation to whom a consent is in force under subsection (1) to exercise powers conferred by this Part.

Powers conferred personally

(3) A power conferred on an issuing officer by this Part is conferred on the issuing officer:

(a) in a personal capacity; and (b) in relation to a Judge of a court created by the Parliament or a

Federal Magistrate—not as a court or a member of a court.

Protection and immunity—Judges and Federal Magistrates

(4) An issuing officer who is a Judge of a court created by the Parliament, or a Federal Magistrate, exercising a power conferred by this Part has the same protection and immunity as if he or she were exercising the power:

(a) as the court of which the issuing officer is a member; or (b) as a member of the court of which the issuing officer is a

member.

Protection and immunity—Deputy Presidents and non-presidential members

(5) An issuing officer who is a Deputy President or non-presidential member of the Administrative Appeals Tribunal exercising a

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power conferred by this Part has the same protection and immunity as a Justice of the High Court.

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Part 3—Power to require persons to give information, produce documents or answer questions

80 Power to require persons to give information, produce documents or answer questions

(1) An authorised officer may give a notice to a person under subsection (2) if the authorised officer has reason to believe that the person has information or a document that is relevant to the administration or enforcement of this Act.

(2) The authorised officer may, by written notice given to the person, require the person:

(a) to give any such information to a specified authorised officer; or

(b) to produce any such document to a specified authorised officer; or

Note: For self-incrimination, see section 83.

(3) The notice must: (a) if paragraph (2)(a) or (b) applies:

(i) specify the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice; and

(ii) specify the manner in which the person is required to comply with the notice; and

(b) if paragraph (2)(c) applies—specify a time and place at which the person is to appear; and

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Oath or affirmation

(4) An authorised officer may require answers provided under paragraph (2)(c) to be verified by, or given on, oath or affirmation and either orally or in writing.

(5) An authorised officer to whom information or answers are verified or given may administer the oath or affirmation.

Offence

(6) A person commits an offence if: (a) the person is given a notice under subsection (2); and (b) the person fails to comply with the notice.

Penalty for contravention of this subsection:30 penalty units.

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Part 4—Miscellaneous

81 Appointment of authorised officers

(1) The Secretary may, in writing, appoint the following persons as authorised officers:

(a) a person who is appointed or engaged under the Public Service Act 1999;

(b) a member or special member of the Australian Federal Police.

(2) The Secretary may appoint a person as an authorised officer only if the Secretary is satisfied that the person has suitable qualifications, training or experience.

(3) An authorised officer is appointed for the period specified in the instrument of appointment. Note: An authorised officer is eligible for reappointment (see section 33AA

of the Acts Interpretation Act 1901).

82 Identity cards

(1) The Secretary must issue an identity card to an authorised officer.

Form of identity card

(2) The identity card must: (a) be in the form approved by the Secretary; and (b) contain a recent photograph of the authorised officer.

Authorised officer must carry card

(3) An authorised officer must carry the identity card at all times when exercising powers and performing functions and duties as an authorised officer.

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Offence

(4) A person commits an offence if: (a) the person ceases to be an authorised officer; and (b) within 14 days of so ceasing, the person does not return the

person’s identity card to the Secretary.

Penalty: 1 penalty unit.

(5) Subsection (4) is an offence of strict liability. Note: For offences of strict liability, see subsection 6.1(1) of the Criminal

Code.

Exception—card lost or destroyed

(6) Subsection (4) does not apply if the identity card was lost or destroyed. Note: A defendant bears an evidential burden in relation to the matter in this

subsection (see subsection 13.3(3) of the Criminal Code).

83 Self-incrimination

(1) A person is not excused from giving information, producing a document or answering a question under subsection 58(2) or 80(2) on the ground that the information, the production of the document, or answer to the question, might tend to incriminate the person or expose the person to a penalty.

(2) However, in the case of an individual none of the following is admissible in evidence against the individual in criminal proceedings:

(a) the information given, the document produced or the answer given;

(b) giving the information, producing the document or answering the question;

(c) any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question.

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Chapter 5—Enforcing compliance with this Act

Part 1—Simplified outline

84 Simplified outline

The following is a simplified outline of this Chapter:

• Civil penalty orders may be sought under Part 2 of this Chapter from the Federal Court in relation to contraventions of civil penalty provisions.

• Part 2 also contains some rules of general application in relation to civil penalty provisions.

• Alternatively, a person can be given an infringement notice under Part 3 of this Chapter in relation to a contravention of an offence of strict liability.

• A person who is given an infringement notice can choose to pay an amount as an alternative to having court proceedings brought against the person for a contravention of an offence or civil penalty provision. If the person does not choose to pay the amount, proceedings can be brought against the person in relation to the contravention.

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Part 2—Civil penalty provisions

Division 1—Obtaining a civil penalty order

85 Civil penalty orders

Application for order

(1) The Secretary may apply to the Federal Court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

(2) The Secretary must make the application within 6 years of the alleged contravention.

Court may order person to pay pecuniary penalty

(3) If the Federal Court is satisfied that the person has contravened the civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate. Note: Subsection (5) sets out the maximum penalty that the court may order

the person to pay.

(4) An order under subsection (3) is a civil penalty order.

Determining pecuniary penalty

(5) The pecuniary penalty must not be more than: (a) if the person is a body corporate—5 times the amount of the

pecuniary penalty specified for the civil penalty provision; and

(b) otherwise—the amount of the pecuniary penalty specified for the civil penalty provision.

(6) In determining the pecuniary penalty, the court may take into account all relevant matters, including:

(a) the nature and extent of the contravention; and

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(b) the nature and extent of any loss or damage suffered because of the contravention; and

(c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court in

proceedings under one or more of the following to have engaged in any similar conduct:

(i) this Act; (ii) the Crimes Act 1914 or the Criminal Code in relation to

this Act.

86 Civil enforcement of penalty

(1) A pecuniary penalty is a debt payable to the Commonwealth.

(2) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.

87 Conduct contravening more than one civil penalty provision

(1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.

(2) However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.

88 Multiple contraventions

(1) The Federal Court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.

(2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.

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89 Proceedings may be heard together

The Federal Court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

90 Civil evidence and procedure rules for civil penalty orders

The Federal Court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

91 Contravening a civil penalty provision is not an offence

A contravention of a civil penalty provision is not an offence.

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Division 2—Civil proceedings and criminal proceedings

92 Civil proceedings after criminal proceedings

The Federal Court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

93 Criminal proceedings during civil proceedings

(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:

(a) criminal proceedings are commenced or have already been commenced against the person for an offence; and

(b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.

(2) The proceedings for the order (the civil proceedings) may be resumed if the person is not convicted of the offence. Otherwise, the civil proceedings are dismissed.

94 Criminal proceedings after civil proceedings

Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to the contravention.

95 Evidence given in civil proceedings not admissible in criminal proceedings

(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

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(a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and

(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.

(2) However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.

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Section 96

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Division 3—Miscellaneous

96 Ancillary contravention of civil penalty provisions

(1) A person must not: (a) attempt to contravene a civil penalty provision; or (b) aid, abet, counsel or procure a contravention of a civil

penalty provision; or (c) induce (by threats, promises or otherwise) a contravention of

a civil penalty provision; or (d) be in any way, directly or indirectly, knowingly concerned in,

or party to, a contravention of a civil penalty provision; or (e) conspire with others to effect a contravention of a civil

penalty provision. Note: Section 98 (which provides that a person’s state of mind does not need

to be proven in relation to a civil penalty provision) does not apply to this subsection.

Civil penalty

(2) A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision.

97 Mistake of fact

(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:

(a) at or before the time of the conduct constituting the contravention, the person:

(i) considered whether or not facts existed; and (ii) was under a mistaken but reasonable belief about those

facts; and (b) had those facts existed, the conduct would not have

constituted a contravention of the civil penalty provision.

(2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:

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(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

(3) A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.

98 State of mind

(1) In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision (other than subsection 96(1)), it is not necessary to prove:

(a) the person’s intention; or (b) the person’s knowledge; or (c) the person’s recklessness; or (d) the person’s negligence; or (e) any other state of mind of the person.

(2) Subsection (1) of this section does not affect the operation of section 97 (mistake of fact).

99 Civil penalty provisions contravened by employees, agents or officers

If an element of a civil penalty provision is done by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the element must also be attributed to the body corporate.

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Part 3—Infringement notices

100 When an infringement notice may be given

(1) If an authorised officer has reasonable grounds to believe that a person has contravened an offence of strict liability in Chapter 3, the authorised officer may give to the person an infringement notice for the alleged contravention.

(2) The infringement notice must be given within 12 months after the day on which the contravention is alleged to have taken place.

(3) A single infringement notice must relate only to a single contravention of a single provision.

101 Matters to be included in an infringement notice

An infringement notice must: (a) be identified by a unique number; and (b) state the day on which it is given; and (c) state the name of the person to whom the notice is given; and (d) state the name of the person who gave the notice; and (e) give brief details of the alleged contravention, including:

(i) the provision that was allegedly contravened; and (ii) the maximum penalty that a court could impose for the

contravention; and (iii) the time (if known) and day of, and the place of, the

alleged contravention; and (f) state that the following amount is payable under the notice:

(i) if the person is a body corporate—60 penalty units; (ii) otherwise—12 penalty units; and

(g) give an explanation of how payment of the amount is to be made; and

(h) state that, if the person to whom the notice is given pays the amount within 28 days after the day the notice is given, then

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(unless the notice is withdrawn) neither criminal proceedings, nor proceedings for a civil penalty order, will be brought in relation to the alleged contravention; and

(i) state that payment of the amount is not an admission of guilt or liability; and

(j) state that the person may apply to the Secretary to have the period in which to pay the amount extended; and

(k) state that the person may choose not to pay the amount and, if the person does so, the person may be prosecuted in a court for the alleged contravention, or proceedings for a civil penalty order may be brought in relation to the alleged contravention; and

(l) set out how the notice can be withdrawn; and (m) state that if the notice is withdrawn:

(i) any amount paid under the notice must be refunded; and (ii) the person may be prosecuted in a court for the alleged

contravention, or proceedings for a civil penalty order may be brought in relation to the alleged contravention; and

(n) state that the person may make written representations to the Secretary seeking the withdrawal of the notice.

102 Extension of time to pay amount

(1) A person to whom an infringement notice has been given may apply to the Secretary for an extension of the period referred to in paragraph 101(h).

(2) If the application is made before the end of that period, the Secretary may, in writing, extend that period. The Secretary may do so before or after the end of that period.

(3) If the Secretary extends that period, a reference in this Part, or in a notice or other instrument under this Part, to the period referred to in paragraph 101(h) is taken to be a reference to that period so extended.

(4) If the Secretary does not extend that period, a reference in this Part, or in a notice or other instrument under this Part, to the period

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referred to in paragraph 101(h) is taken to be a reference to the period that ends on the later of the following days:

(a) the day that is the last day of the period referred to in paragraph 101(h);

(b) the day that is 7 days after the day the person was given notice of the Secretary’s decision not to extend.

(5) The Secretary may extend the period more than once under subsection (2).

103 Withdrawal of an infringement notice

Representations seeking withdrawal of notice

(1) A person to whom an infringement notice has been given may make written representations to the Secretary seeking the withdrawal of the notice.

Withdrawal of notice

(2) The Secretary may withdraw an infringement notice given to a person (whether or not the person has made written representations seeking the withdrawal).

(3) When deciding whether or not to withdraw an infringement notice (the relevant infringement notice), the Secretary:

(a) must take into account any written representations seeking the withdrawal that were given by the person to the Secretary; and

(b) may take into account the following: (i) whether a court has previously imposed a penalty on the

person for a contravention of an offence or civil penalty provision in this Act;

(ii) the circumstances of the alleged contravention; (iii) whether the person has paid an amount, stated in an

earlier infringement notice, for an offence that is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the offence in the relevant infringement notice;

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(iv) any other matter the Secretary considers relevant.

Notice of withdrawal

(4) Notice of the withdrawal of the infringement notice must be given to the person. The withdrawal notice must state:

(a) the person’s name and address; and (b) the day the infringement notice was given; and (c) the identifying number of the infringement notice; and (d) that the infringement notice is withdrawn; and (e) that the person may be prosecuted in a court for the alleged

contravention, or proceedings for a civil penalty order may be brought in relation to the alleged contravention.

Refund of amount if infringement notice withdrawn

(5) If: (a) the Secretary withdraws the infringement notice; and (b) the person has already paid the amount stated in the notice;

the Commonwealth must refund to the person an amount equal to the amount paid.

104 Effect of payment of amount

(1) If the person to whom an infringement notice for an alleged contravention of a provision is given pays the amount stated in the notice before the end of the period referred to in paragraph 101(h):

(a) any liability of the person for the alleged contravention is discharged; and

(b) neither criminal proceedings, nor proceedings for a civil penalty order, may be brought in relation to the alleged contravention; and

(d) the person is not regarded as having been convicted of the alleged offence.

(2) Subsection (1) does not apply if the notice has been withdrawn.

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105 Effect of this Part

This Part does not: (a) require an infringement notice to be given to a person for an

alleged contravention of an offence; or (b) affect the liability of a person for an alleged contravention of

an offence if: (i) the person does not comply with an infringement notice

given to the person for the contravention; or (ii) an infringement notice is not given to the person for the

contravention; or (iii) an infringement notice is given to the person for the

contravention and is subsequently withdrawn; or (c) prevent the giving of 2 or more infringement notices to a

person for an alleged contravention of an offence; or (d) limit a court’s discretion to determine the amount of a

penalty to be imposed on a person who is found to have contravened an offence.

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Chapter 6—Miscellaneous provisions

Part 1—Simplified outline

106 Simplified outline

The following is a simplified outline of this Chapter:

• Part 2 of this Chapter contains miscellaneous provisions, such as the Secretary’s delegation power and reporting to Parliament on contraventions of this Act.

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Part 2—Miscellaneous provisions

107 Delegation

(1) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department all or any of the Secretary’s powers or functions under this Act. Note: SES employee and acting SES employee are defined in section 2B of

the Acts Interpretation Act 1901.

(2) In exercising powers or functions delegated under subsection (1), the delegate must comply with any directions of the Secretary.

108 Reports to Parliament

(1) As soon as practicable after the end of each financial year, the Minister must cause to be prepared a report on:

(a) the number and nature of any contraventions of this Act occurring in the financial year; and

(b) action taken in response to each contravention.

(2) A person who prepares a report under subsection (1) must give a copy to the Minister.

(3) The Minister must cause the report to be included in the annual report of the Department for that financial year.

109 Regulations

(1) The Governor-General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or

giving effect to this Act.

(2) Without limiting subsection (1), the regulations may, for the purposes of section 46 of the Trans-Tasman Mutual Recognition

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Act 1997, declare that this Act is exempt from the operation of that Act. Note: The exemption operates for a period of up to 12 months (see

subsection 46(4) of that Act).

[Minister’s second reading speech made in— House of Representatives on 6 July 2011 Senate on 25 August 2011]

(136/11)

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