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Tobacco Plain Packaging Act 2011
No. 148, 2011
Compilation No. 4
Compilation date: 6 November 2018
Includes amendments up to: Act No. 120, 2018
Registered: 14 November 2018
This compilation includes commenced amendments made by Act No. 124,
2017
Prepared by the Office of Parliamentary Counsel, Canberra
About this compilation
This compilation
This is a compilation of the Tobacco Plain Packaging Act 2011 that shows the
text of the law as amended and in force on 6 November 2018 (the compilation
date).
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on the Legislation Register (www.legislation.gov.au). The details of
amendments made up to, but not commenced at, the compilation date are
underlined in the endnotes. For more information on any uncommenced
amendments, see the series page on the Legislation Register for the compiled
law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see
the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on the Legislation
Register for the compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Contents
Chapter 1—Preliminary 1
Part 1—Preliminary 1 1 Short title ...........................................................................................1
2 Commencement.................................................................................1
3 Objects of this Act .............................................................................2
4 Definitions.........................................................................................3
5 Definition of package a tobacco product for retail sale .....................9
6 Rules relating to surfaces of cigarette packs and cigarette
cartons ...............................................................................................9
7 References to contraventions of civil penalty provisions.................10
8 Act extends to external Territories...................................................10
9 Act binds the Crown........................................................................10
10 Inconsistency with other Commonwealth legislation ......................10
11 Operation of State and Territory laws..............................................11
Part 2—Simplified outlines 12 12 Simplified outline for this Act .........................................................12
13 Simplified outline for this Chapter ..................................................12
Part 3—Constitutional provisions 14 14 Additional operation of this Act ......................................................14
15 Acquisition of property....................................................................15
16 Implied freedom of political communication...................................15
Chapter 2—Requirements for plain packaging and
appearance of tobacco products 16
Part 1—Simplified outline 16 17 Simplified outline ............................................................................16
Part 2—Requirements for retail packaging and appearance of
tobacco products 18
Division 1—Requirements for retail packaging of tobacco
products 18
18 Physical features of retail packaging ...............................................18
19 Colour and finish of retail packaging ..............................................19
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20 Prohibition on trade marks and marks generally appearing on
retail packaging ...............................................................................20
21 Requirements for brand, business, company or variant
names, and relevant legislative requirements ..................................21
22 Requirements for wrappers..............................................................23
23 Retail packaging not to have inserts or onserts................................23
24 Retail packaging not to produce noise or scent................................24
25 Retail packaging must not change after retail sale...........................24
Division 2—Requirements for appearance of tobacco products 25
26 Requirements for appearance of tobacco products ..........................25
Division 3—Miscellaneous 26
27 Regulations may prescribe additional requirements ........................26
27A Legal effect of sections 18 to 27......................................................26
28 Effect on the Trade Marks Act 1995 of non-use of trade
mark as a result of this Act ..............................................................26
29 Effect on the Designs Act 2003 of failure to make products
as a result of this Act .......................................................................28
Chapter 3—Offences and civil penalty provisions 29
Part 1—Simplified outline 29 30 Simplified outline ............................................................................29
Part 2—General offences and civil penalty provisions for
non-compliant retail packaging and tobacco products 31
Division 1—Non-compliant retail packaging of tobacco products 31
31 Selling or supplying tobacco products in non-compliant
retail packaging ...............................................................................31
32 Purchasing tobacco products in non-compliant retail
packaging ........................................................................................32
33 Packaging tobacco products in non-compliant retail
packaging ........................................................................................33
34 Manufacturing non-compliant retail packaging of tobacco
products ...........................................................................................35
35 Manufacturing tobacco products that are packaged in
non-compliant retail packaging .......................................................36
36 Certain supplies of tobacco products that have not been
packaged for retail sale ....................................................................37
Division 2—Non-compliant tobacco products 40
37 Selling or supplying non-compliant tobacco products.....................40
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38 Purchasing non-compliant tobacco products ...................................41
39 Manufacturing non-compliant tobacco products .............................42
Part 3—Offences and civil penalty provisions relating to
constitutional corporations 44
Division 1—Non-compliant retail packaging of tobacco products 44
40 Selling or supplying tobacco products to a constitutional
corporation in non-compliant retail packaging ................................44
41 Purchasing tobacco products from a constitutional
corporation in non-compliant retail packaging ................................45
42 Packaging tobacco products in non-compliant retail
packaging under a contract with a constitutional corporation..........47
43 Manufacturing non-compliant retail packaging of tobacco
products under a contract with a constitutional corporation ............48
44 Packaging tobacco products in non-compliant retail
packaging bearing identifying mark of a constitutional
corporation ......................................................................................49
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 ..........52
Division 2—Non-compliant tobacco products 54
47 Selling or supplying non-compliant tobacco products to a
constitutional corporation ................................................................54
48 Purchasing non-compliant tobacco products from a
constitutional corporation ................................................................55
Part 4—Export exception and physical elements of offences 57 49 Export exception for non-compliant tobacco products ....................57
50 Physical elements of offences..........................................................58
Chapter 4—Powers to investigate contraventions of
this Act 59
Part 1—Simplified outline 59 51 Simplified outline ............................................................................59
Part 2—Investigation powers 60 52 Investigation powers........................................................................60
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Part 3—Power to require persons to give information, produce
documents or answer questions 64 80 Power to require persons to give information, produce
documents or answer questions .......................................................64
80A Self-incrimination............................................................................65
Part 4—Authorised officers 66 81 Appointment of authorised officers .................................................66
Chapter 5—Enforcing compliance with this Act 67
Part 1—Simplified outline 67 84 Simplified outline ............................................................................67
Part 2—Civil penalties and infringement notices 68 85 Civil penalty provisions...................................................................68
86 Infringement notices ........................................................................69
Chapter 6—Miscellaneous provisions 71
Part 1—Simplified outline 71 106 Simplified outline ............................................................................71
Part 2—Miscellaneous provisions 72 107 Delegation .......................................................................................72
108 Reports to Parliament ......................................................................72
109 Regulations......................................................................................72
Endnotes 74
Endnote 1—About the endnotes 74
Endnote 2—Abbreviation key 76
Endnote 3—Legislation history 77
Endnote 4—Amendment history 78
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Preliminary Chapter 1
Preliminary Part 1
Section 1
An Act to discourage the use of tobacco products,
and for related purposes
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 The day this Act receives the Royal Assent. 1 December
16 and anything 2011
in this Act not
elsewhere covered
by this table
2. Sections 17 to 1 October 2012. 1 October 2012
27A
3. Sections 28 The day this Act receives the Royal Assent. 1 December
and 29 2011
4. Sections 30 to 1 December 2012. 1 December
32 2012
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46
80
105
Chapter 1 Preliminary
Part 1 Preliminary
Section 3
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
5. Sections 33 to 1 October 2012. 1 October 2012
6. Sections 37 1 December 2012. 1 December
and 38 2012
7. Section 39 1 October 2012. 1 October 2012
8. Sections 40 1 December 2012. 1 December
and 41 2012
9. Sections 42 to 1 October 2012. 1 October 2012
10. Sections 47 1 December 2012. 1 December
and 48 2012
11. Sections 49 to 1 October 2012. 1 October 2012
12. Sections 81 The day this Act receives the Royal Assent. 1 December
and 82 2011
13. Sections 83 to 1 October 2012. 1 October 2012
14. Sections 106 The day this Act receives the Royal Assent. 1 December
to 109 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:
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(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
(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.
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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 provision has the same meaning as in the Regulatory
Powers Act.
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.
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:
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(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.
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.
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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.
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.
Regulatory Powers Act means the Regulatory Powers (Standard
Provisions) Act 2014.
relevant legislative requirement means any of the following:
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(a) a health warning;
(b) a fire risk statement;
(c) a trade description;
(d) a measurement mark.
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.
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:
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(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.
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.
(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.
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5 Definition of package a tobacco product for retail sale
A person packages a tobacco product for retail sale if:
(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.
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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.
7 References to contraventions of civil penalty provisions
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.
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 and of the
Northern Territory.
(2) This Act does not make the Crown liable to be prosecuted for an
offence.
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;
(b) a safety standard made under section 104, or declared under
section 105, of Schedule 2 to the Competition and Consumer
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Act 2010, to the extent that the standard relates to the health
effects of smoking or using tobacco products;
(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.
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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Section 14
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
Section 17
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
(c) marks on retail packaging (including a prohibition
on trade marks generally appearing on 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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• 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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Division 1 Requirements for retail packaging of tobacco products
Section 18
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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(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;
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(b) the text of:
(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.
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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.
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
(c) may appear only on the surfaces mentioned in paragraph (b);
and
(d) must appear across one line only; and
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(e) must comply with the requirements in the table in
subsection (3).
(3) The following table has effect:
Requirements for brand, business, company or variant names
Item If this name ... appears on this the name ...
surface ...
1 a brand, business or the front outer must appear:
company name surface of a (a) horizontally below, and in the cigarette pack 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 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;
(c) no 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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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 appearance of tobacco products Division 2
Section 26
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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Division 3 Miscellaneous
Section 27
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
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(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;
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:
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(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.
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
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
(c) supply, purchase or manufacture tobacco products that
do 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
(c) may also contravene a civil penalty provision.
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Section 30
• 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 3
of Part 4 of the Regulatory Powers Act 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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General offences and civil penalty provisions for non-compliant retail packaging and
tobacco products Part 2
Non-compliant retail packaging of tobacco products Division 1
Section 31
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
(c) 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.
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Section 32
(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).
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 94 of the Regulatory Powers Act).
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).
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Section 33
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).
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 94 of the Regulatory Powers Act).
33 Packaging tobacco products in non-compliant retail packaging
(1) A person contravenes this subsection if:
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Section 33
(a) the person packages a tobacco product for retail sale; and
(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 94 of the Regulatory Powers Act).
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Section 34
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
(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 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).
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Division 1 Non-compliant retail packaging of tobacco products
Section 35
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 94 of the Regulatory Powers Act).
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
(c) the tobacco product is packaged for retail sale by the other
person; 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).
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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).
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 94 of the Regulatory Powers Act).
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
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Section 36
(c) at the time of the supply, the person does not have a contract
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.
(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.
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Section 36
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 94 of the Regulatory Powers Act).
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Division 2 Non-compliant tobacco products
Section 37
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.
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Section 38
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 94 of the Regulatory Powers Act).
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.
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Division 2 Non-compliant tobacco products
Section 39
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 94 of the Regulatory Powers Act).
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.
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Section 39
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).
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 94 of the Regulatory Powers Act).
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Division 1 Non-compliant retail packaging of tobacco products
Section 40
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.
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(3) For the purposes of subsection (2), 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
(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 94 of the Regulatory Powers Act).
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.
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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
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 94 of the Regulatory Powers Act).
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Section 42
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.
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Section 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 94 of the Regulatory Powers Act).
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
(c) a tobacco product is packaged for retail sale in the retail
packaging by a person other than the manufacturer; 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).
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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 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.
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 94 of the Regulatory Powers Act).
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
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Section 44
(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).
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 94 of the Regulatory Powers Act).
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Section 45
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;
(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
(c) a tobacco product is packaged for retail sale in the retail
packaging by a person other than the manufacturer; 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).
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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 94 of the Regulatory Powers Act).
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
(c) the product is not packaged for retail sale; and
(d) at the time of the supply, the person does not have a contract
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.
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(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
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 94 of the Regulatory Powers Act).
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Division 2 Non-compliant tobacco products
Section 47
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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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 94 of the Regulatory Powers Act).
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).
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Section 48
(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 94 of the Regulatory Powers Act).
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Offences and civil penalty provisions Chapter 3
Export exception and physical elements of offences Part 4
Section 49
Part 4—Export exception and physical elements of
offences
49 Export exception for non-compliant tobacco products
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).
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Chapter 3 Offences and civil penalty provisions
Part 4 Export exception and physical elements of offences
Section 50
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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Powers to investigate contraventions of this Act Chapter 4
Simplified outline Part 1
Section 51
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:
This Chapter applies the Regulatory Powers Act to enable
authorised officers to enter premises and exercise investigation
powers to determine whether there has been a contravention of any
of the provisions of this Act or an offence against the Crimes Act
1914 or the Criminal Code that relates to this Act.
Entry must be with the consent of the occupier of the premises or
under an investigation warrant.
An authorised officer exercising investigation powers may be
assisted by other persons if that assistance is necessary and
reasonable.
An authorised officer can require information or documents to be
produced under Part 3 of this Chapter.
Authorised officers are appointed by the Secretary.
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Chapter 4 Powers to investigate contraventions of this Act
Part 2 Investigation powers
Section 52
Part 2—Investigation powers
52 Investigation powers
Provisions subject to investigation
(1) A provision is subject to investigation under Part 3 of the
Regulatory Powers Act if it is:
(a) an offence against this Act; or
(b) a civil penalty provision of this Act; or
(c) an offence against the Crimes Act 1914 or the Criminal Code
that relates to this Act.
Note: Part 3 of the Regulatory Powers Act creates a framework for
investigating whether a provision has been contravened. It includes
powers of entry, search and seizure.
Related provisions
(2) For the purposes of Part 3 of the Regulatory Powers Act, as that
Part applies in relation to evidential material that relates to a
provision mentioned in subsection (1), there are no related
provisions.
Authorised applicant and authorised person
(3) For the purposes of Part 3 of the Regulatory Powers Act, an
authorised officer is both an authorised applicant and an authorised
person in relation to evidential material that relates to a provision
mentioned in subsection (1).
Issuing officer
(4) For the purposes of Part 3 of the Regulatory Powers Act, a person
is an issuing officer in relation to evidential material that relates to
a provision mentioned in subsection (1) if:
(a) the person is:
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Investigation powers Part 2
Section 52
(i) a Judge of a court created by the Parliament; or
(ii) a Deputy President of the Administrative Appeals
Tribunal; or
(iii) a non-presidential member of the Administrative
Appeals Tribunal who is enrolled as a legal practitioner
of the High Court, or the Supreme Court of a State or
Territory, and has been so enrolled for at least 5 years;
and
(b) the person has consented to exercise powers conferred by that
Part in relation to evidential material that relates to a
provision mentioned in subsection (1); and
(c) the Attorney-General has, by writing, nominated the person
to exercise those powers.
(5) An issuing officer who is a Deputy President or non-presidential
member of the Administrative Appeals Tribunal exercising a
power conferred by Part 3 of the Regulatory Powers Act, as that
Part applies in relation to evidential material that relates to a
provision mentioned in subsection (1), has the same protection and
immunity as a Justice of the High Court.
Note: Subsection 75(3) of the Regulatory Powers Act confers protection and
immunity on a judge exercising the powers of an issuing officer.
Relevant chief executive
(6) For the purposes of Part 3 of the Regulatory Powers Act, the
Secretary is the relevant chief executive in relation to evidential
material that relates to a provision mentioned in subsection (1).
(7) The Secretary may, in writing, delegate to an SES employee, or
acting SES employee, in the Department the Secretary’s powers
and functions under Part 3 of the Regulatory Powers Act in relation
to evidential material that relates to a provision mentioned in
subsection (1).
(8) In exercising powers or functions delegated under subsection (7),
the delegate must comply with any directions of the Secretary.
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Chapter 4 Powers to investigate contraventions of this Act
Part 2 Investigation powers
Section 52
Relevant court
(9) For the purposes of Part 3 of the Regulatory Powers Act, each of
the following courts is a relevant court in relation to evidential
material that relates to a provision mentioned in subsection (1):
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia.
Additional investigation powers
(10) The additional power mentioned in subsection (11) is taken to be
included in the investigation powers under Part 3 of the Regulatory
Powers Act as that Part applies in relation to evidential material
that relates to a provision mentioned in subsection (1).
(11) The additional investigation power is the power to take samples of
evidential material on premises entered under section 48 of the
Regulatory Powers Act as that section applies in relation to
evidential material that relates to a provision mentioned in
subsection (1).
Use of force in executing a warrant
(12) In executing an investigation warrant under Part 3 of the
Regulatory Powers Act as that Part applies in relation to evidential
material that relates to a provision mentioned in subsection (1):
(a) an authorised person may use such force against things as is
necessary and reasonable in the circumstances; and
(b) a person assisting the authorised person may use such force
against things as is necessary and reasonable in the
circumstances.
Person assisting
(13) An authorised person may be assisted by other persons in
exercising powers or performing functions or duties under Part 3 of
the Regulatory Powers Act in relation to evidential material that
relates to a provision mentioned in subsection (1).
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Section 52
Self-incrimination
(14) Despite section 47 of the Regulatory Powers Act, a person is not
excused from giving information, producing a document or
answering a question under subsection 54(3) of the Regulatory
Powers Act, as Part 3 of that Act applies in relation to this Act, 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.
(15) 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.
Extension to external Territories
(16) Part 3 of the Regulatory Powers Act, as that Part applies in relation
to the provisions mentioned in subsection (1), extends to every
external Territory.
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Chapter 4 Powers to investigate contraventions of this Act
Part 3 Power to require persons to give information, produce documents or answer
questions
Section 80
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
(c) to appear before a specified authorised officer to answer
questions.
(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
(c) in any case—state the effect of subsection (6) (offence for
failure to comply).
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Power to require persons to give information, produce documents or answer questions
Part 3
Section 80A
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.
80A Self-incrimination
(1) A person is not excused from giving information, producing a
document or answering a question under subsection 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 4 Powers to investigate contraventions of this Act
Part 4 Authorised officers
Section 81
Part 4—Authorised officers
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;
(aa) a person who is appointed or engaged otherwise than under
the Public Service Act 1999, by the Commonwealth or by a
Commonwealth entity within the meaning of the Public
Governance, Performance and Accountability Act 2013;
(b) a member or special member of the Australian Federal
Police;
(c) a person:
(i) who is appointed or employed by a State or Territory, or
by a local governing body established by or under a law
of a State or Territory; and
(ii) who has responsibilities in relation to health matters or
in relation to compliance and enforcement in tobacco
control matters;
(d) a member of the police force or police service of a State or
Territory.
(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.
(2A) The Secretary may appoint a person mentioned in paragraph (1)(c)
or (d) as an authorised officer only with the agreement of the State
or Territory concerned.
(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).
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Enforcing compliance with this Act Chapter 5
Simplified outline Part 1
Section 84
Chapter 5—Enforcing compliance with this
Act
Part 1—Simplified outline
84 Simplified outline
The following is a simplified outline of this Chapter:
• This Chapter provides for civil penalty orders for
contraventions of civil penalty provisions and for infringement
notices.
• A civil penalty provision is enforceable under Part 4 of the
Regulatory Powers Act (see section 85).
• A civil penalty order may be sought from the Federal Court of
Australia for the contravention of a civil penalty provision.
• A strict liability offence is subject to an infringement notice
under Part 5 of the Regulatory Powers Act (see section 86).
• A person can be given an infringement notice for an alleged
contravention of a strict liability offence. The person can
choose to pay an amount as an alternative to proceedings
being brought against the person in relation to the alleged
contravention. However, if the person chooses not to do so,
proceedings can be brought against the person in relation to
the alleged contravention.
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Chapter 5 Enforcing compliance with this Act
Part 2 Civil penalties and infringement notices
Section 85
Part 2—Civil penalties and infringement notices
85 Civil penalty provisions
Enforceable civil penalty provisions
(1) Each civil penalty provision in this Act is enforceable under Part 4
of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to
be enforced by obtaining an order for a person to pay a pecuniary
penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, the
Secretary is an authorised applicant in relation to the civil penalty
provisions of this Act.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of
the following courts is a relevant court in relation to the civil
penalty provisions of this Act:
(a) the Federal Court of Australia;
(b) the Federal Circuit Court of Australia.
Extension to external Territories
(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation
to the civil penalty provisions in this Act, extends to every external
Territory.
Liability of Crown
(5) Part 4 of the Regulatory Powers Act, as that Part applies in relation
to the civil penalty provisions in this Act, does not make the Crown
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Enforcing compliance with this Act Chapter 5
Civil penalties and infringement notices Part 2
Section 86
liable to be subject to civil proceedings for a contravention of a
civil penalty provision.
86 Infringement notices
Provisions subject to an infringement notice
(1) A strict liability offence against Chapter 3 is subject to an
infringement notice under Part 5 of the Regulatory Powers Act.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act, an
authorised officer is an infringement officer in relation to the
offences mentioned in subsection (1).
Relevant chief executive
(3) For the purposes of Part 5 of the Regulatory Powers Act, the
Secretary is the relevant chief executive in relation to the offences
mentioned in subsection (1).
(4) The Secretary may, in writing, delegate to an SES employee, or
acting SES employee, in the Department the Secretary’s powers
and functions under Part 5 of the Regulatory Powers Act as the
relevant chief executive officer in relation to the provisions
mentioned in subsection (1).
(5) In exercising powers or functions delegated under subsection (4),
the delegate must comply with any directions of the Secretary.
Extension to external Territories
(6) Part 5 of the Regulatory Powers Act, as that Part applies in relation
to the offences mentioned in subsection (1), extends to every
external Territory.
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Chapter 5 Enforcing compliance with this Act
Part 2 Civil penalties and infringement notices
Section 86
Liability of Crown
(7) Part 5 of the Regulatory Powers Act, as that Part applies in relation
to the offences mentioned in subsection (1), does not make the
Crown liable to be given an infringement notice.
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Miscellaneous provisions Chapter 6
Simplified outline Part 1
Section 106
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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Chapter 6 Miscellaneous provisions
Part 2 Miscellaneous provisions
Section 107
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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Miscellaneous provisions Chapter 6
Miscellaneous provisions Part 2
Section 109
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).
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Endnotes
Endnote 1—About the endnotes
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that
has amended (or will amend) the compiled law. The information includes
commencement details for amending laws and details of any application, saving
or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at
the provision (generally section or equivalent) level. It also includes information
about any provision of the compiled law that has been repealed in accordance
with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make
editorial and presentational changes to a compiled law in preparing a
compilation of the law for registration. The changes must not change the effect
of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief
outline of the changes in general terms. Full details of any changes can be
obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe
the amendment to be made. If, despite the misdescription, the amendment can
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Endnotes
Endnote 1—About the endnotes
be given effect as intended, the amendment is incorporated into the compiled
law and the abbreviation “(md)” added to the details of the amendment included
in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the
abbreviation “(md not incorp)” is added to the details of the amendment
included in the amendment history.
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Endnotes
Endnote 2—Abbreviation key
Endnote 2—Abbreviation key
ad = added or inserted o = order(s)
am = amended Ord = Ordinance
amdt = amendment orig = original
c = clause(s) par = paragraph(s)/subparagraph(s)
/sub-subparagraph(s)C[x] = Compilation No. x
Ch = Chapter(s) pres = present
def = definition(s) prev = previous
Dict = Dictionary (prev…) = previously
disallowed = disallowed by Parliament Pt = Part(s)
Div = Division(s) r = regulation(s)/rule(s)
ed = editorial change reloc = relocated
exp = expires/expired or ceases/ceased to have renum = renumbered
effect rep = repealed
F = Federal Register of Legislation rs = repealed and substituted
gaz = gazette s = section(s)/subsection(s)
LA = Legislation Act 2003 Sch = Schedule(s)
LIA = Legislative Instruments Act 2003 Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given SLI = Select Legislative Instrument
effect SR = Statutory Rules
(md not incorp) = misdescribed amendment Sub-Ch = Sub-Chapter(s)
cannot be given effect SubPt = Subpart(s)
mod = modified/modification underlining = whole or part not
commenced or to be commencedNo. = Number(s)
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Endnote 3—Legislation history
Endnote 3—Legislation history
Act Number Assent Commencement Application,
and year saving and
transitional
provisions
Tobacco Plain 148, 2011 1 Dec 2011 s 17–27A, 33–36, 39,
Packaging Act 2011 42–46, 49–80 and 83–
105: 1 Oct 2012 (s 2(1)
items 2, 5, 7, 9, 11, 13)
s 30–32, 37, 38, 40, 41,
47 and 48: 1 Dec 2012 (s
2(1) items 4, 6, 8, 10)
Remainder: 1 Dec 2011
(s 2(1) items 1, 3, 12, 14)
Federal Circuit Court of
Australia (Consequential
Amendments) Act 2013
13, 2013 14 Mar
2013
Sch 1 (items 551–555):
12 Apr 2013 (s 2(1)
item 2)
Sch 1 (item 555)
Norfolk Island
Legislation Amendment
Act 2015
as amended by
Territories Legislation
Amendment Act 2016
59, 2015
33, 2016
26 May
2015
23 Mar
2016
Sch 2 (item 348): 1 July
2016 (s 2(1) item 5)
Sch 2 (items 356–396):
18 June 2015 (s 2(1)
item 6)
Sch 2: 24 Mar 2016
(s 2(1) item 2)
Sch 2 (items 356–
396)
—
Regulatory Powers
(Standardisation
Reform) Act 2017
124, 2017 6 Nov 2017 Sch 14: 6 Nov 2018 (s
2(1) item 3)
Sch 14 (items 30–
33)
Tobacco Plain 120, 2018 3 Oct 2018 4 Oct 2018 (s 2(1) —
Packaging Amendment item 1)
Act 2018
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Endnotes
Endnote 4—Amendment history
Endnote 4—Amendment history
Provision affected How affected
Chapter 1
Part 1
s 4 ..................................................am No 13, 2013; No 124, 2017
s 7 ..................................................am No 124, 2017
s 9 ..................................................am No 59, 2015; No 124, 2017
Chapter 3
Part 1
s 30 ................................................am No 124, 2017
Part 2
Division 1
s 31 ................................................am No 124, 2017
s 32 ................................................am No 124, 2017
s 33 ................................................am No 124, 2017
s 34 ................................................am No 124, 2017
s 35 ................................................am No 124, 2017
s 36 ................................................am No 124, 2017
Division 2
s 37 ................................................am No 124, 2017
s 38 ................................................am No 124, 2017
s 39 ................................................am No 124, 2017
Part 3
Division 1
s 40 ................................................am No 124, 2017
s 41 ................................................am No 124, 2017
s 42 ................................................am No 124, 2017
s 43 ................................................am No 124, 2017
s 44 ................................................am No 124, 2017
s 45 ................................................am No 124, 2017
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Endnotes
Endnote 4—Amendment history
Provision affected How affected
s 46 ................................................am No 124, 2017
Division 2
s 47 ................................................am No 124, 2017
s 48 ................................................am No 124, 2017
Part 4
s 49 ................................................am No 124, 2017
Chapter 4
Part 1
s 51 ................................................rs No 124, 2017
Part 2
Part 2..............................................rs No 124, 2017
s 52 ................................................rs No 124, 2017
s 53 ................................................rep No 124, 2017
s 54 ................................................rep No 124, 2017
s 55 ................................................rep No 124, 2017
s 56 ................................................rep No 124, 2017
s 57 ................................................rep No 124, 2017
s 58 ................................................rep No 124, 2017
s 59 ................................................rep No 124, 2017
s 60 ................................................rep No 124, 2017
s 61 ................................................rep No 124, 2017
s 62 ................................................rep No 124, 2017
s 63 ................................................rep No 124, 2017
s 64 ................................................rep No 124, 2017
s 65 ................................................rep No 124, 2017
s 66 ................................................rep No 124, 2017
s 67 ................................................rep No 124, 2017
s 68 ................................................rep No 124, 2017
s 69 ................................................rep No 124, 2017
s 70 ................................................rep No 124, 2017
s 71 ................................................rep No 124, 2017
Tobacco Plain Packaging Act 2011
Compilation No. 4 Compilation date: 6/11/18 Registered: 14/11/18
79
Authorised Version C2018C00450 registered 14/11/2018
Endnotes
Endnote 4—Amendment history
Provision affected How affected
s 72 ................................................rep No 124, 2017
s 73 ................................................rep No 124, 2017
s 74 ................................................rep No 124, 2017
s 75 ................................................rep No 124, 2017
s 76 ................................................rep No 124, 2017
s 77 ................................................rep No 124, 2017
s 78 ................................................rep No 124, 2017
s 79 ................................................am No 13, 2013
rep No 124, 2017
Part 3
s 80 ................................................am No 124, 2017
s 80A..............................................ad No 124, 2017
Part 4
Part 4 heading ................................rs No 124, 2017
s 81 ................................................am No 120, 2018
s 82 ................................................rep No 124, 2017
s 83 ................................................rep No 124, 2017
Chapter 5
Part 1
s 84 ................................................rs No 124, 2017
Part 2
Part 2..............................................rs No 124, 2017
s 85 ................................................rs No 124, 2017
s 86 ................................................rs No 124, 2017
s 87 ................................................rep No 124, 2017
s 88 ................................................rep No 124, 2017
s 89 ................................................rep No 124, 2017
s 90 ................................................rep No 124, 2017
s 91 ................................................rep No 124, 2017
s 92 ................................................rep No 124, 2017
s 93 ................................................rep No 124, 2017
Tobacco Plain Packaging Act 2011
Compilation No. 4 Compilation date: 6/11/18 Registered: 14/11/18
80
Authorised Version C2018C00450 registered 14/11/2018
Endnotes
Endnote 4—Amendment history
Provision affected How affected
s 94 ................................................rep No 124, 2017
s 95 ................................................rep No 124, 2017
s 96 ................................................rep No 124, 2017
s 97 ................................................rep No 124, 2017
s 98 ................................................rep No 124, 2017
s 99 ................................................rep No 124, 2017
Part 3..............................................rep No 124, 2017
s 100 ..............................................rep No 124, 2017
s 101 ..............................................rep No 124, 2017
s 102 ..............................................rep No 124, 2017
s 103 ..............................................rep No 124, 2017
s 104 ..............................................rep No 124, 2017
s 105 ..............................................rep No 124, 2017
Tobacco Plain Packaging Act 2011
Compilation No. 4 Compilation date: 6/11/18 Registered: 14/11/18
81