PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) BILL 2023

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Contents

Chapter

1--Preliminary

Part 1.1

Introduction

Short title ................................................................................................ 1

Commencement ..................................................................................... 2

Objects of this Act ................................................................................. 2

Simplified outline of this Act ............................................................... 4

Application of this Act .......................................................................... 5

Act binds the Crown.............................................................................. 5

Operation of State and Territory laws .................................................. 5

Part 1.2

Interpretation

Division 1

General definitions

Definitions.............................................................................................. 7

Division 2

Key concepts for this Act

Meaning of

tobacco product

............................................................... 12

Meaning of

tobacco product accessory

............................................. 13

Meaning of

e-cigarette

........................................................................ 14

Meaning of

e-cigarette accessory

...................................................... 15

Division 3

Other interpretation provisions

References to different kinds of tobacco products ............................ 16

References to manufacturers, importers, distributors and

retailers ................................................................................................. 16

References to

mark

.............................................................................. 16

References to an

offer

to sell or supply .............................................. 16

Tobacco products

rebuttable presumption of offer for retail

sale ........................................................................................................ 17

Chapter

2--Advertising and sponsorship prohibitions

Part 2.1

Introduction

Simplified outline of this Chapter ...................................................... 18

Part 2.2

Prohibition of tobacco advertisements

Division 1

Offences and civil penalties

Prohibition on publishing tobacco advertisements............................ 19

Division 2

Meaning of tobacco advertisement

Meaning of

tobacco advertisement

.................................................... 22

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division 3

Tobacco advertisements

exceptions

Exception

labelling and packaging ................................................. 24

Exception

standard business documents ......................................... 24

Exception

business signage ............................................................. 24

Exception

notice of availability of regulated tobacco items.......... 25

Exception

consumer matters ............................................................ 25

Exception

communications about government or political

matters .................................................................................................. 26

Exception

artistic works and public interest expression ................ 26

Exception

journalism ....................................................................... 26

Exception

disclosures and acknowledgements by authors ............ 27

Division 4

Meaning of publish a tobacco advertisement

Meaning of

publish

a tobacco advertisement .................................... 28

Division 5

Tobacco advertisements

permitted publications

Permitted publication

physical premises point of sale ................... 30

Permitted publication

online point of sale ...................................... 30

Permitted publication

trade communications ................................. 32

Permitted publication

telecommunications and online

service providers .................................................................................. 33

Permitted publication

periodicals printed outside Australia.......... 33

Permitted publication

compliance activities ................................... 34

Permitted publication

advertisements during aircraft flight .......... 34

Part 2.3

Prohibition of tobacco sponsorships

Division 1

Offences and civil penalties

Prohibition on entering into tobacco sponsorships............................ 35

Division 2

Meaning of tobacco sponsorship

Meaning of

tobacco sponsorship

........................................................ 38

Division 3

Tobacco sponsorships

exceptions

Exception

political donations and electoral expenditure ............... 39

Exception

statements by authors ..................................................... 40

Part 2.4

Prohibition of e-cigarette advertisements

Division 1

Offences and civil penalties

Prohibition on publishing e-cigarette advertisements ....................... 41

Division 2

Meaning of e-cigarette advertisement

Meaning of

e-cigarette advertisement

............................................... 44

Division 3

E-cigarette advertisements

exceptions

Exception

labelling and wrapping ................................................... 46

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

iii

Exception

standard business documents ......................................... 46

Exception

business signage ............................................................. 46

Exception

notice of availability of e-cigarette products ................ 47

Exception

consumer matters ............................................................ 47

Exception

communications about government or political

matters .................................................................................................. 47

Exception

artistic works and public interest expression ................ 48

Exception

journalism ....................................................................... 48

Exception

disclosures and acknowledgements by authors ............ 48

Exception

exempt advertisements under the Therapeutic

Goods Act ............................................................................................ 49

Exception

approved use of restricted representations under

the Therapeutic Goods Act ................................................................. 49

Exception

permitted use of restricted or prohibited

representations under the Therapeutic Goods Act ............................ 50

Division 4

Meaning of publish an e-cigarette advertisement

Meaning of

publish

an e-cigarette advertisement.............................. 51

Division 5

E-cigarette advertisements

permitted publications

Permitted publication

physical premises point of sale ................... 53

Permitted publication

online point of sale ...................................... 54

Permitted publication

trade communications ................................. 56

Permitted publication

telecommunications and online

service providers .................................................................................. 57

Permitted publication

periodicals printed outside Australia.......... 57

Permitted publication

compliance activities ................................... 57

Permitted publication

advertisements during aircraft flight .......... 58

Interaction of Division with Therapeutic Goods Act ........................ 58

Part 2.5

Prohibition of e-cigarette sponsorships

Division 1

Offences and civil penalties

Prohibition on entering into e-cigarette sponsorships ....................... 59

Division 2

Meaning of e-cigarette sponsorship

Meaning of

e-cigarette sponsorship

................................................... 62

Division 3

E-cigarette sponsorships

exceptions

Exception

political donations and electoral expenditure ............... 63

Exception

statements by authors ..................................................... 64

Part 2.6

Other matters

No action for failing to publish prohibited advertisement ................ 65

Chapter

3--Tobacco product requirements

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Part 3.1

Introduction

Simplified outline of this Chapter ...................................................... 66

Part 3.2

Key concepts

tobacco product requirements

Meaning of

retail packaging

of a tobacco product ........................... 67

Meaning of

packages

a tobacco product for retail sale ..................... 67

Meaning of

prohibited term

................................................................ 68

Part 3.3

Tobacco product requirements

Division 1

Plain packaging requirements

Plain packaging

physical features ................................................... 71

Plain packaging

colour and finish ................................................... 71

Plain packaging

standardisation ...................................................... 72

Plain packaging

prohibited terms and other marks ........................ 72

Plain packaging

health warnings ..................................................... 74

Plain packaging

mandatory markings ............................................. 74

Plain packaging

wrappers ................................................................ 75

Plain packaging

prohibited tobacco product accessories ............... 75

Plain packaging

inserts and onserts................................................. 75

Retail packaging not to produce noise or smell................................. 76

Retail packaging must not change after retail sale ............................ 76

Division 2

Naming requirements

Prohibited terms

brand names and variant names .......................... 77

Division 3

Appearance, physical features and content

requirements

Tobacco products

appearance and physical features ..................... 78

Tobacco products

contents .............................................................. 79

Tobacco products

prohibited devices .............................................. 79

Division 4

Tobacco product standards

Tobacco products

performance requirements................................. 80

Tobacco products

testing requirements .......................................... 80

Division 5

Tobacco product accessories

Tobacco product accessories

prohibited functions......................... 81

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 1

Tobacco products not in retail packaging

Retail sale of tobacco products without retail packaging ................. 82

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Selling or supplying tobacco products to retailers without

retail packaging.................................................................................... 83

Division 2

Non-compliant retail packaging of tobacco products

Selling or supplying tobacco products in non-compliant

retail packaging.................................................................................... 85

Purchasing tobacco products in non-compliant retail

packaging ............................................................................................. 86

Possessing tobacco products in non-compliant retail

packaging ............................................................................................. 88

Packaging tobacco products in non-compliant retail

packaging ............................................................................................. 90

Manufacturing non-compliant retail packaging of tobacco

products ................................................................................................ 91

Possessing non-compliant retail packaging of tobacco

products ................................................................................................ 92

100

Manufacturing tobacco products that are packaged in

non-compliant retail packaging .......................................................... 95

Division 3

Non-compliant regulated tobacco items

101

Scope of Division ................................................................................ 97

102

Selling or supplying non-compliant regulated tobacco items........... 97

103

Purchasing non-compliant regulated tobacco items .......................... 98

104

Possessing non-compliant regulated tobacco items ........................ 100

105

Manufacturing non-compliant regulated tobacco items.................. 101

Part 3.5

Offences and civil penalty provisions relating to

constitutional corporations

tobacco product

requirements

103

Division 1

Tobacco products not in retail packaging

103

106

Retail sale of tobacco products without retail packaging to a

constitutional corporation ................................................................. 103

107

Selling or supplying tobacco products without retail

packaging to retailer who is a constitutional corporation ............... 104

Division 2

Non-compliant retail packaging of tobacco products

107

108

Selling or supplying tobacco products in non-compliant

retail packaging to a constitutional corporation .............................. 107

109

Purchasing tobacco products in non-compliant retail

packaging from a constitutional corporation ................................... 108

110

Possessing tobacco products in non-compliant retail

packaging obtained from a constitutional corporation .................... 110

111

Packaging tobacco products in non-compliant retail

packaging under a contract with a constitutional corporation ........ 112

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

112

Manufacturing non-compliant retail packaging of tobacco

products under a contract with a constitutional corporation ........... 114

113

Possessing non-compliant retail packaging of tobacco

products obtained from a constitutional corporation....................... 115

114

Manufacturing tobacco products that are packaged in

non-compliant retail packaging by a constitutional

corporation ......................................................................................... 117

Division 3

Non-compliant regulated tobacco items

119

115

Scope of Division .............................................................................. 119

116

Selling or supplying non-compliant regulated tobacco items

to a constitutional corporation .......................................................... 119

117

Purchasing non-compliant regulated tobacco items from a

constitutional corporation ................................................................. 120

118

Possessing non-compliant regulated tobacco items obtained

from a constitutional corporation ..................................................... 122

119

Manufacturing non-compliant regulated tobacco items under

a contract with a constitutional corporation..................................... 123

Part 3.6

Miscellaneous

125

Division 1

Export exception

125

120

Export exception for non-compliant retail packaging or

regulated tobacco items ..................................................................... 125

Division 2

Interaction with certain intellectual property laws

127

121

Effect on the Trade Marks Act of non-use of trade mark as a

result of this Act ................................................................................ 127

122

Effect on the Designs Act of failure to make products as a

result of this Act ................................................................................ 128

123

Effect on the Patents Act

of compliance with this Act ................... 129

Division 3

Additional tobacco product requirements

130

124

Regulations may prescribe additional requirements ....................... 130

Chapter

4--Permanent bans on certain tobacco

products

131

Part 4.1

Introduction

131

125

Simplified outline of this Chapter .................................................... 131

126

Tobacco products that are permanently banned .............................. 131

Part 4.2

Offences and civil penalty provisions

132

127

Dealing in permanently banned tobacco products .......................... 132

128

Possessing permanently banned tobacco products .......................... 134

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Public Health (Tobacco and Other Products) Bill 2023

vii

Chapter

5--Reporting and information disclosure

136

Part 5.1

Introduction

136

129

Simplified outline of this Chapter .................................................... 136

130

Meaning of

reporting entity

.............................................................. 137

Part 5.2

Reports

138

Division 1

Required reports

138

131

Tobacco product ingredients............................................................. 138

132

Tobacco product volumes ................................................................. 138

133

Marketing and promotional expenditure .......................................... 139

134

Determinations by Secretary............................................................. 140

Division 2

General matters relating to reports

141

135

Scope of Division .............................................................................. 141

136

How reports must be given ............................................................... 141

137

Contents of reports ............................................................................ 141

138

Consolidated reports.......................................................................... 142

139

Reporting by related entities ............................................................. 142

140

Direction by Secretary....................................................................... 143

141

No duplication of information .......................................................... 143

142

Extensions of time ............................................................................. 143

143

Secretary may request additional information ................................. 145

144

Regulations may prescribe additional requirements ....................... 145

Division 3

Publication and disclosure

146

145

Publication of reports and information ............................................ 146

146

Disclosure for research, policy development or data analysis........ 146

147

Publication of information about failure to comply with

Chapter ............................................................................................... 147

Part 5.3

Offence and civil penalty provision

149

148

Non-compliance with reporting obligations .................................... 149

Chapter

6--Compliance and enforcement

151

Part 6.1

Introduction

151

149

Simplified outline of this Chapter .................................................... 151

Part 6.2

Authorised officers

152

Division 1

Appointment

152

150

Appointment of authorised officers.................................................. 152

Division 2

Powers

153

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Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

151

Power to require persons to give information or produce

documents .......................................................................................... 153

152

Power to require person to attend and answer questions ................ 154

153

Self-incrimination and self-exposure ............................................... 156

Part 6.3

Monitoring and investigation powers

158

Division 1

Monitoring powers

158

154

Monitoring powers ............................................................................ 158

155

Consent and identification by authorised officers not

required in certain circumstances ..................................................... 161

Division 2

Investigation powers

163

156

Investigation powers ......................................................................... 163

157

Forfeiture of seized regulated tobacco items ................................... 166

158

Recovery of costs in relation to seized items................................... 168

159

Modifications of Part 3 of the Regulatory Powers Act ................... 168

Part 6.4

Enforcing compliance with this Act

169

Division 1

Civil penalty provisions

169

160

Civil penalty provisions .................................................................... 169

Division 2

Infringement notices

171

161

Infringement notices.......................................................................... 171

Division 3

Enforceable undertakings

172

162

Enforceable undertakings.................................................................. 172

Division 4

Injunctions

173

163

Injunctions.......................................................................................... 173

Chapter

7--Miscellaneous

174

Part 7.1

Introduction

174

164

Simplified outline of this Chapter .................................................... 174

Part 7.2

General rules about offences and civil penalty

provisions

175

Division 1

Interpretation

175

165

Physical elements of offences........................................................... 175

166

Contravening an offence provision or a civil penalty

provision............................................................................................. 175

167

Offences against this Act

extended meaning ................................ 175

Division 2

Partnerships, unincorporated associations and

trusts

176

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

168

Treatment of partnerships ................................................................. 176

169

Treatment of unincorporated associations ....................................... 176

170

Treatment of trusts............................................................................. 177

Part 7.3

Cost recovery

179

171

Fees for fee-bearing activities........................................................... 179

172

Paying fees ......................................................................................... 179

173

Person liable to pay fees.................................................................... 180

174

Late payment fee ............................................................................... 180

175

Recovery of fees ................................................................................ 180

176

Secretary may remit or refund fees .................................................. 180

177

Secretary may direct that activities not be carried out .................... 180

Part 7.4

Constitutional provisions

181

178

Constitutional basis of this Act......................................................... 181

179

Additional operation of this Act ....................................................... 181

180

Acquisition of property ..................................................................... 183

Part 7.5

Other matters

184

181

Delegation by Minister...................................................................... 184

182

Delegation by Secretary .................................................................... 184

183

Protection from liability .................................................................... 185

184

Reports ............................................................................................... 185

185

Regulations ........................................................................................ 185

Chapter 1

Preliminary

Part 1.1

Introduction

Section 2

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

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

Provisions

Commencement

Date/Details

1. Sections 1 and

2 and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Sections 3 to

185

A single day to be fixed by Proclamation.

However, if the provisions do not commence

within the period of 6 months beginning on

the day this Act receives the Royal Assent,

they commence on the day after the end of

that period.

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

Objects of Act

(1) The objects of this Act are:

(a) to improve public health by:

(i) discouraging smoking and the use of regulated tobacco

items; and

Preliminary

Chapter 1

Introduction

Part 1.1

Section 3

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(ii) encouraging people to give up smoking, and to stop

using regulated tobacco items; and

(b) to give effect to certain obligations that Australia has as a

party to the Convention on Tobacco Control; and

of e-cigarette products.

Means for achieving objects

(2) The means for achieving the objects of this Act are the following:

(a) limiting the exposure of the public to communications,

recommendations or actions that may persuade people to:

(i) start smoking or continue smoking; or

(ii) start vaping or continue vaping;

(b) reducing the appeal of regulated tobacco items and

e-cigarette products to consumers;

misleading or deceiving consumers about the harmful effects

of smoking or using tobacco products;

(d) increasing consumer knowledge of health effects relating to

the use of tobacco products;

(e) increasing the effectiveness of health warnings on, and health

promotion messages in, the retail packaging of tobacco

products;

(f) discouraging people who have given up smoking or vaping

from relapsing;

(g) preventing and reducing nicotine addiction;

(h)

reducing people's exposure to smoke from tobacco products;

(i) reducing the environmental risks of tobacco products;

(j) limiting novel developments and emerging innovation in

tobacco products;

(k) limiting the risk of e-cigarette products becoming a gateway

into smoking and the use of regulated tobacco items;

(l) increasing public knowledge about tobacco products and the

tobacco industry.

Chapter 1

Preliminary

Part 1.1

Introduction

Section 4

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

4 Simplified outline of this Act

This Act is about regulating the advertising and presentation of

tobacco and e-cigarette products in order to discourage the use of

such products and protect and improve public health.

One of the main objects of this Act is to give effect to obligations

that Australia has under the WHO Framework Convention on

Tobacco Control. This is done in part by prohibiting the

advertising of tobacco products, as well as by prohibiting persons

from making tobacco sponsorships.

In order to limit the risk of e-cigarette products becoming a

gateway into smoking, and to address the health risks of vaping,

this Act includes similar prohibitions in relation to e-cigarette

products.

This Act also specifies a number of requirements that tobacco

products must comply with, including requirements and limitations

relating to plain packaging, health warnings, the terms that can be

used in relation to the brand names or variant names of tobacco

products, and the marks that can be included on tobacco product

packaging.

A permanent ban on some tobacco products is included as well.

Certain persons are subject to obligations under this Act to report

to the Secretary on a variety of matters including the ingredients

used in tobacco products, volumes of sales and imports and

marketing and promotional expenditure. Usually, the Minister must

publish those reports.

A range of compliance and enforcement powers are provided for,

including by applying the

Regulatory Powers (Standard

Provisions) Act 2014

Various miscellaneous matters are also dealt with by this Act,

including the power to make delegations and regulations.

Preliminary

Chapter 1

Introduction

Part 1.1

Section 5

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

5 Application of this Act

This Act extends to the external Territories.

6 Act binds the Crown

(1) This Act binds the Crown in each of its capacities.

(2) This Act does not make the Crown liable to be prosecuted for an

offence.

7 Operation of State and Territory laws

Concurrent operation of State and Territory laws

(1) This Act does not exclude or limit the operation of a State or

Territory law that is capable of operating concurrently with this

Act.

(2) Without limiting subsection (1), this Act does not exclude or limit

the concurrent operation of a law of a State or Territory to the

extent that:

(a) the law makes an act or omission:

(i) an offence; or

(ii) subject to a civil penalty; and

(b) that (or any similar) act or omission is also:

(i) an offence against this Act; or

(ii) subject to a civil penalty under this Act.

(3) To avoid doubt, subsection (2) applies even if the law of the State

or Territory does any one or more of the following in relation to

the offence or civil penalty:

(a) provides for a penalty that differs from the penalty provided

in this Act;

(b) provides for fault elements that differ from the fault elements

applicable to the offence against this Act;

defences or exceptions applicable to the offence against, or

civil penalty provision of, this Act.

Chapter 1

Preliminary

Part 1.1

Introduction

Section 7

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

No doubling-up of liabilities

(4) If:

(a) an act or omission is an offence against this Act and is also

an offence against a law of a State or Territory; and

(b) the offender has been punished for the offence under the law

of the State or Territory;

the offender is not liable to be punished for the offence under this

Act.

(5) If a person has paid, or been ordered to pay, a pecuniary penalty

under a law of a State or Territory, the person is not liable to a civil

penalty under this Act in respect of the same conduct.

Preliminary

Chapter 1

Interpretation

Part 1.2

General definitions

Division 1

Section 8

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Part

1.2--Interpretation

Division

1--General definitions

8 Definitions

In this Act:

Australia

, when used in a geographical sense, includes the external

Territories.

Australian hosting service provider

has the same meaning as in

the

Online Safety Act 2021

authorised officer

means a person appointed as an authorised

officer under subsection 150(1).

brand name

, in relation to a tobacco product, means the name

under which the tobacco product is sold or supplied, or offered for

sale or supply.

Note:

A brand name must not be or include a prohibited term (see

section 85).

carriage service provider

has the same meaning as in the

Telecommunications Act 1997

carrier

has the same meaning as in the

Telecommunications Act

1997

cigar

means a roll of cut tobacco for smoking that is enclosed in

tobacco leaf or the leaf of another plant.

cigarette

means a roll of cut tobacco for smoking that is enclosed

in paper.

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.

Chapter 1

Preliminary

Part 1.2

Interpretation

Division 1

General definitions

Section 8

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

constitutional trade or commerce

means trade or commerce:

(a) between Australia and a place outside Australia; or

(b) among the States; or

(d) between 2 Territories; or

(e) within a Territory.

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 Convention is in Australian Treaty Series 2005 No. 7 ([2005]

ATS 7) and could in 2023 be viewed in the Australian Treaties

Library on the AustLII website (http://www.austlii.edu.au).

Copyright Act

means the

Copyright Act 1968

Designs Act

means the

Designs Act 2003

e-cigarette

: see section 11.

Note:

An e-cigarette that contains tobacco is not treated as a tobacco product

under this Act (see subsection 9(4)).

e-cigarette accessory

: see section 12.

e-cigarette advertisement

: see section 43.

e-cigarette product

means an e-cigarette or an e-cigarette

accessory.

e-cigarette sponsorship

: see section 66.

engage in conduct

means:

(a) do an act; or

(b) omit to do an act.

health promotion insert

has the meaning given by the regulations.

health warning

has the meaning given by the regulations.

Preliminary

Chapter 1

Interpretation

Part 1.2

General definitions

Division 1

Section 8

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

insert

means any thing (other than a tobacco product or the lining

of a cigarette pack) placed inside the retail packaging of a tobacco

product.

Note:

For requirements applying to the lining of a cigarette pack, see the

following:

(a) section 74 (about the physical features of the retail packaging of

tobacco products);

(b) section 75 (about the colour and finish of the retail packaging of

tobacco products).

internet service provider

has the same meaning as in the

Online

Safety Act 2021

late payment fee

: see subsection 174(1).

mandatory marking

has the meaning given by the regulations.

mark

has a meaning affected by section 15.

offer

, in relation to the sale or supply of a regulated tobacco item

or an e-cigarette product, has a meaning affected by section 16.

onsert

means any thing (other than the lining of a cigarette pack)

that is affixed or otherwise attached to the retail packaging of a

tobacco product.

Example: A sound chip embedded in the cardboard of a cigarette pack is an

onsert.

packages

: for when a person

packages

a tobacco product for retail

sale, see section 72.

Patents Act

means the

Patents Act 1990

periodical

means an issue (however described and however

published) of a newspaper, magazine, journal, newsletter or other

similar publication, issues of which are published at regular or

irregular intervals.

person

has a meaning affected by:

(a) section 168 (which deals with partnerships); and

(b) section 169 (which deals with unincorporated associations);

and

Chapter 1

Preliminary

Part 1.2

Interpretation

Division 1

General definitions

Section 8

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

pipe tobacco

means a loose tobacco product that is intended for use

exclusively in a pipe (other than a water pipe).

Example: Loose processed tobacco that is intended for use in both roll-your-own

cigarettes and in a pipe is not

pipe tobacco

Note:

Examples of water pipes are hookahs, narghiles, hubble bubbles and

bongs.

prohibited ingredient

, in relation to a tobacco product, means an

ingredient prohibited under subsection 87(1).

prohibited term

, in relation to a brand name or a variant name of a

tobacco product: see section 73.

publish

(a) a tobacco advertisement

see section 30; and

(b) an e-cigarette advertisement

see section 56.

regulated tobacco item

means a tobacco product or a tobacco

product accessory.

Regulatory Powers Act

means the

Regulatory Powers (Standard

Provisions) Act 2014

related body corporate

has the same meaning as in the

Corporations Act 2001

reporting entity

: see section 130.

retail packaging

: for

retail packaging

of a tobacco product, see

section 71.

Secretary

means the Secretary of the Department.

shisha tobacco product

means a tobacco product that contains

molasses as a signific

ant proportion of the product's ingredients.

smoking

means smoking tobacco products.

State or Territory enforcement official

means a person:

Preliminary

Chapter 1

Interpretation

Part 1.2

General definitions

Division 1

Section 8

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(a) who is appointed, employed or engaged by a State or

Territory, or by a local governing body established by or

under a law of a State or Territory; and

(b) who has compliance and enforcement responsibilities in

relation to regulated tobacco items.

Therapeutic Goods Act

means the

Therapeutic Goods Act 1989

and includes any instruments made under that Act.

this Act

includes the regulations made under this Act.

tobacco advertisement

: see section 20.

tobacco product

: see section 9.

tobacco product accessory

: see section 10.

tobacco product requirement

means any of the following

requirements in relation to regulated tobacco items:

(a) a requirement specified in Part 3.3;

(b) a requirement prescribed by regulations made under, or for

the purposes of, a provision in Part 3.3;

the purposes of, subsection 124(1).

tobacco sponsorship

: see section 39.

Trade Marks Act

means the

Trade Marks Act 1995

vaping

means inhaling the aerosol or vapour generated or released

by an e-cigarette product.

variant name

, in relation to a tobacco product, means the name

used to distinguish, by reference to one or more characteristics, that

kind of tobacco product from other tobacco products supplied

under the same brand name.

Note:

A variant name must not be or include a prohibited term (see

section 85).

Chapter 1

Preliminary

Part 1.2

Interpretation

Division 2

Key concepts for this Act

Section 9

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

2--Key concepts for this Act

9 Meaning of

tobacco product

Basic definition

(1) A

tobacco product

means the following designed or intended for

human consumption or use:

(a) processed tobacco in any form;

(b) a product that contains tobacco as an ingredient.

Note 1:

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 as an ingredient.

Note 2:

An e-cigarette product that contains tobacco is not treated as a tobacco

product under this Act (see subsection (4)).

Note 3:

Tobacco products and tobacco product accessories are together called

regulated tobacco items

(see definition in section 8).

(2) To avoid doubt, a

tobacco product

includes those parts of the

product that are not tobacco.

Example: A tobacco product that is a cigarette includes the paper, and any filter

tip, in the manufactured product.

Certain wrappers excluded

(3) A

tobacco product

does not include a wrapper for tobacco that is in

the form of a sheet or tube made from or with tobacco.

Note:

Such wrappers are treated as tobacco product accessories (see

paragraph 10(1)(d)).

E-cigarette products excluded

(4) A

tobacco product

does not include an e-cigarette product (even if

the e-cigarette product contains tobacco).

Preliminary

Chapter 1

Interpretation

Part 1.2

Key concepts for this Act

Division 2

Section 10

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Certain therapeutic goods excluded

(5) A

tobacco product

does not include a product that is entered on the

Australian Register of Therapeutic Goods maintained under the

Therapeutic Goods Act.

10 Meaning of

tobacco product accessory

Basic definition

(1) A

tobacco product accessory

means any of the following:

(a) a cigarette paper (including a pre-rolled cigarette paper) that

is not part of a tobacco product;

(b) a cigarette roller;

product;

(d) a wrapper for tobacco that is in the form of a sheet or tube

made from or with tobacco;

(e) a card, capsule, bead or other device that is designed or

intended to alter the flavour, smell or intensity of a tobacco

product (except such a device that is part of a tobacco

product);

(f) a pipe designed or intended for smoking pipe tobacco.

Note 1:

Tobacco product accessories and tobacco products are together called

regulated tobacco items

(see definition in section 8).

Note 2:

The wrappers mentioned in paragraph (d) are sometimes called

blunts

blunt wraps

Tobacco product accessories may be prescribed

(2) The regulations may prescribe a kind of item to be a

tobacco

product accessory

for the purposes of this Act.

(3) Before regulations are made under subsection (2), the Minister

must be satisfied that the item is designed or intended for use with

or for the human consumption or use of tobacco products.

Chapter 1

Preliminary

Part 1.2

Interpretation

Division 2

Key concepts for this Act

Section 11

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

E-cigarette products excluded

(4) A

tobacco product accessory

does not include an e-cigarette

product (even if the e-cigarette product contains tobacco).

Certain therapeutic goods excluded

(5) A

tobacco product accessory

does not include a product that is

entered on the Australian Register of Therapeutic Goods

maintained under the Therapeutic Goods Act.

11 Meaning of

e-cigarette

Basic definition

(1) An

e-cigarette

means a device (whether or not containing nicotine

or tobacco) that generates or releases, or is designed or intended to

generate or release, by electronic means, an aerosol or vapour for

inhalation by its user in a way that resembles, or produces an

experience similar to, smoking.

Note:

Examples of e-cigarettes include e-cigars, e-hookah pens, e-pens,

e-pipes and vapes.

Devices that resemble toys, food and other objects

(2) A device may be an

e-cigarette

even if the device resembles a toy,

food, drink, cartoon character, animal, musical instrument, vehicle

or household or personal object.

E-cigarettes may be prescribed

(3) The regulations may prescribe a kind of item to be an

e-cigarette

for

the purposes of this Act.

(4) Before regulations are made under subsection (3), the Minister

must be satisfied that it is appropriate to do so.

Preliminary

Chapter 1

Interpretation

Part 1.2

Key concepts for this Act

Division 2

Section 12

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Certain therapeutic goods excluded

(5) An

e-cigarette

does not include a product that is entered on the

Australian Register of Therapeutic Goods maintained under the

Therapeutic Goods Act.

12 Meaning of

e-cigarette accessory

Basic definition

(1) An

e-cigarette accessory

means any of the following:

(a) a cartridge, capsule, pod or other vessel that contains, or that

is designed or intended to contain, a liquid, gas, aerosol,

vapour or other substance for use in an e-cigarette;

(b) such a liquid, gas, aerosol, vapour or other substance

(whether or not containing nicotine or tobacco);

e-cigarette;

(d) a battery specifically designed or intended for use in an

e-cigarette.

E-cigarette accessories may be prescribed

(2) The regulations may prescribe a kind of item to be an

e-cigarette

accessory

for the purposes of this Act.

(3) Before regulations are made under subsection (2), the Minister

must be satisfied that the item is designed or intended for use with

or for the human consumption or use of e-cigarettes.

Certain registered therapeutic goods excluded

(4) An

e-cigarette accessory

does not include a product that is entered

on the Australian Register of Therapeutic Goods maintained under

the Therapeutic Goods Act.

Chapter 1

Preliminary

Part 1.2

Interpretation

Division 3

Other interpretation provisions

Section 13

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

3--Other interpretation provisions

13 References to different kinds of tobacco products

(1) In this Act, tobacco products are of a different kind if they are sold

or supplied under:

(a) different brand names; or

(b) different variant names.

(2) If a tobacco product may be consumed or used in more than one

way, this Act may treat the product as being of different kinds by

reference to the way the product is consumed or used.

Example: Loose processed tobacco that may be used in both roll-your-own

cigarettes and in a pipe may be treated as different kinds of tobacco

products.

14 References to manufacturers, importers, distributors and

retailers

In this Act, a reference to a manufacturer, importer, distributor or

retailer of regulated tobacco items or e-cigarette products includes

a reference to a person who manufactures, imports, distributes or

sells a range of products, only some of which are regulated tobacco

items or e-cigarette products.

15 References to

mark

(1) In this Act, a reference to a

mark

includes, without limitation, any

line, letter, number, symbol, ideograph, colour, graphic or image.

(2) A

mark

includes a trade mark.

16 References to an

offer

to sell or supply

A reference in this Act to an

offer

to sell or supply a regulated

tobacco item or an e-cigarette product includes (without limitation)

a reference to:

(a) offering the item or product for sale or supply on the internet

or from physical premises; and

Preliminary

Chapter 1

Interpretation

Part 1.2

Other interpretation provisions

Division 3

Section 17

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(b) exposing, displaying or advertising the item or product for

sale or supply; and

if it is not visible to the public.

17 Tobacco products

rebuttable presumption of offer for retail

sale

For the purposes of this Act, unless the contrary is proved, a

tobacco product is presumed to be offered for retail sale if:

(a) an amount of the tobacco product is on physical premises

(whether or not open to the public) from which regulated

tobacco items are:

(i) sold by way of retail sale; or

(ii) supplied to fulfil a retail sale; and

(b) the amount exceeds the amount (if any) prescribed by

regulations made for the purposes of this paragraph.

Note:

A defendant bears a legal burden in relation to proving the contrary

(see section 13.4 of the

Criminal Code

Chapter 2

Advertising and sponsorship prohibitions

Part 2.1

Introduction

Section 18

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Chapter

2--Advertising and sponsorship

prohibitions

Part

2.1--Introduction

18 Simplified outline of this Chapter

This Chapter sets out a general prohibition on advertising and

sponsorship for regulated tobacco items and includes equivalent

prohibitions for e-cigarette products. A person who contravenes

these prohibitions may commit an offence or be liable for a civil

penalty.

In addition to setting out the general prohibitions, this Chapter

defines the following key concepts:

(a) tobacco advertisement;

(b) tobacco sponsorship;

(d) e-cigarette sponsorship.

It also defines how a person publishes an advertisement for the

purposes of this Act.

In defining these concepts, this Chapter provides for some

exceptions to things that might otherwise be captured. For

example, communications that involve government or political

matters, or the publication in certain circumstances of material

relating to a news or current affairs report, are expressly stated not

to be tobacco advertisements or e-cigarette advertisements.

Similarly, there are exceptions as to what constitutes a tobacco or

e-cigarette sponsorship, including to permit the making of political

donations.

This Chapter also permits the publication of tobacco and

e-cigarette advertisements in certain, limited circumstances.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco advertisements

Part 2.2

Offences and civil penalties

Division 1

Section 19

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Part

2.2--Prohibition of tobacco advertisements

Division

1--Offences and civil penalties

19 Prohibition on publishing tobacco advertisements

Publishing a tobacco advertisement

(1) A person contravenes this subsection if:

(a) the person publishes material, or authorises or causes

material to be published; and

(b) the material is a tobacco advertisement.

Publishing material intended etc. to be a tobacco advertisement

(2) A person contravenes this subsection if:

(a) the person publishes material, or authorises or causes

material to be published; and

(b) the material is not a tobacco advertisement, but:

(i) the person intends the material to be a tobacco

advertisement; or

(ii) the person is reckless as to whether the material is a

tobacco advertisement.

Note 1:

The physical elements of offences against subsections (4) and (7) are

set out in subsections (1) and (2) (see section 165).

Note 2:

For tobacco advertisement exceptions, see Division 3.

Exception for permitted publications

(3) Subsections (1) and (2) do not apply to the publication of a tobacco

advertisement if the publication is permitted by a provision in

Division 5.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Chapter 2

Advertising and sponsorship prohibitions

Part 2.2

Prohibition of tobacco advertisements

Division 1

Offences and civil penalties

Section 19

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1) or (2).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(5) The fault element for paragraph (1)(b) is recklessness.

Geographical application

(6) Section 15.2 of the

Criminal Code

(extended geographical

jurisdiction

category B) applies to an offence against

subsection (4).

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1) or (2).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1) or (2).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Defence for individual publication

(9) It is a defence in a prosecution for an offence, or in proceedings for

a civil penalty, for a contravention of subsection (1) or (2) if the

defendant proves that:

(a) the defendant published the material:

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco advertisements

Part 2.2

Offences and civil penalties

Division 1

Section 19

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(i) as an individual; and

(ii)

on the defendant's own initiative; and

(b) the publication was not in the course of, or in any way

associated with, the manufacture, importation, distribution or

sale of regulated tobacco items by any person; and

(whether financial or not) from any person for publishing the

material.

Note:

A defendant bears a legal burden in relation to the matters in this

subsection in a prosecution for an offence (see section 13.4 of the

Criminal Code

). The same applies in proceedings for a civil penalty.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.2

Prohibition of tobacco advertisements

Division 2

Meaning of tobacco advertisement

Section 20

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

2--Meaning of tobacco advertisement

20 Meaning of

tobacco advertisement

Basic definition

(1) A

tobacco advertisement

means any form of communication,

recommendation or action that promotes, or is likely to promote,

the following (whether directly or indirectly):

(a) smoking;

(b) a regulated tobacco item or the use of such an item.

Tobacco advertisements

elements

(2) A tobacco advertisement may comprise any means, or combination

of means, of communication, recommendation or action (whether

visual, aural or otherwise).

Tobacco advertisements

additional effects

(3) In determining whether material is a tobacco advertisement,

disregard whether or not the material promotes matters in addition

to the matters mentioned in subsection (1).

Tobacco advertisements

rebuttable presumption

(4) Material that is or contains any of the following is presumed to

promote smoking, or a regulated tobacco item or the use of such an

item, unless the contrary is proved:

(a) a trade mark that is registered under the Trade Marks Act in

respect of goods that are or include regulated tobacco items;

(b) a design that is registered under the Designs Act in relation to

products that are or include regulated tobacco items;

meaning of the Copyright Act) that is evocative of, or closely

associated with, a registered trade mark or design that is

used, or has been used by any person at any time, in relation

to regulated tobacco items;

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco advertisements

Part 2.2

Meaning of tobacco advertisement

Division 2

Section 20

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(d) a prohibited term in relation to the brand name or variant

name of a tobacco product.

Note:

A defendant bears a legal burden in relation to proving the contrary

(see section 13.4 of the

Criminal Code

Tobacco advertisements

names of tobacco manufacturers,

importers etc.

(5) Promoting the whole or a part of the name of a person constitutes a

tobacco advertisement if:

(a) the person is a manufacturer, importer, distributor or retailer

of regulated tobacco items; and

(b)

the person's name appears on a tobacco product, or on the

retail packaging of a tobacco product.

Note:

The use of the name of a person mentioned in this subsection does not

constitute a tobacco advertisement in certain circumstances (see

Division 3).

Tobacco advertisements may be prescribed

(6) The regulations may prescribe a kind of material to be a

tobacco

advertisement

for the purposes of this Act.

(7) Before regulations are made under subsection (6), the Minister

must be satisfied:

(a) that it is appropriate to do so; and

(b) that making the proposed regulations would not be

inconsistent with Division 3 (about exceptions to tobacco

advertisements).

Chapter 2

Advertising and sponsorship prohibitions

Part 2.2

Prohibition of tobacco advertisements

Division 3

Tobacco advertisements

exceptions

Section 21

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

3--Tobacco advertisements--exceptions

21 Exception

labelling and packaging

(1) Marks that appear on a regulated tobacco item, or on the retail

packaging of a tobacco product, do not, of themselves, constitute a

tobacco advertisement.

(2) Subsection (1) applies only if the regulated tobacco item, or the

retail packaging of the tobacco product, complies with the tobacco

product requirements (whether in relation to the marks or

otherwise).

(3) Despite subsection (1), a communication, recommendation or

action in relation to the regulated tobacco item, or the retail

packaging of the tobacco product, may constitute a tobacco

advertisement.

22 Exception

standard business documents

(1) Marks that appear on a document prepared in the ordinary course

of business of a manufacturer, importer, distributor or retailer of

regulated tobacco items do not, of themselves, constitute a tobacco

advertisement.

Note:

Examples of such documents include orders, invoices, statements and

documents relating to procurement and employment.

(2) Despite subsection (1), a communication, recommendation or

action in relation to the document may constitute a tobacco

advertisement.

23 Exception

business signage

(1) Business signage satisfying subsection (2) that appears in, on or

near business premises occupied by a manufacturer, importer,

distributor or retailer of regulated tobacco items does not, of itself,

constitute a tobacco advertisement.

(2) Business signage satisfies this subsection if it does no more than

state one or more of the following:

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco advertisements

Part 2.2

Tobacco advertisements

exceptions

Division 3

Section 24

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(a) the name and contact details of the manufacturer, importer,

distributor or retailer that occupies the business premises;

(b) the nature of the business;

(3) Despite subsection (1), a communication, recommendation or

action in relation to business signage may constitute a tobacco

advertisement.

24 Exception

notice of availability of regulated tobacco items

A statement that regulated tobacco items, or that such items of a

particular kind, are available from a manufacturer, importer,

distributor or retailer does not, of itself, constitute a tobacco

advertisement if the statement does not:

(a) use the brand name or variant name of any particular kind of

tobacco product; or

(b) contain anything that would enable a particular regulated

tobacco item, or a range of such items, to be identified.

25 Exception

consumer matters

None of the following communications, of themselves, constitute a

tobacco advertisement:

(a) recalling a regulated tobacco item;

(b) disclosing a defect in, or a dangerous characteristic of, a

regulated tobacco item;

tobacco item is or may be dangerous;

(d) disclosing procedures for the appropriate disposal of a

regulated tobacco item;

(e) informing people about their consumer rights in relation to

regulated tobacco items.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.2

Prohibition of tobacco advertisements

Division 3

Tobacco advertisements

exceptions

Section 26

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

26 Exception

communications about government or political

matters

(1) A communication does not constitute a tobacco advertisement to

the extent that it is a communication about government or political

matters.

(2) The use in such a communication of the whole name of a

manufacturer, importer, distributor or retailer of regulated tobacco

items does not, of itself, make the communication constitute a

tobacco advertisement.

27 Exception

artistic works and public interest expression

None of the following constitutes a tobacco advertisement:

(a) the performance, exhibition or distribution, in good faith, of

an artistic work;

(b) a communication to the extent the communication is made

for any genuine academic, educational or scientific purpose

or any other genuine purpose in the public interest.

28 Exception

journalism

The publication of material that is or relates to a news report, or a

current affairs report, does not constitute a tobacco advertisement if

the following conditions are satisfied:

(a) the public interest in the publication of the material

outweighs any likely adverse effect of the publication on

achieving the objects in paragraphs 3(1)(a) and (b) (about

regulated tobacco items);

(b) the publication is made by a person working in a professional

capacity as a qualified journalist;

the publication from:

(i) a manufacturer, importer, distributor or retailer of

tobacco products; or

(ii) a related body corporate of such a manufacturer,

importer, distributor or retailer.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco advertisements

Part 2.2

Tobacco advertisements

exceptions

Division 3

Section 29

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

29 Exception

disclosures and acknowledgements by authors

Neither of the following statements made by an author of a work

published, or intended for publication, in a periodical constitutes a

tobacco advertisement:

(a)

a statement made in the work to disclose the author's conflict

of interest in relation to the work;

(b) a statement made in the work that does no more than

acknowledge a contribution made to the author in connection

with the preparation of the work.

Note:

Part 2.3 prohibits tobacco sponsorships.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.2

Prohibition of tobacco advertisements

Division 4

Meaning of publish a tobacco advertisement

Section 30

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

4--Meaning of publish a tobacco advertisement

30 Meaning of

publish

a tobacco advertisement

Basic definition

(1) A person

publishes

a tobacco advertisement if the person uses any

means of communication to make the material comprising the

advertisement, or the material containing the advertisement,

available to, or accessible by, the public or a section of the public.

Material included in things sold etc.

(2) Without limiting subsection (1), material is taken to be made

available to, or accessible by, the public or a section of the public if

the material is included in something sold, or offered for sale or

supply, to the public or a section of the public.

Targeted online advertising

(3) Without limiting subsection (1), material is taken to be made

available to, or accessible by, the public or a section of the public

if:

(a) the material is made available to, or accessible by, a person

using the internet; and

(b) the material is made available to that person because of:

(i) the use of an algorithm; or

(ii)

the person's online activity; or

(iii) any other characteristic of that person as an internet end

user.

Private events or functions

(4) Without limiting subsection (1), material is taken to be made

available to, or accessible by, the public or a section of the public

if:

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco advertisements

Part 2.2

Meaning of publish a tobacco advertisement

Division 4

Section 30

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(a) the material is made available to, or accessible by, a person

attending a private event or function to which access is

restricted; and

(b) the purpose of the event or function is or includes the

promotion of:

(i) smoking; or

(ii) a regulated tobacco item or the use of such an item; or

(iii) a manufacturer, importer, distributor or retailer of such

an item.

(5) In determining whether material is made available to, or accessible

by, the public or a section of the public at a private event or

function, disregard whether or not payment or other consideration

is received from any person in relation to the event or function.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.2

Prohibition of tobacco advertisements

Division 5

Tobacco advertisements

permitted publications

Section 31

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

5--Tobacco advertisements--permitted

publications

31 Permitted publication

physical premises point of sale

Tobacco advertisements complying with State and Territory law

(1) A person may publish a tobacco advertisement if:

(a) the person displays the tobacco advertisement at physical

premises where regulated tobacco items are offered for retail

sale; and

(b) a law of the State or Territory in which the premises are

located regulates the advertising of regulated tobacco items;

and

display of advertisements for regulated tobacco items at or on

premises where such items are offered for retail sale; and

(d) the display of the tobacco advertisement complies with those

provisions; and

(e) the tobacco advertisement is not visible from outside the

premises.

Particular physical premises

(2) Without limiting subsection (1), each of the following is taken to

be physical premises for the purposes of that subsection:

(a) a kiosk, market stall or other place that has fixed boundaries,

whether or not those boundaries have walls, where goods are

offered for retail sale;

(b) a vending machine;

32 Permitted publication

online point of sale

Tobacco advertisements complying with State and Territory law

(1) A person may publish a tobacco advertisement if:

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco advertisements

Part 2.2

Tobacco advertisements

permitted publications

Division 5

Section 32

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(a) the person makes the advertisement available on, or

accessible using, the internet; and

(b) the advertisement is available to, or accessible by, the public,

or a section of the public, in a State or Territory; and

advertisement to purchase a regulated tobacco item; and

(d) the publication of the tobacco advertisement is covered by

subsection (2).

(2) The publication of a tobacco advertisement is covered by this

subsection if:

(a) a law of the State or Territory regulates the advertising of

regulated tobacco items on the internet; and

(b) that law contains provisions expressly dealing with the

publication of tobacco advertisements on the internet that

enable a person accessing the advertisement to purchase a

regulated tobacco item; and

provisions.

Tobacco advertisements complying with Commonwealth

regulations

(3) A person may publish a tobacco advertisement if:

(a) the person makes the advertisement available on, or

accessible using, the internet; and

(b) the advertisement is available to, or accessible by, the public,

or a section of the public, in a State or Territory; and

advertisement to purchase a regulated tobacco item; and

(d) either:

(i) there is no law of the State or Territory that regulates

the advertising of regulated tobacco items on the

internet; or

(ii) there is such a law, but it does not contain any

provisions expressly dealing with the publication of

tobacco advertisements on the internet that enable a

Chapter 2

Advertising and sponsorship prohibitions

Part 2.2

Prohibition of tobacco advertisements

Division 5

Tobacco advertisements

permitted publications

Section 33

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

person accessing the advertisement to purchase a

regulated tobacco item; and

(e) the publication of the advertisement complies with the

regulations (if any) made for the purposes of this paragraph.

(4) Regulations made for the purposes of paragraph (3)(e) may,

without limitation, prescribe matters in relation to any of the

following:

(a) the webpage, or the website, on which tobacco

advertisements are displayed;

(b) the size, content, format and location of tobacco

advertisements;

the inclusion in or with

tobacco advertisements of any of the following:

(i) health warnings;

(ii) messages that are included on health promotion inserts;

(iii) warnings about age restrictions on the retail sale of

regulated tobacco items;

(iv) information about any fees, taxes and charges payable

in relation to regulated tobacco items;

(d) age restricted access systems for access to tobacco

advertisements.

33 Permitted publication

trade communications

(1) A person may publish a tobacco advertisement if the person makes

the advertisement available to, or accessible by, a group of people

all of whom are involved in the manufacture, importation,

distribution or sale of regulated tobacco items.

(2) Subsection (1) applies only if:

(a) the tobacco advertisement is not available to, or accessible

by, persons other than those involved in the manufacture,

importation, distribution or sale of regulated tobacco items;

and

(b) the advertisement does not, apart from the fact of the

advertisement, actively promote smoking or the use of

regulated tobacco items; and

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco advertisements

Part 2.2

Tobacco advertisements

permitted publications

Division 5

Section 34

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

of a particular regulated tobacco item

the advertisement is

limited to factual information about the item and the terms of

the sale or supply of the item.

Note:

Factual information about a regulated tobacco item includes the brand

or variant name, price, ingredients, availability and package sizing.

34 Permitted publication

telecommunications and online service

providers

A person may publish a tobacco advertisement if:

(a) the person is a carrier and, in publishing the tobacco

advertisement, the person

is acting solely in the person's

capacity as a carrier; or

(b) the person is a carriage service provider and, in publishing

the tobacco advertisement, the person is acting solely in the

person's capacity as a carriage service provider; or

the tobacco advertisement, the person is acting solely in the

person's capacity as an internet service provider; or

(d) the person is an Australian hosting service provider and, in

publishing the tobacco advertisement, the person is acting

solely in the person's capacity as Australian hosting service

provider.

35 Permitted publication

periodicals printed outside Australia

A person may publish a tobacco advertisement if:

(a) the advertisement is contained in a hard copy periodical

printed outside Australia; and

(b) the periodical is not principally intended for distribution or

use in Australia; and

consists of no more than selling or supplying, or offering to

sell or supply, the periodical.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.2

Prohibition of tobacco advertisements

Division 5

Tobacco advertisements

permitted publications

Section 36

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

36 Permitted publication

compliance activities

A person may publish a tobacco advertisement if the publication is:

(a) made to comply with a request by, or a requirement of, an

authorised officer in relation to administering or enforcing

this Act (including exercising any function or power under

the Regulatory Powers Act as it applies to this Act); or

(b) authorised or required by any other law of the

Commonwealth or any law of a State or Territory.

37 Permitted publication

advertisements during aircraft flight

(1) A person may publish a tobacco advertisement if:

(a) the person is operating the flight of an aircraft; and

(b) the person publishes the advertisement in the aircraft during

the flight.

(2) Subsection (1) does not apply if the flight begins at a place in

Australia and is intended to end at another place in Australia.

(3) For the purposes of subsection (1), each sector of a flight of an

aircraft is taken to be a separate flight.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco sponsorships

Part 2.3

Offences and civil penalties

Division 1

Section 38

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Part

2.3--Prohibition of tobacco sponsorships

Division

1--Offences and civil penalties

38 Prohibition on entering into tobacco sponsorships

Entering into a tobacco sponsorship

(1) A person (the

first person

) contravenes this subsection if:

(a) the first person engages in any of the following conduct:

(i) making a contribution of any kind to another person;

(ii) entering into an arrangement, agreement or

understanding with another person to make a

contribution of any kind to any person;

(iii) making a promise or giving an undertaking to another

person to make a contribution of any kind to any person;

and

(b) the conduct constitutes a tobacco sponsorship.

Engaging in conduct intended etc. to be a tobacco sponsorship

(2) A person (the

first person

) contravenes this subsection if:

(a) the first person engages in any of the following conduct:

(i) making a contribution of any kind to another person;

(ii) entering into an arrangement, agreement or

understanding with another person to make a

contribution of any kind to any person;

(iii) making a promise or giving an undertaking to another

person to make a contribution of any kind to any person;

and

(b) the conduct does not constitute a tobacco sponsorship, but:

(i) the first person intends the conduct to be a tobacco

sponsorship; or

(ii) the first person is reckless as to whether the conduct is a

tobacco sponsorship.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.3

Prohibition of tobacco sponsorships

Division 1

Offences and civil penalties

Section 38

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Note:

The physical elements of offences against subsections (4) and (7) are

set out in subsections (1) and (2) (see section 165).

(3) For the purposes of subsections (1) and (2), it does not matter

whether the arrangement, agreement, understanding, promise or

undertaking:

(a) is in writing; or

(b) is express or implied; or

(d) is publicly acknowledged.

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1) or (2).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(5) The fault element for paragraph (1)(b) is recklessness.

Geographical application

(6) Section 15.2 of the

Criminal Code

(extended geographical

jurisdiction

category B) applies to an offence against

subsection (4).

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1) or (2).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1) or (2).

Chapter 2

Advertising and sponsorship prohibitions

Part 2.3

Prohibition of tobacco sponsorships

Division 2

Meaning of tobacco sponsorship

Section 39

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

2--Meaning of tobacco sponsorship

39 Meaning of

tobacco sponsorship

Basic definition

(1) A

tobacco sponsorship

means any form of contribution (whether

financial or otherwise) to an event, activity or individual that

promotes, or is likely to promote, the following (whether directly

or indirectly):

(a) smoking;

(b) a regulated tobacco item or the use of such an item.

Note:

In some circumstances, a tobacco sponsorship may also constitute a

tobacco advertisement.

Tobacco sponsorships may be prescribed

(2) The regulations may prescribe a kind of contribution to be a

tobacco sponsorship

for the purposes of this Act.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of tobacco sponsorships

Part 2.3

Tobacco sponsorships

exceptions

Division 3

Section 40

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Division

3--Tobacco sponsorships--exceptions

40 Exception

political donations and electoral expenditure

(1) A contribution of the following kind made to a person or entity

covered by subsection (2) does not constitute a tobacco

sponsorship:

(a) a gift;

(b) a payment or reimbursement of electoral expenditure

incurred during an election period.

(2) This subsection covers the following persons and entities:

(a) a member of the Parliament of the Commonwealth, the

Parliament of a State or the Legislative Assembly of a

Territory;

(b) a candidate for election to such a Parliament or Legislative

Assembly;

Commonwealth Electoral Act 1918

or under corresponding

State or Territory legislation;

(d) an entity that is associated with a person or entity mentioned

in paragraphs (a) to (c);

(e) another person campaigning for or on behalf of a person or

entity mentioned in paragraphs (a) to (c).

(3) Terms used in subsection (1) that are defined in the law dealing

with electoral matters (within the ordinary meaning of that

expression) of the jurisdiction of the person or entity covered by

subsection (2) to whom the contribution is made have the same

meaning in subsection (1) as they have in that law.

Example: If a gift is made to a member of the Parliament of New South Wales,

and the term 'gift' has a defined meaning in the electoral law of that

State, then

'gift' has the same meaning

for the purposes of

subsection (1).

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette advertisements

Part 2.4

Offences and civil penalties

Division 1

Section 42

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Part

2.4--Prohibition of e

cigarette advertisements

Division

1--Offences and civil penalties

42 Prohibition on publishing e-cigarette advertisements

Publishing an e-cigarette advertisement

(1) A person contravenes this subsection if:

(a) the person publishes material, or authorises or causes

material to be published; and

(b) the material is an e-cigarette advertisement; and

(i) the person is a constitutional corporation;

(ii) the person is a body corporate that is incorporated in a

Territory;

(iii) the publication is made in the course of constitutional

trade or commerce;

(iv) the publication is made using a postal, telegraphic,

telephonic or other like service within the meaning of

paragraph 51(v) of the Constitution;

(v) the publication is made in a Territory.

Publishing material intended etc. to be an e-cigarette

advertisement

(2) A person contravenes this subsection if:

(a) the person publishes material, or authorises or causes

material to be published; and

(b) the material is not an e-cigarette advertisement, but:

(i) the person intends the material to be an e-cigarette

advertisement; or

(ii) the person is reckless as to whether the material is an

e-cigarette advertisement; and

(i) the person is a constitutional corporation;

Chapter 2

Advertising and sponsorship prohibitions

Part 2.4

Prohibition of e-cigarette advertisements

Division 1

Offences and civil penalties

Section 42

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(ii) the person is a body corporate that is incorporated in a

Territory;

(iii) the publication is made in the course of constitutional

trade or commerce;

(iv) the publication is made using a postal, telegraphic,

telephonic or other like service within the meaning of

paragraph 51(v) of the Constitution;

(v) the publication is made in a Territory.

Note 1:

The physical elements of offences against subsections (4) and (7) are

set out in subsections (1) and (2) (see section 165).

Note 2:

For e-cigarette advertisement exceptions, see Division 3.

Exception for permitted publications

(3) Subsections (1) and (2) do not apply to the publication of an

e-cigarette advertisement if the publication is permitted by a

provision in Division 5.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1) or (2).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(5) For the purposes of subsection (4):

(a) recklessness is the fault element for paragraph (1)(b); and

(b) strict liability applies to paragraphs (1)(c) and (2)(c).

Geographical application

(6) Section 15.2 of the

Criminal Code

(extended geographical

jurisdiction

category B) applies to an offence against

subsection (4).

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette advertisements

Part 2.4

Offences and civil penalties

Division 1

Section 42

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1) or (2).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1) or (2).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Defence for individual publication

(9) It is a defence in a prosecution for an offence, or in proceedings for

a civil penalty, for a contravention of subsection (1) or (2) if the

defendant proves that:

(a) the defendant published the material:

(i) as an individual; and

(ii) on the defe

ndant's own initiative; and

(b) the publication was not in the course of, or in any way

associated with, the manufacture, importation, distribution or

sale of e-cigarette products by any person; and

(whether financial or not) from any person for publishing the

material.

Note:

A defendant bears a legal burden in relation to the matters in this

subsection in a prosecution for an offence (see section 13.4 of the

Criminal Code

). The same applies in proceedings for a civil penalty.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.4

Prohibition of e-cigarette advertisements

Division 2

Meaning of e-cigarette advertisement

Section 43

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

2--Meaning of e

cigarette advertisement

43 Meaning of

e-cigarette advertisement

Basic definition

(1) An

e-cigarette advertisement

means any form of communication,

recommendation or action that promotes, or is likely to promote,

the following (whether directly or indirectly):

(a) vaping;

(b) an e-cigarette product or the use of such a product.

E-cigarette advertisements

elements

(2) An e-cigarette advertisement may comprise any means, or

combination of means, of communication, recommendation or

action (whether visual, aural or otherwise).

E-cigarette advertisements

additional effects

(3) In determining whether material is an e-cigarette advertisement,

disregard whether or not the material promotes matters in addition

to the matters mentioned in subsection (1).

E-cigarette advertisements

rebuttable presumption

(4) Material that is or contains any of the following is presumed to

promote vaping, or an e-cigarette product or the use of such a

product, unless the contrary is proved:

(a) a trade mark that is registered under the Trade Marks Act in

respect of goods that are or include e-cigarette products;

(b) a design that is registered under the Designs Act in relation to

products that are or include e-cigarette products;

meaning of the Copyright Act) that is evocative of, or closely

associated with, a registered trade mark or design that is

used, or has been used by any person at any time, in relation

to e-cigarette products.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette advertisements

Part 2.4

Meaning of e-cigarette advertisement

Division 2

Section 43

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Note:

A defendant bears a legal burden in relation to proving the contrary

(see section 13.4 of the

Criminal Code

E-cigarette advertisements

names of e-cigarette manufacturers,

importers etc.

(5) Promoting the whole or a part of the name of a person constitutes

an e-cigarette advertisement if:

(a) the person is a manufacturer, importer, distributor or retailer

of e-cigarette products; and

(b)

the person's name appears on a

n e-cigarette product, or on

the wrapping of an e-cigarette product.

Note:

The use of the name of a person mentioned in this subsection does not

constitute an e-cigarette advertisement in certain circumstances (see

Division 3).

E-cigarette advertisements may be prescribed

(6) The regulations may prescribe a kind of material to be an

e-cigarette advertisement

for

the purposes of this Act.

(7) Before regulations are made under subsection (6), the Minister

must be satisfied:

(a) that it is appropriate to do so; and

(b) that making the proposed regulations would not be

inconsistent with Division 3 (about exceptions to e-cigarette

advertisements).

Chapter 2

Advertising and sponsorship prohibitions

Part 2.4

Prohibition of e-cigarette advertisements

Division 3

E-cigarette advertisements

exceptions

Section 44

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

3--E

cigarette advertisements--exceptions

44 Exception

labelling and wrapping

(1) Marks that appear on an e-cigarette product, or on the wrapping of

an e-cigarette product, do not, of themselves, constitute an

e-cigarette advertisement.

(2) Despite subsection (1), a communication, recommendation or

action in relation to the e-cigarette product, or the wrapping of the

e-cigarette product, may constitute an e-cigarette advertisement.

45 Exception

standard business documents

(1) Marks that appear on a document prepared in the ordinary course

of business of a manufacturer, importer, distributor or retailer of

e-cigarette products do not, of themselves, constitute an e-cigarette

advertisement.

Note:

Examples of such documents include orders, invoices, statements and

documents relating to procurement and employment.

(2) Despite subsection (1), a communication, recommendation or

action in relation to the document may constitute an e-cigarette

advertisement.

46 Exception

business signage

(1) Business signage satisfying subsection (2) that appears in, on or

near business premises occupied by a manufacturer, importer,

distributor or retailer of e-cigarette products does not, of itself,

constitute an e-cigarette advertisement.

(2) Business signage satisfies this subsection if it does no more than

state one or more of the following:

(a) the name and contact details of the manufacturer, importer,

distributor or retailer that occupies the business premises;

(b) the nature of the business;

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette advertisements

Part 2.4

E-cigarette advertisements

exceptions

Division 3

Section 47

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(3) Despite subsection (1), a communication, recommendation or

action in relation to business signage may constitute an e-cigarette

advertisement.

47 Exception

notice of availability of e-cigarette products

A statement that e-cigarette products, or that such products of a

particular kind, are available from a manufacturer, importer,

distributor or retailer does not, of itself, constitute an e-cigarette

advertisement if the statement does not:

(a) use the name of any particular e-cigarette product or range of

products; or

(b) contain anything that would enable a particular e-cigarette

product, or a range of such products, to be identified.

48 Exception

consumer matters

None of the following communications, of themselves, constitute

an e-cigarette advertisement:

(a) recalling an e-cigarette product;

(b) disclosing a defect in, or a dangerous characteristic of, an

e-cigarette product;

product is or may be dangerous;

(d) disclosing procedures for the appropriate disposal of an

e-cigarette product;

(e) informing people about their consumer rights in relation to

e-cigarette products.

49 Exception

communications about government or political

matters

(1) A communication does not constitute an e-cigarette advertisement

to the extent that it is a communication about government or

political matters.

(2) The use in such a communication of the whole name of a

manufacturer, importer, distributor or retailer of e-cigarette

Chapter 2

Advertising and sponsorship prohibitions

Part 2.4

Prohibition of e-cigarette advertisements

Division 3

E-cigarette advertisements

exceptions

Section 50

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

products does not, of itself, make the communication constitute an

e-cigarette advertisement.

50 Exception

artistic works and public interest expression

None of the following constitutes an e-cigarette advertisement:

(a) the performance, exhibition or distribution, in good faith, of

an artistic work;

(b) a communication to the extent the communication is made

for any genuine academic, educational or scientific purpose

or any other genuine purpose in the public interest.

51 Exception

journalism

The publication of material that is or relates to a news report, or a

current affairs report, does not constitute an e-cigarette

advertisement if the following conditions are satisfied:

(a) the public interest in the publication of the material

outweighs any likely adverse effect of the publication on

achieving the objects in paragraphs 3(1)(a) (about regulated

tobacco items) and (1)(c) (about e-cigarette products);

(b) the publication is made by a person working in a professional

capacity as a qualified journalist;

the publication from:

(i) a manufacturer, importer, distributor or retailer of

e-cigarette products; or

(ii) a related body corporate of such a manufacturer,

importer, distributor or retailer.

52 Exception

disclosures and acknowledgements by authors

Neither of the following statements made by an author of a work

published, or intended for publication, in a periodical constitutes an

e-cigarette advertisement:

(a)

a statement made in the work to disclose the author's conflict

of interest in relation to the work;

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette advertisements

Part 2.4

E-cigarette advertisements

exceptions

Division 3

Section 53

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(b) a statement made in the work that does no more than

acknowledge a contribution made to the author in connection

with the preparation of the work.

Note:

Part 2.5 prohibits e-cigarette sponsorships.

53 Exception

exempt advertisements under the Therapeutic Goods

Act

A communication that meets the following conditions does not

constitute an e-cigarette advertisement:

(a) the communication is an advertisement relating to an

e-cigarette product that is a therapeutic good within the

meaning of the Therapeutic Goods Act;

(b) Part 5-1 of that Act (about regulation of advertising etc. for

therapeutic goods) does not apply to the advertisement

because of section 42AA of that Act.

Note:

Section 42AA of the Therapeutic Goods Act permits advertisements

directed exclusively to certain health professionals, and advice or

information given directly to a patient in a clinical setting.

54 Exception

approved use of restricted representations under the

Therapeutic Goods Act

Scope

(1) This section applies in relation to an e-cigarette product if:

(a) the product is a therapeutic good; and

(b) there is in force, under section 42DF of the Therapeutic

Goods Act, an approval by the Secretary to use a restricted

representation in relation to the product.

Exception

(2) An advertisement for the e-cigarette product does not constitute an

e-cigarette advertisement to the extent that:

(a) the advertisement includes the use of the restricted

representation; and

(b) use of the representation complies with any conditions

imposed on the approval.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.4

Prohibition of e-cigarette advertisements

Division 3

E-cigarette advertisements

exceptions

Section 55

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(3) Expressions used in this section that are defined for the purposes of

the Therapeutic Goods Act have the same meaning in this section

as they have in that Act.

55 Exception

permitted use of restricted or prohibited

representations under the Therapeutic Goods Act

Scope

(1) This section applies in relation to an e-cigarette product if:

(a) the product is a therapeutic good; and

(b) the Secretary has granted permission, under section 42DK of

the Therapeutic Goods Act, to use one or more of the

following in specified advertisements about the product:

(i) a specified restricted representation;

(ii) a specified prohibited representation;

(iii) another representation.

Exception

(2) An advertisement for the e-cigarette product does not constitute an

e-cigarette advertisement to the extent that:

(a) the advertisement is of a kind specified in the permission;

and

(b) the advertisement is or contains any of the following

representations allowed by the permission:

(i) a specified restricted representation;

(ii) a specified prohibited representation;

(iii) another representation; and

the permission.

(3) Expressions used in this section that are defined for the purposes of

the Therapeutic Goods Act have the same meaning in this section

as they have in that Act.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette advertisements

Part 2.4

Meaning of publish an e-cigarette advertisement

Division 4

Section 56

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Division

4--Meaning of publish an e

cigarette

advertisement

56 Meaning of

publish

an e-cigarette advertisement

Basic definition

(1) A person

publishes

an e-cigarette advertisement if the person uses

any means of communication to make material comprising the

advertisement, or material containing the advertisement, available

to, or accessible by, the public or a section of the public.

Material included in things sold etc.

(2) Without limiting subsection (1), material is taken to be made

available to, or accessible by, the public or a section of the public if

the material is included in something sold, or offered for sale or

supply, to the public or a section of the public.

Targeted online advertising

(3) Without limiting subsection (1), material is taken to be made

available to, or accessible by, the public or a section of the public

if:

(a) the material is made available to, or accessible by, a person

using the internet; and

(b) the material is made available to that person because of:

(i) the use of an algorithm; or

(ii)

the person's online activity; or

(iii) any other characteristic of that person as an internet end

user.

Private events or functions

(4) Without limiting subsection (1), material is taken to be made

available to, or accessible by, the public or a section of the public

if:

Chapter 2

Advertising and sponsorship prohibitions

Part 2.4

Prohibition of e-cigarette advertisements

Division 4

Meaning of publish an e-cigarette advertisement

Section 56

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(a) the material is made available to, or accessible by, a person

attending a private event or function to which access is

restricted; and

(b) the purpose of the event or function is or includes the

promotion of:

(i) vaping; or

(ii) an e-cigarette product or the use of such a product; or

(iii) a manufacturer, importer, distributor or retailer of such a

product.

(5) In determining whether material is made available to, or accessible

by, the public or a section of the public at a private event or

function, disregard whether or not payment or other consideration

is received from any person in relation to the event or function.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette advertisements

Part 2.4

E-cigarette advertisements

permitted publications

Division 5

Section 57

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Division

5--E

cigarette advertisements--permitted

publications

57 Permitted publication

physical premises point of sale

E-cigarette advertisements complying with State and Territory law

(1) A person may publish an e-cigarette advertisement if:

(a) the person displays the e-cigarette advertisement at physical

premises where e-cigarette products are offered for retail

sale; and

(b) a law of the State or Territory in which the premises are

located regulates the advertising of e-cigarette products; and

display of advertisements for e-cigarette products at or on

premises where such items are offered for retail sale; and

(d) the display of the advertisement complies with those

provisions; and

(e) the e-cigarette advertisement is not visible from outside the

premises.

Particular physical premises

(2) Without limiting subsection (1), each of the following is taken to

be physical premises for the purposes of that subsection:

(a) a kiosk, market stall or other place that has fixed boundaries,

whether or not those boundaries have walls, where goods are

offered for retail sale;

(b) a vending machine;

E-cigarette advertisements complying with Commonwealth

regulations

(3) A person may publish an e-cigarette advertisement if:

Chapter 2

Advertising and sponsorship prohibitions

Part 2.4

Prohibition of e-cigarette advertisements

Division 5

E-cigarette advertisements

permitted publications

Section 58

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(a) the person displays the e-cigarette advertisement at physical

premises where e-cigarette products are offered for retail

sale; and

(b) either:

(i) there is no law of the State or Territory in which the

premises are located that regulates the advertising of

e-cigarette products; or

(ii) there is such a law, but it does not contain any

provisions expressly dealing with the display of

advertisements for e-cigarette products at or on such

premises; and

requirements (if any) prescribed by regulations made for the

purposes of this paragraph.

(4) Regulations made for the purposes of paragraph (3)(c) may,

without limitation, prescribe requirements as to any of the

following:

(a) the size, content, format and location of e-cigarette

advertisements;

(b) without limiting paragraph (a)

the inclusion in or with

e-cigarette advertisements of any of the following:

(i) warnings about the health consequences of using

e-cigarette products;

(ii) warnings about age restrictions on the retail sale of

e-cigarette products;

(iii) information about any fees, taxes and charges payable

in relation to e-cigarette products.

58 Permitted publication

online point of sale

E-cigarette advertisements complying with State and Territory law

(1) A person may publish an e-cigarette advertisement if:

(a) the person makes the advertisement available on, or

accessible using, the internet; and

(b) the advertisement is available to, or accessible by, the public,

or a section of the public, in a State or Territory; and

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette advertisements

Part 2.4

E-cigarette advertisements

permitted publications

Division 5

Section 58

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

advertisement to purchase an e-cigarette product; and

(d) the publication of the advertisement is covered by

subsection (2).

(2) The publication of an e-cigarette advertisement is covered by this

subsection if:

(a) a law of the State or Territory regulates the advertising of

e-cigarette products on the internet; and

(b) that law contains provisions expressly dealing with the

publication of e-cigarette advertisements on the internet that

enable a person accessing the advertisement to purchase an

e-cigarette product; and

provisions.

E-cigarette advertisements complying with Commonwealth

regulations

(3) A person may publish an e-cigarette advertisement if:

(a) the person makes the advertisement available on, or

accessible using, the internet; and

(b) the advertisement is accessible by the public, or a section of

the public, in a State or Territory; and

advertisement to purchase an e-cigarette product; and

(d) either:

(i) there is no law of the State or Territory that regulates

the advertising of e-cigarette products on the internet; or

(ii) there is such a law, but it does not contain any

provisions expressly dealing with the publication of

e-cigarette advertisements on the internet that enable a

person accessing the advertisement to purchase an

e-cigarette product; and

(e) the publication of the advertisement complies with the

regulations (if any) made for the purposes of this paragraph.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.4

Prohibition of e-cigarette advertisements

Division 5

E-cigarette advertisements

permitted publications

Section 59

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(4) Regulations made for the purposes of paragraph (3)(e) may,

without limitation, prescribe matters in relation to any of the

following:

(a) the webpage, or the website, on which e-cigarette

advertisements are displayed;

(b) the size, content, format and location of e-cigarette

advertisements;

the inclusion in or with

e-cigarette advertisements of any of the following:

(i) warnings about the health consequences of using

e-cigarette products;

(ii) warnings about age restrictions on the retail sale of

e-cigarette products;

(iii) information about any fees, taxes and charges payable

in relation to e-cigarette products;

(d) age restricted access systems for access to e-cigarette

advertisements.

59 Permitted publication

trade communications

(1) A person may publish an e-cigarette advertisement if the person

makes the advertisement available to, or accessible by, a group of

people all of whom are involved in the manufacture, importation,

distribution or sale of e-cigarette products.

(2) Subsection (1) applies only if:

(a) the e-cigarette advertisement is not available to, or accessible

by, persons other than those involved in the manufacture,

importation, distribution or sale of e-cigarette products; and

(b) the advertisement does not, apart from the fact of the

advertisement, actively promote vaping or the use of

e-cigarette products; and

of a particular e-cigarette product

the advertisement is

limited to factual information about the product and the terms

of the sale or supply of the product.

Note:

Factual information about an e-cigarette product includes the name of

the product, price, ingredients, availability and product sizing.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette advertisements

Part 2.4

E-cigarette advertisements

permitted publications

Division 5

Section 60

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

60 Permitted publication

telecommunications and online service

providers

A person may publish an e-cigarette advertisement if:

(a) the person is a carrier and, in publishing the e-cigarette

advertisement, the person

is acting solely in the person's

capacity as a carrier; or

(b) the person is a carriage service provider and, in publishing

the e-cigarette advertisement, the person is acting solely in

the person's capacity as a carriage service provider; or

the e-cigarette advertisement, the person is acting solely in

the person's capa

city as an internet service provider; or

(d) the person is Australian hosting service provider and, in

publishing the e-cigarette advertisement, the person is acting

solely in the person's capacity as Australian hosting service

provider.

61 Permitted publication

periodicals printed outside Australia

A person may publish an e-cigarette advertisement if:

(a) the advertisement is contained in a hard copy periodical

printed outside Australia; and

(b) the periodical is not principally intended for distribution or

use in Australia; and

consists of no more than selling or supplying, or offering to

sell or supply, the periodical.

62 Permitted publication

compliance activities

A person may publish an e-cigarette advertisement if the

publication is:

(a) made to comply with a request by, or a requirement of, an

authorised officer in relation to administering or enforcing

this Act (including exercising any function or power under

the Regulatory Powers Act as it applies to this Act); or

Chapter 2

Advertising and sponsorship prohibitions

Part 2.4

Prohibition of e-cigarette advertisements

Division 5

E-cigarette advertisements

permitted publications

Section 63

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(b) authorised or required by any other law of the

Commonwealth or any law of a State or Territory.

63 Permitted publication

advertisements during aircraft flight

(1) A person may publish an e-cigarette advertisement if:

(a) the person is operating the flight of an aircraft; and

(b) the person publishes the advertisement in the aircraft during

the flight.

(2) Subsection (1) does not apply if the flight begins at a place in

Australia and is intended to end at another place in Australia.

(3) For the purposes of subsection (1), each sector of a flight of an

aircraft is taken to be a separate flight.

64 Interaction of Division with Therapeutic Goods Act

Nothing in this Division constitutes, for the purposes of Part 5-1 of

the Therapeutic Goods Act, an authorisation or requirement by a

government or government authority to make a reference to an

e-cigarette product that is a therapeutic good within the meaning of

that Act.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette sponsorships

Part 2.5

Offences and civil penalties

Division 1

Section 65

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Part

2.5--Prohibition of e

cigarette sponsorships

Division

1--Offences and civil penalties

65 Prohibition on entering into e-cigarette sponsorships

Entering into an e-cigarette sponsorship

(1) A person (the

first person

) contravenes this subsection if:

(a) the first person engages in any of the following conduct:

(i) making a contribution of any kind to another person;

(ii) entering into an arrangement, agreement or

understanding with another person to make a

contribution of any kind to any person;

(iii) making a promise or giving an undertaking to another

person to make a contribution of any kind to any person;

and

(b) the conduct constitutes an e-cigarette sponsorship; and

(i) the first person is a constitutional corporation;

(ii) the first person is a body corporate that is incorporated

in a Territory;

(iii) the conduct takes place in the course of constitutional

trade or commerce;

(iv) the conduct takes place in a Territory.

Engaging in conduct intended etc. to be an e-cigarette sponsorship

(2) A person (the

first person

) contravenes this subsection if:

(a) the first person engages in any of the following conduct:

(i) making a contribution of any kind to another person;

(ii) entering into an arrangement, agreement or

understanding with another person to make a

contribution of any kind to any person;

Chapter 2

Advertising and sponsorship prohibitions

Part 2.5

Prohibition of e-cigarette sponsorships

Division 1

Offences and civil penalties

Section 65

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(iii) making a promise or giving an undertaking to another

person to make a contribution of any kind to any person;

and

(b) the conduct does not constitute an e-cigarette sponsorship,

but:

(i) the first person intends the conduct to be an e-cigarette

sponsorship; or

(ii) the first person is reckless as to whether the contribution

is an e-cigarette sponsorship; and

(i) the first person is a constitutional corporation;

(ii) the first person is a body corporate that is incorporated

in a Territory;

(iii) the conduct takes place in the course of constitutional

trade or commerce;

(iv) the conduct takes place in a Territory.

Note:

The physical elements of offences against subsections (4) and (7) are

set out in subsections (1) and (2) (see section 165).

(3) For the purposes of subsections (1) and (2), it does not matter if the

arrangement, agreement, understanding, promise or undertaking:

(a) is in writing; or

(b) is express or implied; or

(d) is publicly acknowledged.

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1) or (2).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(5) For the purposes of subsection (4):

(a) recklessness is the fault element for paragraph (1)(b); and

(b) strict liability applies to paragraphs (1)(c) and (2)(c).

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette sponsorships

Part 2.5

Offences and civil penalties

Division 1

Section 65

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Geographical application

(6) Section 15.2 of the

Criminal Code

(extended geographical

jurisdiction

category B) applies to an offence against

subsection (4).

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1) or (2).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1) or (2).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Chapter 2

Advertising and sponsorship prohibitions

Part 2.5

Prohibition of e-cigarette sponsorships

Division 2

Meaning of e-cigarette sponsorship

Section 66

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

2--Meaning of e

cigarette sponsorship

66 Meaning of

e-cigarette sponsorship

Basic definition

(1) An

e-cigarette sponsorship

means any form of contribution

(whether financial or otherwise) to an event, activity or individual

that promotes, or is likely to promote, the following (whether

directly or indirectly):

(a) vaping;

(b) an e-cigarette product or the use of such a product.

Note:

In some circumstances, an e-cigarette sponsorship may also constitute

an e-cigarette advertisement.

E-cigarette sponsorships may be prescribed

(2) The regulations may prescribe a kind of contribution to be an

e-cigarette sponsorship

for the purposes of this Act.

Advertising and sponsorship prohibitions

Chapter 2

Prohibition of e-cigarette sponsorships

Part 2.5

E-cigarette sponsorships

exceptions

Division 3

Section 67

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Division

3--E

cigarette sponsorships--exceptions

67 Exception

political donations and electoral expenditure

(1) A contribution of the following kind made to a person or entity

covered by subsection (2) does not constitute an e-cigarette

sponsorship:

(a) a gift;

(b) a payment or reimbursement of electoral expenditure

incurred during an election period.

(2) This subsection covers the following persons and entities:

(a) a member of the Parliament of the Commonwealth, the

Parliament of a State or the Legislative Assembly of a

Territory;

(b) a candidate for election to such a Parliament or Legislative

Assembly;

Commonwealth Electoral Act 1918

or under corresponding

State or Territory legislation;

(d) an entity that is associated with a person or entity mentioned

in paragraphs (a) to (c);

(e) another person campaigning for or on behalf of a person or

entity mentioned in paragraphs (a) to (c).

(3) Terms used in subsection (1) that are defined in the law dealing

with electoral matters (within the ordinary meaning of that

expression) of the jurisdiction of the person or entity covered by

subsection (2) to whom the contribution is made have the same

meaning in subsection (1) as they have in that law.

Example: If a gift is made to a member of the Parliament of New South Wales,

and the term 'gift' has a defined meaning in the electoral law of that

State, then 'gift' has the same meaning for the purp

oses of

subsection (1).

Chapter 3

Tobacco product requirements

Part 3.1

Introduction

Section 70

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Chapter

3--Tobacco product requirements

Part

3.1--Introduction

70 Simplified outline of this Chapter

This Chapter imposes a variety of requirements in relation to

tobacco products and tobacco product accessories. These are called

tobacco product requirements, and relate to things such as:

(a) the retail packaging of tobacco products; and

(b) prohibiting the use of certain words or characters in

relation to brand names or variant names of tobacco

products; and

(d) the standards that apply to tobacco products.

The requirements in relation to the retail packaging of tobacco

products include providing that health warnings must be displayed

on the retail packaging, and that there are restrictions on the colour

and appearance of the packaging. This Chapter also prohibits

tobacco products from containing certain ingredients or devices.

The detail of some of the requirements in this Chapter is set out in

the regulations.

A person who contravenes a tobacco product requirement,

including by selling or possessing tobacco products that do not

comply with such a requirement, may commit an offence or be

liable for a civil penalty.

This Chapter also provides that the regulations may prescribe

additional tobacco product requirements in relation to some

matters.

Tobacco product requirements

Chapter 3

Key concepts

tobacco product requirements

Part 3.2

Section 71

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Part

3.2--Key concepts--tobacco product

requirements

71 Meaning of

retail packaging

of a tobacco product

The

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

mentioned in paragraph (a) or (b); or

(d) any plastic or other wrapper that covers the tobacco product

when the product is offered for retail sale; or

(e) any insert that is placed inside the packaging of the tobacco

product mentioned in any of paragraphs (a) to (d); or

(f) any onsert that is affixed or otherwise attached to the

packaging of the tobacco product mentioned in any of

paragraphs (a) to (d); or

(g) any lining of a container mentioned in paragraph (a).

Note 1:

For

container

, see section 8.

Note 2:

For requirements applying to the lining of a cigarette pack, see the

following:

(a) section 74 (about the physical features of the retail packaging of

tobacco products);

(b) section 75 (about the colour and finish of the retail packaging of

tobacco products).

72 Meaning of

packages

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;

Chapter 3

Tobacco product requirements

Part 3.2

Key concepts

tobacco product requirements

Section 73

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(within the meaning of paragraph (a) or (b) of the definition

retail packaging

in section 71) with a plastic or other

wrapper; or

(d) the person covers the tobacco product with a plastic or other

wrapper for retail sale; 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

in section 71); 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

in section 71); or

(g) the person places a lining in a container mentioned in

paragraph (a) in which the tobacco product is or will be

directly placed.

Note 1:

For

container

, see section 8.

Note 2:

Other grammatical forms of the word

packages

(such as packaged)

have a corresponding meaning (see section 18A of the

Acts

Interpretation Act 1901

73 Meaning of

prohibited term

(1) A term listed in column 1 of an item of the following table,

examples of which are given in column 2 of the item, is a

prohibited term

in relation to a brand name or variant name of a

tobacco product.

Prohibited terms

brand names and variant names

Item

Column 1

Prohibited term

Column 2

Examples

A term that implies no harm or

reduced harm

Low tar, light, lite, mild, ultra-light,

ultra-lite

A term that refers to, or implies, a

positive quality

Cool, extra, fresh, smooth, ultra

A colour

Black, blue, gold, red, white

A term that refers to a filter

Charcoal filter, firm filter, flo-filter,

Tobacco product requirements

Chapter 3

Key concepts

tobacco product requirements

Part 3.2

Section 73

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Prohibited terms

brand names and variant names

Item

Column 1

Prohibited term

Column 2

Examples

recessed filter

A non-alphabetical character (other

than

), a numeral (in any form)

or an ideograph

!, #, $, two or 2, iii or 3, fifty or L,

☺

A term that refers to, or implies,

positive health effects

Organic, natural, additive-free

A term that suggests the inclusion of

a prohibited ingredient

Caffeine, menthol, vitamin

Prohibited terms may be prescribed

(2) The regulations may prescribe a word or mark, in addition to those

mentioned in subsection (1), to be a

prohibited term

for the

purposes of this Act.

(3) Before regulations are made under subsection (2), the Minister

must be satisfied that the word or mark, if used in a brand name or

variant name of a tobacco product, would:

(a) promote or be likely to promote:

(i) smoking; or

(ii) the product or the use of the product; or

(b) promote the product by means that:

(i) are false, misleading or deceptive; or

(ii) are likely to create an erroneous impression about the

product's

characteristics, health effects, risks or

emissions; or

less harmful than other tobacco products.

(4) The prescription of a word or mark by the regulations as a

prohibited term

does not limit subsection (1).

Tobacco product requirements

Chapter 3

Tobacco product requirements

Part 3.3

Plain packaging requirements

Division 1

Section 74

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Part

3.3--Tobacco product requirements

Division

1--Plain packaging requirements

74 Plain packaging

physical features

The physical features of the retail packaging of tobacco products

must comply with the regulations (if any) prescribed for the

purposes of this section.

75 Plain packaging

colour and finish

(1) The colour and finish of the retail packaging of tobacco products

must comply with the requirements (if any) prescribed by

regulations made for the purposes of this subsection.

Default colour for retail packaging

(2) Subsections (3) and (4) apply if the regulations do not prescribe a

colour for the following parts of the retail packaging of tobacco

products:

(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

in section 71);

(b) both sides of any lining of a cigarette pack.

(3) Those parts of the retail packaging of the tobacco products must be

the colour known as Pantone 448C.

(4) The following are not required to be the colour known as Pantone

448C:

(a) health warnings;

(b) mandatory markings;

(d) any other mark permitted on the retail packaging of the

tobacco product under paragraph 77(3)(d).

Chapter 3

Tobacco product requirements

Part 3.3

Tobacco product requirements

Division 1

Plain packaging requirements

Section 76

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

76 Plain packaging

standardisation

Standardisation measures

(1) The retail packaging of tobacco products must comply with any

requirements prescribed by the regulations as to the following

matters:

(a) the number of units, mass or volume of a tobacco product

included in the retail packaging of that product;

(b) the pricing of a tobacco product in retail packaging of that

number of units, mass or volume.

Exception

shisha tobacco products

(2) This section does not apply to the retail packaging of shisha

tobacco products.

77 Plain packaging

prohibited terms and other marks

No prohibited terms on retail packaging

(1) No prohibited term may appear anywhere on the retail packaging

of tobacco products.

Note:

For

prohibited term

, see section 73.

No other marks on retail packaging

(2) No other mark may appear anywhere on the retail packaging of

tobacco products, other than as permitted by subsection (3).

Note 1:

For

mark

, see section 15.

Note 2:

This section does not apply to wrappers (see subsection (6)).

Permitted marks

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

products:

(a) health warnings;

(b) mandatory markings;

Tobacco product requirements

Chapter 3

Tobacco product requirements

Part 3.3

Plain packaging requirements

Division 1

Section 77

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

names are not a prohibited term) of the tobacco product;

(d) any other mark permitted by regulations (if any) made for the

purposes of this paragraph.

Note:

For health warnings, see section 78 and for mandatory markings, see

section 79.

(4) Any:

(a) brand name or variant name; or

(b) other mark permitted under paragraph (3)(d);

that appears on the retail packaging of tobacco products must

comply with the requirements (if any) prescribed by regulations

made for the purposes of this subsection.

Restrictions

(5) Any brand name, variant name or other mark that is permitted

under this Act to appear on the retail packaging of tobacco

products must not:

(a) promote the product by means that:

(i) are false, misleading or deceptive; or

(ii) are likely to create an erroneous impression about the

product's characteristics, health effects,

risks or

emissions; or

(b) directly or indirectly create an impression that the product is

less harmful than other tobacco products; or

marking; or

(d) constitute a tobacco advertisement; or

(e) provide access to a tobacco advertisement.

Section not to apply to wrappers

(6) This section does not apply to a plastic or other wrapper that

covers:

(a) the retail packaging of a tobacco product; or

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

Note:

For the requirements for wrappers, see section 80.

Chapter 3

Tobacco product requirements

Part 3.3

Tobacco product requirements

Division 1

Plain packaging requirements

Section 78

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

78 Plain packaging

health warnings

(1) The retail packaging of tobacco products must display the images

or combination of images (if any) prescribed by regulations made

for the purposes of this subsection.

Chief Medical Officer to recommend health warnings

(2) Before regulations are made under subsection (1), the

Commonwealth Chief Medical Officer must have recommended

that the images or combination of images be prescribed for the

purposes of that subsection.

Commencement of regulations prescribing new health warnings

(3) If:

(a) regulations are made under subsection (1); and

(b) those regulations are not the first such regulations made

under that subsection;

the regulations must commence no earlier than 6 months after the

day the regulations are made.

79 Plain packaging

mandatory markings

Mandatory markings must appear on retail packaging

(1) The regulations may prescribe markings that must appear on the

retail packaging of tobacco products.

(2) Mandatory markings must not, wholly or partly, obscure any health

warning on the retail packaging of tobacco products.

Section not to apply to wrappers

(3) This section does not apply to a plastic or other wrapper that

covers:

(a) the retail packaging of a tobacco product; or

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

Note:

For the requirements for wrappers, see section 80.

Tobacco product requirements

Chapter 3

Tobacco product requirements

Part 3.3

Plain packaging requirements

Division 1

Section 80

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

80 Plain packaging

wrappers

A plastic or other wrapper that forms part of the retail packaging of

tobacco products must comply with the regulations (if any) made

for the purposes of this section.

81 Plain packaging

prohibited tobacco product accessories

The retail packaging of tobacco products must not include a

tobacco product accessory unless permitted by regulations (if any)

made for the purposes of this section.

82 Plain packaging

inserts and onserts

(1) The retail packaging of tobacco products (within the meaning of

any of paragraphs (a) to (d) of the definition of

retail packaging

section 71):

(a) must include the health promotion inserts, and any other

inserts or onserts, prescribed by regulations made for the

purposes of this paragraph; and

(b) must not include any other inserts or onserts.

(2) Despite subsection (1), the retail packaging of tobacco products

mentioned in that subsection may include any inserts or onserts

permitted by regulations (if any) made for the purposes of this

subsection.

Chief Medical Officer to recommend health promotion inserts

(3) Before regulations are made under paragraph (1)(a) prescribing

health promotion inserts, the Commonwealth Chief Medical

Officer must have recommended that the health promotion inserts

be prescribed for the purposes of that paragraph.

Commencement of regulations prescribing new health promotion

inserts

(4) If:

(a) regulations are made under paragraph (1)(a) prescribing

health promotion inserts; and

Chapter 3

Tobacco product requirements

Part 3.3

Tobacco product requirements

Division 1

Plain packaging requirements

Section 83

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(b) those regulations are not the first such regulations made

under that paragraph;

the regulations must commence no earlier than 6 months after the

day the regulations are made.

83 Retail packaging not to produce noise or smell

No part of the retail packaging of tobacco products may make a

noise, or contain or produce a smell.

84 Retail packaging must not change after retail sale

The retail packaging of tobacco products must not include any

features designed or intended to change the packaging after retail

sale, including (without limitation) the following:

(a) heat activated inks;

(b) inks or embellishments designed or intended to appear

gradually over time;

(d) panels designed or intended to be scratched or rubbed to

reveal an image or text;

(e) removable tabs;

(f) fold-out panels;

(g) any other feature prescribed by regulations made for the

purposes of this paragraph.

Chapter 3

Tobacco product requirements

Part 3.3

Tobacco product requirements

Division 3

Appearance, physical features and content requirements

Section 86

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

3--Appearance, physical features and content

requirements

86 Tobacco products

appearance and physical features

Prohibited terms

(1) No prohibited term may appear anywhere on a tobacco product.

Note:

For

prohibited term

, see section 73.

No other marks

(2) No other mark may appear anywhere on a tobacco product, other

than as permitted or required by regulations (if any) made for the

purposes of this subsection.

Note:

For

mark

, see section 15.

Appearance requirements

(3) The appearance of a tobacco product must comply with the

requirements (if any) prescribed by regulations made for the

purposes of this subsection.

Physical features requirements

(4) The physical features of a tobacco product must comply with the

requirements (if any) prescribed by regulations made for the

purposes of this subsection.

Chief Medical Officer to recommend images or text

(5) Before regulations are made under subsection (3) or (4) that

prescribe an image or text to appear on, or form part of, a tobacco

product, the Commonwealth Chief Medical Officer must have

recommended that the image or text be prescribed for the purposes

of that subsection.

Tobacco product requirements

Chapter 3

Tobacco product requirements

Part 3.3

Appearance, physical features and content requirements

Division 3

Section 87

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Commencement of regulations prescribing new images or text

(6) If:

(a) regulations are made under subsection (3) or (4) prescribing

an image or text; and

(b) those regulations are not the first such regulations made

under that subsection;

the regulations must commence no earlier than 6 months after the

day the regulations are made.

Note:

The requirements of subsections (5) and (6) do not apply to

regulations prescribing things other than images or text.

87 Tobacco products

contents

(1) A tobacco product must not contain an ingredient that is prohibited

by regulations made for the purposes of this subsection.

Note:

Section 131 requires a report about the ingredients used in tobacco

products to be given to the Secretary.

(2) Subsection (1) does not apply to a shisha tobacco product insofar

as that product contains molasses.

(3) A tobacco product may contain an ingredient that is permitted by

regulations made for the purposes of this subsection.

Note:

Subject to subsection (1), a tobacco product may contain ingredients

in addition to those expressly permitted by the regulations.

88 Tobacco products

prohibited devices

A tobacco product must not contain any device prohibited by

regulations made for the purposes of this section.

Chapter 3

Tobacco product requirements

Part 3.3

Tobacco product requirements

Division 4

Tobacco product standards

Section 89

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

4--Tobacco product standards

89 Tobacco products

performance requirements

A tobacco product must comply with the performance

requirements (if any) prescribed by regulations made for the

purposes of this section.

90 Tobacco products

testing requirements

A tobacco product must comply with the testing requirements (if

any) prescribed by regulations made for the purposes of this

section.

Tobacco product requirements

Chapter 3

Tobacco product requirements

Part 3.3

Tobacco product accessories

Division 5

Section 91

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Division

5--Tobacco product accessories

91 Tobacco product accessories

prohibited functions

A tobacco product accessory must not alter, or be capable of

altering, the flavour or smell of a tobacco product with which it is

used.

Note:

Examples of tobacco product accessories covered by this section are:

(a) a flavoured filter tip designed or intended for use with

roll-your-own tobacco; or

(b) a flavour card designed or intended to infuse a tobacco product

with a flavour or smell.

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 1

Tobacco products not in retail packaging

Section 92

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Part

3.4--General offences and civil penalty

provisions--tobacco product requirements

Division

1--Tobacco products not in retail packaging

92 Retail sale of tobacco products without retail packaging

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a tobacco product by way of retail sale; or

(ii) offers a tobacco product for sale by way of retail sale;

and

(b) at the time the product is sold or offered for sale, the product

is not in retail packaging.

Note 1:

The physical elements of offences against subsections (2) and (3) are

set out in this subsection (see section 165).

Note 2:

See section 16 for an extended meaning of

offer

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Strict liability offence

(3) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Tobacco products not in retail packaging

Division 1

Section 93

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

93 Selling or supplying tobacco products to retailers without 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 (the

retailer

); and

(b) at the time the product is sold, offered for sale or supplied to

the retailer, the product is not in retail packaging; and

whether, the retailer is ordinarily in the business of selling

tobacco products by way of retail sale.

Note 1:

The physical elements of offences against subsections (3) and (5) are

set out in this subsection (see section 165).

Note 2:

See section 16 for an extended meaning of

offer

Exception

cigars sold or supplied to retailer for individual resale

(2) Subsection (1) does not apply if:

(a) the sale, offer or supply is in respect of multiple tobacco

products that are cigars; and

(b) the sale or supply is by way of import by the retailer; and

package each cigar individually for retail sale as a single

cigar.

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 1

Tobacco products not in retail packaging

Section 93

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Fault-based offence

(3) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(4) For the purpose of subsection (3), strict liability applies to

paragraph (1)(b).

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Non-compliant retail packaging of tobacco products

Division 2

Section 94

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Division

2--Non

compliant retail packaging of tobacco

products

94 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 supplied,

the product is in retail packaging; and

requirement.

Note 1:

The physical elements of offences against subsections (3) and (5) are

set out in this subsection (see section 165).

Note 2:

See section 16 for an extended meaning of

offer

Exception

cigars sold or supplied to retailer for individual resale

(2) Subsection (1) does not apply if:

(a) the sale, offer or supply is in respect of multiple tobacco

products that are cigars; and

(b) the sale or supply is to another person (the

retailer

) who is

ordinarily engaged in the business of selling tobacco products

by way of retail sale in Australia; and

repackage each cigar individually for retail sale as a single

cigar.

Note 1:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 95

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Fault-based offence

(3) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(4) For the purposes of subsection (3), strict liability applies to

paragraph (1)(b).

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

95 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 is in retail

packaging; and

requirement.

Note:

The physical elements of offences against subsections (5) and (7) are

set out in this subsection (see section 165).

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Non-compliant retail packaging of tobacco products

Division 2

Section 95

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Exception

cigars purchased by retailer for individual resale

(2) Subsection (1) does not apply if:

(a) the person purchases multiple tobacco products that are

cigars; and

(b) the person is ordinarily engaged in the business of selling

tobacco products by way of retail sale in Australia; and

retail sale as a single cigar.

Exception

purchase by individual for personal use

(3) Subsection (1) does not apply to an individual who purchases the

tobacco product for the individual's personal use.

Exception

purchase in the course of compliance and enforcement

activities

(4) Subsection (1) does not apply to any of the following persons if the

person purchases the tobacco product for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Territory;

(d) a State or Territory enforcement official.

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2), (3) and (4) (see subsection 13.3(3) of the

Criminal

Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Fault-based offence

(5) A person commits an offence if the person contravenes

subsection (1).

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 96

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(6) For the purposes of subsection (5), strict liability applies to

paragraph (1)(b).

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

96 Possessing tobacco products in non-compliant retail packaging

(1) A person contravenes this subsection if:

(a) the person possesses a tobacco product; and

(b) at the time of possession, the product is in retail packaging;

and

requirement.

Note:

The physical elements of offences against subsections (5) and (7) are

set out in this subsection (see section 165).

Exception

cigars possessed by retailer for individual resale

(2) Subsection (1) does not apply if:

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Non-compliant retail packaging of tobacco products

Division 2

Section 96

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(a) the person possesses multiple tobacco products that are

cigars; and

(b) the person is ordinarily engaged in the business of selling

tobacco products by way of retail sale in Australia; and

retail sale as a single cigar.

Exception

possession by individual for personal use

(3) Subsection (1) does not apply if:

(a) an individual possesses the tobacco product for the

individual's personal use;

and

(b)

the amount of the tobacco product in the individual's

possession does not exceed the amount (if any) prescribed by

regulations made for the purposes of this paragraph.

Exception

possession in the course of compliance and

enforcement activities

(4) Subsection (1) does not apply to any of the following persons if the

person possesses the tobacco product for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Territory;

(d) a State or Territory enforcement official.

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2), (3) and (4) (see subsection 13.3(3) of the

Criminal

Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 97

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Fault-based offence

(5) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(6) For the purposes of subsection (5), strict liability applies to

paragraph (1)(b).

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

97 Packaging tobacco products in non-compliant retail packaging

(1) A person contravenes this subsection if:

(a) the person packages a tobacco product; and

(b) the tobacco product is packaged for retail sale; and

requirement.

Note 1:

The physical elements of offences against subsections (2) and (4) are

set out in this subsection (see section 165).

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Non-compliant retail packaging of tobacco products

Division 2

Section 98

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Note 2:

There is an exception to this subsection in section 120 (export

exception).

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(3) For the purposes of subsection (2), strict liability applies to

paragraph (1)(b).

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

98 Manufacturing non-compliant retail packaging of tobacco

products

(1) A person contravenes this subsection if:

(a) the person manufactures packaging; and

(b) the packaging is the retail packaging of tobacco products

(other than an insert or onsert); and

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 99

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

requirement.

Note 1:

The physical elements of offences against subsections (2) and (4) are

set out in this subsection (see section 165).

Note 2:

There is an exception to this subsection in section 120 (export

exception).

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(3) For the purposes of subsection (2), strict liability applies to

paragraph (1)(b).

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

99 Possessing non-compliant retail packaging of tobacco products

(1) A person contravenes this subsection if:

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Non-compliant retail packaging of tobacco products

Division 2

Section 99

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(a) the person possesses packaging; and

(b) the packaging is the retail packaging of tobacco products

(other than an insert or onsert); and

requirement.

Note:

The physical elements of offences against subsections (5) and (7) are

set out in this subsection (see section 165).

Exception

possession by individual

(2) Subsection (1) does not apply if an individual possesses the retail

packaging in connection with the individual's personal use of a

tobacco product.

Exception

possession in the course of repackaging

(3) Subsection (1) does not apply if, at the time the person possesses

the retail packaging of the tobacco products:

(a) the person has repackaged the tobacco products into other

retail packaging that complies with the tobacco product

requirements for the tobacco products; or

(b) the person:

(i) possesses other retail packaging that complies with the

tobacco product requirements for the tobacco products;

and

(ii) intends to repackage the tobacco products into that retail

packaging.

Exception

possession in the course of compliance and

enforcement activities

(4) Subsection (1) does not apply to any of the following persons if the

person possesses the retail packaging for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 99

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Territory;

(d) a State or Territory enforcement official.

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2), (3) and (4) (see subsection 13.3(3) of the

Criminal

Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Fault-based offence

(5) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(6) For the purposes of subsection (5), strict liability applies to

paragraph (1)(b).

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Non-compliant retail packaging of tobacco products

Division 2

Section 100

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

100 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

person; and

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

requirement.

Note:

The physical elements of offences against subsections (3) and (4) are

set out in this subsection (see section 165).

Exception

(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 1:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Fault-based offence

(3) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (1).

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 100

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Non-compliant regulated tobacco items

Division 3

Section 101

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

Division

3--Non

compliant regulated tobacco items

101 Scope of Division

This Division applies to a contravention of a tobacco product

requirement other than a requirement relating to the retail

packaging of tobacco products.

Note:

Divisions 1 and 2 deal with contraventions relating to the retail

packaging of tobacco products.

102 Selling or supplying non-compliant regulated tobacco items

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a regulated tobacco item; or

(ii) offers a regulated tobacco item for sale; or

(iii) otherwise supplies (whether or not for consideration) a

regulated tobacco item; and

(b) the item does not comply with a tobacco product

requirement.

Note 1:

The physical elements of offences against subsections (2) and (3) are

set out in this subsection (see section 165).

Note 2:

There is an exception to this subsection in section 120 (export

exception).

Note 3:

See section 16 for an extended meaning of

offer

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 3

Non-compliant regulated tobacco items

Section 103

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Strict liability offence

(3) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

103 Purchasing non-compliant regulated tobacco items

(1) A person contravenes this subsection if:

(a) the person purchases a regulated tobacco item; and

(b) at the time the item is purchased, the item does not comply

with a tobacco product requirement.

Note:

The physical elements of offences against subsections (4) and (5) are

set out in this subsection (see section 165).

Exception

purchase by individual for personal use

(2) Subsection (1) does not apply to an individual who purchases the

regulated tobacco item for the individual's personal use.

Exception

purchase in the course of compliance and enforcement

activities

(3) Subsection (1) does not apply to any of the following persons if the

person purchases the regulated tobacco item for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Non-compliant regulated tobacco items

Division 3

Section 103

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Territory;

(d) a State or Territory enforcement official.

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2) and (3) (see subsection 13.3(3) of the

Criminal Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 3

Non-compliant regulated tobacco items

Section 104

100

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

104 Possessing non-compliant regulated tobacco items

(1) A person contravenes this subsection if:

(a) the person possesses a regulated tobacco item; and

(b) at the time of possession, the item does not comply with a

tobacco product requirement.

Note:

The physical elements of offences against subsections (4) and (5) are

set out in this subsection (see section 165).

Exception

possession by individual for personal use

(2) Subsection (1) does not apply to an individual who possesses the

regulated tobacco item for the individual's personal use.

Exception

possession in the course of compliance and

enforcement activities

(3) Subsection (1) does not apply to any of the following persons if the

person possesses the regulated tobacco item for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Territory;

(d) a State or Territory enforcement official.

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2) and (3) (see subsection 13.3(3) of the

Criminal Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

Tobacco product requirements

Chapter 3

General offences and civil penalty provisions

tobacco product requirements

Part 3.4

Non-compliant regulated tobacco items

Division 3

Section 105

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

101

(b) for a body corporate

20,000 penalty units.

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

105 Manufacturing non-compliant regulated tobacco items

(1) A person contravenes this subsection if:

(a) the person manufactures a regulated tobacco item; and

(b) the item does not comply with a tobacco product

requirement.

Note 1:

The physical elements of offences against subsections (2) and (3) are

set out in this subsection (see section 165).

Note 2:

There is an exception to this subsection in section 120 (export

exception).

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Chapter 3

Tobacco product requirements

Part 3.4

General offences and civil penalty provisions

tobacco product requirements

Division 3

Non-compliant regulated tobacco items

Section 105

102

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Strict liability offence

(3) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Tobacco products not in retail packaging

Division 1

Section 106

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

103

Part

3.5--Offences and civil penalty provisions

relating to constitutional corporations--

tobacco product requirements

Division

1--Tobacco products not in retail packaging

106 Retail sale of tobacco products without retail packaging to a

constitutional corporation

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a tobacco product by way of retail sale; or

(ii) offers a tobacco product for sale by way of retail sale;

to another person; and

(b) that other person is a constitutional corporation; and

is not in retail packaging.

Note 1:

The physical elements of offences against subsections (2) and (4) are

set out in this subsection (see section 165).

Note 2:

See section 16 for an extended meaning of

offer

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(3) For the purposes of subsection (2), strict liability applies to

paragraph (1)(b).

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 1

Tobacco products not in retail packaging

Section 107

104

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

107 Selling or supplying tobacco products without retail packaging

to retailer who is 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 (the

retailer

); and

(b) the retailer is a constitutional corporation; and

the retailer, the product is not in retail packaging; and

(d) at that time, the person knows that, or is reckless as to

whether, the retailer is ordinarily in the business of selling

tobacco products by way of retail sale.

Note 1:

The physical elements of offences against subsections (3) and (5) are

set out in this subsection (see section 165).

Note 2:

See section 16 for an extended meaning of

offer

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Tobacco products not in retail packaging

Division 1

Section 107

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

105

Exception

cigars sold or supplied to retailer for individual resale

(2) Subsection (1) does not apply if:

(a) the sale, offer or supply is in respect of multiple tobacco

products that are cigars; and

(b) the sale or supply is by way of import by the retailer; and

package each cigar individually for retail sale as a single

cigar.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Fault-based offence

(3) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(4) For the purposes of subsection (3), strict liability applies to

paragraphs (1)(b) and (c).

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Non-compliant retail packaging of tobacco products

Division 2

Section 108

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

107

Division

2--Non

compliant retail packaging of tobacco

products

108 Selling or supplying tobacco products in non-compliant retail

packaging 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 (the

retailer

); and

(b) the retailer is a constitutional corporation; and

the retailer, the product is in retail packaging; and

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

requirement.

Note 1:

The physical elements of offences against subsections (3) and (5) are

set out in this subsection (see section 165).

Note 2:

See section 16 for an extended meaning of

offer

Exception

cigars sold or supplied to retailer for individual resale

(2) Subsection (1) does not apply if:

(a) the sale, offer or supply is in respect of multiple tobacco

products that are cigars; and

(b) the retailer is ordinarily engaged in the business of selling

tobacco products by way of retail sale in Australia; and

repackage each cigar individually for retail sale as a single

cigar.

Note 1:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 109

108

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Fault-based offence

(3) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(4) For the purposes of subsection (3), strict liability applies to

paragraphs (1)(b) and (c).

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

109 Purchasing tobacco products in non-compliant retail packaging

from a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person purchases a tobacco product from another person;

and

(b) that other person is a constitutional corporation; and

packaging; and

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Non-compliant retail packaging of tobacco products

Division 2

Section 109

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

109

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

requirement.

Note:

The physical elements of offences against subsections (5) and (7) are

set out in this subsection (see section 165).

Exception

cigars purchased by retailer for individual resale

(2) Subsection (1) does not apply if:

(a) the person purchases multiple tobacco products that are

cigars; and

(b) the person is ordinarily engaged in the business of selling

tobacco products by way of retail sale in Australia; and

retail sale as a single cigar.

Exception

purchase by individual for personal use

(3) Subsection (1) does not apply to an individual who purchases the

tobacco product for the individual's personal use.

Exception

purchase in the course of compliance and enforcement

activities

(4) Subsection (1) does not apply to any of the following persons if the

person purchases the tobacco product for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Territory;

(d) a State or Territory enforcement official.

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2), (3) and (4) (see subsection 13.3(3) of the

Criminal

Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 110

110

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Fault-based offence

(5) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(6) For the purposes of subsection (5), strict liability applies to

paragraphs (1)(b) and (c).

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

110 Possessing tobacco products in non-compliant retail packaging

obtained from a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person possesses a tobacco product; and

(b) the person obtained possession of the product from a

constitutional corporation; and

and

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Non-compliant retail packaging of tobacco products

Division 2

Section 110

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

111

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

requirement.

Note:

The physical elements of offences against subsections (5) and (7) are

set out in this subsection (see section 165).

Exception

cigars possessed by retailer for individual resale

(2) Subsection (1) does not apply if:

(a) the person possesses multiple tobacco products that are

cigars; and

(b) the person is ordinarily engaged in the business of selling

tobacco products by way of retail sale in Australia; and

retail sale as a single cigar.

Exception

possession by individual for personal use

(3) Subsection (1) does not apply if:

(a) an individual possesses the tobacco product for the

individual's personal use; and

(b) the amount of the tobac

co product in the individual's

possession does not exceed the amount (if any) prescribed by

regulations made for the purposes of this paragraph.

Exception

possession in the course of compliance and

enforcement activities

(4) Subsection (1) does not apply to any of the following persons if the

person possesses the tobacco product for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Territory;

(d) a State or Territory enforcement official.

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 111

112

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2), (3) and (4) (see subsection 13.3(3) of the

Criminal

Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Fault-based offence

(5) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(6) For the purposes of subsection (5), strict liability applies to

paragraphs (1)(b) and (c).

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

111 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; and

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Non-compliant retail packaging of tobacco products

Division 2

Section 111

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

113

(b) the product is packaged for retail sale; and

corporation; and

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

requirement.

Note 1:

The physical elements of offences against subsections (2) and (4) are

set out in this subsection (see section 165).

Note 2:

There is an exception to this subsection in section 120 (export

exception).

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(3) For the purposes of subsection (2), strict liability applies to

paragraphs (1)(b) and (c).

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 112

114

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

112 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 manufactures packaging; and

(b) the packaging is retail packaging of tobacco products (other

than an insert or onsert); and

constitutional corporation; and

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

requirement.

Note 1:

The physical elements of offences against subsections (2) and (4) are

set out in this subsection (see section 165).

Note 2:

There is an exception to this subsection in section 120 (export

exception).

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(3) For the purposes of subsection (2), strict liability applies to

paragraphs (1)(b) and (c).

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Non-compliant retail packaging of tobacco products

Division 2

Section 113

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

115

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

113 Possessing non-compliant retail packaging of tobacco products

obtained from a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person possesses packaging; and

(b) the packaging is retail packaging of tobacco products (other

than an insert or onsert); and

constitutional corporation; and

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

requirement.

Note:

The physical elements of offences against subsections (5) and (7) are

set out in this subsection (see section 165).

Exception

possession by individual

(2) Subsection (1) does not apply if an individual possesses the retail

packaging in connection with the individual's personal use of a

tobacco product.

Exception

possession in the course of repackaging

(3) Subsection (1) does not apply if, at the time the person possesses

the retail packaging of the tobacco products:

(a) the person has repackaged the tobacco products into other

retail packaging that complies with the tobacco product

requirements for the tobacco products; or

(b) the person:

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 113

116

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(i) possesses other retail packaging that complies with the

tobacco product requirements for the tobacco products;

and

(ii) intends to repackage the tobacco products into that retail

packaging.

Exception

possession in the course of compliance and

enforcement activities

(4) Subsection (1) does not apply to any of the following persons if the

person possesses the retail packaging for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Territory;

(d) a State or Territory enforcement official.

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2), (3) and (4) (see subsection 13.3(3) of the

Criminal

Code

Note 2:

There is another exception to this subsection in section 120 (export

exception).

Fault-based offence

(5) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(6) For the purposes of subsection (5), strict liability applies to

paragraphs (1)(b) and (c).

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Non-compliant retail packaging of tobacco products

Division 2

Section 114

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

117

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

114 Manufacturing tobacco products that are packaged in

non-compliant retail packaging by a constitutional

corporation

(1) A person contravenes this subsection if:

(a) the person (the

manufacturer

) manufactures a tobacco

product; and

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

arrives at an understanding, for another person to package the

tobacco product for retail sale; and

(d) the tobacco product is packaged for retail sale by the other

person; and

(e) the retail packaging does not comply with a tobacco product

requirement.

Note:

The physical elements of offences against subsections (3) and (5) are

set out in this subsection (see section 165).

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 2

Non-compliant retail packaging of tobacco products

Section 114

118

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Exception

(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 1:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Fault-based offence

(3) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(4) For the purposes of subsection (3), strict liability applies to

paragraph (1)(c).

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Non-compliant regulated tobacco items

Division 3

Section 115

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

119

Division

3--Non

compliant regulated tobacco items

115 Scope of Division

This Division applies to a contravention of a tobacco product

requirement other than a requirement relating to the retail

packaging of tobacco products.

Note:

Divisions 1 and 2 deal with contraventions relating to the retail

packaging of tobacco products.

116 Selling or supplying non-compliant regulated tobacco items to a

constitutional corporation

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a regulated tobacco item; or

(ii) offers a regulated tobacco item for sale; or

(iii) otherwise supplies (whether or not for consideration) a

regulated tobacco item;

to another person; and

(b) that other person is a constitutional corporation; and

requirement.

Note 1:

The physical elements of offences against subsections (2) and (4) are

set out in this subsection (see section 165).

Note 2:

There is an exception to this subsection in section 120 (export

exception).

Note 3:

See section 16 for an extended meaning of

offer

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 3

Non-compliant regulated tobacco items

Section 117

120

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(3) For the purposes of subsection (2), strict liability applies to

paragraph (1)(b).

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

117 Purchasing non-compliant regulated tobacco items from a

constitutional corporation

(1) A person contravenes this subsection if:

(a) the person purchases a regulated tobacco item from another

person; and

(b) that other person is a constitutional corporation; and

comply with a tobacco product requirement.

Note:

The physical elements of offences against subsections (4) and (6) are

set out in this subsection (see section 165).

Exception

purchase by individual for personal use

(2) Subsection (1) does not apply to an individual who purchases the

regulated tobacco item for the individual's personal use.

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Non-compliant regulated tobacco items

Division 3

Section 117

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

121

Exception

purchase in the course of compliance and enforcement

activities

(3) Subsection (1) does not apply to any of the following persons if the

person purchases the regulated tobacco item for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Territory;

(d) a State or Territory enforcement official.

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2) and (3) (see subsection 13.3(3) of the

Criminal Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(5) For the purposes of subsection (4), strict liability applies to

paragraph (1)(b).

Strict liability offence

(6) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 3

Non-compliant regulated tobacco items

Section 118

122

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Civil penalty provision

(7) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

118 Possessing non-compliant regulated tobacco items obtained

from a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person possesses a regulated tobacco item; and

(b) the person obtained possession of the item from a

constitutional corporation; and

tobacco product requirement.

Note:

The physical elements of offences against subsections (4) and (6) are

set out in this subsection (see section 165).

Exception

possession by individual for personal use

(2) Subsection (1) does not apply to an individual who possesses the

regulated tobacco item for the individual's personal use.

Exception

possession in the course of compliance and

enforcement activities

(3) Subsection (1) does not apply to any of the following persons if the

person possesses the regulated tobacco item for the purposes of

monitoring or investigating compliance with, or exercising powers

under or in relation to, this Act:

(a) an authorised officer;

(b) a member or special member of the Australian Federal Police

(within the meaning of the

Australian Federal Police Act

1979

);

Territory;

Tobacco product requirements

Chapter 3

Offences and civil penalty provisions relating to constitutional corporations

tobacco

product requirements

Part 3.5

Non-compliant regulated tobacco items

Division 3

Section 119

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

123

(d) a State or Territory enforcement official.

Note 1:

A defendant bears an evidential burden in relation to the matters in

subsections (2) and (3) (see subsection 13.3(3) of the

Criminal Code

Note 2:

There is another exception to subsection (1) in section 120 (export

exception).

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(5) For the purposes of subsection (4), strict liability applies to

paragraph (1)(b).

Strict liability offence

(6) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(7) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

119 Manufacturing non-compliant regulated tobacco items under a

contract with a constitutional corporation

(1) A person contravenes this subsection if:

Chapter 3

Tobacco product requirements

Part 3.5

Offences and civil penalty provisions relating to constitutional corporations

tobacco product requirements

Division 3

Non-compliant regulated tobacco items

Section 119

124

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(a) the person manufactures a regulated tobacco item under a

contract with another person; and

(b) that other person is a constitutional corporation; and

requirement.

Note 1:

The physical elements of offences against subsections (2) and (4) are

set out in this subsection (see section 165).

Note 2:

There is an exception to this subsection in section 120 (export

exception).

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(3) For the purposes of subsection (2), strict liability applies to

paragraph (1)(b).

Strict liability offence

(4) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

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

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Tobacco product requirements

Chapter 3

Miscellaneous

Part 3.6

Export exception

Division 1

Section 120

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

125

Part

3.6--Miscellaneous

Division

1--Export exception

120 Export exception for non-compliant retail packaging or

regulated tobacco items

Scope

(1) This section applies in relation to subsection (1) (the

conduct rule

)

of each of the following provisions:

(a) sections 94 to 100;

(b) sections 102 to 105;

(d) sections 116 to 119.

Export exception

(2) The conduct rule does not apply to a person (the

relevant person

)

if:

(a) the relevant person engages in conduct that would (apart

from this section) contravene the conduct rule in relation to a

regulated tobacco item; and

(b) subsection (3) is satisfied in relation to the item.

Note:

A defendant bears an evidential burden in relation to the matters in

this subsection (see subsection 13.3(3) of the

Criminal Code

Export conditions

(3) This subsection is satisfied in relation to a regulated tobacco item

if:

(a) a contract or arrangement has been entered into, or an

understanding has been reached, with another person for the

item to be exported (whether or not the relevant person is a

party to that contract, arrangement or understanding); and

(b) the relevant person engages in the conduct in the course of,

or for the purposes of, the item being exported; and

Tobacco product requirements

Chapter 3

Miscellaneous

Part 3.6

Interaction with certain intellectual property laws

Division 2

Section 121

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

127

Division

2--Interaction with certain intellectual property

laws

121 Effect on the Trade Marks Act of non-use of trade mark as a

result of this Act

Effect on use requirements under Trade Marks Act

(1) For the purposes of the Trade Marks Act and regulations made

under that Act, an applicant for the registration of a trade mark in

respect of a regulated tobacco item is taken to intend to:

(a) use the trade mark in Australia in relation to that item; or

(b) authorise another person to use the trade mark in Australia in

relation to that item; or

constituted with a view to the body corporate using the trade

mark in Australia in relation to that item;

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, this Act does not have the effect that the use of a trade

mark in relation to a regulated tobacco item would be contrary to

law.

Effect on registration under Trade Marks Act

(3) Neither:

(a) the operation of this Act; nor

(b) the circumstance that a person is prevented, by or under this

Act, from using a trade mark on or in relation to regulated

tobacco items, or on or in relation to the retail packaging of

tobacco products;

are circumstances that make it reasonable or appropriate:

(d) to revoke the acceptance of an application for registration of

the trade mark; or

Chapter 3

Tobacco product requirements

Part 3.6

Miscellaneous

Division 2

Interaction with certain intellectual property laws

Section 122

128

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

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

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

(4) To avoid doubt, subsection (3) applies for the purposes of:

(a) sections 38 and 84A of the Trade Marks Act; and

(b) any power of the Registrar of Trade Marks under the

regulations made under that Act:

(i) to revoke the acceptance of an international registration

designating Australia (within the meaning of those

regulations); or

(ii) to amend or cease protection of a protected international

trade mark (within the meaning of those regulations).

Proceedings relating to opposed applications

(5) For the purposes of paragraph 100(1)(c) of the Trade Marks Act,

an opponent is taken to have rebutted an allegation if the opponent

establishes that, but for the operation of this Act, the registered

owner would have used the trade mark in Australia:

(a) on or in relation to regulated tobacco items; or

(b) on or in relation to the retail packaging of tobacco products.

Trade Marks regulations applying provisions of Trade Marks Act

(6) Subsections (1) to (5) of this section also apply in relation to

regulations made under the Trade Marks Act that apply provisions

of the Trade Marks Act that are affected by this section, including

where the regulations apply those provisions in modified form.

122 Effect on the Designs Act 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, requiring the grant of a

licence in relation to the design; or

Tobacco product requirements

Chapter 3

Miscellaneous

Part 3.6

Interaction with certain intellectual property laws

Division 2

Section 123

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

129

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

design.

123 Effect on the Patents Act

of compliance with this Act

(1) To avoid doubt, this Act does not have the effect that the use of an

invention that is or relates to a regulated tobacco item would be

contrary to law for the purposes of the following provisions of the

Patents Act:

(a) paragraph 50(1)(a);

(b) paragraph 101B(2)(d);

(2) A failure to exploit (within the meaning of the Patents Act) a

patented invention merely as a result of complying with the

requirements of this Act does not, of itself, constitute an

unsatisfactory failure to exploit the patent for the purposes of

paragraph 133(3)(d) of the Patents Act.

Chapter 3

Tobacco product requirements

Part 3.6

Miscellaneous

Division 3

Additional tobacco product requirements

Section 124

130

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

3--Additional tobacco product requirements

124 Regulations may prescribe additional requirements

(1) The regulations may prescribe additional requirements in relation

to any of the following:

(a) the retail packaging of tobacco products;

(b) the content of tobacco products;

(d) standards for tobacco products.

(2) Part 3.3 does not limit subsection (1).

Permanent bans on certain tobacco products

Chapter 4

Introduction

Part 4.1

Section 125

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

131

Chapter

4--Permanent bans on certain

tobacco products

Part

4.1--Introduction

125 Simplified outline of this Chapter

This Chapter imposes a permanent ban on chewing tobacco and

snuffs intended for oral use.

A person who contravenes this ban by dealing in, or possessing,

such a product may commit an offence or be liable for a civil

penalty.

126 Tobacco products that are permanently banned

The following tobacco products are permanently banned under this

Act:

(a) chewing tobacco;

(b) snuffs intended for oral use.

Chapter 4

Permanent bans on certain tobacco products

Part 4.2

Offences and civil penalty provisions

Section 127

132

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Part

4.2--Offences and civil penalty provisions

127 Dealing in permanently banned tobacco products

(1) A person contravenes this subsection if:

(a) the person engages in conduct; and

(b) the conduct is:

(i) the importation or manufacture of; or

(ii) the sale or supply of, or the offer to sell or supply;

a tobacco product; and

product is permanently banned under this Act; and

(d) any of the following apply:

(i) the person is a constitutional corporation;

(ii) the person is a body corporate that is incorporated in a

Territory;

(iii) the conduct occurs in the course of constitutional trade

or commerce;

(iv) the conduct occurs in a Territory.

Note:

The physical elements of offences against subsections (4) and (7) are

set out in this subsection (see section 165).

Exception

importation for personal use

(2) Subsection (1) does not apply if:

(a) the person who engages in the conduct is an individual; and

(b) the conduct is the importation of the tobacco product for

personal use by the individual; and

the tobacco product; and

(d) the amount of the tobacco product does not exceed the limit

(if any) on the importation of such a product prescribed by

that other law.

Permanent bans on certain tobacco products

Chapter 4

Offences and civil penalty provisions

Part 4.2

Section 127

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

133

Exception

sale or supply by way of export

(3) Subsection (1) does not apply if:

(a) the conduct engaged in by the person is the sale or supply of,

or an offer to sell or supply, the tobacco product by way of

export; and

(b) the sale or supply is not, or would not be, a retail sale.

Note:

A defendant bears an evidential burden in relation to the matters in

subsections (2) and (3) (see subsection 13.3(3) of the

Criminal Code

)

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(5) For the purposes of subsection (4), strict liability applies to

paragraphs (1)(c) and (d).

Geographical application

(6) Section 15.2 of the

Criminal Code

(extended geographical

jurisdiction

category B) applies to an offence against

subsection (4).

Strict liability offence

(7) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if the person contravenes

subsection (1).

Chapter 4

Permanent bans on certain tobacco products

Part 4.2

Offences and civil penalty provisions

Section 128

134

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

128 Possessing permanently banned tobacco products

(1) A person contravenes this subsection if:

(a) the person possesses a tobacco product; and

(b) at the time of possession, the tobacco product is permanently

banned under this Act; and

(i) the person is a constitutional corporation;

(ii) the person is a body corporate that is incorporated in a

Territory;

(iii) the person possesses the tobacco product in or for the

purposes of constitutional trade or commerce;

(iv) the person possesses the tobacco product in a Territory.

Note:

The physical elements of offences against subsections (4) and (6) are

set out in this subsection (see section 165).

Exception

possession for personal use

(2) Subsection (1) does not apply if:

(a) the person who possesses the tobacco product is an

individual; and

(b) the possession of the tobacco product is for personal use by

the individual; and

law of the Commonwealth.

Exception

sale or supply by way of export

(3) Subsection (1) does not apply if:

(a) the possession of the tobacco product is for the purpose of:

(i) the sale or supply of; or

(ii) an offer to sell or supply;

the tobacco product by way of export; and

Permanent bans on certain tobacco products

Chapter 4

Offences and civil penalty provisions

Part 4.2

Section 128

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

135

(b) the sale or supply is not, or would not be, a retail sale.

Note:

A defendant bears an evidential burden in relation to the matters in

subsections (2) and (3) (see subsection 13.3(3) of the

Criminal Code

)

Fault-based offence

(4) A person commits an offence if the person contravenes

subsection (1).

Penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

(5) For the purposes of subsection (4), strict liability applies to

paragraphs (1)(b) and (c).

Strict liability offence

(6) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty:

(a) for an individual

60 penalty units; and

(b) for a body corporate

600 penalty units.

Civil penalty provision

(7) A person is liable to a civil penalty if the person contravenes

subsection (1).

Civil penalty:

(a) for an individual

2,000 penalty units; and

(b) for a body corporate

20,000 penalty units.

Chapter 5

Reporting and information disclosure

Part 5.1

Introduction

Section 129

136

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Chapter

5--Reporting and information

disclosure

Part

5.1--Introduction

129 Simplified outline of this Chapter

This Chapter requires certain manufacturers and importers of

tobacco products (collectively known as reporting entities) to give

to the Secretary the following reports for each financial year:

(a) a report identifying the ingredients used in

manufacturing tobacco products;

(b) a report providing information relating to the volume of

tobacco products imported into, or sold or supplied in,

Australia;

the entity's

marketing and promotional expenditure.

A reporting entity may consolidate reports into a single report that

covers the same financial year. Related reporting entities may also

combine reports into a single report, either on their own initiative

or as directed by the Secretary.

The Minister must publish each report given by a reporting entity

under this Chapter unless the Minister is satisfied that it is not

appropriate to do so. However, the Minister must not publish trade

secrets or information that has a commercial value that would be,

or could be, destroyed if the information were disclosed.

A reporting entity that contravenes a reporting requirement may

commit an offence or be liable for a civil penalty. The Minister

may also decide to publish information about the non-compliance,

including the identity of the reporting entity.

Reporting and information disclosure

Chapter 5

Introduction

Part 5.1

Section 130

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

137

130 Meaning of

reporting entity

(1) Each of the following persons is a

reporting entity

(a) a person who is a manufacturer of tobacco products that are

sold or supplied, or offered for sale or supply, in Australia;

(b) a person who is an importer of tobacco products that are sold

or supplied, or offered for sale or supply, in Australia.

Note:

The meaning of

person

is affected by sections 168 (partnerships), 169

(unincorporated associations) and 170 (trusts).

Reporting entities may be prescribed

(2) The regulations may prescribe a person to be a

reporting entity

for

the purposes of this Act.

(3) Before regulations are made under subsection (2), the Minister

must be satisfied that the person proposed to be prescribed is

involved in the sale or supply (other than as a retailer) of tobacco

products in Australia.

Chapter 5

Reporting and information disclosure

Part 5.2

Reports

Division 1

Required reports

Section 131

138

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Part

5.2--Reports

Division

1--Required reports

131 Tobacco product ingredients

(1) A reporting entity must give to the Secretary a report that identifies

the ingredients (other than processing aids) used in manufacturing

each kind of tobacco product sold or supplied, or offered for sale or

supply, by the entity in Australia during each financial year.

Note:

The ingredients of a cigarette include the paper, and any filter tip, used

in manufacturing the cigarette (see subsection 9(2)).

(2) The report must be given to the Secretary within 30 days after the

end of the financial year.

Note:

The Secretary may extend the period for giving the report in certain

circumstances (see section 142).

Contents of report

(3) The report must identify the following for each kind of tobacco

product:

(a) the brand name and variant name (if any) of the product;

(b) the common, chemical and trade name of each ingredient;

(d) the amount of the ingredient used in the product.

132 Tobacco product volumes

(1) A reporting entity must give to the Secretary a report that includes

the information mentioned in subsection (3) for each kind of

tobacco product sold or supplied, or offered for sale or supply, by

the entity in Australia during each financial year.

(2) The report must be given to the Secretary within 30 days after the

end of the financial year.

Note:

The Secretary may extend the period for giving the report in certain

circumstances (see section 142).

Reporting and information disclosure

Chapter 5

Reports

Part 5.2

Required reports

Division 1

Section 133

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

139

Contents of report

(3) For the purposes of subsection (1), the information is the

following:

(a) if the reporting entity is an importer

the total number of

units imported by the reporting entity;

(b) if the reporting entity is an importer

the total mass, in

kilograms, imported by the reporting entity;

entity;

(d) the total mass, in kilograms, sold or supplied by the reporting

entity;

(e) the total Australian dollar value of sales revenue, including

excise duty;

(f) the total number of units destroyed by the reporting entity;

(g) the total mass, in kilograms, destroyed by the reporting

entity.

133 Marketing and promotional expenditure

(1) A reporting entity must give to the Secretary a report that contains

information about the activities mentioned in subsection (3) (to the

extent they are not prohibited by this Act) conducted by the entity

during each financial year.

(2) The report must be given to the Secretary within 30 days after the

end of the financial year.

Note:

The Secretary may extend the period for giving the report in certain

circumstances (see section 142).

Contents of report

(3) For the purposes of subsection (1), the activities are the following:

(a) marketing, promotion and sponsorship (such as corporate

hospitality functions);

(b) corporate social responsibility activities;

products;

(d) contributions of a kind mentioned in subsection 40(1);

Chapter 5

Reporting and information disclosure

Part 5.2

Reports

Division 1

Required reports

Section 134

140

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(e) lobbying;

(f) services or funding provided to any industry group or

organisation that seeks to influence the development of

public policy relating to tobacco control;

(g) philanthropy;

(h) rebates and reward systems offered to distributors and

retailers of tobacco products;

(i) arrangements entered into with social media influencers.

Note:

For paragraph (d), the contributions mentioned in subsection 40(1) are

political donations and electoral expenditure.

(4) The report must include for each activity mentioned in

subsection (3):

(a) a description of the activity; and

(b) the expenditure on the activity during the financial year; and

activity was undertaken.

134 Determinations by Secretary

(1) The Secretary may, by notifiable instrument, determine that the

obligation to provide one or more reports under this Part does not

apply to a specified reporting entity. The determination may be

subject to conditions.

(2) The Secretary must not:

(a) revoke a determination under subsection (1); or

(b) vary such a determination by amending or including

conditions to which the determination is subject;

unless the Secretary has notified the entity, in writing, that the

Secretary is considering revoking or varying the determination.

Reporting and information disclosure

Chapter 5

Reports

Part 5.2

General matters relating to reports

Division 2

Section 135

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

141

Division

2--General matters relating to reports

135 Scope of Division

This Division applies in relation to reports required to be given

under this Chapter.

136 How reports must be given

(1) A report must be given in a form and manner (if any) approved in

an instrument under subsection (2).

(2) The Secretary may, by notifiable instrument, approve a form or

manner for the purposes of subsection (1).

137 Contents of reports

Signature and certification of report

(1) A report must:

(a) be signed on behalf of the reporting entity by a director or

other officer (both within the meaning of the

Corporations

Act 2001

) of the entity; and

(b) declare that the information contained in the report is true

and correct to the best of the director's or officer's

knowledge; and

(c)

state that a copy of the report will be given to the entity's

governing body.

Contents of report

basic details

(2) A report must include the following:

(a) the name of the reporting entity;

(b) if the reporting entity has an ABN

the ABN;

escription of the entity's main business activities;

(d) a statement of the financial year to which the report relates;

(e) the date the report was signed;

Chapter 5

Reporting and information disclosure

Part 5.2

Reports

Division 2

General matters relating to reports

Section 138

142

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

(f) if the entity is a related body corporate in relation to another

body corporate that is itself a reporting entity

the name of

the other body corporate and a description of the relationship.

Note:

For

related body corporate

, see section 8.

138 Consolidated reports

(1) A reporting entity may provide a single report (the

consolidated

report

) that contains 2 or more reports required to be given by the

reporting entity under this Chapter.

(2) The reports in the consolidated report must each cover the same

financial year.

(3) The consolidated report must:

(a) separately identify each of the reports required by Division 1;

and

(b) satisfy subsection 137(1) in relation to each report.

Direction by Secretary

(4) The Secretary may, by notifiable instrument, direct a reporting

entity to provide reports in the form of a consolidated report.

139 Reporting by related entities

Scope

(1) This section applies if 2 or more reporting entities are related

bodies corporate.

Note:

For

related body corporate

, see section 8.

Group reports

(2) The reporting entities may combine the reports required to be given

by the entities under this Chapter into a single report (the

group

report

(3) The group report must:

(a) state the reporting entities that are covered by the report; and

Reporting and information disclosure

Chapter 5

Reports

Part 5.2

General matters relating to reports

Division 2

Section 140

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

143

(b) describe how those entities are related bodies corporate; and

(d) satisfy subsection 137(1) in relation to each report contained

in the group report.

140 Direction by Secretary

The Secretary may, by notifiable instrument, direct 2 or more

reporting entities who are related bodies corporate to provide

reports in the form of a group report under section 139.

Note:

For

related body corporate

, see section 8.

141 No duplication of information

(1) A report given by a reporting entity must not duplicate the

information given in a report by another reporting entity to which

the first entity is a related body corporate.

Note:

For

related body corporate

, see section 8.

(2) Subsection (1) applies whether or not the reporting entities submit

a group report under section 139.

142 Extensions of time

Applications for further time

(1) A reporting entity may apply, in writing, to the Secretary for an

extension to the period in which to give a report.

(2) The application must be made before the end of the period for

giving the report.

(3) The period for giving the report is extended until:

(a) if the Secretary extends the period for giving the report

the

end of that extended period; or

(b) if the Secretary refuses to extend the period for giving the

report

the day that is 7 days after written notice of the

Secretary's decision is given to the reporting entity

Chapter 5

Reporting and information disclosure

Part 5.2

Reports

Division 2

General matters relating to reports

Section 142

144

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Form and manner of application

(4) The application must be made in a form and manner (if any)

approved in an instrument under subsection (5).

(5) The Secretary may, by notifiable instrument, approve a form or

manner for the purposes of subsection (4).

Contents of application

(6) The application must:

(a) state the extension sought to the period; and

(b) state the circumstances that have resulted in the need for the

extension; and

(d) include any other information prescribed by regulations made

for the purposes of this paragraph.

Decision to extend period

(7) The Secretary may, by written notice to the entity, extend the

period for giving the report if, after considering:

(a) the application; and

(b) any matters prescribed by regulations made for the purposes

of this paragraph;

the Secretary is satisfied that:

extension of time are exceptional; or

(d) those circumstances

were outside the entity's reasonable

control.

(8) An extension to the period must be for such time as the Secretary

considers appropriate, having regard to:

(a) the nature of the circumstances that have resulted in the need

for further time; and

(b) the strength of the evidence included in the application.

(9) The Secretary may impose any condition that the Secretary

considers appropriate on the extension.

Reporting and information disclosure

Chapter 5

Reports

Part 5.2

General matters relating to reports

Division 2

Section 143

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

145

Review by Administrative Appeals Tribunal

(10) Applications may be made to the Administrative Appeals Tribunal

for review of a decision by the Secretary to:

(a) refuse to grant further time; or

(b) grant a shorter period of time than that sought in the

application; or

143 Secretary may request additional information

(1) The Secretary may, by written notice to a reporting entity, request

the entity to provide specified information about, or in relation to, a

matter that is mentioned in a report given by the entity.

(2) The request must:

(a) be in writing; and

(b) specify the period in which the information is to be given.

(3) The reporting entity must comply with the request before the end

of:

(a) the period specified in the request; or

(b) any longer period allowed by the Secretary.

144 Regulations may prescribe additional requirements

The regulations may prescribe the following:

(a) details about the information to be included in a report under

this Chapter;

(b) additional kinds of information that are to be included in a

report under this Chapter.

Chapter 5

Reporting and information disclosure

Part 5.2

Reports

Division 3

Publication and disclosure

Section 145

146

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Division

3--Publication and disclosure

145 Publication of reports and information

Minister to publish reports

(1) Subject to subsections (2) and (3), the Minister must publish, in

such manner as the Minister considers appropriate, each report

given by a reporting entity under Division 1.

(2) The Minister may decide not to publish a report, or part of a report,

if the Minister is satisfied that it is not appropriate to do so, having

regard to the matters (if any) prescribed by regulations made for

the purposes of this subsection.

Restrictions on publication

(3) The Minister must not publish information in a report (the

reported

information

) under this section if the reported information is:

(a) a trade secret of the reporting entity; or

(b) other information of the reporting entity that has a

commercial value that would be, or could reasonably be

expected to be, destroyed if the reported information were

publicly disclosed.

(4) Subsection (3) does not apply to reported information that is:

(a) already in the public domain; or

(b) required to be disclosed under another law of the

Commonwealth, or under a law of a State or Territory; or

146 Disclosure for research, policy development or data analysis

Scope

(1) This section applies to the following information (the

reported

information

(a) a report, or part of a report, that the Minister decides not to

publish under subsection 145(2);

Reporting and information disclosure

Chapter 5

Reports

Part 5.2

Publication and disclosure

Division 3

Section 147

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

147

(b) information that is not published under subsection 145(3).

Disclosure for limited purposes

(2) The Secretary may disclose the reported information to another

person or body for the purposes of the person or body undertaking

research, policy development or data analysis to assist the

Department with:

(a) the administration of this Act; or

(b) achieving the objects in paragraphs 3(1)(a) and (b) (about

regulated tobacco items).

(3) The Secretary must not disclose reported information under

subsection (2) to:

(a) another person who is not employed or engaged by the

Commonwealth or by a Commonwealth entity (within the

meaning of the

Public Governance, Performance and

Accountability Act 2013

); or

(b) a body that is not such a Commonwealth entity;

unless:

disclose the reported information except in accordance with a

written agreement that:

(i) is in force between the Commonwealth and that person

or body; and

(ii) applies in relation to the reported information; and

(d) the Secretary is satisfied that the reported information will be

used or further disclosed only in accordance with the

agreement.

147 Publication of information about failure to comply with Chapter

(1) If the Minister is reasonably satisfied that a reporting entity has

failed to comply with this Chapter, the Minister may decide to

publish the following information (the

non-compliance

information

(a) the identity of the entity;

(b) the details of the non-compliance;

Chapter 5

Reporting and information disclosure

Part 5.2

Reports

Division 3

Publication and disclosure

Section 147

148

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

in any way the Minister considers appropriate.

(2) Before publishing the non-compliance information, the Minister

must give the reporting entity written notice of the decision and the

reasons for the decision.

(3) After the Minister gives the reporting entity notice of the decision,

the Minister may publish the non-compliance information unless,

within 10 business days after the reporting entity is given notice of

the decision, the reporting entity:

(a) makes an application under subsection (4) for review of the

decision; and

(b) gives the Minister a copy of that application.

Review by Administrative Appeals Tribunal

(4) Applications may be made to the Administrative Appeals Tribunal

for review of a decision by the Minister under subsection (1) to

publish non-compliance information.

(5) If a reporting entity makes such an application, the Minister may

publish the non-compliance information only if:

(a) the Administrative Appeals Tribunal affirms or varies the

Minister's decision; or

(b) the reporting entity withdraws the application for review of

the decision.

Reporting and information disclosure

Chapter 5

Offence and civil penalty provision

Part 5.3

Section 148

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

149

Part

5.3--Offence and civil penalty provision

148 Non-compliance with reporting obligations

(1) A person contravenes this subsection if:

(a) the person is a reporting entity; and

(b) the person is required, under this Chapter, to give the

Secretary:

(i) a report; or

(ii) additional information about a matter in a report; and

accordance with this Chapter.

Note:

The physical elements of offences against subsections (2) and (5) are

set out in this subsection (see section 165).

Fault-based offence

(2) A person commits an offence if the person contravenes

subsection (1).

Penalty: 20 penalty units.

(3) For the purposes of subsection (2), strict liability applies to

paragraph (1)(a).

Offences

extended geographical jurisdiction

(4) Section 15.4 of the

Criminal Code

(extended geographical

jurisdiction

category D) applies to an offence against

subsection (2).

Strict liability offence

(5) A person commits an offence of strict liability if the person

contravenes subsection (1).

Penalty: 10 penalty units.

Chapter 5

Reporting and information disclosure

Part 5.3

Offence and civil penalty provision

Section 148

150

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Civil penalty provision

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

subsection (1).

Civil penalty:

20 penalty units.

Continuing offences and continuing contraventions of civil penalty

provision

(7) The maximum penalty for each day that an offence under

subsection (2) or (5) continues is 10% of the maximum penalty that

can be imposed in respect of the offence.

Note:

Subsections (2) and (5) are continuing offences under section 4K of

the

Crimes Act 1914

(8) The maximum civil penalty for each day that a contravention of

subsection (6) continues is 10% of the maximum civil penalty that

can be imposed in respect of a contravention of that subsection.

Note:

Subsection (6) is a continuing civil penalty provision under section 93

of the Regulatory Powers Act.

Compliance and enforcement

Chapter 6

Introduction

Part 6.1

Section 149

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

151

Chapter

6--Compliance and enforcement

Part

6.1--Introduction

149 Simplified outline of this Chapter

This Chapter deals with compliance and enforcement.

Compliance and enforcement activities are primarily undertaken by

persons appointed by the Secretary as authorised officers for the

purposes of this Act.

Authorised officers may do any of the following:

(a) require a person to give information or documents, or to

attend and answer questions, relevant to the

administration or enforcement of this Act;

(b) enter premises under a warrant or with the consent of the

occupier;

Regulatory Powers Act;

(d) exercise investigation powers under Part 3 of the

Regulatory Powers Act.

Authorised officers also have certain other functions and powers

under the Regulatory Powers Act.

The Regulatory Powers Act also sets out the mechanisms for

enforcing civil penalty provisions, issuing infringement notices,

accepting enforceable undertakings and obtaining injunctions.

Chapter 6

Compliance and enforcement

Part 6.2

Authorised officers

Division 1

Appointment

Section 150

152

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Part

6.2--Authorised officers

Division

1--Appointment

150 Appointment of authorised officers

(1) The Secretary may, in writing, appoint any of the following

persons as an authorised officer for the purposes of this Act:

(a) a person who is an APS employee in the Department;

(b) a person who is appointed or engaged (otherwise than under

the

Public Service Act 1999

) by:

(i) the Commonwealth; or

(ii) a Commonwealth entity (within the meaning of the

Public Governance, Performance and Accountability

Act 2013

);

(i) who is appointed, employed or engaged 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 compliance and

enforcement matters concerning control of regulated

tobacco items, e-cigarette products or both.

(2) The Secretary must not appoint a person as an authorised officer

unless the Secretary is satisfied that the person has suitable

qualifications, training or experience to properly perform the

functions, or exercise the powers, of an authorised officer.

(3) The Secretary may appoint a person mentioned in paragraph (1)(c)

as an authorised officer only with the agreement of the State or

Territory concerned.

(4) 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

Compliance and enforcement

Chapter 6

Authorised officers

Part 6.2

Powers

Division 2

Section 151

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

153

Division

2--Powers

151 Power to require persons to give information or produce

documents

Scope

(1) This section applies if an authorised officer believes on reasonable

grounds that a person has information or a document that is

relevant to the administration or enforcement of this Act.

Powers of authorised officer

(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

within the period specified in the notice; or

(b) to produce any such document to a specified authorised

officer within the period specified in the notice.

Notice requirements

(3) The period specified in the notice must be at least 14 days after the

notice is given to the person.

(4) The notice may specify the manner in which the person is required

to comply with the notice.

(5) The notice must state the effect of the following provisions:

(a) subsections (6) and (7);

(b) section 137.1 of the

Criminal Code

(about giving false or

misleading information);

Criminal Code

(about producing false or

misleading documents).

Offence

(6) A person commits an offence if:

(a) the person is given a notice under subsection (2); and

Chapter 6

Compliance and enforcement

Part 6.2

Authorised officers

Division 2

Powers

Section 152

154

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

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

Penalty: 60 penalty units.

Civil penalty provision

(7) A person is liable to a civil penalty if:

(a) the person is given a notice under subsection (2); and

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

Civil penalty:

60 penalty units.

152 Power to require person to attend and answer questions

Scope

(1) This section applies if an authorised officer believes on reasonable

grounds that a person has information that is relevant to the

administration or enforcement of this Act.

Power of authorised officer

(2) The authorised officer may, by written notice given to the person:

(a) require the person to appear before a specified authorised

officer to answer questions; and

(b) specify a time and place at which the person is to appear.

(3) The notice must state the effect of subsections (7) and (8).

Oral or written answers

(4) A person who attends before an authorised officer may be required

by the authorised officer to answer questions orally or in writing.

Oath or affirmation

(5) The authorised officer may question the person on oath or

affirmation and for that purpose may:

(a) require the person to take an oath or make an affirmation; and

(b) administer the oath or affirmation to the person.

Compliance and enforcement

Chapter 6

Authorised officers

Part 6.2

Powers

Division 2

Section 152

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

155

(6) The oath or affirmation to be taken or made by the person is an

oath or affirmation that the statements that the person will make

will be true to the best of the person's knowledge or belief.

Offence

(7) A person commits an offence if:

(a) the person is given a notice under subsection (2); and

(b) the person:

(i) refuses or fails to attend before the specified authorised

officer; or

(ii) attends before the specified authorised officer, but

refuses or fails to take an oath or make an affirmation;

(iii) attends before the specified authorised officer, but

refuses or fails to answer a question put by, or on behalf

of, that officer.

Penalty: 60 penalty units.

Civil penalty provision

(8) A person is liable to a civil penalty if:

(a) the person is given a notice under subsection (2); and

(b) the person:

(i) refuses or fails to attend before the specified authorised

officer; or

(ii) attends before the specified authorised officer, but

refuses or fails to take an oath or make an affirmation;

(iii) attends before the specified authorised officer, but

refuses or fails to answer a question put by, or on behalf

of, that officer.

Civil penalty:

60 penalty units.

Chapter 6

Compliance and enforcement

Part 6.2

Authorised officers

Division 2

Powers

Section 153

156

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

153 Self-incrimination and self-exposure

Abrogation of privilege against self-incrimination

(1) An individual is not excused from giving information, producing a

document or answering a question under subsection 151(2) or

152(2) on the ground that giving the information, producing the

document or answering the question might tend to incriminate the

individual in relation to an offence.

Note:

A body corporate is not entitled to claim the privilege against

self-incrimination.

(2) However:

(a) the information given, document produced or the answer

given; and

(b) the giving of the information, the production of the document

or the answering of the question; and

indirect consequence of the giving of the information, the

production of the document or the answering of the question;

are not admissible in evidence against the individual in criminal

proceedings other than proceedings for an offence against:

(d) subsection 151(6) or 152(7) of this Act; or

(e) section 137.1 or 137.2 of the

Criminal Code

(which deal with

false or misleading information or documents) in relation to

giving the information, producing the document or answering

the question; or

(f) section 149.1 of the

Criminal Code

(which deals with

obstruction of Commonwealth public officials) in relation to

giving the information, producing the document or answering

the question.

Abrogation of privilege against self-exposure to penalty

(3) If, at general law, an individual would otherwise be able to claim

the privilege against self-exposure to a penalty (other than a

penalty for an offence) in relation to giving information, producing

a document or answering a question under subsection 151(2) or

152(2), the individual is not excused from giving the information,

Chapter 6

Compliance and enforcement

Part 6.3

Monitoring and investigation powers

Division 1

Monitoring powers

Section 154

158

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Part

6.3--Monitoring and investigation powers

Division

1--Monitoring powers

154 Monitoring powers

Provisions subject to monitoring

(1) A provision is subject to monitoring under Part 2 of the Regulatory

Powers Act if it is:

(a) an offence against this Act; or

(b) a civil penalty provision of this Act; or

Crimes Act 1914

or the

Criminal Code

that relates to this Act.

Note:

Part 2 of the Regulatory Powers Act creates a framework for

monitoring whether this Act has been complied with. It includes

powers of entry and inspection.

Information subject to monitoring

(2) Information given in compliance or purported compliance with a

provision of this Act is subject to monitoring under Part 2 of the

Regulatory Powers Act.

Note:

Part 2 of the Regulatory Powers Act creates a framework for

monitoring whether the information is correct. It includes powers of

entry and inspection.

Related provisions

(3) For the purposes of Part 2 of the Regulatory Powers Act, as that

Part applies in relation to the provisions mentioned in

subsection (1), there are no related provisions.

Authorised applicant and authorised person

(4) For the purposes of Part 2 of the Regulatory Powers Act, an

authorised officer is both an authorised applicant and an authorised

person in relation to the provisions mentioned in subsection (1) and

the information mentioned in subsection (2).

Compliance and enforcement

Chapter 6

Monitoring and investigation powers

Part 6.3

Monitoring powers

Division 1

Section 154

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

159

Issuing officer

(5) For the purposes of Part 2 of the Regulatory Powers Act, a

magistrate is an issuing officer in relation to the provisions

mentioned in subsection (1) and the information mentioned in

subsection (2).

Relevant chief executive

(6) For the purposes of Part 2 of the Regulatory Powers Act, the

Secretary is the relevant chief executive in relation to the

provisions mentioned in subsection (1) and the information

mentioned in subsection (2).

Relevant court

(7) For the purposes of Part 2 of the Regulatory Powers Act, each of

the following courts is a relevant court in relation to the provisions

mentioned in subsection (1) and the information mentioned in

subsection (2):

(a) the Federal Court of Australia;

(b) the Federal Circuit and Family Court of Australia

(Division 2);

to matters arising under this Act.

Additional monitoring powers

(8) For the purposes of Part 2 of the Regulatory Powers Act, the

powers mentioned in subsection (9) are taken to be additional

monitoring powers for the purposes of determining:

(a) whether a provision mentioned in subsection (1) has been, or

is being, complied with; or

(b) the correctness of the information mentioned in

subsection (2).

(9) The additional monitoring powers are:

(a) the power to sample any thing on premises entered under

Part 2 of the Regulatory Powers Act; and

(b) the power to remove and test such samples.

Chapter 6

Compliance and enforcement

Part 6.3

Monitoring and investigation powers

Division 1

Monitoring powers

Section 154

160

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Use of force in executing a warrant

(10) In executing a monitoring warrant under Part 2 of the Regulatory

Powers Act, as that Part applies in relation to the provisions

mentioned in subsection (1) and the information mentioned in

subsection (2):

(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

(11) An authorised person may be assisted by other persons in

exercising powers or performing functions or duties under Part 2 of

the Regulatory Powers Act in relation to the provisions mentioned

in subsection (1) and the information mentioned in subsection (2).

Self-incrimination etc.

(12) Despite section 17 of the Regulatory Powers Act, an individual is

not excused from answering a question, or producing a document,

under subsection 24(3) of that Act, as Part 2 of that Act applies in

relation to this Act, on the ground that answering the question, or

producing the document, might tend to incriminate the individual

in relation to an offence.

Note:

A body corporate is not entitled to claim the privilege against

self-incrimination.

(13) However:

(a) the answer given or document produced; and

(b) the answering of the question or the production of the

document; and

indirect consequence of the answering of the question or the

production of the document;

are not admissible in evidence against the individual in criminal

proceedings, other than proceedings for an offence against:

Compliance and enforcement

Chapter 6

Monitoring and investigation powers

Part 6.3

Monitoring powers

Division 1

Section 155

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

161

(d) section 137.1 or 137.2 of the

Criminal Code

(which deal with

false or misleading information or documents) that relates to

this Act; or

(e) section 149.1 of the

Criminal Code

(which deals with

obstruction of Commonwealth public officials) that relates to

this Act.

(14) If, at general law, an individual would otherwise be able to claim

the privilege against self-exposure to a penalty (other than a

penalty for an offence) in relation to answering a question, or

producing a document, under subsection 24(3) of the Regulatory

Powers Act, as Part 2 of that Act applies in relation to this Act, the

individual is not excused from answering the question or producing

the document under that subsection on that ground.

Note:

A body corporate is not entitled to claim the privilege against

self-exposure to a penalty.

Extension to external Territories

(15) Part 2 of the Regulatory Powers Act, as that Part applies in relation

to the provisions mentioned in subsection (1) and the information

mentioned in subsection (2), extends to every external Territory.

155 Consent and identification by authorised officers not required in

certain circumstances

Scope

(1) This section applies if:

(a) an authorised officer enters the public area of business

premises when they are open to the public; and

(b)

the officer's entry is not made under a monitoring warrant

issued under section 32 of the Regulatory Powers Act, as that

section applies in relation to this Act; and

and

(d)

the officer's entry is solely for the purpose of exercising

monitoring powers (within the meaning of the Regulatory

Powers Act) in relation to a provision that is subject to

Chapter 6

Compliance and enforcement

Part 6.3

Monitoring and investigation powers

Division 1

Monitoring powers

Section 155

162

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

monitoring under Part 2 of that Act by doing any one or more

of the following:

(i) inspecting the retail packaging of tobacco products;

(ii) purchasing regulated tobacco items;

(iii) observing practices relating to the retail sale of

regulated tobacco items.

No requirement to obtain consent or show identity card

(2) Despite paragraph 18(2)(a) and section 25 of the Regulatory

Powers Act, the authorised officer is not required to:

(a) obtain the consent of the occupier of the premises to the

officer's entry; or

(b)

show the occupier of the premises the officer's identity card

after entering the premises.

Other rights and obligations unaffected

(3) Nothing in this section affects:

(a) the right of an occupier of premises to refuse to allow the

authorised officer to enter, or remain, on the premises; or

(b) the obligations of the authorised officer under the Regulatory

Powers Act, as it applies in relation to this Act, concerning

the exercise of monitoring powers other than those

mentioned in subparagraphs (1)(d)(i) to (iii).

Compliance and enforcement

Chapter 6

Monitoring and investigation powers

Part 6.3

Investigation powers

Division 2

Section 156

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

163

Division

2--Investigation powers

156 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

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

magistrate is an issuing officer in relation to evidential material

that relates to a provision mentioned in subsection (1).

Chapter 6

Compliance and enforcement

Part 6.3

Monitoring and investigation powers

Division 2

Investigation powers

Section 156

164

Public Health (Tobacco and Other Products) Bill 2023

No. , 2023

Relevant chief executive

(5) 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).

Relevant court

(6) 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 and Family Court of Australia

(Division 2);

to matters arising under this Act.

Additional investigation powers

(7) The additional powers mentioned in subsection (8) are 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).

(8) The additional investigation powers are:

(a) the power to sample any thing on premises entered under

Part 3 of the Regulatory Powers Act; and

(b) the power to remove and test such samples.

Use of force in executing a warrant

(9) 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.

Compliance and enforcement

Chapter 6

Monitoring and investigation powers

Part 6.3

Investigation powers

Division 2

Section 156

No. , 2023

Public Health (Tobacco and Other Products) Bill 2023

165

Person assisting

(10) 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).

Self-incrimination etc.

(11) Despite section 47 of the Regulatory Powers Act, an individual is

not excused from answering a question, or producing a document,

under subsection 54(3) of that Act, as Part 3 of that Act applies in

relation to this Act, on the ground that answering the question, or

producing the document, might tend to incriminate the individual

in relation to an offence.

Note:

A body corporate is not entitled to claim the privilege against

self-incrimination.

(12) However:

(a) the answer given or document produced; and

(b) the answering of the question or the production of the

document; and

indirect consequence of the answering of the question or the

production of the document;

are not admissible in evidence against the individual in criminal

proceedings, other than proceedings for an offence against:

(d) section 137.1 or 137.2 of the

Criminal Code

(which deal with

false or misleading information or documents) that relates to

this Act; or

(e) section 149.1 of the

Criminal Code

(which deals with

obstruction of Commonwealth public officials) that relates to

this Act.

(13) If, at general law, an individual would otherwise be able to claim

the privilege against self-exposure to a penalty (other than a

penalty for an offence) in relation to answering a question, or

producing a document, under subsection 54(3) of the Regulatory

Powers Act, as Part 3 of that Act applies in relation to this Act, the

Chapter 6

Compliance and enforcement

Part 6.3

Monitoring and investigation powers

Division 2

Investigation powers

Section 157

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individual is not excused from answering the question or producing

the document under that subsection on that ground.

Note:

A body corporate is not entitled to claim the privilege against

self-exposure to a penalty.

Extension to external Territories

(14) 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.

157 Forfeiture of seized regulated tobacco items

Scope

(1) This section applies if:

(a) regulated tobacco items (the

seized items

) are seized 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 156(1); and

(b) the seized items do not comply with a tobacco product

requirement.

Forfeiture notices

(2) An authorised officer may, within 14 days after seizure of the

seized items, give a written notice (a

forfeiture notice

) to:

(a) the owner of the items; or

(b) if the owner of the items cannot be identified after reasonable

inquiry

the person from whom the items were seized.

(3) Subsection (2) does not apply if:

(a) the owner of the seized items cannot be identified after

reasonable inquiries; and

(b) the items were not seized from a person.

(4) The forfeiture notice must:

(a) identify the seized items; and

(b) state the date on which the items were seized; and

Compliance and enforcement

Chapter 6

Monitoring and investigation powers

Part 6.3

Investigation powers

Division 2

Section 157

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167

which the items do not comply; and

(d) state that the owner may agree to the forfeiture of the items;

and

(e) explain the procedure for the possible return of the items in

subsections (5) to (7); and

(f) state that, unless the items are returned to the owner by order

of a magistrate under subsection (7), they are forfeited to the

Commonwealth by operation of subsection (8).

Owner may apply to magistrate for return of seized items

(5) The owner may apply to a magistrate for an order that the seized

items are to be returned to the owner.

(6) The application must be made:

(a) within 30 days after the forfeiture notice was given; or

(b) if no forfeiture notice was given because of subsection (3)

within 30 days after seizure of the seized items.

(7) If the magistrate is satisfied that the seized items do not contravene

any tobacco product requirement, the magistrate must order that

the items are to be returned to the owner. Otherwise, the magistrate

must refuse to make the order.

Forfeiture of seized items to the Commonwealth

(8) The seized items are forfeited to the Commonwealth if:

(a) the owner of the seized items agrees to their forfeiture; or

(b) no application is made to a magistrate under subsection (5)

within the required time period; or

refused.

(9) The Secretary may retain, destroy, dispose of or otherwise deal

with forfeited seized items as the Secretary sees fit.

Chapter 6

Compliance and enforcement

Part 6.3

Monitoring and investigation powers

Division 2

Investigation powers

Section 158

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158 Recovery of costs in relation to seized items

Scope

(1) This section applies if:

(a) regulated tobacco items (the

seized items

) are seized 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 156(1); and

(b) a person has been convicted of an offence, or found to have

contravened a civil penalty provision, under Part 3.4 or 3.5 of

this Act in relation to the seized items.

Recovery of costs

(2) The person is liable to pay to the Commonwealth an amount equal

to the costs reasonably incurred by the Commonwealth in seizing,

retaining, destroying or otherwise dealing with the seized items.

(3) An amount payable by a person under subsection (2):

(a) is a debt due by the person to the Commonwealth; and

(b) may be recovered by action in a court of competent

jurisdiction.

159 Modifications of Part 3 of the Regulatory Powers Act

Part 3 of the Regulatory Powers Act applies in relation to

evidential material that relates to a provision mentioned in

subsection 156(1) of this Act as if a reference in paragraphs

66(1)(c) and 67(1)(a) of the Regulatory Powers Act to 60 days

were a reference to 90 days.

Note:

Those paragraphs relate to the period for returning things seized under

Part 3 of the Regulatory Powers Act.

Compliance and enforcement

Chapter 6

Enforcing compliance with this Act

Part 6.4

Civil penalty provisions

Division 1

Section 160

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169

Part

6.4--Enforcing compliance with this Act

Division

1--Civil penalty provisions

160 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 and Family Court of Australia

(Division 2);

to matters arising under this Act.

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.

Compliance and enforcement

Chapter 6

Enforcing compliance with this Act

Part 6.4

Infringement notices

Division 2

Section 161

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171

Division

2--Infringement notices

161 Infringement notices

Provisions subject to an infringement notice

(1) A strict liability offence under this Act 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).

Extension to external Territories

(4) 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.

Liability of Crown

(5) 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.

Chapter 6

Compliance and enforcement

Part 6.4

Enforcing compliance with this Act

Division 3

Enforceable undertakings

Section 162

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Division

3--Enforceable undertakings

162 Enforceable undertakings

Enforceable provisions

(1) A provision is enforceable under Part 6 of the Regulatory Powers

Act if it is:

(a) an offence against this Act; or

(b) a civil penalty provision of this Act.

Note:

Part 6 of the Regulatory Powers Act creates a framework for

accepting and enforcing undertakings relating to compliance with

provisions.

Authorised person

(2) For the purposes of Part 6 of the Regulatory Powers Act, the

Secretary is an authorised person in relation to the provisions

mentioned in subsection (1).

Relevant court

(3) For the purposes of Part 6 of the Regulatory Powers Act, each of

the following courts is a relevant court in relation to the provisions

mentioned in subsection (1):

(a) the Federal Court of Australia;

(b) the Federal Circuit and Family Court of Australia

(Division 2);

to matters arising under this Act.

Extension to external Territories

(4) Part 6 of the Regulatory Powers Act, as that Part applies in relation

to the provisions mentioned in subsection (1), extends to every

external Territory.

Compliance and enforcement

Chapter 6

Enforcing compliance with this Act

Part 6.4

Injunctions

Division 4

Section 163

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173

Division

4--Injunctions

163 Injunctions

Enforceable provisions

(1) A provision is enforceable under Part 7 of the Regulatory Powers

Act if it is:

(a) an offence against this Act; or

(b) a civil penalty provision of this Act.

Note:

Part 7 of the Regulatory Powers Act allows a provision to be enforced

by obtaining an injunction.

Authorised person

(2) For the purposes of Part 7 of the Regulatory Powers Act, the

Secretary is an authorised person in relation to the provisions

mentioned in subsection (1).

Relevant court

(3) For the purposes of Part 7 of the Regulatory Powers Act, each of

the following courts is a relevant court in relation to the provisions

mentioned in subsection (1):

(a) the Federal Court of Australia;

(b) the Federal Circuit and Family Court of Australia

(Division 2);

to matters arising under this Act.

Extension to external Territories

(4) Part 7 of the Regulatory Powers Act, as that Part applies in relation

to the provisions mentioned in subsection (1), extends to every

external Territory.

Chapter 7

Miscellaneous

Part 7.1

Introduction

Section 164

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Chapter

7--Miscellaneous

Part

7.1--Introduction

164 Simplified outline of this Chapter

This Chapter deals with various miscellaneous matters, including

in relation to the following:

(a) general rules about offences and civil penalty

provisions;

(b) the treatment of partnerships, unincorporated

associations and trusts;

(d) the constitutional basis for this Act.

This Chapter also provides for the Minister and Secretary to

delegate their functions and powers, and includes a power to make

regulations. Before certain regulations are made, the Minister must

be satisfied that the regulations will advance relevant objects of

this Act.

Miscellaneous

Chapter 7

General rules about offences and civil penalty provisions

Part 7.2

Interpretation

Division 1

Section 165

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175

Part

7.2--General rules about offences and civil

penalty provisions

Division

1--Interpretation

165 Physical elements of offences

(1) This section applies if a provision of this Act provides that a person

contravening another provision of this Act (the

conduct provision

)

commits an offence.

(2) For the purposes of applying Chapter 2 of the

Criminal Code

to the

offence, the physical elements of the offence are set out in the

conduct provision.

Note:

Chapter 2 of the

Criminal Code

sets out general principles of criminal

responsibility.

166 Contravening an offence provision or a civil penalty provision

(1) This section applies if a provision of this Act provides that a person

contravening another provision of this Act (the

conduct provision

)

commits an offence or is liable to a civil penalty.

(2) For the purposes of this Act, and the Regulatory Powers Act to the

extent that it relates to this Act, a reference to a contravention of an

offence provision or a civil penalty provision includes a reference

to a contravention of the conduct provision.

167 Offences against this Act

extended meaning

In this Act, a reference to an offence against this Act includes an

offence against Chapter 7 of the

Criminal Code

(about the proper

administration of Government) that relates to this Act.

Chapter 7

Miscellaneous

Part 7.2

General rules about offences and civil penalty provisions

Division 2

Partnerships, unincorporated associations and trusts

Section 168

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Division

2--Partnerships, unincorporated associations and

trusts

168 Treatment of partnerships

(1) This Act applies to a partnership as if it were a person, but with the

changes set out in this section.

(2) An obligation that would otherwise be imposed on the partnership

by this Act is imposed on each partner instead, but may be

discharged by any of the partners.

(3) An offence against this Act that would otherwise have been

committed by the partnership is taken to have been committed by

each partner in the partnership who, at the time the offence was

committed:

(a) engaged in the relevant conduct; or

(b) aided, abetted, counselled or procured the relevant conduct;

relevant conduct (whether directly or indirectly and whether

by any act or omission of the partner).

(4) This section applies to a contravention of a civil penalty provision

in a corresponding way to the way in which it applies to an

offence.

(5) For the purposes of this Act, a change in the composition of a

partnership does not affect the continuity of the partnership.

169 Treatment of unincorporated associations

(1) This Act applies to an unincorporated association as if it were a

person, but with the changes set out in this section.

(2) An obligation that would otherwise be imposed on the

unincorporated association by this Act is imposed on each member

of the association's committee of management instead, but may be

discharged by any of the members.

Miscellaneous

Chapter 7

General rules about offences and civil penalty provisions

Part 7.2

Partnerships, unincorporated associations and trusts

Division 2

Section 170

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(3) An offence against this Act that would otherwise have been

committed by the unincorporated association is taken to have been

committed by each member of the association's committee of

management who, at the time the offence was committed:

(a) engaged in the relevant conduct; or

(b) aided, abetted, counselled or procured the relevant conduct;

relevant conduct (whether directly or indirectly and whether

by any act or omission of the member).

(4) This section applies to a contravention of a civil penalty provision

in a corresponding way to the way in which it applies to an

offence.

170 Treatment of trusts

(1) This Act applies to a trust as if it were a person, but with the

changes set out in this section.

Trusts with a single trustee

(2) If the trust has a single trustee:

(a) an obligation that would otherwise be imposed on the trust by

this Act is imposed on the trustee instead; and

(b) an offence against this Act that would otherwise have been

committed by the trust is taken to have been committed by

the trustee.

Trusts with multiple trustees

(3) If the trust has 2 or more trustees:

(a) an obligation that would otherwise be imposed on the trust by

this Act is imposed on each trustee instead, but may be

discharged by any of the trustees; and

(b) an offence against this Act that would otherwise have been

committed by the trust is taken to have been committed by

each trustee of the trust who, at the time the offence was

committed:

Chapter 7

Miscellaneous

Part 7.2

General rules about offences and civil penalty provisions

Division 2

Partnerships, unincorporated associations and trusts

Section 170

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(i) engaged in the relevant conduct; or

(ii) aided, abetted, counselled or procured the relevant

conduct; or

(iii) was in any way knowingly concerned in, or party to, the

relevant conduct (whether directly or indirectly and

whether by any act or omission of the trustee).

Contraventions of civil penalty provisions

(4) This section applies to a contravention of a civil penalty provision

in a corresponding way to the way in which it applies to an

offence.

Miscellaneous

Chapter 7

Cost recovery

Part 7.3

Section 171

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179

Part

7.3--Cost recovery

171 Fees for fee-bearing activities

(1) The regulations may prescribe fees that may be charged in relation

to activities carried out by, or on behalf of, the Commonwealth in

the performance of functions or the exercise of powers under this

Act.

(2) Without limiting subsection (1), the regulations may do any of the

following:

(a) prescribe 2 or more fees for the same matter;

(b) prescribe a method for working out a fee;

paying a specified fee;

(d) prescribe the circumstances in which the Secretary may

waive a fee;

(e) prescribe the circumstances in which a fee may be refunded,

in whole or in part;

(f) prescribe a method for working out the refund of part of a

fee.

(3) Without limiting subsection (1), the regulations may specify that

the amount of a fee is the cost incurred by the Commonwealth in

arranging and paying for another person to carry out the relevant

activity.

(4) A fee prescribed under subsection (1) must not be such as to

amount to taxation.

172 Paying fees

The regulations may prescribe the time when a specified fee is due

and payable.

Chapter 7

Miscellaneous

Part 7.3

Cost recovery

Section 173

180

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173 Person liable to pay fees

The regulations may prescribe one or more persons who are liable

to pay a specified fee.

174 Late payment fee

(1) If the regulations specify the time when a fee (the

basic fee

) is due

and payable, the regulations may also specify a fee (a

late payment

fee

) that is due and payable if the basic fee is not paid at or before

that time.

(2) Without limiting subsection (1), the late payment fee may relate to

each day or part of a day that the basic fee remains unpaid after

becoming due and payable.

175 Recovery of fees

A fee (including a late payment fee) that is due and payable to the

Commonwealth under this Act may be recovered as a debt due to

the Commonwealth by action in a court of competent jurisdiction.

176 Secretary may remit or refund fees

(1) The Secretary may remit or refund the whole or part of a fee

(including a late payment fee) that is payable, or that has been paid,

to the Commonwealth if the Secretary is satisfied there are

circumstances that justify doing so.

(2)

The Secretary may do so on the Secretary's own initiative or on

written application by a person.

177 Secretary may direct that activities not be carried out

If a person (the

debtor

) is liable to pay a fee (including a late

payment fee) that is due and payable, the Secretary may refuse to

carry out, or direct a person not to carry out, specified activities or

kinds of activities in relation to the debtor under this Act until the

fee has been paid.

Miscellaneous

Chapter 7

Constitutional provisions

Part 7.4

Section 178

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181

Part

7.4--Constitutional provisions

178 Constitutional basis of this Act

Main constitutional basis

(1) Subject to subsection (2), this Act relies on

the Commonwealth's

legislative power under paragraph 51(xxix) (external affairs) of the

Constitution as it relates to giving e

ffect to Australia's obligations

under the Convention on Tobacco Control.

Section does not apply to certain provisions

(2) This section does not apply to the following provisions of this Act:

(a) Part 2.4 (prohibition of e-cigarette advertisements);

(b) Part 2.5 (prohibition of e-cigarette sponsorships);

constitutional corporations

tobacco product requirements);

(d) Chapter 4 (permanent bans on certain tobacco products).

Note:

The provisions mentioned in this subsection have limited

constitutional operation.

179 Additional operation of this Act

(1) In addition to section 178, this Act also has effect as provided by

this section.

(2) To avoid doubt, none of subsections (3) to (8) limit the operation

of any other subsection in this section.

Trade and commerce power

(3) This Act has the effect it would have if a reference to conduct were

expressly confined to conduct that takes place in the course of, or

in relation to, constitutional trade or commerce.

Chapter 7

Miscellaneous

Part 7.4

Constitutional provisions

Section 179

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No. , 2023

Communications power

(4) This Act has the effect it would have if a reference to conduct were

expressly confined to conduct engaged in using a postal,

telegraphic, telephonic or other like service within the meaning of

paragraph 51(v) of the Constitution.

Intellectual property power

(5) This Act has the effect it would have if a reference to conduct were

expressly confined to conduct engaged in using any of the

following within the meaning of paragraph 51(xviii) of the

Constitution:

(a) a copyright;

(b) a patent of invention or design;

Corporations power

(6) This Act has the effect it would have if a reference to conduct were

expressly confined to conduct engaged in by:

(a) a constitutional corporation; or

(b) persons or entities through which a constitutional corporation

acts.

External affairs power

geographically external aspect

(7) The Act has the effect if would have if a reference to conduct were

expressly confined to conduct engaged in by a person outside

Australia.

Territories power

(8) This Act has the effect it would have if a reference to conduct were

expressly confined to conduct:

(a) that takes place in a Territory; or

(b) by a body corporate incorporated in a Territory.

Miscellaneous

Chapter 7

Constitutional provisions

Part 7.4

Section 180

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183

Section does not apply to certain provisions

(9) This section does not apply to the following provisions of this Act:

(a) Part 2.4 (prohibition of e-cigarette advertisements);

(b) Part 2.5 (prohibition of e-cigarette sponsorships);

constitutional corporations

tobacco product requirements);

(d) Chapter 4 (permanent bans on certain tobacco products).

Note:

The provisions mentioned in this subsection already have limited

constitutional operation.

180 Acquisition of property

This Act has no effect to the extent (if any) that its operation would

result in an acquisition of property (within the meaning of

paragraph 51(xxxi) of the Constitution) from a person otherwise

than on just terms (within the meaning of that paragraph).

Chapter 7

Miscellaneous

Part 7.5

Other matters

Section 181

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No. , 2023

Part

7.5--Other matters

181 Delegation by Minister

(1) The Minister may, in writing, delegate to the Secretary the

Minister's functions or powers under the following provisions:

(a) subsection 130(3) (about prescribing a person to be a

reporting entity);

(b) section 145 (about publishing Chapter 5 reports and

information);

relation to Chapter 5).

Note:

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PUBLIC HEALTH (TOBACCO AND OTHER PRODUCTS) BILL 2023