A Bill for an Act to discourage the use of tobacco products, and
for related purposes
The Parliament of Australia enacts:
Chapter 1—Preliminary
Part 1—Preliminary
1 Short
title
This Act may be cited as the Tobacco
Plain Packaging Act 2011.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance
with column 2 of the table. Any other statement in column 2 has effect
according to its terms.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1 and 2 and
anything in this Act not elsewhere covered by this table
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The day this Act receives the Royal Assent.
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2. Sections 3 to 29
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1 January 2012.
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1 January 2012
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3. Sections 30 to 32
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1 July 2012.
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1 July 2012
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4. Sections 33 to 36
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20 May 2012.
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20 May 2012
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5. Sections 37 and 38
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1 July 2012.
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1 July 2012
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6. Section 39
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20 May 2012.
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20 May 2012
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7. Sections 40 and 41
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1 July 2012.
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1 July 2012
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8. Sections 42 to 46
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20 May 2012.
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20 May 2012
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9. Sections 47 and 48
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1 July 2012.
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1 July 2012
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10. Sections 49 to 80
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20 May 2012.
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20 May 2012
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11. Sections 81 and 82
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1 January 2012.
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1 January 2012
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12. Sections 83 to 105
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20 May 2012.
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20 May 2012
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13. Sections 106 to 109
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1 January 2012.
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1 January 2012
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Note: This table
relates only to the provisions of this Act as originally enacted. It will not
be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table
is not part of this Act. Information may be inserted in this column, or
information in it may be edited, in any published version of this Act.
3 Objects
of this Act
(1) The objects of this Act are:
(a) to improve public health by:
(i) discouraging people
from taking up smoking, or using tobacco products; and
(ii) encouraging people to
give up smoking, and to stop using tobacco products; and
(iii) discouraging people
who have given up smoking, or who have stopped using tobacco products, from
relapsing; and
(iv) reducing people’s exposure
to smoke from tobacco products; and
(b) to give effect to certain
obligations that Australia has as a party to the Convention on Tobacco Control.
(2) It is the intention of the Parliament to contribute
to achieving the objects in subsection (1) by regulating the retail
packaging and appearance of tobacco products in order to:
(a) reduce the appeal of tobacco
products to consumers; and
(b) increase the effectiveness of health
warnings on the retail packaging of tobacco products; and
(c) reduce the ability of the retail packaging
of tobacco products to mislead consumers about the harmful effects of smoking
or using tobacco products.
4
Definitions
(1) In this Act:
acquisition of property has the same meaning
as in paragraph 51(xxxi) of the Constitution.
Australia includes all the external
Territories.
authorised officer means a person appointed
under section 81 as an authorised officer.
cigarette means a roll of cut tobacco for smoking, enclosed in
paper.
cigarette carton means any container for
retail sale that contains smaller containers in which cigarettes are directly placed.
Note: See also the definition of container.
cigarette pack means any container for retail
sale in which cigarettes are directly placed.
Note: See also the definition of container.
civil penalty order has the meaning given by
section 85.
civil penalty provision (other than in
paragraph 11(2)(b)) means a provision of this Act if:
(a) either:
(i) the provision sets out
at its foot a pecuniary penalty, or penalties, indicated by the words “Civil
penalty”; or
(ii) another provision of
this Act provides that the provision is a civil penalty provision; and
(b) the provision is a subsection, or
a section that is not divided into subsections.
Note: See section 7 for references to
contraventions of civil penalty provisions.
constitutional corporation means a
corporation to which paragraph 51(xx) of the Constitution applies.
constitutional trade or commerce means:
(a) trade or commerce between
Australia and places outside Australia; or
(b) trade or commerce among the
States; or
(c) trade or commerce within a
Territory, between a State and a Territory or between 2 Territories.
container includes (without limitation) any pack,
carton, box, tin, packet, bag, pouch, tube or other container.
Convention on Tobacco Control means the WHO
Framework Convention on Tobacco Control, done at Geneva on 21 May 2003.
Note: The text of the Convention is set out in Australian
Treaty Series 2005 No. 7 ([2005] ATS 7). In 2011, the text of a Convention
in the Australian Treaty Series was accessible through the Australian Treaties
Library on the AustLII website (www.austlii.edu.au).
Deputy President of the Administrative Appeals
Tribunal has the meaning given by section 3 of the Administrative
Appeals Tribunal Act 1975.
evidential burden, in relation to a matter,
means the burden of adducing or pointing to evidence that suggests a reasonable
possibility that the matter exists or does not exist.
evidential material means:
(a) in respect of an offence against
this Act:
(i) any thing with respect
to which the offence has been committed or is suspected, on reasonable grounds,
to have been committed; or
(ii) any thing as to which
there are reasonable grounds for suspecting that it will afford evidence as to
the commission of the offence; or
(iii) any thing as to which
there are reasonable grounds for suspecting that it is intended to be used for
the purpose of committing the offence; and
(b) in respect of a contravention of a
civil penalty provision:
(i) any thing with respect
to which the civil penalty provision has been contravened or is suspected, on
reasonable grounds, of having been contravened; or
(ii) any thing as to which
there are reasonable grounds for suspecting that it will afford evidence as to
the contravention of the civil penalty provision; or
(iii) any thing as to which
there are reasonable grounds for suspecting that it is intended to be used for
the purpose of contravening the civil penalty provision.
Federal Court means the Federal Court of
Australia.
filter tip of a cigarette means the part of
the end of the cigarette that acts as a filter, or purports to act as a
filter.
fire risk statement means any statement that is required to appear on the
retail packaging of tobacco products by:
(a) regulation 14 of the Trade
Practices (Consumer Product Safety Standard) (Reduced Fire Risk Cigarettes)
Regulations 2008; or
(b) a safety standard made under
section 104, or declared under section 105, of Schedule 2 to the
Competition and Consumer Act 2010, to the extent that the standard
relates to fire risk; or
(c) an information standard made under
section 134, or declared under section 135, of Schedule 2 to the
Competition and Consumer Act 2010, to the extent that the standard
relates to fire risk.
health warning means any message,
information, graphic or other thing that is required to appear on the retail
packaging of tobacco products by:
(a) the Trade Practices (Consumer
Product Information Standards) (Tobacco) Regulations 2004; or
(b) a safety standard made under section 104,
or declared under section 105, of Schedule 2 to the Competition
and Consumer Act 2010, to the extent that the standard relates to the
health effects of smoking or using tobacco products; or
(c) an information standard made under
section 134, or declared under section 135, of Schedule 2 to the
Competition and Consumer Act 2010, to the extent that the standard
relates to the health effects of smoking or using tobacco products.
imitation cork tip of a cigarette means
the part of the paper over the filter tip of the cigarette that is printed
brown to resemble cork.
inner surface of a cigarette carton has a meaning affected by
subsection 6(2).
insert means any thing (other than a tobacco
product) placed inside packaging (within the ordinary meaning of the word), but
does not include the lining of a cigarette pack if the lining complies with the
requirements of this Act.
inside lip of a cigarette
pack means the part of the outer surfaces of the pack that is obscured when the
flip‑top lid is closed.
issuing officer means:
(a) a Judge of a court created by the
Parliament; or
(b) a Federal Magistrate; or
(c) a Deputy President of the
Administrative Appeals Tribunal; or
(d) a non‑presidential member of the Administrative
Appeals Tribunal who:
(i) is enrolled as a legal
practitioner of the High Court, or the Supreme Court of a State or Territory;
and
(ii) has been so enrolled
for at least 5 years.
just terms has the same meaning as in
paragraph 51(xxxi) of the Constitution.
mark:
(a) includes (without limitation) any line,
letters, numbers, symbol, graphic or image; but
(b) (other than when referring to a
trade mark) does not include a trade mark.
measurement mark means any information that is required to appear on
the retail packaging of tobacco products by regulations made under the National
Measurement Act 1960.
non‑presidential member of the Administrative
Appeals Tribunal has the meaning given by section 3 of the Administrative
Appeals Tribunal Act 1975.
offer a tobacco product for sale has a
meaning affected by subsection (2) of this section.
onsert means any thing affixed or otherwise attached
to packaging (within the ordinary meaning of the word), but does not include the
lining of a cigarette pack if the lining complies with the requirements of this
Act.
Note: A sound chip embedded in the cardboard of a
cigarette pack is an example of an onsert.
outer surface of a cigarette pack has a meaning affected by
subsection 6(1).
package a tobacco product for retail sale has
the meaning given by section 5.
person assisting has the meaning given by
section 56.
relevant legislative requirement means any of
the following:
(a) a health warning;
(b) a fire risk statement;
(c) a trade description;
(d) a measurement mark.
relevant tobacco law has the meaning given by
section 11.
retail packaging of a tobacco product means:
(a) any container for retail sale in
which the tobacco product is directly placed; or
(b) any container for retail sale that
contains a smaller container in which the tobacco product is directly placed; or
(c) any plastic or other wrapper that
covers any retail packaging of the tobacco product (within the meaning of paragraph (a)
or (b) of this definition); or
(d) any plastic or other wrapper that
covers the tobacco product, being a tobacco product that is for retail sale; or
(e) any insert that is placed inside
the retail packaging of the tobacco product (within the meaning of any of paragraphs (a)
to (d) of this definition); or
(f) any onsert that is affixed or
otherwise attached to the retail packaging of the tobacco product (within the
meaning of any of paragraphs (a) to (d) of this definition).
Note: See also the definition of container.
search powers has the meaning given by
sections 53, 54 and 55.
Secretary means the Secretary of the
Department.
sign (when used as a noun) has the meaning
given by subsection 6(1) of the Trade Marks Act 1995.
this Act includes the regulations.
tobacco advertising and promotion has the
meaning given by the Convention on Tobacco Control.
tobacco product means processed tobacco, or
any product that contains tobacco, that:
(a) is manufactured to be used for
smoking, sucking, chewing or snuffing; and
(b) is not included in the Australian
Register of Therapeutic Goods maintained under the Therapeutic Goods Act
1989.
Note: Loose tobacco for roll‑your‑own cigarettes is
an example of processed tobacco. A cigar or cigarette is an example of a
product that contains tobacco.
tobacco product requirement means the
following requirements in relation to the retail packaging or appearance of
tobacco products:
(a) a requirement specified in Part 2
of Chapter 2;
(b) a requirement prescribed by
regulations made under Part 2 of Chapter 2;
(c) if subsection 15(2) applies
(acquisition of property)—a requirement prescribed by regulations made under
section 15.
trade description means any trade description that is required to appear
on the retail packaging of tobacco products by regulations made under the Commerce
(Trade Descriptions) Act 1905.
variant name for a tobacco product means the
name used to distinguish that kind of tobacco product from other tobacco
products that are supplied under the same brand, business or company name, by
reference to one or more of the following:
(a) containing or not containing
menthol;
(b) being otherwise differently
flavoured;
(c) purporting to differ in strength;
(d) having or not having filter tips
or imitation cork tips;
(e) being of different length or mass.
warrant means:
(a) a warrant issued by an issuing
officer under section 75; or
(b) a warrant signed by an issuing
officer under section 76.
(2) In this Act, a reference to offering
a tobacco product for sale includes (without limitation) a reference to:
(a) exposing, displaying or advertising
the product for sale; and
(b) making the product available for
sale even if the product is not visible to the public.
5 Definition
of package a tobacco product for retail sale
A person packages a
tobacco product for retail sale if:
(a) the person places the tobacco
product directly into a container for retail sale; or
(b) the person places a container, in
which the tobacco product has been directly placed, into a larger container for
retail sale; or
(c) the person covers the retail
packaging of the tobacco product (within the meaning of paragraph (a) or
(b) of the definition of retail packaging) with a plastic or
other wrapper; or
(d) the person covers the tobacco
product, being a tobacco product that is for retail sale, with a plastic or
other wrapper; or
(e) the person places an insert inside
the retail packaging of the tobacco product (within the meaning of any of paragraphs (a)
to (d) of the definition of retail packaging); or
(f) the person affixes or otherwise attaches
an onsert to the retail packaging of the tobacco product (within the meaning of
any of paragraphs (a) to (d) of the definition of retail packaging).
Note 1: See also the definition of container.
Note 2: Other grammatical forms of the word package
(such as packaged) have a corresponding meaning (see section 18A
of the Acts Interpretation Act 1901).
6
Rules relating to surfaces of cigarette packs and cigarette cartons
Surfaces of cigarette packs
(1) A reference in this Act to an outer surface
of a cigarette pack (such as the front outer surface) is a reference to all of
that outer surface, including the part of that outer surface that forms part of
the flip‑top lid.
Surfaces of cigarette cartons
(2) If a cigarette carton has one or more flaps
with surfaces that become visible only when the carton is opened, those surfaces
are taken to be inner surfaces of the carton.
7 References
to contraventions of civil penalty provisions
(1) For the purposes of this Act, if:
(a) a provision of this Act refers to:
(i) a contravention of a
civil penalty provision; or
(ii) a person contravening
a civil penalty provision; and
(b) the civil penalty provision is in
a section in Chapter 3;
the reference includes a reference to a contravention of,
or a person contravening, subsection (1) of that section.
(2) Subsection (1) of this section does
not apply to section 91 (contravening a civil penalty provision is not an
offence).
8 Act
extends to external Territories
This Act extends to all the external
Territories.
9 Act
binds the Crown
(1) This Act binds the Crown in right of the
Commonwealth, of each of the States, of the Australian Capital Territory, of
the Northern Territory and of Norfolk Island.
(2) This Act does not make the Crown liable
to be:
(a) prosecuted for an offence; or
(b) subject to civil proceedings for a
civil penalty order; or
(c) given an infringement notice.
10
Inconsistency with other Commonwealth legislation
The following prevail to the extent of any
inconsistency with this Act:
(a) the Trade Practices (Consumer
Product Information Standards) (Tobacco) Regulations 2004;
(b) a safety standard made under
section 104, or declared under section 105, of Schedule 2 to the
Competition and Consumer Act 2010, to the extent that the standard
relates to the health effects of smoking or using tobacco products;
(c) an information standard made under
section 134, or declared under section 135, of Schedule 2 to the
Competition and Consumer Act 2010, to the extent that the standard
relates to the health effects of smoking or using tobacco products.
11 Operation
of State and Territory laws
(1) This Act does not exclude or limit the
operation of a relevant tobacco law of a State or Territory that is capable of
operating concurrently with this Act.
(2) This Act does not exclude or limit the
application of a relevant tobacco law of a State or Territory to particular conduct
if:
(a) that conduct constitutes an
offence against, or a contravention of a civil penalty provision in, this Act;
and
(b) that
conduct also constitutes an offence against, or a contravention of a civil
penalty provision (however described) in, the relevant tobacco law.
(3) In this Act:
relevant tobacco law means a law, or a
provision of a law, that regulates the retail packaging or appearance of
tobacco products.
Part 2—Simplified outlines
12
Simplified outline for this Act
The following is a simplified outline of
this Act:
• This Act regulates the retail
packaging and appearance of tobacco products in order to:
(a) improve
public health; and
(b) give effect
to certain obligations in the Convention on Tobacco Control.
• Part 2 of Chapter 2
specifies requirements for the retail packaging and appearance of tobacco
products. (If there is an acquisition of property otherwise than on just terms,
regulations made under section 15 might also specify requirements.)
• The retail packaging and
appearance of tobacco products must comply with the requirements of this Act.
• Offences and civil penalties
apply if tobacco products are supplied, purchased or manufactured and either
the retail packaging, or the products themselves, do not comply with the
requirements.
13
Simplified outline for this Chapter
The following is a simplified outline of
this Chapter:
• Part 1 of this Chapter
contains definitions and general rules about the operation of this Act.
• Part 3 of this Chapter
contains provisions relating to the constitutional basis of this Act.
• This Act relies on the
external affairs power of the Constitution by implementing certain obligations
in the Convention on Tobacco Control. However, if this Act is not supported by
that power, then this Act will apply in more limited circumstances by relying
on the corporations power, the trade and commerce power and the Territories
power.
• This Act does not apply to
the extent that its operation would infringe certain constitutional protections
(such as by acquiring property otherwise than on just terms).
Part 3—Constitutional provisions
14
Additional operation of this Act
(1) Without prejudice to its effect apart
from this section, this Act also has effect as provided by this section.
Corporations power
(2) Part 2 of Chapter 3 has, by
force of this subsection, the effect it would have if its operation were, by
express provision, confined to a person that is a constitutional corporation.
Note: Part 2 of Chapter 3 contains general
offences and civil penalty provisions for non‑compliant retail packaging and
tobacco products.
Trade and commerce power
(3) Part 2 of Chapter 3 has, by
force of this subsection, the effect it would have if its operation were, by
express provision, confined to a person engaging in conduct to the extent to
which the conduct takes place in the course of, or in relation to, constitutional
trade or commerce.
(4) Subsection (3) does not apply to the
extent (if any) that its application would infringe section 92 of the Constitution.
Note: Section 92 of the Constitution requires
trade among the States to be absolutely free.
Territories power
(5) Part 2 of Chapter 3 has, by
force of this subsection, the effect it would have if its operation were, by
express provision, confined to a person engaging in conduct to the extent to
which the conduct takes place wholly or partly in a Territory.
15
Acquisition of property
(1) This Act does not apply to the extent (if
any) that its operation would result in an acquisition of property from a
person otherwise than on just terms.
(2) In particular, if, apart from this
section, this Act would result in such an acquisition of property because it
would prevent the use of a trade mark or other sign on or in relation to the retail
packaging of tobacco products, or on tobacco products, then despite any other
provision of this Act, the trade mark or sign may be used on or in relation to
the retail packaging of tobacco products, or on tobacco products, subject to
any requirements that may be prescribed in the regulations for the purposes of
this subsection.
Note: Offences and civil penalties apply to the
supply, purchase and manufacture etc. of tobacco products that do not comply
with any requirements specified in the regulations (see Chapter 3).
(3) To avoid doubt, any tobacco product
requirement (within the meaning of paragraph (a) or (b) of the definition
of tobacco product requirement) that does not result in such an
acquisition of property continues to apply in relation to:
(a) the retail packaging of tobacco
products; and
(b) the appearance of tobacco
products.
16
Implied freedom of political communication
This Act does not apply to the extent
(if any) that it would infringe any constitutional doctrine of implied freedom
of political communication.
Chapter 2—Requirements for plain packaging and appearance of tobacco
products
Part 1—Simplified outline
17
Simplified outline
The following is a simplified outline of
this Chapter:
• Part 2 of this Chapter
specifies requirements for the retail packaging and appearance of tobacco
products.
• Offences and civil
penalties in Chapter 3 apply in certain circumstances if retail packaging
or tobacco products do not comply with the requirements.
• Division 1 of Part 2
sets out requirements for:
(a) the physical
features of retail packaging; and
(b) the colour
and finish of retail packaging; and
(c) marks on
retail packaging (including a prohibition on trade marks generally appearing on
retail packaging); and
(d) wrappers; and
(e) retail
packaging after retail sale.
• Division 2 of Part 2
also prohibits trade marks from generally appearing on the tobacco products
themselves.
• Division 3 of Part 2
allows additional regulations to be made in relation to the retail packaging
and appearance of tobacco products. That Division also sets out the
relationship between this Act, the Trade Marks Act 1995 and the Designs
Act 2003.
Part 2—Requirements for retail packaging and appearance of tobacco
products
Division 1—Requirements for retail packaging of tobacco products
18
Physical features of retail packaging
Retail packaging of all tobacco products
(1) The retail packaging of tobacco products
must comply with the following requirements:
(a) the outer surfaces and inner surfaces
of the packaging must not have any decorative ridges, embossing, bulges or
other irregularities of shape or texture, or any other embellishments, other
than as permitted by the regulations;
(b) any glues or other adhesives used
in manufacturing the packaging must be transparent and not coloured.
Cigarette packs and cigarette cartons
(2) A cigarette pack or cigarette carton must
comply with the following requirements:
(a) the pack or carton must be rigid
and made of cardboard, and only cardboard (subject to paragraphs (1)(b)
and (3)(d));
(b) when the pack or carton is closed:
(i) each outer surface of
the pack or carton must be rectangular; and
(ii) the surfaces of the
pack or carton must meet at firm 90 degree angles;
(c) all edges of the pack or carton
must be rigid, straight and not rounded, bevelled or otherwise shaped or
embellished in any way, other than as permitted by the regulations.
(3) A cigarette pack must comply with the
following requirements:
(a) the dimensions of the pack must comply
with the requirements prescribed by the regulations;
(b) the only opening to the pack must
be a flip‑top lid which must:
(i) be hinged only at the
back of the pack; and
(ii) have straight edges;
and neither the lid, nor the
edges of the lid, may be rounded, bevelled or otherwise shaped or embellished
in any way;
(c) the inside lip of the cigarette
pack must have straight edges, and neither the lip, nor the edges of the lip, may
be rounded, bevelled or otherwise shaped or embellished in any way;
(d) if the pack contains lining—the
lining of the pack must be made only of foil backed with paper, or any other
material prescribed by the regulations.
19
Colour and finish of retail packaging
(1) This section applies to the following
things:
(a) all outer surfaces and inner surfaces
of the retail packaging of tobacco products (within the meaning of paragraph (a)
or (b) of the definition of retail packaging);
(b) both sides of any lining of a cigarette
pack.
Note: For the requirements for wrappers, inserts and
onserts, see sections 22 and 23.
(2) The things mentioned in subsection (1):
(a) must have a matt finish; and
(b) except as provided by subsection (3):
(i) if regulations are in
force prescribing a colour—must be that colour; and
(ii) otherwise—must be drab
dark brown.
(3) The following are not required to be the
colour mentioned in paragraph (2)(b):
(a) the health warnings;
(b) the text of:
(i) the brand, business or
company name, or variant name (if any), for the tobacco products; and
(ii) the relevant legislative
requirements (other than the health warnings).
Note: The regulations might require the brand,
business, company or variant name, or a relevant legislative requirement, to be
a particular colour.
20 Prohibition
on trade marks and marks generally appearing on retail packaging
No trade marks
(1) No trade mark may appear anywhere on the
retail packaging of tobacco products, other than as permitted by subsection (3).
Note: This section does not apply to wrappers (see subsection (4)).
No marks
(2) No mark may appear anywhere on the retail
packaging of tobacco products, other than as permitted by subsection (3).
Note: For the definition of mark, see
section 4.
Permitted trade marks and marks
(3) The following may appear on the retail
packaging of tobacco products:
(a) the brand, business or company
name for the tobacco products, and any variant name for the tobacco products;
(b) the relevant legislative
requirements;
(c) any other trade mark or mark
permitted by the regulations.
Note: For requirements for brand, business, company
or variant names, and relevant legislative requirements, see section 21.
Section not to apply to wrappers
(4) This section does not apply to a plastic
or other wrapper that covers:
(a) the retail packaging of tobacco
products; or
(b) a tobacco product that is for
retail sale.
Note: For the requirements for wrappers, see section 22.
21 Requirements
for brand, business, company or variant names, and relevant legislative
requirements
Requirements for brand, business, company or variant
name—general
(1) Any brand, business or company name, or any
variant name, for tobacco products that appears on the retail packaging of
those products must comply with any requirements prescribed by the regulations.
Note: This section does not apply to wrappers (see subsection (5)).
Requirements for brand, business, company or variant
name—cigarette packs and cigarette cartons
(2) Any brand, business or company name, or any
variant name, for cigarettes that appears on a cigarette pack or cigarette
carton:
(a) must not obscure any relevant legislative
requirement; and
(b) must not appear more than once on
any of the following outer surfaces of the pack or carton:
(i) for a cigarette
pack—the front, top and bottom outer surfaces of the pack;
(ii) for a cigarette
carton—the front outer surface of the carton, and the 2 smallest outer surfaces
of the carton; and
(c) may appear only on the surfaces
mentioned in paragraph (b); and
(d) must appear across one line only;
and
(e) must comply with the requirements
in the table in subsection (3).
(3) The following table has effect:
|
Requirements for brand,
business, company or variant names
|
|
Item
|
If this name ...
|
appears on this surface
...
|
the name ...
|
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1
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a brand, business or company name
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the front outer surface of a cigarette pack
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must appear:
(a) horizontally below, and in the same orientation as, the
health warning; and
(b) in the centre of the space remaining on the front outer
surface beneath the health warning.
|
|
2
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a brand, business or company name
|
the front outer surface of a cigarette carton
|
must appear:
(a) in the same orientation as the health warning; and
(b) in the centre of the space on the front outer surface
that is not occupied by the health warning.
|
|
3
|
a brand, business or company name
|
any outer surface of a cigarette pack or cigarette carton
(other than a front outer surface)
|
must appear:
(a) horizontally; and
(b) in the centre of the outer surface of the pack or carton.
|
|
4
|
variant name
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any outer surface of a cigarette pack or cigarette carton
|
must appear:
(a) horizontally and immediately below the brand, business or
company name; and
(b) in the same orientation as the brand, business or company
name.
|
Requirements for relevant legislative requirements
(other than health warnings)
(4) Any relevant legislative requirement
(other than the health warnings) must comply with any requirements prescribed
by the regulations.
Section not to apply to wrappers
(5) This section does not apply to a plastic
or other wrapper that covers:
(a) the retail packaging of tobacco
products; or
(b) a tobacco product that is for
retail sale.
Note: For the requirements for wrappers, see section 22.
22
Requirements for wrappers
(1) This section sets out the requirements
that a plastic or other wrapper must comply with if the wrapper covers:
(a) the retail packaging of tobacco
products (within the meaning of paragraph (a) or (b) of the definition of retail
packaging); or
(b) a tobacco product that is for
retail sale.
(2) For the purposes of subsection (1),
the wrapper must comply with the following requirements:
(a) the wrapper must be transparent
and not coloured, marked, textured or embellished in any way, other than as
permitted by the regulations;
(b) no trade mark may appear anywhere
on the wrapper, other than as permitted by the regulations;
(c) no mark may appear anywhere on the
wrapper, other than as permitted by the regulations.
23
Retail packaging not to have inserts or onserts
The retail packaging of tobacco products
(within the meaning of any of paragraphs (a) to (d) of the definition of retail
packaging) must not have any inserts or onserts, other than as permitted
by the regulations.
24
Retail packaging not to produce noise or scent
No part of the retail packaging of
tobacco products may make a noise, or contain or produce a scent, that could be
taken to constitute tobacco advertising and promotion.
Note: For the definition of tobacco
advertising and promotion, see section 4.
25
Retail packaging must not change after retail sale
The retail packaging of tobacco products
must not include any features designed to change the packaging after retail
sale, including (without limitation) the following:
(a) heat activated inks;
(b) inks or embellishments designed to
appear gradually over time;
(c) inks that appear fluorescent in
certain light;
(d) panels designed to be scratched or
rubbed to reveal an image or text;
(e) removable tabs;
(f) fold‑out panels.
Division 2—Requirements for appearance of tobacco products
26
Requirements for appearance of tobacco products
(1) No trade mark may appear anywhere on a
tobacco product, other than as permitted by the regulations.
(2) No mark may appear anywhere on a tobacco
product, other than as permitted by the regulations.
Note: For the definition of mark, see section 4.
Division 3—Miscellaneous
27 Regulations
may prescribe additional requirements
(1) To further the objects of this Act, the regulations
may prescribe additional requirements in relation to:
(a) the retail packaging of tobacco
products; and
(b) the appearance of tobacco products.
Note 1: The objects of this Act are set out in section 3.
Note 2: Offences and civil penalties apply to the
supply, purchase and manufacture etc. of tobacco products that do not comply
with the requirements (see Chapter 3).
(2) Divisions 1 and 2 of this Part do
not limit subsection (1).
28 Effect
on the Trade Marks Act 1995 of non‑use of trade mark as a result of this
Act
(1) For the purposes of the Trade Marks
Act 1995, and regulations made under that Act, an applicant for the
registration of a trade mark in respect of tobacco products is taken to intend
to:
(a) use the trade mark in Australia in
relation to those products; or
(b) authorise another person to use
the trade mark in Australia in relation to those products; or
(c) assign the trade mark to a body
corporate that is about to be constituted with a view to the body corporate
using the trade mark in Australia in relation to those products;
if the applicant would intend to do so but for the
operation of this Act.
(2) To avoid doubt, for the purposes of
paragraph 42(b) of the Trade Marks Act 1995, this Act does not have the
effect that the use of a trade mark in relation to tobacco products would be
contrary to law.
(3) To avoid doubt, for the purposes of sections 38
and 84A of the Trade Marks Act 1995, and regulations 17A.27 and 17A.42A
of the Trade Marks Regulations 1995:
(a) the operation of this Act; or
(b) the circumstance that a person is
prevented, by or under this Act, from using a trade mark on or in relation to
the retail packaging of tobacco products, or on tobacco products;
are not circumstances that make it reasonable or
appropriate:
(c) not to register the trade mark; or
(d) to revoke the acceptance of an
application for registration of the trade mark; or
(e) to register the trade mark subject
to conditions or limitations; or
(f) to revoke the registration of the
trade mark.
(4) For the purposes of paragraph 100(1)(c)
of the Trade Marks Act 1995, an opponent is taken to have rebutted an
allegation if the opponent establishes that the registered owner would have
used the trade mark in Australia on or in relation to the retail packaging of
tobacco products, or on tobacco products, but for the operation of this Act.
Trade Marks regulations applying provisions of Trade
Marks Act
(5) Subsections (1) to (4) also apply in
relation to regulations made under the Trade Marks Act 1995 that:
(a) apply provisions of the Trade
Marks Act 1995 that are affected by this section, including where the
regulations apply those provisions in modified form; and
(b) provide in similar terms to
provisions of the Trade Marks Act 1995 that are affected by this
section.
29
Effect on the Designs Act 2003 of failure to make products as a result
of this Act
A failure to make a product that
embodies a registered design merely as a result of complying with the
requirements of this Act does not provide the basis for making an order:
(a) under section 90 of the Designs
Act 2003, requiring the grant of a licence in relation to the design; nor
(b) under section 92 of that Act,
revoking the registration of the design.
Chapter 3—Offences and civil penalty provisions
Part 1—Simplified outline
30
Simplified outline
The following is a simplified outline of
this Chapter:
• A person must not:
(a) supply or
purchase tobacco products in retail packaging that does not comply with the
requirements of this Act; nor
(b) be involved
in the packaging of tobacco products for retail sale if the packaging does not
comply with those requirements; nor
(c) supply, purchase
or manufacture tobacco products that do not comply with those requirements; nor
(d) supply
tobacco products that are not packaged for retail sale without certain
contractual prohibitions.
• A person who does so:
(a) may commit a
fault‑based offence (that is, an offence where fault elements apply to the physical
elements of the offence); and
(b) may also commit
a strict liability offence (that is, an offence where no fault elements apply
to the physical elements of the offence); and
(c) may also contravene
a civil penalty provision.
• It is up to the
Commonwealth to decide whether to prosecute a person for one of the offences or
bring proceedings in relation to the contravention of the civil penalty
provision. (Division 2 of Part 2 of Chapter 5 has rules about
bringing civil proceedings and criminal proceedings.)
• Part 3 of this Chapter
contains specific offences and civil penalty provisions in relation to
constitutional corporations (for example, supplying non‑compliant tobacco
products to constitutional corporations).
• Part 4 of this Chapter
creates an exception to some of the offences and civil penalty provisions in
this Chapter for non‑compliant tobacco products that are for export. That Part
also clarifies what the physical elements of offences are in this Chapter.
Part 2—General offences and civil penalty provisions for non‑compliant
retail packaging and tobacco products
Division 1—Non‑compliant retail packaging of tobacco products
31
Selling or supplying tobacco products in non‑compliant retail packaging
(1) A person contravenes this subsection if:
(a) the person:
(i) sells a tobacco
product; or
(ii) offers a tobacco
product for sale; or
(iii) otherwise supplies
(whether or not for consideration) a tobacco product; and
(b) at the time the product is sold,
offered for sale, or otherwise supplied, the product has been packaged for
retail sale; and
(c) the retail packaging does not
comply with a tobacco product requirement.
Note 1: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Note 2: See subsection 4(2) for an extended meaning of offer.
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(3) For the purposes of subsection (2),
strict liability applies to paragraph (1)(b).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
32
Purchasing tobacco products in non‑compliant retail packaging
(1) A person contravenes this subsection if:
(a) the person purchases a tobacco
product; and
(b) at the time the product is
purchased, the product has been packaged for retail sale; and
(c) the retail packaging does not comply
with a tobacco product requirement.
(2) Subsection (1) does not apply to an
individual who purchases the tobacco product for his or her personal use.
Note: There is another exception to subsection (1)
in section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(3) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note 1: See section 50 in relation to the physical
elements of the offence.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(4) For the purposes of subsection (3),
strict liability applies to paragraph (1)(b).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(5) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note 1: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Civil penalty provision
(6) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
(7) A person who wishes to rely on subsection (2)
in proceedings for a civil penalty order bears an evidential burden in relation
to the matter in that subsection.
33
Packaging tobacco products in non‑compliant retail packaging
(1) A person contravenes this subsection if:
(a) the person packages a tobacco
product for retail sale; and
(b) the retail packaging does not
comply with a tobacco product requirement.
Note: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(3) For the purposes of subsection (2),
strict liability applies to the element of the offence that the tobacco product
is packaged for retail sale.
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
34
Manufacturing non‑compliant retail packaging of tobacco products
(1) A person contravenes this subsection if:
(a) the person manufactures any of the
following retail packaging of tobacco products:
(i) a container for retail
sale;
(ii) a container for retail
sale that contains or will contain smaller containers;
(iii) a plastic or other
wrapper that covers or will cover a container or containers for retail sale;
(iv) a plastic or other
wrapper that covers or will cover a tobacco product that is for retail sale;
and
(b) a tobacco product is packaged for
retail sale in the retail packaging by another person; and
(c) the retail packaging does not
comply with a tobacco product requirement.
Note: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(3) For the purposes of subsection (2),
strict liability applies to the element of the offence that the packaging is
retail packaging.
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
35
Manufacturing tobacco products that are packaged in non‑compliant retail
packaging
(1) A person contravenes this subsection if:
(a) the person (the manufacturer)
manufactures a tobacco product; and
(b) the manufacturer enters into a
contract or arrangement, or arrives at an understanding, for another person to
package the tobacco product for retail sale; and
(c) the tobacco product is packaged
for retail sale by the other person; and
(d) the retail packaging does not
comply with a tobacco product requirement.
(2) Subsection (1) does not apply if the
manufacturer took all reasonable steps to ensure that the retail packaging
complied with the tobacco product requirements.
Note: There is another exception to subsection (1)
in section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(3) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note 1: See section 50 in relation to the physical
elements of the offence.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note 1: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
(6) A person who wishes to rely on subsection (2)
in proceedings for a civil penalty order bears an evidential burden in relation
to the matter in that subsection.
36
Certain supplies of tobacco products that have not been packaged for retail
sale
(1) A person contravenes this subsection if:
(a) the person:
(i) sells a tobacco
product; or
(ii) otherwise supplies
(whether or not for consideration) a tobacco product;
to another person (the purchaser);
and
(b) the product is not packaged for
retail sale; and
(c) at the time of the supply, the
person does not have a contract with the purchaser that prohibits the purchaser
from supplying the product in Australia in retail packaging that does not
comply with the tobacco product requirements.
(2) To avoid doubt, the contract may allow
the purchaser to supply the tobacco product without having packaged the product
for retail sale.
Fault‑based offence
(3) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(4) For the purposes of subsection (3),
strict liability applies to paragraph (1)(b).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(5) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see subsection
6.1(1) of the Criminal Code.
Civil penalty provision
(6) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
Division 2—Non‑compliant tobacco products
37
Selling or supplying non‑compliant tobacco products
(1) A person contravenes this subsection if:
(a) the person:
(i) sells a tobacco
product; or
(ii) offers a tobacco
product for sale; or
(iii) otherwise supplies
(whether or not for consideration) a tobacco product; and
(b) the product does not comply with a
tobacco product requirement.
Note 1: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Note 2: See subsection 4(2) for an extended meaning of offer.
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
Strict liability offence
(3) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(4) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
38
Purchasing non‑compliant tobacco products
(1) A person contravenes this subsection if:
(a) the person purchases a tobacco
product; and
(b) the product does not comply with a
tobacco product requirement.
(2) Subsection (1) does not apply to an
individual who purchases the tobacco product for his or her personal use.
Note: There is another exception to subsection (1)
in section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(3) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note 1: See section 50 in relation to the physical
elements of the offence.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note 1: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
(6) A person who wishes to rely on subsection (2)
in proceedings for a civil penalty order bears an evidential burden in relation
to the matter in that subsection.
39
Manufacturing non‑compliant tobacco products
(1) A person contravenes this subsection if:
(a) the person manufactures a tobacco
product; and
(b) the product does not comply with a
tobacco product requirement.
Note: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
Strict liability offence
(3) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(4) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
Part 3—Offences and civil penalty provisions relating to
constitutional corporations
Division 1—Non‑compliant retail packaging of tobacco products
40
Selling or supplying tobacco products to a constitutional corporation in non‑compliant
retail packaging
(1) A person contravenes this subsection if:
(a) the person:
(i) sells a tobacco
product; or
(ii) offers a tobacco
product for sale; or
(iii) otherwise supplies
(whether or not for consideration) a tobacco product;
to another person; and
(b) that other person is a
constitutional corporation; and
(c) at the time the product is sold,
offered for sale, or otherwise supplied, the product has been packaged for
retail sale; and
(d) the retail packaging does not
comply with a tobacco product requirement.
Note 1: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Note 2: See subsection 4(2) for an extended meaning of offer.
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(3) For the purposes of subsection (2),
strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
41
Purchasing tobacco products from a constitutional corporation in non‑compliant retail
packaging
(1) A person contravenes this subsection if:
(a) the person purchases a tobacco
product from another person; and
(b) the other person is a
constitutional corporation; and
(c) at the time the product is
purchased, the product has been packaged for retail sale; and
(d) the retail packaging does not
comply with a tobacco product requirement.
(2) Subsection (1) does not apply to an
individual who purchases the tobacco product for his or her personal use.
Note: There is another exception to subsection (1)
in section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(3) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note 1: See section 50 in relation to the physical
elements of the offence.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(4) For the purposes of subsection (3),
strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(5) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note 1: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Civil penalty provision
(6) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
(7) A person who wishes to rely on subsection (2)
in proceedings for a civil penalty order bears an evidential burden in relation
to the matter in that subsection.
42
Packaging tobacco products in non‑compliant retail packaging under a contract
with a constitutional corporation
(1) A person contravenes this subsection if:
(a) the person packages a tobacco
product for retail sale; and
(b) the product is packaged under a
contract with a constitutional corporation; and
(c) the retail packaging does not
comply with a tobacco product requirement.
Note: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(3) For the purposes of subsection (2),
strict liability applies to:
(a) the element of the offence that the
tobacco product is packaged for retail sale; and
(b) paragraph (1)(b).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
43
Manufacturing non‑compliant retail packaging of tobacco products under a
contract with a constitutional corporation
(1) A person contravenes this subsection if:
(a) the person (the manufacturer)
manufactures any of the following retail packaging of tobacco products:
(i) a container for retail
sale;
(ii) a container for retail
sale that contains or will contain smaller containers;
(iii) a plastic or other
wrapper that covers or will cover a container or containers for retail sale;
(iv) a plastic or other
wrapper that covers or will cover a tobacco product that is for retail sale;
and
(b) the retail packaging is
manufactured under a contract with a constitutional corporation; and
(c) a tobacco product is packaged for
retail sale in the retail packaging by a person other than the manufacturer;
and
(d) the retail packaging does not
comply with a tobacco product requirement.
Note: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(3) For the purposes of subsection (2),
strict liability applies to:
(a) the element of the offence that
the packaging is retail packaging; and
(b) paragraph (1)(b).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
44
Packaging tobacco products in non‑compliant retail packaging bearing identifying
mark of a constitutional corporation
(1) A person contravenes this subsection if:
(a) the person packages a tobacco
product for retail sale; and
(b) the trade mark, brand, business or
company name, or other identifying mark, of a constitutional corporation
appears on the retail packaging; and
(c) the retail packaging does not
comply with a tobacco product requirement.
Note: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(3) For the purposes of subsection (2),
strict liability applies to:
(a) the element of the offence that the
tobacco product is packaged for retail sale; and
(b) paragraph (1)(b).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
45 Manufacturing
non‑compliant retail packaging of tobacco products that bears identifying mark
of a constitutional corporation
(1) A person contravenes this subsection if:
(a) the person (the manufacturer)
manufactures any of the following retail packaging of tobacco products:
(i) a container for retail
sale;
(ii) a container for retail
sale that contains or will contain smaller containers;
(iii) a plastic or other
wrapper that covers or will cover a container or containers for retail sale;
(iv) a plastic or other
wrapper that covers or will cover a tobacco product that is for retail sale;
and
(b) the trade mark, brand, business or
company name, or other identifying mark, of a constitutional corporation
appears on the retail packaging; and
(c) a tobacco product is packaged for
retail sale in the retail packaging by a person other than the manufacturer; and
(d) the retail packaging does not
comply with a tobacco product requirement.
Note: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(3) For the purposes of subsection (2),
strict liability applies to:
(a) the element of the offence that
the packaging is retail packaging; and
(b) paragraph (1)(b).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
46
Certain supplies, by or to a constitutional corporation, of tobacco products that
have not been packaged for retail sale
(1) A person contravenes this subsection if:
(a) the person:
(i) sells a tobacco
product; or
(ii) otherwise supplies
(whether or not for consideration) a tobacco product;
to another person (the purchaser);
and
(b) either the person or the purchaser
is a constitutional corporation; and
(c) the product is not packaged for retail
sale; and
(d) at the time of the supply, the
person does not have a contract with the purchaser that prohibits the purchaser
from supplying the product in Australia in retail packaging that does not
comply with the tobacco product requirements.
(2) To avoid doubt, the contract may allow
the purchaser to supply the tobacco product without having packaged the product
for retail sale.
Fault‑based offence
(3) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(4) For the purposes of subsection (3),
strict liability applies to paragraphs (1)(b) and (c).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(5) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(6) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
Division 2—Non‑compliant tobacco products
47
Selling or supplying non‑compliant tobacco products to a constitutional
corporation
(1) A person contravenes this subsection if:
(a) the person:
(i) sells a tobacco
product; or
(ii) offers a tobacco
product for sale; or
(iii) otherwise supplies
(whether or not for consideration) a tobacco product;
to another person; and
(b) the other person is a
constitutional corporation; and
(c) the product does not comply with a
tobacco product requirement.
Note 1: There is an exception to this subsection in
section 49 (non‑compliant tobacco products for export).
Note 2: See subsection 4(2) for an extended meaning of offer.
Fault‑based offence
(2) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note: See section 50 in relation to the
physical elements of the offence.
(3) For the purposes of subsection (2),
strict liability applies to paragraph (1)(b).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(4) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Civil penalty provision
(5) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
48 Purchasing
non‑compliant tobacco products from a constitutional corporation
(1) A person contravenes this subsection if:
(a) the person purchases a tobacco
product from another person; and
(b) the other person is a
constitutional corporation; and
(c) the product does not comply with a
tobacco product requirement.
(2) Subsection (1) does not apply to an
individual who purchases the tobacco product for his or her personal use.
Note: There is another exception to subsection (1)
in section 49 (non‑compliant tobacco products for export).
Fault‑based offence
(3) A person commits an offence if the person
contravenes subsection (1).
Penalty: 2,000 penalty units.
Note 1: See section 50 in relation to the physical
elements of the offence.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
(4) For the purposes of subsection (3),
strict liability applies to paragraph (1)(b).
Note: For strict liability in relation to a physical
element of an offence, see subsection 6.1(2) of the Criminal Code.
Strict liability offence
(5) A person commits an offence of strict
liability if the person contravenes subsection (1).
Penalty: 60 penalty units.
Note 1: For offences of strict liability, see
subsection 6.1(1) of the Criminal Code.
Note 2: A defendant bears an evidential burden in
relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal
Code).
Civil penalty provision
(6) A person is liable to a civil penalty if
the person contravenes subsection (1).
Civil penalty: 2,000 penalty units.
Note: It is not necessary to prove a person’s state
of mind in proceedings for a contravention of a civil penalty provision, except
in limited circumstances (see section 98).
(7) A person who wishes to rely on subsection (2)
in proceedings for a civil penalty order bears an evidential burden in relation
to the matter in that subsection.
Part 4—Export exception and physical elements of offences
49 Export
exception for non‑compliant tobacco products
(1) Subsection (1) of any of sections 31
to 48 (other than section 36 or 46) does not apply if:
(a) a person (the relevant
person):
(i) engages in the conduct
to which that subsection applies in relation to a tobacco product; or
(ii) manufactures retail
packaging, and a tobacco product is packaged for retail sale in the retail
packaging by another person; and
(b) a contract or arrangement has been
entered into, or an understanding has been arrived at, for the tobacco product
to be exported (whether or not the relevant person is a party to that contract,
arrangement or understanding); and
(c) the relevant person engages in
that conduct, or manufactures that retail packaging, in the course of, or for
the purposes of, the tobacco product being exported; and
(d) if the relevant person supplies or
purchases the tobacco product, or offers to supply the tobacco product:
(i) the supply is not a
retail sale; or
(ii) the relevant person
does not purchase the product in the course of a retail sale; or
(iii) the relevant person
does not offer the product for retail sale;
(as the case requires).
Note: A defendant bears an evidential burden in
relation to the matters in subsection (1) (see subsection 13.3(3) of the Criminal
Code).
(2) A person who wishes to rely on subsection (1)
in proceedings for a civil penalty order bears an evidential burden in relation
to the matters in that subsection.
50
Physical elements of offences
For the purposes of applying Chapter 2
of the Criminal Code to an offence in a section in this Chapter, the
physical elements of the offence are set out in subsection (1) of the
section.
Note: Chapter 2 of the Criminal Code sets
out general principles of criminal responsibility.
Chapter 4—Powers to investigate contraventions of this Act
Part 1—Simplified outline
51
Simplified outline
The following is a simplified outline of
this Chapter:
• An authorised officer may
enter premises under Part 2 of this Chapter if there are reasonable
grounds for suspecting that there may be material on the premises related to
the commission of an offence or the contravention of a civil penalty provision
in this Act.
• Entry must be with the
consent of the occupier of the premises or under a warrant.
• An authorised officer who
enters premises may exercise search powers. The authorised officer may be
assisted by other persons if that assistance is necessary and reasonable.
• The occupier of the
premises has certain rights and responsibilities.
• An authorised officer can
require information or documents to be produced under Part 3 of this
Chapter.
• Authorised officers are
appointed by the Secretary under Part 4 of this Chapter.
Part 2—Search warrants
Division 1—Search powers
52 Authorised
officer may enter premises by consent or under a warrant
(1) If an authorised officer has reasonable
grounds for suspecting that there may be evidential material on any premises,
the authorised officer may:
(a) enter the premises; and
(b) exercise the search powers (set
out in sections 53, 54 and 55).
(2) However, an authorised officer is not
authorised to enter the premises unless:
(a) the occupier of the premises has
consented to the entry and the authorised officer has shown his or her identity
card if required by the occupier; or
(b) the entry is made under a warrant.
Note: If entry to the premises is with the occupier’s
consent, the authorised officer must leave the premises if the consent ceases
to have effect (see section 59).
53 Search
powers of authorised officers
The following are the search
powers that an authorised officer may exercise in relation to premises
under section 52:
(a) if entry to the premises is with
the occupier’s consent—the power to search the premises and any thing on the
premises for the evidential material the authorised officer has reasonable
grounds for suspecting may be on the premises;
(b) if entry to the premises is under a
warrant:
(i) the power to search
the premises and any thing on the premises for the kind of evidential material
specified in the warrant; and
(ii) the power to seize
evidential material of that kind if the authorised officer finds it on the
premises;
(c) the power to inspect, examine,
take measurements of, conduct tests on or take samples of evidential material
referred to in paragraph (a) or (b);
(d) the power to make any still or
moving image or any recording of the premises or evidential material referred
to in paragraph (a) or (b);
(e) the power to take onto the
premises such equipment and materials as the authorised officer requires for
the purpose of exercising powers in relation to the premises;
(f) the powers set out in subsections
54(1) and (2) and section 55.
54
Powers relating to electronic equipment
(1) The search powers include
the power to operate electronic equipment on the premises if the authorised
officer has reasonable grounds for suspecting that:
(a) the equipment; or
(b) a disk, tape or other storage
device that:
(i) is on the premises;
and
(ii) can be used with the
equipment or is associated with it;
contains evidential material referred to in paragraph 53(a)
or (b).
(2) The search powers include
the following powers in relation to evidential material described in subsection (1)
found in the exercise of the power under that subsection:
(a) if entry to the premises is under a
warrant—the power to seize the equipment and the disk, tape or other storage
device referred to in that subsection;
(b) the power to operate electronic
equipment on the premises to put the evidential material in documentary form
and remove the documents so produced from the premises;
(c) the power to operate electronic
equipment on the premises to transfer the evidential material to a disk, tape
or other storage device that:
(i) is brought to the
premises for the exercise of the power; or
(ii) is on the premises and
the use of which for that purpose has been agreed in writing by the occupier of
the premises;
and remove the disk, tape or
other storage device from the premises.
(3) An authorised officer may operate
electronic equipment as mentioned in subsection (1) or (2) only if he or
she believes on reasonable grounds that the operation of the equipment can be
carried out without damage to the equipment.
Note: For compensation for damage to electronic
equipment, see section 66.
(4) An authorised officer may seize equipment
or a disk, tape or other storage device as mentioned in paragraph (2)(a)
only if:
(a) it is not practicable to put the
evidential material in documentary form as mentioned in paragraph (2)(b)
or to transfer the evidential material as mentioned in paragraph (2)(c);
or
(b) possession of the equipment or the
disk, tape or other storage device by the occupier could constitute an offence
against a law of the Commonwealth.
55
Seizing other evidential material
The search powers include
seizing a thing from premises if:
(a) entry to the premises is under a
warrant; and
(b) the authorised officer finds the
thing in the course of searching for the kind of evidential material specified
in the warrant; and
(c) the authorised officer believes on
reasonable grounds that the thing is other evidential material; and
(d) the authorised officer believes on
reasonable grounds that it is necessary to seize the thing in order to prevent
its concealment, loss or destruction.
56
Persons assisting authorised officers
Authorised officers may be assisted by other persons
(1) An authorised officer may be assisted by
other persons in exercising powers or performing functions or duties under this
Part, if that assistance is necessary and reasonable. A person giving such
assistance is a person assisting the authorised officer.
Powers of a person assisting the authorised officer
(2) A person assisting the authorised officer:
(a) may enter the premises; and
(b) may exercise powers and perform
functions and duties under this Part in relation to evidential material; and
(c) must do so in accordance with a
direction given to the person assisting by the authorised officer.
(3) A power exercised by a person assisting
the authorised officer as mentioned in subsection (2) is taken for all
purposes to have been exercised by the authorised officer.
(4) A function or duty performed by a person
assisting the authorised officer as mentioned in subsection (2) is taken
for all purposes to have been performed by the authorised officer.
(5) If a direction is given under paragraph (2)(c)
in writing, the direction is not a legislative instrument.
57 Use
of force in executing a warrant
In executing a warrant, an authorised
officer, or a person assisting an authorised officer, may use such force
against things as is necessary and reasonable in the circumstances.
Division 2—Powers of authorised officers to ask questions and seek
production of documents
58 Authorised
officer may ask questions and seek production of documents
Entry with consent—officer may ask questions etc.
(1) If an authorised officer is authorised to
enter premises because the occupier of the premises consented to the entry, the
authorised officer may ask the occupier to:
(a) answer any questions relating to
the reasons for the authorised officer entering the premises that are put by
the authorised officer; and
(b) produce any document relating to
the reasons for the authorised officer entering the premises that is requested
by the authorised officer.
Entry under a warrant—officer may require answers etc.
(2) If an authorised officer is authorised to
enter premises by a warrant, the authorised officer may require any person on
the premises to:
(a) answer any questions relating to
the reasons for the authorised officer entering the premises that are put by
the authorised officer; and
(b) produce any document relating to
the reasons for the authorised officer entering the premises that is requested
by the authorised officer.
Note: For self‑incrimination, see section 83.
Offence for failure to comply when entry under warrant
(3) A person commits an offence if:
(a) the person is subject to a
requirement under subsection (2); and
(b) the person fails to comply with
the requirement.
Penalty for contravention of this subsection: 30
penalty units.
Division 3—Obligations and incidental powers of authorised officers
59
Consent
(1) Before obtaining the consent of an
occupier of premises for the purposes of paragraph 52(2)(a), an authorised
officer must inform the occupier that the occupier may refuse consent.
(2) A consent has no effect unless the
consent is voluntary.
(3) A consent may be expressed to be limited
to entry during a particular period. If so, the consent has effect for that
period unless the consent is withdrawn before the end of that period.
(4) A consent that is not limited as
mentioned in subsection (3) has effect until the consent is withdrawn.
(5) If an authorised officer has entered
premises because of the consent of the occupier of the premises, the authorised
officer, and any person assisting the authorised officer, must leave the
premises if the consent ceases to have effect.
60
Announcement before entry under warrant
(1) Before entering premises under a warrant,
an authorised officer must:
(a) announce that he or she is
authorised to enter the premises; and
(b) show his or her identity card to
the occupier of the premises, or to another person who apparently represents
the occupier, if the occupier or other person is present at the premises; and
(c) give any person at the premises an
opportunity to allow entry to the premises.
(2) However, an authorised officer is not
required to comply with subsection (1) if he or she believes on reasonable
grounds that immediate entry to the premises is required:
(a) to ensure the safety of a person;
or
(b) to ensure that the effective
execution of the warrant is not frustrated.
(3) If:
(a) an authorised officer does not
comply with subsection (1) because of subsection (2); and
(b) the occupier of the premises, or
another person who apparently represents the occupier, is present at the
premises;
the authorised officer must show his or her identity card
to the occupier or other person, as soon as practicable after entering the
premises.
61 Authorised
officer to be in possession of warrant
An authorised officer who is executing a
warrant must be in possession of:
(a) the warrant issued by the issuing
officer under section 75 (ordinary warrants), or a copy of the warrant as
so issued; or
(b) the form of warrant completed
under subsection 76(6) (telephone warrants), or a copy of the form as so
completed.
62
Details of warrant etc. to be given to occupier
(1) An authorised officer must comply with subsection (2)
if:
(a) a warrant is being executed in
relation to premises; and
(b) the occupier of the premises, or
another person who apparently represents the occupier, is present at the
premises.
(2) The authorised officer must, as soon as
practicable:
(a) do one of the following:
(i) if the warrant was
issued under section 75 (ordinary warrants)—make a copy of the warrant
available to the occupier or other person (which need not include the signature
of the issuing officer who issued it);
(ii) if the warrant was signed
under section 76 (telephone warrants)—make a copy of the form of warrant
completed under subsection 76(6) available to the occupier or other person; and
(b) inform the occupier or other
person of the rights and responsibilities of the occupier or other person under
Division 4.
63 Completing
execution of warrant after temporary cessation
(1) This section applies if an authorised
officer, and all persons assisting, who are executing a warrant in relation to
premises temporarily cease its execution and leave the premises.
(2) The authorised officer, and persons
assisting, may complete the execution of the warrant if:
(a) the warrant is still in force; and
(b) the officers and persons assisting
are absent from the premises:
(i) for not more than 1 hour;
or
(ii) if there is an
emergency situation, for not more than 12 hours or such longer period as
allowed by an issuing officer under subsection (5); or
(iii) for a longer period if
the occupier of the premises consents in writing.
Application for extension in emergency situation
(3) An authorised officer, or person
assisting, may apply to an issuing officer for an extension of the 12‑hour
period mentioned in subparagraph (2)(b)(ii) if:
(a) there is an emergency situation;
and
(b) the officer or person assisting
believes on reasonable grounds that the officer and the persons assisting will
not be able to return to the premises within that period.
(4) If it is practicable to do so, before
making the application, the authorised officer or person assisting must give
notice to the occupier of the premises of his or her intention to apply for an
extension.
Extension in emergency situation
(5) An issuing officer may extend the period
during which the authorised officer and persons assisting may be away from the
premises if:
(a) an application is made under subsection (3);
and
(b) the issuing officer is satisfied,
by information on oath or affirmation, that there are exceptional circumstances
that justify the extension; and
(c) the extension would not result in
the period ending after the warrant ceases to be in force.
64
Completing execution of warrant stopped by court order
An authorised officer, and any persons
assisting, may complete the execution of a warrant that has been stopped by an
order of a court if:
(a) the order is later revoked or
reversed on appeal; and
(b) the warrant is still in force when
the order is revoked or reversed.
65
Expert assistance to operate electronic equipment
(1) This section applies to premises to which
a warrant relates.
Securing equipment
(2) An authorised officer may do whatever is
necessary to secure any electronic equipment that is on premises if he or she believes
on reasonable grounds that:
(a) there is on the premises
evidential material of the kind specified in the warrant; and
(b) that evidential material may be
accessible by operating the equipment; and
(c) expert assistance is required to
operate the equipment; and
(d) the evidential material may be
destroyed, altered or otherwise interfered with, if the authorised officer does
not take action under this subsection.
The equipment may be secured by locking it up, placing a
guard or any other means.
(3) The authorised officer must give notice
to the occupier of the premises, or another person who apparently represents
the occupier, of:
(a) his or her intention to secure the
equipment; and
(b) the fact that the equipment may be
secured for up to 24 hours.
Period equipment may be secured
(4) The equipment may be secured until the
earlier of the following happens:
(a) the 24‑hour period ends;
(b) the equipment has been operated by
the expert.
Note: For compensation for damage to electronic
equipment, see section 66.
Extensions
(5) The authorised officer may apply to an
issuing officer for an extension of the 24‑hour period if he or she believes on
reasonable grounds that the equipment needs to be secured for more than that
period.
(6) Before making the application, the authorised
officer must give notice to the occupier of the premises, or another person who
apparently represents the occupier, of his or her intention to apply for an extension.
The occupier or other person is entitled to be heard in relation to that
application.
(7) The provisions of this Part relating to
the issue of warrants apply, with such modifications as are necessary, to the
issue of an extension.
(8) The 24‑hour period may be extended more
than once.
66
Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic
equipment being operated as mentioned in this Part:
(i) damage is caused to
the equipment; or
(ii) the data recorded on
the equipment is damaged; or
(iii) programs associated
with the use of the equipment, or with the use of the data, are damaged or
corrupted; and
(b) the damage or corruption occurs
because:
(i) insufficient care was
exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was
exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of
the equipment, or the user of the data or programs, such reasonable
compensation for the damage or corruption as the Commonwealth and the owner or
user agree on.
(3) However, if the owner or user and the
Commonwealth fail to agree, the owner or user may institute proceedings in a
court of competent jurisdiction for such reasonable amount of compensation as
the court determines.
(4) In determining the amount of compensation
payable, regard is to be had to whether the occupier of the premises, or the
occupier’s employees or agents, if they were available at the time, provided
any appropriate warning or guidance on the operation of the equipment.
Division 4—Occupier’s rights and responsibilities
67
Occupier entitled to observe execution of warrant
(1) The occupier, or another person who
apparently represents the occupier, is entitled to observe the execution of a
warrant if the occupier or other person is present at the premises while the
warrant is being executed.
(2) The right to observe the execution of the
warrant ceases if the occupier or other person impedes that execution.
(3) This section does not prevent the
execution of the warrant in 2 or more areas of the premises at the same time.
68
Occupier to provide authorised officer with facilities and assistance
(1) The occupier of premises to which a
warrant relates, or another person who apparently represents the occupier, must
provide:
(a) an authorised officer executing
the warrant; and
(b) any person assisting the authorised
officer;
with all reasonable facilities and assistance for the
effective exercise of their powers, and the effective performance of their
functions and duties.
Offence
(2) A person commits an offence if:
(a) the person is subject to subsection (1);
and
(b) the person fails to comply with
that subsection.
Penalty for contravention of this subsection: 30
penalty units.
Division 5—General provisions relating to seizure
69
Copies of seized things to be provided
(1) This section applies if:
(a) a warrant is being executed in
relation to premises; and
(b) an authorised officer seizes one
or more of the following from the premises under this Part:
(i) a document, film,
computer file or other thing that can be readily copied;
(ii) a storage device, the
information in which can be readily copied.
(2) The occupier of the premises, or another
person who apparently represents the occupier and who is present when the
warrant is executed, may request the authorised officer to give a copy of the
thing or the information to the occupier or other person.
(3) The authorised officer must comply with
such a request as soon as practicable after the seizure.
(4) However, the authorised officer is not
required to comply with such a request if possession of the document, film,
computer file, thing or information by the occupier or other person could
constitute an offence against a law of the Commonwealth.
70
Receipts for seized things
(1) An authorised officer must provide a
receipt for a thing that is seized under this Part.
(2) One receipt may cover 2 or more things that
are seized.
71 Return
of seized things
(1) The Secretary must take reasonable steps
to return a thing seized under this Part when the earliest of the following
happens:
(a) the reason for the thing’s seizure
no longer exists;
(b) it is decided that the thing is
not to be used in evidence;
(c) the period of 60 days after the
thing’s seizure ends.
Note: See subsections (2) and (3) for
exceptions to this rule.
Exceptions
(2) Subsection (1):
(a) is subject to any contrary order
of a court; and
(b) does not apply if the thing:
(i) is forfeited or
forfeitable to the Commonwealth; or
(ii) is the subject of a
dispute as to ownership.
(3) The Secretary is not required to take
reasonable steps to return a thing because of paragraph (1)(c) if:
(a) proceedings in respect of which
the thing may afford evidence were instituted before the end of the 60 days and
have not been completed (including an appeal to a court in relation to those
proceedings); or
(b) the thing may continue to be
retained because of an order under section 72; or
(c) the Commonwealth, the Secretary or
an authorised officer is otherwise authorised (by a law, or an order of a
court, of the Commonwealth or of a State or Territory) to retain, destroy,
dispose of or otherwise deal with the thing.
Return of thing
(4) A thing that is required to be returned
under this section must be returned to the person from whom it was seized (or
to the owner if that person is not entitled to possess it).
72 Issuing
officer may permit a seized thing to be retained
Application to retain seized thing
(1) The Secretary may apply to an issuing
officer for an order permitting the retention of a thing seized under this Part
for a further period if proceedings in respect of which the thing may afford
evidence have not commenced before the end of:
(a) 60 days after the seizure; or
(b) a period previously specified in
an order of an issuing officer under this section.
(2) Before making the application, the Secretary
must:
(a) take reasonable steps to discover
who has an interest in the retention of the thing; and
(b) if it is practicable to do so,
notify each person whom the Secretary believes to have such an interest
of the proposed application.
Order to retain seized thing
(3) The issuing officer may order that the
thing may continue to be retained for a period specified in the order if the issuing
officer is satisfied that it is necessary for the thing to continue to be
retained:
(a) for the purposes of investigating whether:
(i) an offence has been
committed against this Act, or the Crimes Act 1914 or the Criminal
Code to the extent that it relates to this Act; or
(ii) a civil penalty
provision in this Act has been contravened; or
(b) to enable evidence of such an
offence or contravention to be secured for the purposes of a prosecution or
action.
(4) The period specified must not exceed 3
years.
73
Disposal of seized things
(1) The Secretary may dispose of a thing
seized under this Part if:
(a) the Secretary has taken reasonable
steps to return the thing to a person; and
(b) either:
(i) the Secretary has been
unable to locate the person; or
(ii) the person has refused
to take possession of the thing.
(2) The Secretary may dispose of the thing in
any manner that he or she thinks appropriate.
74
Compensation for acquisition of property
(1) If the operation of section 73 would
result in an acquisition of property from a person otherwise than on just
terms, the Commonwealth is liable to pay a reasonable amount of compensation to
the person.
(2) If the Commonwealth and the person do not
agree on the amount of the compensation, the person may institute proceedings
in a court of competent jurisdiction for the recovery from the Commonwealth of
such reasonable amount of compensation as the court determines.
Division 6—Issue of warrants
75
Issue of warrants
Application for warrant
(1) An authorised officer may apply to an
issuing officer for a warrant under this section in relation to premises.
Issue of warrant
(2) The issuing officer may issue the warrant
if the issuing officer is satisfied, by information on oath or affirmation,
that there are reasonable grounds for suspecting that there is, or there may be
within the next 72 hours, evidential material on the premises.
(3) However, the issuing officer must not
issue the warrant unless the authorised officer or some other person has given
to the issuing officer, either orally or by affidavit, such further information
(if any) as the issuing officer requires concerning the grounds on which the
issue of the warrant is being sought.
Content of warrant
(4) The warrant must:
(a) state the offence or offences, or civil
penalty provision or civil penalty provisions, to which the warrant relates;
and
(b) describe the premises to which the
warrant relates; and
(c) state that the warrant is issued
under this Division; and
(d) specify the kind of evidential
material that is to be searched for under the warrant; and
(e) state that the evidential material
specified, and any other evidential material found in the course of executing
the warrant, may be seized under the warrant; and
(f) name one or more authorised
officers; and
(g) authorise the authorised officers
named in the warrant:
(i) to enter the premises;
and
(ii) to exercise the powers
set out in this Part in relation to the premises; and
(h) state whether entry is authorised
to be made at any time of the day or during specified hours of the day; and
(i) specify the day (not more than 1
week after the issue of the warrant) on which the warrant ceases to be in
force.
76 Warrants
by telephone, fax etc.
Application for warrant
(1) An authorised officer may apply to an
issuing officer by telephone, fax or other electronic means for a warrant under
section 75 in relation to premises:
(a) in an urgent case; or
(b) if the delay that would occur if
an application were made in person would frustrate the effective execution of
the warrant.
(2) The issuing officer may require
communication by voice to the extent that it is practicable in the
circumstances.
(3) Before applying for the warrant, the authorised
officer must prepare an information of the kind mentioned in subsection 75(2)
in relation to the premises that sets out the grounds on which the warrant is
sought. If it is necessary to do so, the authorised officer may apply for the
warrant before the information is sworn or affirmed.
Issuing officer may complete and sign warrant
(4) The issuing officer may complete and sign
the same warrant that would have been issued under section 75 if the issuing
officer is satisfied that there are reasonable grounds for doing so:
(a) after considering the terms of the
information; and
(b) after receiving such further
information (if any) as the issuing officer requires concerning the grounds on
which the issue of the warrant is being sought.
(5) After completing and signing the warrant,
the issuing officer must inform the authorised officer, by telephone, fax or
other electronic means, of:
(a) the terms of the warrant; and
(b) the day on which, and the time at
which, the warrant was signed.
Obligations on authorised officer
(6) The authorised officer must then do the
following:
(a) complete a form of warrant in the
same terms as the warrant completed and signed by the issuing officer;
(b) state on the form the following:
(i) the name of the issuing
officer;
(ii) the day on which, and
the time at which, the warrant was signed;
(c) send the following to the issuing
officer:
(i) the form of warrant
completed by the authorised officer;
(ii) the information
referred to in subsection (3), which must have been duly sworn or
affirmed.
(7) The authorised officer must comply with paragraph (6)(c)
by the end of the day after the earlier of the following:
(a) the day on which the warrant
ceases to be in force;
(b) the day on which the warrant is
executed.
Issuing officer to attach documents together
(8) The issuing officer must attach the
documents provided under paragraph (6)(c) to the warrant signed by the issuing
officer.
77 Authority
of warrant
(1) A form of warrant duly completed under
subsection 76(6) is authority for the same powers as are authorised by the
warrant signed by the issuing officer under subsection 76(4).
(2) In any proceedings, a court is to assume
(unless the contrary is proved) that an exercise of power was not authorised by
a warrant under section 76 if:
(a) it is material, in those proceedings,
for the court to be satisfied that the exercise of power was authorised by that
section; and
(b) the warrant signed by the issuing
officer authorising the exercise of the power is not produced in evidence.
78
Offence relating to warrants by telephone, fax etc.
An authorised officer must not:
(a) state in a document that purports
to be a form of warrant under section 76 the name of an issuing officer
unless that issuing officer signed the warrant; or
(b) state on a form of warrant under
that section a matter that, to the authorised officer’s knowledge, departs in a
material particular from the terms of the warrant signed by the issuing officer
under that section; or
(c) purport to execute, or present to
another person, a document that purports to be a form of warrant under that
section that the authorised officer knows departs in a material particular from
the terms of a warrant signed by an issuing officer under that section; or
(d) give to an issuing officer a form
of warrant under that section that is not the form of warrant that the authorised
officer purported to execute.
Penalty: Imprisonment for 2 years.
Division 7—Powers of issuing officers
79
Powers of issuing officers
Consent to conferral of powers
(1) An issuing officer may, by writing,
consent to have powers conferred by this Part.
Nomination by Attorney‑General
(2) The Attorney‑General may, by writing,
nominate an issuing officer in relation to whom a consent is in force under subsection (1)
to exercise powers conferred by this Part.
Powers conferred personally
(3) A power conferred on an issuing officer
by this Part is conferred on the issuing officer:
(a) in a personal capacity; and
(b) in relation to a Judge of a court
created by the Parliament or a Federal Magistrate—not as a court or a member of
a court.
Protection and immunity—Judges and Federal Magistrates
(4) An issuing officer who is a Judge of a
court created by the Parliament, or a Federal Magistrate, exercising a power conferred
by this Part has the same protection and immunity as if he or she were
exercising the power:
(a) as the court of which the issuing
officer is a member; or
(b) as a member of the court of which
the issuing officer is a member.
Protection and immunity—Deputy Presidents and non‑presidential
members
(5) An issuing officer who is a Deputy
President or non‑presidential member of the Administrative Appeals Tribunal exercising
a power conferred by this Part has the same protection and immunity as a
Justice of the High Court.
Part 3—Power to require persons to give information, produce
documents or answer questions
80 Power
to require persons to give information, produce documents or answer questions
(1) An authorised officer may give a
notice to a person under subsection (2) if the authorised officer has
reason to believe that the person has information or a document that is
relevant to the administration or enforcement of this Act.
(2) The authorised officer may, by written
notice given to the person, require the person:
(a) to give any such information to a
specified authorised officer; or
(b) to produce any such document to a
specified authorised officer; or
(c) to appear before a specified
authorised officer to answer questions.
Note: For self‑incrimination, see section 83.
(3) The notice must:
(a) if paragraph (2)(a) or (b)
applies:
(i) specify the period (which
must be at least 14 days after the notice is given to the person) within which
the person is required to comply with the notice; and
(ii) specify the manner in
which the person is required to comply with the notice; and
(b) if paragraph (2)(c) applies—specify
a time and place at which the person is to appear; and
(c) in any case—state the effect of subsection (6)
(offence for failure to comply).
Oath or affirmation
(4) An authorised officer may require answers
provided under paragraph (2)(c) to be verified by, or given on, oath or
affirmation and either orally or in writing.
(5) An authorised officer to whom information
or answers are verified or given may administer the oath or affirmation.
Offence
(6) A person commits an offence if:
(a) the person is given a notice under
subsection (2); and
(b) the person fails to comply with
the notice.
Penalty for contravention of this subsection: 30
penalty units.
Part 4—Miscellaneous
81
Appointment of authorised officers
(1) The Secretary may, in writing, appoint the
following persons as authorised officers:
(a) a person who is appointed or engaged
under the Public Service Act 1999;
(b) a member or special member of the
Australian Federal Police.
(2) The Secretary may appoint a person as an authorised
officer only if the Secretary is satisfied that the person has suitable
qualifications, training or experience.
(3) An authorised officer is appointed for
the period specified in the instrument of appointment.
Note: An authorised officer is eligible for
reappointment (see section 33AA of the Acts Interpretation Act 1901).
82
Identity cards
(1) The Secretary must issue an identity card
to an authorised officer.
Form of identity card
(2) The identity card must:
(a) be in the form approved by the Secretary;
and
(b) contain a recent photograph of the
authorised officer.
Authorised officer must carry card
(3) An authorised officer must carry the
identity card at all times when exercising powers and performing functions and
duties as an authorised officer.
Offence
(4) A person commits an offence if:
(a) the person ceases to be an authorised
officer; and
(b) within 14 days of so ceasing, the
person does not return the person’s identity card to the Secretary.
Penalty: 1 penalty unit.
(5) Subsection (4) is an offence of
strict liability.
Note: For offences of strict liability, see subsection
6.1(1) of the Criminal Code.
Exception—card lost or destroyed
(6) Subsection (4) does not apply if the
identity card was lost or destroyed.
Note: A defendant bears an evidential burden in
relation to the matter in this subsection (see subsection 13.3(3) of the Criminal
Code).
83
Self‑incrimination
(1) A person is not excused from giving
information, producing a document or answering a question under subsection 58(2)
or 80(2) on the ground that the information, the production of the document, or
answer to the question, might tend to incriminate the person or expose the
person to a penalty.
(2) However, in the case of an individual
none of the following is admissible in evidence against the individual in
criminal proceedings:
(a) the information given, the
document produced or the answer given;
(b) giving the information, producing
the document or answering the question;
(c) any information, document or thing
obtained as a direct or indirect consequence of giving the information,
producing the document or answering the question.
Chapter 5—Enforcing compliance with this Act
Part 1—Simplified outline
84
Simplified outline
The following is a simplified outline of
this Chapter:
• Civil penalty orders may be
sought under Part 2 of this Chapter from the Federal Court in relation to
contraventions of civil penalty provisions.
• Part 2 also contains
some rules of general application in relation to civil penalty provisions.
• Alternatively, a person can
be given an infringement notice under Part 3 of this Chapter in relation
to a contravention of an offence of strict liability.
• A person who is given an
infringement notice can choose to pay an amount as an alternative to having
court proceedings brought against the person for a contravention of an offence
or civil penalty provision. If the person does not choose to pay the amount,
proceedings can be brought against the person in relation to the contravention.
Part 2—Civil penalty provisions
Division 1—Obtaining a civil penalty order
85
Civil penalty orders
Application for order
(1) The Secretary may apply to the
Federal Court for an order that a person, who is alleged to have contravened a
civil penalty provision, pay the Commonwealth a pecuniary penalty.
(2) The Secretary must make the
application within 6 years of the alleged contravention.
Court may order person to pay pecuniary penalty
(3) If the Federal Court is satisfied that
the person has contravened the civil penalty provision, the court may order the
person to pay to the Commonwealth such pecuniary penalty for the contravention as
the court determines to be appropriate.
Note: Subsection (5) sets out the maximum
penalty that the court may order the person to pay.
(4) An order under subsection (3) is a civil
penalty order.
Determining pecuniary penalty
(5) The pecuniary penalty must not be more
than:
(a) if the person is a body
corporate—5 times the amount of the pecuniary penalty specified for the civil
penalty provision; and
(b) otherwise—the amount of the pecuniary
penalty specified for the civil penalty provision.
(6) In determining the pecuniary penalty, the
court may take into account all relevant matters, including:
(a) the nature and extent of the
contravention; and
(b) the nature and extent of any loss
or damage suffered because of the contravention; and
(c) the circumstances in which the
contravention took place; and
(d) whether the person has previously
been found by a court in proceedings under one or more of the following to have
engaged in any similar conduct:
(i) this Act;
(ii) the Crimes Act 1914
or the Criminal Code in relation to this Act.
86
Civil enforcement of penalty
(1) A pecuniary penalty is a debt payable to
the Commonwealth.
(2) The Commonwealth may enforce a civil
penalty order as if it were an order made in civil proceedings against the
person to recover a debt due by the person. The debt arising from the order is
taken to be a judgement debt.
87
Conduct contravening more than one civil penalty provision
(1) If conduct constitutes a contravention of
2 or more civil penalty provisions, proceedings may be instituted under this
Part against a person in relation to the contravention of any one or more of
those provisions.
(2) However, the person is not liable to more
than one pecuniary penalty under this Part in relation to the same conduct.
88 Multiple
contraventions
(1) The Federal Court may make a single civil
penalty order against a person for multiple contraventions of a civil penalty
provision if proceedings for the contraventions are founded on the same facts,
or if the contraventions form, or are part of, a series of contraventions of
the same or a similar character.
(2) However, the penalty must not exceed the
sum of the maximum penalties that could be ordered if a separate penalty were
ordered for each of the contraventions.
89
Proceedings may be heard together
The Federal Court may direct that 2 or
more proceedings for civil penalty orders are to be heard together.
90
Civil evidence and procedure rules for civil penalty orders
The Federal Court must apply the rules
of evidence and procedure for civil matters when hearing proceedings for a
civil penalty order.
91
Contravening a civil penalty provision is not an offence
A contravention of a civil penalty
provision is not an offence.
Division 2—Civil proceedings and criminal proceedings
92
Civil proceedings after criminal proceedings
The Federal Court may not make a civil
penalty order against a person for a contravention of a civil penalty provision
if the person has been convicted of an offence constituted by conduct that is the
same, or substantially the same, as the conduct constituting the contravention.
93
Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order
against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are commenced
or have already been commenced against the person for an offence; and
(b) the offence is constituted by
conduct that is the same, or substantially the same, as the conduct alleged to
constitute the contravention.
(2) The proceedings for the order (the civil
proceedings) may be resumed if the person is not convicted of the
offence. Otherwise, the civil proceedings are dismissed.
94
Criminal proceedings after civil proceedings
Criminal proceedings may be commenced
against a person for conduct that is the same, or substantially the same, as
conduct that would constitute a contravention of a civil penalty provision
regardless of whether a civil penalty order has been made against the person in
relation to the contravention.
95
Evidence given in civil proceedings not admissible in criminal proceedings
(1) Evidence of information given, or
evidence of production of documents, by an individual is not admissible in
criminal proceedings against the individual if:
(a) the individual previously gave the
evidence or produced the documents in proceedings for a civil penalty order
against the individual for an alleged contravention of a civil penalty
provision (whether or not the order was made); and
(b) the conduct alleged to constitute
the offence is the same, or substantially the same, as the conduct alleged to
constitute the contravention.
(2) However, subsection (1) does not
apply to criminal proceedings in relation to the falsity of the evidence given
by the individual in the proceedings for the civil penalty order.
Division 3—Miscellaneous
96
Ancillary contravention of civil penalty provisions
(1) A person must not:
(a) attempt to contravene a civil
penalty provision; or
(b) aid, abet, counsel or procure a
contravention of a civil penalty provision; or
(c) induce (by threats, promises or
otherwise) a contravention of a civil penalty provision; or
(d) be in any way, directly or
indirectly, knowingly concerned in, or party to, a contravention of a civil
penalty provision; or
(e) conspire with others to effect a
contravention of a civil penalty provision.
Note: Section 98 (which provides that a person’s
state of mind does not need to be proven in relation to a civil penalty
provision) does not apply to this subsection.
Civil penalty
(2) A person who contravenes subsection (1)
in relation to a civil penalty provision is taken to have contravened the
provision.
97
Mistake of fact
(1) A person is not liable to have a civil
penalty order made against the person for a contravention of a civil penalty
provision if:
(a) at or before the time of the
conduct constituting the contravention, the person:
(i) considered whether or
not facts existed; and
(ii) was under a mistaken
but reasonable belief about those facts; and
(b) had those facts existed, the
conduct would not have constituted a contravention of the civil penalty
provision.
(2) For the purposes of subsection (1),
a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a
previous occasion, whether those facts existed in the circumstances surrounding
that occasion; and
(b) the person honestly and reasonably
believed that the circumstances surrounding the present occasion were the same,
or substantially the same, as those surrounding the previous occasion.
(3) A person who wishes to rely on subsection (1)
or (2) in proceedings for a civil penalty order bears an evidential burden in
relation to that matter.
98
State of mind
(1) In proceedings for a civil penalty order
against a person for a contravention of a civil penalty provision (other than
subsection 96(1)), it is not necessary to prove:
(a) the person’s intention; or
(b) the person’s knowledge; or
(c) the person’s recklessness; or
(d) the person’s negligence; or
(e) any other state of mind of the
person.
(2) Subsection (1) of this section does
not affect the operation of section 97 (mistake of fact).
99
Civil penalty provisions contravened by employees, agents or officers
If an element of a civil penalty
provision is done by an employee, agent or officer of a body corporate acting
within the actual or apparent scope of his or her employment, or within his or
her actual or apparent authority, the element must also be attributed to the
body corporate.
Part 3—Infringement notices
100
When an infringement notice may be given
(1) If an authorised officer has reasonable
grounds to believe that a person has contravened an offence of strict liability
in Chapter 3, the authorised officer may give to the person an
infringement notice for the alleged contravention.
(2) The infringement notice must be given
within 12 months after the day on which the contravention is alleged to have
taken place.
(3) A single infringement notice must relate
only to a single contravention of a single provision.
101
Matters to be included in an infringement notice
An infringement notice must:
(a) be identified by a unique number;
and
(b) state the day on which it is
given; and
(c) state the name of the person to
whom the notice is given; and
(d) state the name of the person who
gave the notice; and
(e) give brief details of the alleged
contravention, including:
(i) the provision that was
allegedly contravened; and
(ii) the maximum penalty
that a court could impose for the contravention; and
(iii) the time (if known)
and day of, and the place of, the alleged contravention; and
(f) state that the following amount is
payable under the notice:
(i) if the person is a
body corporate—60 penalty units;
(ii) otherwise—12 penalty
units; and
(g) give an explanation of how payment
of the amount is to be made; and
(h) state that, if the person to whom
the notice is given pays the amount within 28 days after the day the
notice is given, then (unless the notice is withdrawn) neither criminal
proceedings, nor proceedings for a civil penalty order, will be brought in
relation to the alleged contravention; and
(i) state that payment of the amount
is not an admission of guilt or liability; and
(j) state that the person may apply
to the Secretary to have the period in which to pay the amount extended;
and
(k) state that the person may choose
not to pay the amount and, if the person does so, the person may be prosecuted
in a court for the alleged contravention, or proceedings for a civil penalty order
may be brought in relation to the alleged contravention; and
(l) set out how the notice can be
withdrawn; and
(m) state that if the notice is
withdrawn:
(i) any amount paid under
the notice must be refunded; and
(ii) the person may be
prosecuted in a court for the alleged contravention, or proceedings for a civil
penalty order may be brought in relation to the alleged contravention; and
(n) state that the person may make
written representations to the Secretary seeking the withdrawal of the
notice.
102
Extension of time to pay amount
(1) A person to whom an infringement notice
has been given may apply to the Secretary for an extension of the period
referred to in paragraph 101(h).
(2) If the application is made before the end
of that period, the Secretary may, in writing, extend that period. The Secretary
may do so before or after the end of that period.
(3) If the Secretary extends that period, a
reference in this Part, or in a notice or other instrument under this Part, to
the period referred to in paragraph 101(h) is taken to be a reference to that
period so extended.
(4) If the Secretary does not extend
that period, a reference in this Part, or in a notice or other instrument under
this Part, to the period referred to in paragraph 101(h) is taken to be a
reference to the period that ends on the later of the following days:
(a) the day that is the last day of
the period referred to in paragraph 101(h);
(b) the day that is 7 days after the
day the person was given notice of the Secretary’s decision not to extend.
(5) The Secretary may extend the period more
than once under subsection (2).
103
Withdrawal of an infringement notice
Representations seeking withdrawal of notice
(1) A person to whom an infringement notice has
been given may make written representations to the Secretary seeking the
withdrawal of the notice.
Withdrawal of notice
(2) The Secretary may withdraw an
infringement notice given to a person (whether or not the person has made
written representations seeking the withdrawal).
(3) When deciding whether or not to withdraw
an infringement notice (the relevant infringement notice), the Secretary:
(a) must take into account any written
representations seeking the withdrawal that were given by the person to the Secretary;
and
(b) may take into account the
following:
(i) whether a court has
previously imposed a penalty on the person for a contravention of an offence or
civil penalty provision in this Act;
(ii) the circumstances of
the alleged contravention;
(iii) whether the person has
paid an amount, stated in an earlier infringement notice, for an offence that
is constituted by conduct that is the same, or substantially the same, as the
conduct alleged to constitute the offence in the relevant infringement notice;
(iv) any other matter the Secretary
considers relevant.
Notice of withdrawal
(4) Notice of the withdrawal of the
infringement notice must be given to the person. The withdrawal notice must
state:
(a) the person’s name and address; and
(b) the day the infringement notice
was given; and
(c) the identifying number of the
infringement notice; and
(d) that the infringement notice is
withdrawn; and
(e) that the person may be prosecuted
in a court for the alleged contravention, or proceedings for a civil penalty
order may be brought in relation to the alleged contravention.
Refund of amount if infringement notice withdrawn
(5) If:
(a) the Secretary withdraws the
infringement notice; and
(b) the person has already paid the
amount stated in the notice;
the Commonwealth must refund to the person an amount equal
to the amount paid.
104
Effect of payment of amount
(1) If the person to whom an infringement
notice for an alleged contravention of a provision is given pays the amount
stated in the notice before the end of the period referred to in paragraph 101(h):
(a) any liability of the person for
the alleged contravention is discharged; and
(b) neither criminal proceedings, nor
proceedings for a civil penalty order, may be brought in relation to the
alleged contravention; and
(c) the person is not regarded as
having admitted guilt or liability for the alleged contravention; and
(d) the person is not regarded as
having been convicted of the alleged offence.
(2) Subsection (1) does not apply if the
notice has been withdrawn.
105
Effect of this Part
This Part does not:
(a) require an infringement notice to
be given to a person for an alleged contravention of an offence; or
(b) affect the liability of a person
for an alleged contravention of an offence if:
(i) the person does not
comply with an infringement notice given to the person for the contravention;
or
(ii) an infringement notice
is not given to the person for the contravention; or
(iii) an infringement notice
is given to the person for the contravention and is subsequently withdrawn; or
(c) prevent the giving of 2 or more
infringement notices to a person for an alleged contravention of an offence; or
(d) limit a court’s discretion to
determine the amount of a penalty to be imposed on a person who is found to
have contravened an offence.
Chapter 6—Miscellaneous provisions
Part 1—Simplified outline
106
Simplified outline
The following is a simplified outline of
this Chapter:
• Part 2 of this Chapter
contains miscellaneous provisions, such as the Secretary’s delegation power and
reporting to Parliament on contraventions of this Act.
Part 2—Miscellaneous provisions
107
Delegation
(1) The Secretary may, in writing, delegate
to an SES employee, or acting SES employee, in the Department all or any of the
Secretary’s powers or functions under this Act.
Note: SES employee and acting
SES employee are defined in section 2B of the Acts
Interpretation Act 1901.
(2) In exercising powers or functions
delegated under subsection (1), the delegate must comply with any
directions of the Secretary.
108
Reports to Parliament
(1) As soon as practicable after the end of
each financial year, the Minister must cause to be prepared a report on:
(a) the number and nature of any
contraventions of this Act occurring in the financial year; and
(b) action taken in response to each
contravention.
(2) A person who prepares a report under subsection (1)
must give a copy to the Minister.
(3) The Minister must cause the report to be
included in the annual report of the Department for that financial year.
109
Regulations
(1) The Governor‑General may make regulations
prescribing matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.
(2) Without limiting subsection (1), the
regulations may, for the purposes of section 46 of the Trans‑Tasman
Mutual Recognition Act 1997, declare that this Act is exempt from the
operation of that Act.
Note: The exemption operates for a period of up to 12
months (see subsection 46(4) of that Act).