TOBACCO ADVERTISING PROHIBITION AMENDMENT BILL 2010

i Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010

Contents

1 Short

title

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2 Commencement

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3 Schedule(s)

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Schedule 1--Tobacco Advertising Prohibition Act 1992

Part 1--Amendments

Part 2--Transitional

Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010 1

A Bill for an Act to amend the Tobacco Advertising

Prohibition Act 1992, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Tobacco Advertising Prohibition

Amendment Act 2010.

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.

2 Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence within the period of 6 months

beginning on the day this Act receives the

Royal Assent, they commence on the day

after the end of that period.

Note:

This table relates only to the provisions of this Act as originally

enacted. It will not be amended to deal with any later amendments of

this Act.

(2) Any information in Column 3 of the table is not part of this Act.

Information may be inserted in this column, or information in it

may be edited, in any published version of this Act.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

concerned, and any other item in a Schedule to this Act has effect

according to its terms.

Tobacco Advertising Prohibition Act 1992 Schedule 1

Amendments Part 1

Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010 3

Schedule 1--Tobacco Advertising Prohibition

Act 1992

Part 1--Amendments

1 Subparagraph 6(3)(a)(i)

After "16,", insert "16A, 16B,".

2 Section 7

After "16,", insert "16A, 16B,".

3 Section 8

Insert:

electronically: a person publishes a tobacco advertisement

electronically if the person publishes the tobacco advertisement

within the meaning of paragraph 10(1)(da).

4 Subsection 10(1)

Omit "publishes", substitute "publishes".

Note:

The heading to section 10 is altered by omitting "a tobacco advertisement" and

substituting "a tobacco advertisement".

5 After paragraph 10(1)(d)

Insert:

(da) the person brings the advertisement, or something that

contains the advertisement, to the notice of, or disseminates

the advertisement, or something that contains the

advertisement, to, the public, or a section of the public, by an

electronic means in connection with a telegraphic, telephonic

or other like service within the meaning of paragraph 51(v)

of the Constitution including, for example:

(i) by means of the internet; or

(ii) by making the advertisement remotely accessible by a

computer, mobile phone or any other electronic device;

6 At the end of subsection 13(1) (after the penalty)

Insert:

Schedule 1 Tobacco Advertising Prohibition Act 1992

Part 1 Amendments

4 Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010

Note:

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

section 14: see subsection 13.3(3) of the Criminal Code.

7 Paragraph 15(1)(a)

After "16,", insert "16B,".

8 At the end of subsection 15(1)

Add:

Note:

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

sections 16 and 16B to 20: see subsection 13.3(3) of the Criminal

Code.

9 Subsection 15(2)

After "16,", insert "16B,".

10 At the end of subsection 15(2)

Add:

Note:

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

sections 16 and 16B to 20: see subsection 13.3(3) of the Criminal

Code.

11 Subsection 15(3)

After "16,", insert "16B,".

12 At the end of subsection 15(3)

Add:

Note:

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

sections 16 and 16B to 20: see subsection 13.3(3) of the Criminal

Code.

13 After section 15

Insert:

15A Tobacco advertisements not to be published electronically

Offence

(1) A person commits an offence if:

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

something to be published; and

(b) the thing is a tobacco advertisement; and

Tobacco Advertising Prohibition Act 1992 Schedule 1

Amendments Part 1

Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010 5

(d) the tobacco advertisement is published in Australia.

Penalty: 120 penalty units.

Exceptions

(2) Subsection (1) does not apply to the publication of a tobacco

advertisement if its publication is permitted by any of

sections 16A, 16B, 17, 19 and 20.

Note:

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

subsection (2): see subsection 13.3(3) of the Criminal Code.

Geographical application

(3) Section 15.2 of the Criminal Code (extended geographical

jurisdiction--category B) applies to an offence against

subsection (1).

Meaning of published in Australia

(4) In this section, a tobacco advertisement that is published

electronically is published in Australia if:

(a) the advertisement originates in Australia; or

(b) all of the following apply:

(i) the advertisement did not originate in Australia, or the

advertisement's origin cannot be determined;

(ii) the advertisement has an Australian link;

(iii) the advertisement is accessible, or intended to be

accessible, by the public, or a section of the public, in

Australia.

(5) A tobacco advertisement has an Australian link if:

(a) at a particular time, the advertisement is published, or

authorised or caused to be published, by an entity, or the

person or persons constituting or responsible for an entity;

and

(b) at that time, the circumstances described in the following

table apply to the entity.

Schedule 1 Tobacco Advertising Prohibition Act 1992

Part 1 Amendments

6 Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010

Item Entity

Applicable

circumstances

Individual

Any of the following circumstances:

(a) the individual is an Australian citizen;

(b) the individual is an individual whose continued

presence in Australia is not subject to a

limitation as to time imposed by law;

Body corporate

Any of the following circumstances:

(a) the body corporate has been incorporated in

Australia;

(b) the body corporate has its central management

and control in Australia.

Trust

The trust has been created in Australia.

Partnership

The partnership has been formed in Australia.

Unincorporated body

The unincorporated body has its central

management and control in Australia.

14 Paragraph 16(2)(b)

After "content", insert ", format".

15 After section 16

Insert:

16A Point of sale advertising permitted--internet sales

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

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

the public, in a State or Territory; and

(b) the advertisement provides a facility for a person accessing

the advertisement to purchase a tobacco product; and

tobacco products on the internet; and

(d) that law contains provisions expressly dealing with the

publication of advertisements for tobacco products on the

internet that provide a facility for a person accessing the

advertisement to purchase a tobacco product; and

(e) under those provisions, publishing the advertisement is not an

offence.

Tobacco Advertising Prohibition Act 1992 Schedule 1

Amendments Part 1

Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010 7

(2) A person may publish a tobacco advertisement on the internet if:

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

the public, in a State or Territory; and

(b) the advertisement provides a facility for a person accessing

the tobacco advertisement to purchase a tobacco product; and

(c)

either:

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

the advertising of tobacco products on the internet; or

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

provisions expressly dealing with the publication of

advertisements for tobacco products on the internet that

provide a facility for a person accessing the

advertisement to purchase a tobacco product; and

(d) the publication of the advertisement complies with all

applicable requirements set out in regulations made for the

purposes of this subsection.

(3) In this section, a tobacco advertisement provides a facility for a

person accessing the advertisement to purchase a tobacco product

if the advertisement is published in conjunction with the facility or

otherwise includes or provides the facility.

(4) Regulations made for the purposes of subsection (2) may prescribe

requirements as to any of the following:

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

advertisements;

(b) without limiting paragraph (a)--the inclusion in tobacco

advertisements of any of the following:

(i)

health

warnings;

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

products;

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

relation to tobacco products;

advertisements.

16B Conduct by carriers etc. permitted

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

Schedule 1 Tobacco Advertising Prohibition Act 1992

Part 1 Amendments

8 Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010

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

advertisement, is acting solely in the person's capacity as a

carrier; or

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

the tobacco advertisement, is acting solely in the person's

capacity as a carriage service provider; or

the tobacco advertisement, is acting solely in the person's

capacity as an internet service provider; or

(d) the person is an internet content host and, in publishing the

tobacco advertisement, is acting solely in the person's

capacity as an internet content host.

(2) In this section:

carriage service provider has the same meaning as in the

Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act

1997.

internet content host has the same meaning as in Schedule 5 to the

Broadcasting Services Act 1992.

internet service provider has the same meaning as in Schedule 5 to

the Broadcasting Services Act 1992.

Tobacco Advertising Prohibition Act 1992 Schedule 1

Transitional Part 2

Tobacco Advertising Prohibition Amendment Bill 2010 No. , 2010 9

Part 2--Transitional

16 Publication of a tobacco advertisement before

commencement

(1)

This item applies if a tobacco advertisement was published

electronically (within the meaning of the Tobacco Advertising

Prohibition Act 1992 as amended by Part 1 of this Act) before the

commencement of Part 1 of this Act.

(2) The

Tobacco Advertising Prohibition Act 1992, as amended by Part 1 of

this Act, applies in relation to the publication of the tobacco

advertisement if the tobacco advertisement is accessible by the public,

or a section of the public, at or after the commencement of Part 1 of this

Act.

Commonwealth of Australia Bills

TOBACCO ADVERTISING PROHIBITION AMENDMENT BILL 2010