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