TOBACCO PLAIN PACKAGING BILL 2011 Explanatory Memorandum
TOBACCO PLAIN PACKAGING BILL 2011
2010-2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
TOBACCO PLAIN PACKAGING BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Health and Ageing,
the Hon Nicola Roxon MP)
TOBACCO PLAIN PACKAGING BILL 2011
OUTLINE
The Australian Government is implementing a comprehensive suite of reforms to
reduce smoking and its harmful effects. As part of these reforms the Government
committed to introduce legislation requiring plain packaging of tobacco products, to
remove one of the last remaining frontiers for tobacco advertising.
Tobacco smoking remains one of the leading causes of preventable death and disease
among Australians, killing over 15,000 Australians every year. The social costs of
smoking (including health costs) are estimated at $31.5 billion each year. Although
the number of daily smokers in Australia has fallen by more than half a million in the
last decade, approximately three million Australians still smoke.
The Government is committed to reaching the performance benchmarks set under the
COAG National Healthcare Agreement of reducing the national smoking rate to
10 per cent of the population by 2018 and halving the Aboriginal and Torres Strait
Islander smoking rate.
This Bill is a crucial step in the Government's anti-smoking action plan, which
includes the 25 per cent excise increase announced in April 2010, record investment
in anti-smoking social marketing campaigns, and legislation to restrict advertisement
of tobacco products on the internet.
The rationale for plain packaging
This Bill will prevent tobacco advertising and promotion on tobacco products and
tobacco product packaging in order to:
· reduce the attractiveness and appeal of tobacco products to consumers,
particularly young people;
· increase the noticeability and effectiveness of mandated health warnings;
· reduce the ability of the tobacco product and its packaging to mislead
consumers about the harms of smoking; and
· through the achievement of these aims in the long term, as part of a
comprehensive suite of tobacco control measures, contribute to efforts to
reduce smoking rates.
Messages and images promoting the use of tobacco products can normalise tobacco
use, increase uptake of smoking by youth and act as disincentives to quit. Research
shows that packaging of tobacco products is an important element of advertising and
promotion and its value has increased as traditional forms of advertising and
promotion have become restricted in countries such as Australia1. Tobacco
packaging's primary role is to promote brand appeal, particularly to youth and young
adults2 while plain packaging has been shown to be less appealing for youth who
might be thinking of trying smoking1. Many smokers are also misled by pack design
1
Hammond et al 2009, `Cigarette pack design and perceptions of risk among UK adults and youth', European Journal
of Public Health, vol. 19, no. 6, pp. 631-637 and Moodie, C & Hastings, G 2009, `Making the Pack the Hero, Tobacco
Industry Response to Marketing Restrictions in the UK: Findings from a Long-Term Audit', Int Journal Mental Health
Addiction
2
Hammond et al 2009, `Cigarette pack design and perceptions of risk among UK adults and youth', European
Journal of Public Health, vol. 19, no. 6, pp. 631-637
1
into thinking that certain cigarettes may be safer3. Pack design can also distract from
the prominence of graphic health warnings4.
The Commonwealth, through the Tobacco Advertising Prohibition Act 1992 (the
TAP Act), is responsible for banning almost all forms of tobacco advertising and
promotion. However, words, signs or symbols that appear on a tobacco product or its
packaging are currently a key exception to the definition of "tobacco advertisement"
in the TAP Act. The introduction of plain packaging for tobacco products will have
the practical effect of limiting the extent to which this exception can be used.
International framework
The introduction of plain packaging for tobacco products is one of the means by
which the Australia Government will give effect to Australia's obligations under the
World Health Organization Framework Convention on Tobacco Control [2005] ATS
7 (WHO FCTC).
Article 5 of the WHO FCTC requires each Party to develop and implement
comprehensive national tobacco control strategies, plans and programs, and to
take effective legislative and other measures for preventing and reducing
tobacco consumption, nicotine addiction and exposure to tobacco smoke.
Article 11 of the WHO FCTC requires Parties to implement effective
measures to ensure that tobacco packaging does not promote a tobacco product
by any means that are false, misleading, deceptive or likely to create an
erroneous impression about its characteristics, health effects, hazards or
emissions.
Article 13 of the WHO FCTC requires Parties to implement comprehensive
bans on tobacco advertising, promotion and sponsorship.
Guidelines adopted by the Conference of the Parties to the FCTC for Article 11 and
Article 13 recommend that Parties consider introducing plain packaging.
Consultation undertaken
The Government consulted broadly on the draft of this legislative scheme. Targeted
consultations were conducted with the tobacco industry about possible
anti-counterfeiting measures that might be included in the packaging design, and with
retailers on concerns about the handling of plain packaged products in a retail setting.
Cigar importers were also consulted on concerns about importing provisions in the
Exposure Draft of the Bill.
3
Hammond D & Parkinson C 2009, `The impact of cigarette package design on perceptions of risk', Journal of Public
Health, pp. 1-9; Hammond et al 2009, `Cigarette pack design and perceptions of risk among UK adults and youth',
European Journal of Public Health, vol. 19, no. 6, pp. 631-637; Moodie, C & Hastings, G 2009, `Plain Packaging: a
time for action', European Journal of Public Health, pp. 10-1; and Wakefield M et al 2002, `The cigarette pack as
image: new evidence from tobacco industry documents', Tobacco Control, 2002;11(Suppl l):i73-i80.
4
Germain D et al 2009, `Adolescents' Perceptions of Cigarette Brand Image: Does Plain Packaging Make a
Difference?', Journal of Adolescent Health, (2009) 1- 8; Moodie, C & Hastings, G 2009, `Making the Pack the Hero,
Tobacco Industry Response to Marketing Restrictions in the UK: Findings from a Long-Term Audit', Int Journal
Mental Health Addiction; Wakefield M et al 2002, `The cigarette pack as image: new evidence from tobacco industry
documents', Tobacco Control, 2002;11(Suppl l):i73-i80; and Hoek J, Wong C, Gendall P, et al 2010, `Effects of
dissuasive packaging on young adult smokers', Tobacco Control.
2
A public consultation process on the exposure draft of the Bill, including a
consultation paper, commenced on 7 April 2011 and ended on 6 June 2011. Some
266 submissions were received from a range of stakeholders including public health
organisations, non-government organisations, the tobacco industry (manufacturers and
importers), tobacco retailers and interested individuals.
There was strong support for the Bill amongst the public health and non-government
organisations, including endorsement of the view that the proposed plain packaging
legislation was necessary for the government to meet its commitment to Article 13 of
the WHO FCTC, and the guidelines issued by the Conference of the Parties.
Some submissions opposing the Bill claimed a perceived inadequacy of evidence to
justify the plain packaging measure; a potential for detrimental impact on the tobacco
industry and retailers; and the potential for the Bill to be in breach of national trade
mark and intellectual property rights as well as international law obligations.
A small number of submissions suggested changes to the exposure draft of the Bill.
Of particular concern to importers and retailers was the ability to comply with the
provision in the exposure draft that required all products imported into Australia to be
in plain packaging. This would have prevented tobacco products from being imported
in non-compliant packaging, and then repackaged for supply in the Australian market.
The provisions in the exposure draft that required all products imported into Australia
to comply with plain packaging requirements have therefore been removed. Instead,
the Bill requires compliance with plain packaging from the first on-sale
(wholesale/retail) of imported products in the supply chain in Australia, allowing
importers to repackage goods into compliant packaging once they are received in
Australia.
The legislation
This Bill will make it an offence to sell, supply, purchase, package or manufacture
tobacco products or packaging for retail sale, that are not compliant with plain
packaging requirements. These offences apply to manufacturers, packagers,
wholesalers, distributors and retailers of tobacco products in Australia who fail to
comply with the plain packaging requirements.
A person who buys non-compliant products for personal use would not commit an
offence, although the salesperson might.
There is also a broad exception from the relevant offence provisions in relation to
tobacco products for export, rather than for retail sale in Australia. Retail sale in
Australia to travellers going overseas is subject to the plain packaging requirements.
Chapter 2 of the Bill sets out detailed requirements relating to the packaging of
tobacco products and the products themselves. The Bill also provides for regulations
to prescribe additional requirements. The effect of the requirements will be that
tobacco company branding, logos, symbols and other images that may have the effect
of advertising or promoting the use of the tobacco product will not be able to appear
on tobacco products or their packaging. So as to identify the particular brand or
variant of a tobacco product, the brand name and variant name will be allowed on
packaging in specified locations, with a specified `plain' appearance. Information
which is required by other legislation or regulations, such as trade descriptions and
graphic health warnings, will also be allowed to appear.
3
The Bill does not limit the operation of State or Territory laws relating to packaging
and appearance of tobacco products, where those laws are capable of operating
concurrently with the provisions of the Bill. It is expected that Commonwealth and
State and Territory tobacco control laws will continue to operate alongside each other.
However, if there is any conflict between State and Territory laws and the plain
packaging requirements, the Bill will prevail.
The Bill prevents a trade mark from being placed on tobacco products or their retail
packaging, so as to prevent trade marks from being used as design features to detract
attention from health warnings, or otherwise to promote the use of tobacco products.
However, the Bill ensures that its operation will not affect trade mark owners' ability
to protect their trade marks from use by other persons, and to register and maintain the
registration of a trade mark. Owners of trade marks in relation to tobacco products
will be able to use their trade marks, other than on retail packaging and the products
themselves, in ways that do not contravene the TAP Act or other laws, for example on
business correspondence.
Other regulation of packaging and tobacco products
It is intended that this Bill will operate alongside other regulatory mechanisms for
tobacco products, and packaging generally. Although the Bill regulates information
that may appear, and the ways in which certain required information may appear, this
Bill is not intended to interfere with other regulation of tobacco products, including
any regulation creating a requirement for packaging generally that is applicable to
retail packaging for tobacco products. Nor is the Bill intended to interfere with a ban
on any form of tobacco product whether or not that product would fall within the
definition of `tobacco product' for the purposes of the Bill. The Bill is not intended to
detract from any form of regulation of advertising of tobacco products, but is intended
to support existing advertising restrictions in so far as it creates requirements to
restrict advertising on tobacco products themselves or on their packaging.
There is no intention that this Bill will override the various forms of regulation of
tobacco products that already exist, including but not limited to:
· requirements for graphic health warnings to appear on packaging, under the
Trade Practices (Consumer Product Information Standards) (Tobacco)
Regulations 2004; and for performance standards and labeling of cigarettes,
under the Trade Practices (Consumer Product Safety Standard) (Reduced Fire
Risk Cigarettes) Regulations 2008;
· bans on advertising of tobacco products through the TAP Act;
· requirements for payment of excise on tobacco products through the Excise
Act 1901, Excise Regulations 1925 and the Excise Tariff Act 1921, and
through the Customs Act 1901, Customs Regulations 1926 and the Customs
Tariff Act 1995 for imported tobacco; and
· bans on smokeless tobacco products through the Trade Practices Act 1974 -
Consumer Protection Notice No. 10 of 1991 - Permanent Ban on Goods.
Nor is there any intention to override the requirements that exist for the packaging of
products generally, and are applicable to tobacco products, including the:
· National Trade Measurement Regulations 2009; and the
· Commerce (Imports) Regulations 1940.
4
Financial Impact Statement
It is not expected that the proposed Bill will have any significant financial impact
when initially enacted. Cost recovery will be considered dependent on the costs of
monitoring and enforcement.
5
TOBACCO PLAIN PACKAGING BILL 2011
NOTES ON CLAUSES
CHAPTER 1 - PRELIMINARY
Part 1 - Preliminary
Clause 1 - Short Title
This clause provides that the Bill, once enacted, may be cited as the Tobacco Plain
Packaging Act 2011.
Clause 2 - Commencement
Different parts of the Bill are scheduled to commence on different dates:
· On the day the Act receives Royal Assent, the provisions of the Act that give
the short title of the Act and provide for commencement will commence.
· On 1 January 2012, other preliminary provisions of the legislation; the power
to make regulations specifying plain packaging requirements; and the
provisions that allow the authorised investigative and enforcement officer
roles to be established will commence.
· On 20 May 2012, the offences relating to packaging and manufacturing
non-compliant tobacco products as well as manufacturing non-compliant retail
packaging will commence, along with the investigation and enforcement
powers of authorised officers.
· On 1 July 2012, the offences relating to selling and purchasing non-compliant
tobacco products and tobacco products in non-compliant packaging will
commence.
Rationale
During targeted consultations, some retailers of tobacco products requested a clear
end-point to the manufacture and/or import of non-compliant tobacco products and
packaging ahead of the end-point for retail sale to ensure there would be enough time
for stocks of non-plain packaged product to be sold before the 1 July 2012 date for
full commencement of the legislation. The period allowed in the Bill, in relation to
manufacture and packaging of tobacco products, is six weeks. As already described,
following consultations, it was decided not to prohibit the import of non-compliant
products.
To allow the Bill to be effectively administered, information gathering and
enforcement powers will also come into effect on commencement of the legislation on
20 May 2012. Various other administrative provisions will take effect with
commencement of the legislation on 1 January 2012 so that required structures can be
put in place, and to ensure that the tobacco, packaging and retail industries can be
given as much notice as possible of the regulations made under the legislation.
Clause 3 - Objects of this Act
This clause provides that the objects of this Bill are to improve public health by
reducing people's use of and exposure to tobacco products; and to give effect to
certain of Australia's obligations under the WHO FCTC.
6
Recognising that these broad objectives are only achievable in combination with other
tobacco control measures, clause 3(2) provides that the regulation of the appearance
of tobacco products and packaging is intended to contribute to improving public
health by:
· reducing the appeal of tobacco products to consumers;
· increasing the effectiveness of health warnings on the retail packaging of
tobacco products; and
· reducing the ability of the packaging of tobacco products to mislead
consumers about the harmful effects of smoking.
Clause 3 is not intended to be an exhaustive list of ways in which public health may
be improved or Australia's obligations under the WHO FCTC may be met.
Clause 4 - Definitions
This clause contains definitions of terms used in the Bill.
`cigarette carton'
The requirements for retail packaging of `cigarette cartons' apply to any container for
retail sale that contains cigarette packs. A carton that is not `retail packaging', such as
a box or crate for wholesale distribution, is not within the scope of the plain
packaging requirements.
`cigarette pack'
The term `cigarette pack' refers to all containers for retail sale in which cigarettes are
directly placed.
`container'
A reference to a `container' is a broad reference to anything that contains a tobacco
product. The definition provides a non-exhaustive list of examples of the types of
container that may be referred to.
`fire risk statement'
A reference to a `fire risk statement' in the Bill is a reference to the labelling
requirements for tobacco products that are currently prescribed by the Trade Practices
(Consumer Product Safety Standard) (Reduced Fire Risk Cigarettes) Regulations
2008. The definition provides for the reduced fire risk warning requirements to be
specified under a variety of legislative instruments, arising from recent amendments
to the Trade Practices Act 1974 resulting in the Competition and Consumer Act 2010.
`health warning'
A reference to `health warnings' in the Bill will be a reference to the labelling
requirements for tobacco products that are widely known by that term. The definition
provides for health warning requirements to be specified under a variety of legislative
instruments, to accommodate future amendments to the existing regulations under the
Competition and Consumer Act 2010.
`inner surface'
A reference to `inner surface' will refer to the ordinary English meaning of the term,
and will include specific surfaces that are referred to in section 6(2) of the Bill.
7
`insert'
A reference to an `insert' in the Bill refers to anything placed in tobacco packaging
that is not a tobacco product, but does not refer to things that are part of the packaging
including the lining of a cigarette pack.
`mark'
This definition clarifies that where the Bill refers to `marks', this includes lines,
letters, numbers, symbols, graphics and images, and other marks within the ordinary
meaning of the word, but does not include trade marks.
`offer'
The definition of `offer' a tobacco product for sale is provided to clarify that tobacco
products that are available for sale but not visible to the public are being `offered' for
sale. This addresses the fact that States and Territories have placed restrictions or
bans on display of cigarettes at the point of sale, with the result that tobacco products
are available for sale even though they may not be visible.
`onsert'
A reference to an `onsert' in the Bill means anything that is attached to retail
packaging for tobacco products, or forms part of the packaging, but does not include
the lining of the packaging. This definition has been adapted from the WHO FCTC.
`outer surface'
Similar to the meaning of `inner surface', a reference to an `outer surface' will refer to
the ordinary English meaning of the term, and is further clarified by section 6(1).
`retail packaging'
The packaging that will be regulated by the Bill includes any container that a tobacco
product is packed in for retail sale. This includes the package immediately around the
tobacco product, any carton that contains one or more packages of tobacco products
for retail sale, any wrapper that covers the packaging of a tobacco product or a
tobacco product itself, and anything placed in the packaging apart from the tobacco
product and anything attached to or forming part of the packaging. Where there is
more than one form of packaging used for retail sale, for example where a carton or
other container holds more than one packet of tobacco products, each layer of
packaging including the initial packet and the carton will have to comply with plain
packaging requirements.
The Bill will not apply to packaging of tobacco products that is used solely for the
purpose of shipping or wholesale distribution, for example large boxes, crates or
packing containers.
`sign'
`Sign' when used as a noun has the meaning given by subsection 6(1) of the Trade
Marks Act 1995:
`sign' includes the following or any combination of the following, namely, any
letter, word, name, signature, numeral, device, brand, heading, label, ticket,
aspect of packaging, shape, colour, sound or scent.
8
`tobacco product'
The definition of `tobacco product' in the Bill means that generally any product
containing tobacco, no matter how small the amount, will be within the scope of the
Bill if it was manufactured for smoking, sucking, chewing or snuffing.
This definition is based on the definition in the WHO FCTC. It is intended to
encompass all tobacco products designed for human consumption, and will include,
for example, cigarettes, cigars, roll-your-own tobacco, bidis, kreteks, little cigars, and
dissolvable tobacco products such as tablets containing tobacco for sucking.
It is important to note that therapeutic goods, which are aimed at helping people to
quit their use of tobacco products, will not be regulated by the Bill when they are
included on the Australian Register of Therapeutic Goods. Products that contain
nicotine but do not contain any tobacco will not be regulated by the Bill.
The broad definition of `tobacco products' may encompass some tobacco products
which are unlawful, under Commonwealth, State or Territory laws that regulate the
use and sale of tobacco, and that are not affected by the operation of this Bill.
Clause 5 - Definition of package a tobacco product for retail sale
This clause provides that the word `package', when used as a verb in relation to
tobacco products for retail sale, will refer to certain actions relating to placing or
wrapping tobacco products in retail packaging within the definition of the Bill. Other
forms of the verb, such as `packaged' have an equivalent meaning.
Clause 6 - Rules relating to surfaces of cigarette packs and cigarette cartons
This clause clarifies the status of the inner and outer faces of cigarette packs and
cartons, whether they are open or closed. For example, the clause clarifies that a
reference to the front face of a cigarette pack refers to the entire front face, including
the part of the front surface that is part of the flip-top lid, whether the flip-top lid is
open or closed. Similarly, this clause provides that faces of cartons that are only
visible after the carton has been opened are inner faces.
Clause 7 - References to contraventions of civil penalty provisions
This clause is intended to help identify the specific sub-clause that is contravened in a
civil penalty provision. This is important in achieving certainty in potential legal
proceedings. It is aimed at avoiding potential confusion caused by the fact that the
last subsection in a civil penalty provision is technically the civil penalty provision,
but in fact is not itself capable of being contravened. Therefore, this clause points to
subsection (1) of the relevant provision as the civil penalty provision that is
contravened.
This clause does not apply to clause 91. That clause provides that a person who
contravenes a civil penalty provision does not commit an offence. A person who
contravenes a civil penalty in Chapter 3, within the meaning of clause 7, would
commit both a fault-based and strict liability offence. Clause 91 is only intended to
refer to each subsection in Chapter 3 that has the words "Civil penalty" set out at its
foot.
9
Clause 8 - Act extends to external Territories
This clause provides that the Bill will have application in every external territory.
Clause 9 - Act binds the Crown
This clause provides that the Bill binds the Crown, but does not make the Crown
liable to be prosecuted for an offence, given an infringement notice, or subject to civil
proceedings for a civil penalty for a contravention of a civil penalty provision.
Clause 10 - Inconsistency with other Commonwealth legislation
This clause sets out the legislative instruments that are intended to prevail over the
Bill, where there are any inconsistencies between the Bill and other legislation. This
is an exhaustive list. The instruments that would prevail over the Bill consist of the
existing instrument in relation to the appearance of graphic health warnings on
packaging, and any changes or amendments to that instrument.
Plain packaging for tobacco products is intended to prevent branding from detracting
from health warnings. The Bill is not intended to interfere with requirements in the
listed legislation about the appearance of packaging or products.
Clause 11 - Operation of State and Territory Laws
This clause provides that the Bill does not limit the operation of State or Territory
laws relating to packaging and appearance of tobacco products, where those laws are
capable of operating concurrently with the requirements of the Bill. It is expected that
Commonwealth and State and Territory tobacco control laws will continue to operate
alongside each other.
It is expected that State and Territory governments will continue to implement
regulatory reforms in the areas of tobacco retailing and exposure to secondhand
smoke, in order to ensure effective public health regulation. Most recently and
notably, States and Territories have implemented restrictions and bans on point of sale
advertising and retail displays of tobacco products; and bans on smoking in cars and
other environments in which children may be exposed to secondhand smoke.
Where conduct could be an offence against both the provisions of this Bill and a State
or Territory law, the Bill will not limit the application of that State or Territory law.
Where there is any conflict between the provisions of this Bill and any State or
Territory law, the provisions of this Bill will prevail.
Clause 11(3) includes a definition of `relevant tobacco law' because there are
numerous regulatory requirements for tobacco products. A relevant tobacco law may
also regulate other products.
Part 2 - Simplified Outlines
Part 2 (clauses 12-13) provides simplified outlines for the Bill, and for Chapter 1 of
the Bill to aid understanding of the relevant clauses.
10
Part 3 - Constitutional Provisions
Clause 14 - Additional Operation of this Act
The Bill is supported by the external affairs power in section 51(xxix) of the
Commonwealth Constitution, as it gives effect to obligations under the WHO FCTC.
In case there is any doubt that all of the provisions are fully supported by the external
affairs power, the Bill is drafted in a way that relies on alternative or supplementary
heads of legislative power in the Constitution. This clause provides for the
prohibitions on engaging in conduct in the Bill to have effect in such a way as to be
supported by the Commonwealth's constitutional powers in section 51(xx) with
respect to corporations; section 51(i) with respect to international and interstate trade
and commerce; and section 122 of the Constitution, with respect to the Territories.
For example, if a particular requirement of the Bill was held by a court not to be
appropriate and adapted to give effect to Australia's obligations under the FCTC, but
could still apply in relation to a constitutional corporation, then the requirement would
be valid in relation to constitutional corporations.
The reference to "engaging in conduct" in this clause refers to the conduct that is
referred to in each offence in Chapter 3 such as, for example, selling or supplying,
purchasing, or manufacturing a tobacco product.
Clause 15 - Acquisition of Property
The Bill has been drafted so as to avoid the potential for any acquisition of property
other than on just terms that would be contrary to section 51(xxxi) of the Constitution.
However, out of an abundance of caution, this clause provides that the Bill does not
apply to the extent that it would cause an acquisition contrary to section 51(xxxi).
More specifically, it provides that if preventing the use of trade marks on tobacco
products or their packaging, without providing compensation, is contrary to
section 51(xxxi) of the Constitution, the trade marks can be used. However, the
regulations may prescribe restrictions (for example, on size and placement) for the
purposes of this provision.
Any other requirements for plain packaging of tobacco products will continue to
apply.
The Bill does not include a general provision for the payment of compensation in the
event that its operation would otherwise result in an acquisition of property other than
on just terms. However, it does include two provisions providing for payment of
compensation, in specific, narrow circumstances. These are clause 66, relating to
damage caused by electronic equipment being operated in relation to enforcement of
the Bill, and clause 74 relating to disposal by the Secretary of the relevant
Department, of things that have been seized in the course of enforcement action.
Clause 16 - Implied freedom of political communication
This clause provides that the Bill does not apply to the extent that it would infringe
any implied constitutional freedom of political communication.
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CHAPTER 2 - REQUIREMENTS FOR PLAIN PACKAGING AND
APPEARANCE OF TOBACCO PRODUCTS
Chapter 2 outlines general requirements for plain packaging of tobacco products, and
some specific requirements for cigarette packs and cartons. Chapter 2 also provides
for the Governor-General to make regulations specifying requirements for plain
packaging and the appearance of tobacco products among other things, to further the
objects of the Bill.
Part 1 - Simplified outline
Part 1 (clause 17) provides a simplified outline of Chapter 2, to aid in understanding
of relevant clauses.
Part 2 - Requirements for retail packaging and appearance of tobacco products
Division 1 - Requirements for retail packaging of tobacco products
This Division sets out the requirements for retail packaging of tobacco products
generally, as well as some specific requirements for cigarette packs and cigarette
cartons. It also sets out areas where regulations may prescribe additional
requirements.
Clause 18 - Physical features of retail packaging
This clause provides that no decorative ridges, embossing, bulges, irregularities of
shape or texture, or other embellishments, including coloured glues or adhesives, can
be used on tobacco packaging.
Specific requirements for cigarette packs and cartons are also applied following
research undertaken to determine the impact on consumers and potential consumers of
innovative packaging shape, size and opening. The research indicated that all these
elements of pack design created strong associations with level of appeal and perceived
traits associated with branding. This clause provides that cigarette packs and cartons
must have a standardised rectangular shape with no decorative elements, and cigarette
packs must have flip-top openings. The lining of cigarette packs must only be foil
backed with paper, or a material allowed by regulations, and must also comply with
requirements for cigarette packs.
Clause 19 - Colour and finish of retail packaging
This clause provides that all faces, both inner and outer, of retail tobacco packaging
and any lining of cigarette packs must be drab dark brown in a matt finish. Market
research found that a particular shade of drab dark brown was optimal in terms of
decreasing the appeal and attractiveness of tobacco packaging, decreasing the
potential of the pack to mislead consumers about the harms of tobacco use, and
increasing the impact of graphic health warnings.
Other information, such as health warnings and manufacturer's details, which are
permitted or required to appear on the packaging will not be required to be drab dark
brown. Some requirements for this information are prescribed by clause 21.
12
Clause 20 - Prohibition on trade marks and marks generally appearing on retail
packaging
To ensure that no other design features detract from the impact of the plain packaging
requirements, no trade marks or other marks are permitted to appear on tobacco
packaging, unless required under the other legislative instruments outlined at
proposed section 6, or permitted by or under the Bill, or relevant regulations.
Trade marks that will be allowed include, for example, the Quitline trade mark which
is required under the Trade Practices (Consumer Product Information Standards)
(Tobacco) Regulations 2004, and any brand, business or company name or variant
name trade marks that can appear whilst still complying with the detailed
requirements of the Bill and regulations.
This clause also requires that the brand, business, company or variant names that may
appear on cigarette packs appear in a particular way, in specific locations on the
packs, and must not obscure any other tobacco legislative requirements.
This clause does not apply to wrappers of retail packaging or of tobacco products,
which are dealt with separately in clause 22.
Clause 21 - Requirements for brand, business, company or variant names, and
relevant legislative requirements
Clause 21(1) provides for requirements, to be prescribed in the regulations, for the
appearance and placement of any brand, business name or company name or variant
name on the retail packaging of tobacco products generally.
Clause 21(2) prescribes requirements for the appearance of any brand, business name
or company name or variant name that appears on a cigarette pack or carton.
Clause 21(3) provides that any legislative requirement (other than health warnings)
must comply with any requirements prescribed by the regulations. This is intended to
clarify that only the requirements for health warnings prevail over this legislation, and
to ensure that where other required information appears, it is consistent with the plain
packaging requirements.
This clause does not apply to wrappers of retail packaging or of tobacco products,
which are dealt with separately in clause 22.
Clause 22 - Requirements for wrappers
This clause provides that any wrapper that covers packs or cartons containing tobacco
products or a wrapper that itself contains a tobacco product, must be transparent and
not coloured, and no marks (either trade marks or otherwise) may appear unless
permitted by the regulations.
Clause 23 - Retail packaging not to have inserts or onserts
This clause provides that no inserts or onserts can be included in or on tobacco retail
packaging, unless they are permitted by the regulations.
13
Clause 24 - Retail packaging not to produce noise or scent
This clause provides that no retail packaging of tobacco products may make a sound
or produce a scent that could be taken to advertise or promote the tobacco products.
This clause only applies to the retail packaging and is not intended to prohibit the use
of scents as a constituent of the tobacco products itself, such as menthol in cigarettes.
Clause 25 - Retail packaging must not change after retail sale
This clause is intended to prevent sale of tobacco products in retail packaging that is
compliant with plain packaging requirements at the time of sale, but that is designed
to change. To assist with interpretation of this clause, a non-exhaustive list of
technologies known to be able to change the appearance of retail packaging after sale
is provided.
This clause does not affect changes that an individual may make after purchasing
products for personal use, for example by opening the packaging.
Division 2 - Requirements for appearance of tobacco products
Clause 26 - Requirements for appearance of tobacco products
This clause provides that no tobacco product may display a trade mark or other mark,
unless permitted by the regulations.
This Bill creates the first restriction on how cigarettes themselves are to appear in
Australia. Cigarette sticks currently have a range of decorative elements printed on
them, including brand names, use of colour, bands, filter designs and filter colours.
Research shows that the inclusion of brand names and other design embellishments on
cigarettes are strongly associated with the level of appeal and perceived traits
associated with branding, such as sophistication. Guidelines for the implementation
of Article 13 (Tobacco advertising, promotion and sponsorship) of the WHO FCTC
identify product design features as a form of tobacco advertising and promotion that
should be regulated.
Division 3 - Miscellaneous
This Division sets out clauses which clarify the application of the other provisions in
Chapter 2, Part 2, in relation to regulations made under this Act, and in relation to the
Trade Marks Act 1995 and the Designs Act 2003.
Clause 27 - Regulations may prescribe additional requirements
This clause provides that the regulations may prescribe requirements in relation to the
retail packaging of tobacco products and the appearance of tobacco products, in
addition to the specific areas of regulation provided for in other parts of Chapter 2.
This section provides a broad power to make regulations to further the objects of the
Bill. However, this power is not intended to interfere with the operation of other
regulation making powers set out in Chapter 2.
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Clause 28 - Effect on the Trade Marks Act 1995 of non-use of trade mark as a
result of this Act
The Bill prevents trade marks from being placed on tobacco products or their retail
packaging. However, clause 28 preserves a trade mark owner's ability to protect a
trade mark, and to register and maintain registration of a trade mark. To this end,
clause 28 provides for the way various provisions of the Trade Marks Act 1995 and
the Trade Marks Regulations 1995 will operate in relation to the provisions of the
Bill. For example, a tobacco manufacturer that applies for the registration of a trade
mark in respect of tobacco products is taken to intend to use the trade mark in
Australia, if it would use it on the products or retail packaging, but for the operation
of the Bill. Similarly, if someone applies for removal of a trade mark from the
register, alleging that the trade mark has not been used, this allegation will be rebutted
by evidence that the registered owner would have used the trade mark, but for the
operation of the Bill.
Clause 29 - Effect on the Designs Act 2003 of failure to make products as a result
of this Act
This clause prevents an order being made requiring a licence to be granted in relation
to a registered design, or revoking registration of a design under the
Designs Act 2003, as a result of the provisions of the Bill preventing the use of a
registered design.
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CHAPTER 3 - OFFENCES AND CIVIL PENALTY PROVISIONS
This Chapter creates several offences relating to tobacco products and packaging that
do not comply with plain packaging requirements. These offences relate to the sale or
supply, purchase, packaging, or manufacturing of tobacco products for retail sale.
They will apply to commercial participants in the tobacco industry in Australia who
fail to comply with the requirements for tobacco products and packaging created
under Chapter 2. They will not apply to people who purchase tobacco products for
their personal use, nor will they apply to conduct (other than retail sale) undertaken
for the purposes of exporting tobacco products and packaging.
Each of the offences set out in this Chapter is a fault-based criminal offence, which
also has a corresponding strict liability offence (that is, where no fault elements apply
to the physical elements of the offence), as well as a civil penalty provision for the
same conduct.
Criminal offences
Fault-based criminal offences, for which an accused individual or corporation may be
prosecuted, must be proved beyond reasonable doubt in court. For some elements of
fault-based criminal offences, strict liability is applied. This means no intention or
state of mind of the individual or body corporate needs to be proved. This applies to
offences where one or more elements of the offence require that:
· the product or packaging being dealt with is for retail sale, for example that
packaging is retail packaging or that products are packaged for retail sale; or
· a party to certain dealings, including arrangements and contracts to produce or
package tobacco products, is a constitutional corporation; or
· a mark that appears on retail packaging is the mark of a constitutional
corporation.
Strict liability is applied to these elements of the fault-based offences because a
requirement to prove fault in relation to the matters listed above would undermine the
deterrent effect of the offence, and would represent a significant burden on the
prosecution.
Each fault-based criminal offence also has a corresponding strict liability offence, in
which no fault elements are required for the physical elements of the offence. Like
fault-based criminal offences, strict liability criminal offences must also be proved
beyond reasonable doubt. A defendant will be able to raise the defence of honest and
reasonable mistake of fact. These offences are replicated as strict liability offences, to
ensure the availability of offences with lower penalties, that will encourage retailers
and other parties who frequently deal with tobacco products, and who provide tobacco
products to consumers, to avoid accepting and selling non-compliant tobacco
products. This will aid in reducing consumer exposure to branded tobacco packaging.
The strict liability offences also form the basis for the infringement notice scheme
created through Chapter 5, Part 3 of the Bill.
Consistent with Part 4.5 of A Guide to Framing Commonwealth Offences, Civil
Penalties and Enforcement Powers, the offences are not punishable by imprisonment.
Maximum penalties for the offences are in line with those set out by Part 4.5.
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Civil penalty scheme
The civil penalty scheme allows the Secretary of the relevant Department, (currently
the Department of Health and Ageing) or a delegate to apply to the Federal Court for
an order that a person must pay a civil penalty for contravention of the plain
packaging requirements. The civil penalty scheme is designed to encourage
compliance with the legislative requirements without resorting to criminal
prosecution. Contraventions of a civil penalty provision must be proved on the
balance of probabilities in a court, and the court may order a monetary amount to be
paid as the penalty.
Which provision will apply?
The Commonwealth will decide in each particular case whether to prosecute a person
for a fault-based or strict-liability offence, or whether to bring proceedings for a civil
penalty order. A person may only be prosecuted for a fault-based or strict liability
offence, not both, and once convicted of a criminal (fault-based or strict liability)
offence a person could not be pursued for civil penalties. However, proceedings for a
contravention of a civil penalty provision could be brought prior to a person being
prosecuted for a criminal offence.
Penalties
The level of penalties applied to offences in this Bill is based on the penalties set out
in the Competition and Consumer Act 2010. This is to ensure that penalties for a
breach of plain packaging requirements are the same as the penalties that could be
applied under the Australian Consumer Law (which is Schedule 2 of the Competition
and Consumer Act 2010) for a breach of the requirements to display graphic health
warnings.
Under this Bill:
· the maximum penalty amount for a fault-based criminal offence committed by
an individual is 2,000 penalty units (currently $220,000), and for a breach by a
body corporate is 10,000 penalty units (currently $1.1 million);
· the maximum penalty amount for a strict-liability criminal offence committed
by an individual is 60 penalty units (currently $6,600) and committed by a
body corporate is 300 penalty units (currently $33,000); and
· the maximum civil penalty that may be awarded is the same as for fault-based
criminal offences.
Consistent with the Australian Consumer Law, the high maximum penalties are
intended to address the most serious cases of non-compliance, such as individuals or
corporations who deal with a high volume of non-compliant products, and to address
repeat offenders. The maximum penalties are intended to be a deterrent, primarily to
the manufacturers, importers and other large scale suppliers participating in the
tobacco industry.
As the plain packaging requirements under the Bill are intended to support the
appearance of graphic health warnings on tobacco products, an offence under the
requirements of the Bill is considered equivalent in severity to an offence relating to
failure to comply with requirements for graphic health warnings under the Australian
Consumer Law, and the same level of penalties applies for each. This is consistent
17
with Part 5.1 of A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.
The maximum penalty amount of a strict liability criminal offence committed by an
individual is 60 penalty units, and committed by a body corporate is 300 penalty units.
This lower penalty amount is the recommended maximum penalty applicable for strict
liability offences. This penalty is significantly lower than the maximum penalties for
fault-based offences and civil penalty provisions, in recognition of the fact that strict
liability offences will be pursued to put small volume dealers and first offenders on
notice that they are committing an offence under the requirements of the Bill, and to
deter recurrent non-compliance. The higher maximum penalties will be applied in
cases of deliberate and recurrent non-compliance.
Onus of Proof
Some sections in this Chapter place the onus of proof on the defendant for certain
elements of the offence. This is because it would be significantly more difficult for
the prosecution to prove these elements, than it would be for the defendant to disprove
them, since the relevant information is known particularly to the defendant.
Provisions where the onus of proof is reversed are:
· Clauses 32, 38, 41 and 48 - a person who wishes to claim they purchased
tobacco products for personal use rather than commercial or other uses will
bear the evidential burden in relation to that matter;
· Clause 35 - a manufacturer who wishes to claim they took all reasonable steps
to ensure that retail packaging complied with tobacco product requirements
will bear the evidential burden in relation to that matter;
· Clause 49 - a person who wishes to rely on the export exception to a relevant
offence will bear the evidential burden in relation to the relevant matters.
In each of these cases, the exception is dependent on particular knowledge or intent of
the defendant. It would be significantly more difficult for the prosecution to prove the
intention of an individual to purchase a tobacco product for personal use, than for the
defendant to show their history of tobacco use and purchases, and their particular
intentions in each instance. Similarly, a manufacturer will have particular knowledge
and proof of any steps undertaken to ensure retail packaging complied with plain
packaging requirements, and would also have documentation relevant to the intended
market for the product in instances where the product is intended for export.
The reversal of the onus of proof in these circumstances is considered to be consistent
with Part 4.6 of A Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.
Jurisdiction
As the Bill does not deal with the jurisdiction for the offences in this Chapter,
section 68 of the Judiciary Act 1903 will apply to confer jurisdiction on state and
territory courts.
Part 1 - Simplified outline
Part 1 (clause 17) provides a simplified outline of Chapter 3 to aid in understanding of
the relevant clauses.
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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
This Division sets out the general offences for non-compliant packaging of tobacco
products. The clauses provide that it will be an offence to:
· sell, offer or otherwise supply a tobacco product that has been packaged for
retail sale and is not compliant with plain packaging requirements; whether or
not the product is visible when offered for sale, and whether or not payment is
required, given or accepted for the tobacco product (clause 31);
· purchase a tobacco product that has been packaged for retail sale and is not
compliant with plain packaging requirements; but the offence will not apply to
individuals who purchase the tobacco product for personal use (clause 32);
· package tobacco products for retail sale in packaging that does not comply
with the plain packaging requirements (clause 33);
· manufacture non-compliant containers or wrappers for retail packaging, if
another person places tobacco products in the packaging (clause 34);
· manufacture a tobacco product and arrange for that product to be packaged, if
the retail packaging is non-compliant, unless the manufacturer has taken all
reasonable steps to ensure the packaging complies with the plain packaging
requirements (clause 35); or to
· sell or otherwise supply a tobacco product that is not in retail packaging (for
example, a sale of the product in bulk), whether or not payment is required,
given or accepted, without the supplier having a contractual arrangement in
place that prohibits the purchaser from supplying the product in Australia in
non-compliant retail packaging (clause 36).
Division 2 - Non-compliant tobacco products
This Division sets out the general offences for conduct relating to non-compliant
tobacco products. The clauses provide that it will be an offence to:
· sell, offer or otherwise supply a non-compliant tobacco product (clause 37);
· purchase a non-compliant tobacco product, other than for personal use (clause
38); or to
· manufacture a tobacco product that does not comply with the requirements of
the Bill and any associated regulations (clause 39).
Part 3 - Offences and civil penalty provisions relating to constitutional
corporations
To ensure the broadest possible support by the corporations power, the offences in
this Part apply to conduct already dealt with in Part 1 of Chapter 3, but are restricted
to dealings with constitutional corporations.
Division 1 - Non-compliant retail packaging of tobacco products
The clauses in this Division replicate the offences relating to non-compliant
packaging of tobacco products generally in Part 2, Division 1, of this Chapter, with
reference to dealings with constitutional corporations. The clauses provide that it will
be an offence to:
· sell, offer or otherwise supply a tobacco product which is packaged for retail
sale in non-compliant packaging, to a constitutional corporation (clause 40);
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· purchase a tobacco product which has been packaged for retail sale and does
not comply with plain-packaging requirements, from a constitutional
corporation, other than for personal use (clause 41);
· package a tobacco product for retail sale, under a contract with a constitutional
corporation, if the packaging does not comply with plain packaging
requirements (clause 42);
· manufacture non-compliant retail packaging, under a contract with a
constitutional corporation, if another person places tobacco products in the
packaging (clause 43);
· package a tobacco product if the trade mark, brand, business or company
name, or other identifying mark of a constitutional corporation appears on the
packaging and the retail packaging does not comply with plain packaging
requirements (clause 44);
· manufacture non-compliant containers or wrappers as retail packaging of
tobacco products, if the trade mark, brand, business or company name, or
other identifying mark of a constitutional corporation appears on the
packaging, and another person places tobacco products in the packaging
(clause 45); or to
· sell, offer or otherwise supply a tobacco product that is not packaged for retail
sale to another person, without a contract that prevents the purchaser from
supplying the product for retail sale in non-compliant packaging, where either
the seller or purchaser is a constitutional corporation (clause 46).
Division 2 - Non-compliant tobacco products
The clauses in this Division replicate the offences relating to non-compliant tobacco
products generally in Part 2, Division 2 of this Chapter, with reference to dealings
with constitutional corporations. The clauses provide that it will be an offence to:
· sell, offer or otherwise supply a tobacco product that does not comply with
plain packaging requirements, to a constitutional corporation (clause 47);
· purchase a tobacco product that does not comply with plain packaging
requirements from a constitutional corporation, other than for personal use
(clause 48).
Part 4 - Export exception and physical elements of offences
Clause 49 - Export exception for non-compliant tobacco products
This clause provides a broad exception to the offences in sections 31 to 48, (other than
the offences in sections 36 and 46, relating to supplying unpackaged tobacco products
without a contract prohibiting non-compliant packaging of those products) for
conduct that is undertaken in the course of, or for the purposes of, exporting the
tobacco products. This exception applies only if a contract, arrangement or
understanding for the tobacco product to be exported exists.
To enable the effective operation of the offences, this exception does not apply to
retail sale of a tobacco product in Australia. Retail sales at an airport to departing
travellers will not fall within the exception, for example. Neither will the Bill allow a
retailer to sell non-compliant products to customers who assure the retailer that they
intend to take the products out of the country. The availability of the exception in
such cases would make enforcement of the legislation difficult, and make it easier for
the prohibitions in the Bill to be circumvented. Also, an exception for retail sales to
20
individuals leaving the country temporarily would leave open the possibility of
significant amounts of non-compliant packaging and non-compliant products being
within Australia. As well as making monitoring and enforcement more difficult, this
may undermine the aim of restricting exposure of persons in Australia to promotion of
smoking in the form of design features on packages and products.
Clause 50 - Physical elements of offences
This clause clarifies that, for each offence set out in Chapter 3, the physical elements
of the offence are set out in subsection (1) of the relevant section, rather than in the
sub-sections titled Fault-based offence. This information is provided to aid in the
application of Chapter 2 of the Criminal Code, which relates to general principles of
criminal responsibility, to the offences provided by the Bill.
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CHAPTER 4 - POWERS TO INVESTIGATE CONTRAVENTIONS OF THIS
ACT
This Chapter deals with the powers of officers who are authorised to investigate
suspected contraventions of the legislation. Chapter 4 creates a regime under which
warrants to search premises and seize evidence may be issued, and certain authorised
officers may be appointed to execute warrants, in order to enforce the requirements of
the Bill. The regime includes the ability to enter and search premises with a warrant,
and to seize evidence to support investigation of suspected offences or contraventions
of civil penalty provisions. The provisions of the Bill empower authorised officers to
ask questions, and to seek production of documents.
This Chapter also contains safeguards and obligations to which authorised officers
must adhere when exercising their powers. This includes that authorised officers must
provide warrant details to occupiers of premises, and must announce themselves
before entering premises. The occupiers of premises which are entered and searched
will also have responsibilities under the legislation. The legislation requires seized
items to be handled in a particular way, and provides for the circumstances in which
seized items will be returned to their owner.
Provisions in this Chapter are consistent with Part 9 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Power.
Part 1 - Simplified outline
Part 1 (clause 51) provides a simplified outline of Chapter 4 to aid in understanding of
the relevant clauses.
Part 2 - Search warrants
Division 1 - Search powers
This Division sets out the search powers that may be exercised by authorised officers,
or persons assisting them, in the execution of a warrant or when entering premises
with consent.
Clause 52 - Authorised officer may enter premises by consent or under a
warrant
This clause provides that a person appointed by the Secretary of the relevant
Department under section 81 can enter and search premises, when they have
reasonable grounds to believe there is evidence on the premises, if they gain consent
from the occupier of the premises or if they have a warrant allowing them to enter
without permission.
Clause 53 - Search powers of authorised officers
This clause outlines the search powers that can be used by an authorised officer to
enforce the Act.
If an authorised officer enters premises after gaining consent from the occupier, they
may search the premises and anything on the premises that they suspect on reasonable
grounds may provide evidential material. This clause is more limited than the powers
granted under a search warrant, to ensure that proper procedure is followed when
enforcing the legislation.
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If an authorised officer enters premises under a warrant, they must act in compliance
with the terms of the warrant. This means they can search the premises for types of
evidence that are specified in the warrant, and seize any such evidence that is found.
Other powers that authorised officers may exercise include:
· powers to inspect, examine, measure, conduct tests on, or take samples of,
evidential material;
· powers to take photographs or video recordings (or other records) of the
premises and any evidence; and
· powers to take any equipment and materials needed by the authorised officer
onto the premises.
Clause 54 - Powers relating to electronic equipment
This clause provides additional search powers to those outlined in clause 53, in
relation to electronic equipment. The clause provides the powers to:
· operate electronic equipment if there are reasonable grounds for suspicion that
the equipment or a related storage device (such as a CD, DVD, or USB)
contains evidence;
· put the evidential material in documentary form, for example by printing the
evidence, and remove the documents from the premises;
· transfer the evidence to a storage device that the authorised officer brought to
the premises, or to a storage device that the occupier of the premises agrees in
writing may be used to store the evidence and be removed from the property;
and
· seize the equipment or storage device, if the authorised officer is acting under
a warrant, but only if:
o it is not practical to put the evidence into documentary form or transfer
it to another storage device that may be taken from the premises; or
o possession of the equipment or the storage device could constitute an
offence against another Commonwealth law.
To protect the property of individuals, the authorised officer's actions are limited to
operation of the electronic equipment where they believe on reasonable grounds that
the equipment won't be damaged.
Clause 55 - Seizing other evidential material
This clause provides clarification of the power to seize evidential material from
premises, as outlined in section 53.
Unless provided for separately, or allowed to be taken with the permission of the
occupier, `things' may be seized from premises only when entry is under a warrant,
and the following requirements are also met:
· the `thing' is found in the course of searching for evidential material, as set out
in the warrant; and
· the authorised officer believes on reasonable grounds that:
o the `thing' is evidential material; and
o if the `thing' is not seized at that time, it would be concealed, lost or
destroyed.
Clause 56 - Persons assisting authorised officers
23
This clause provides that if it is necessary and reasonable, authorised officers may be
assisted by other people when performing their functions and duties. Someone who
helps an authorised officer in the exercise of their functions and duties is described as
a `person assisting' the authorised officer.
A person who assists an authorised officer can enter premises and act in all of the
roles of an authorised officer, including exercise of powers and performance of
functions and duties in relation to evidence, but can only do so when instructed or
directed by an authorised officer.
Clause 56(5) provides that if a written direction is given to a person assisting in
writing, that direction is not a legislative instrument. This provision is declaratory and
not intended as an exemption to the Legislative Instruments Act 2003, but is included
to assist readers in interpretation of the Bill.
Clause 57 - Use of force in executing a warrant
This clause provides that an authorised officer or a person assisting them may use
force in executing a warrant. The use of force allowed by an authorised officer is only
to be exercised against things and not persons, for example in order to open a door or
force a lock. The force allowed is limited to that which is necessary and reasonable in
the circumstances.
Division 2 - Powers of authorised officers to ask questions and seek production
of documents
Clause 58 - Authorised officer may ask questions and seek production of
documents
This clause outlines the extent of an authorised officer's powers to ask questions and
seek production of documents. It makes it an offence not to comply with a request to
answer a question or produce a document that is made by an authorised officer who
enters premises with a warrant.
If an authorised officer enters premises with the occupier's permission, the authorised
officer is permitted to ask the occupier to answer questions and produce documents
that relate to the authorised officer's reasons for entering the premises. However, as
the authorised officer's right to be present on the premises is based on the consent of
the occupier, it is not an offence to refuse to comply with an authorised officer's
request.
If the authorised officer enters premises under a warrant, they may require any person
on the premises to answer any questions or produce any documents that relate to the
authorised officer's reasons for entering the premises. A person who fails to comply
with any such request will have committed an offence.
Under clause 83, when an authorised officer who enters premises under a warrant
requires answers or documents, a person is not excused from giving the requested
information on the grounds that the information might tend to incriminate the person.
The reasons for this are given below in the explanation of clause 83.
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Division 3 - Obligations and incidental powers of authorised officers
This Division sets out the obligations of authorised officers, and clarifies the operation
of the warrant provisions in relation to a number of circumstances that may arise
during the execution of a warrant.
Clause 59 - Consent
This clause outlines the conditions that apply when an occupier of premises gives
consent to an authorised officer seeking to enter and search the premises without a
warrant.
The authorised officer must tell the occupier that they may refuse consent, and must
not coerce the occupier into giving consent, as the consent has no effect unless it is
voluntary. The occupier can limit their consent to a particular period.
The authorised officer and anyone assisting them can enter the premises until a
consent period ends, or until consent is withdrawn. They must leave once consent is
withdrawn or, if consent is given for a particular period of time, at the end of that
time. If consent is given without any limitations, it will continue to have effect until it
is withdrawn.
Clause 60 - Announcement before entry under warrant
This clause outlines what an authorised officer must do before entering premises
under a warrant. The authorised officer must:
· announce that they are authorised to enter the premises ;
· show their identity card to the occupier or to anyone else who represents the
occupier, if they are present; and
· give the occupier or their representative an opportunity to allow entry to the
premises.
If the authorised officer believes on reasonable grounds that the safety of a person or
the effective execution of the warrant can not be ensured if they comply with these
requirements, they need not comply. However, if the authorised officer enters
premises without complying with the normal requirements then they are required to
show the occupier their identity card as soon as practicable after entering the
premises.
Clause 61 - Authorised officer to be in possession of warrant
This clause provides that the authorised officer who is executing the warrant must
have the warrant or the form of warrant in their possession when they enter premises.
Clause 62 - Details of warrant etc. to be given to occupier
This clause provides that when a warrant is executed on premises and the occupier or
their representative is present, the authorised officer is required to give the occupier or
their representative a copy of the warrant (or the form of warrant) and inform the
occupier of their rights and responsibilities.
Clause 63 - Completing execution of warrant after temporary cessation
This clause provides that, when an authorised officer and persons assisting them to
execute a warrant leave the premises temporarily, the authorised officer can only
complete the execution of the warrant if they are absent from the premises for no
more than one hour, or if they are absent from the premises for no more than 12 hours
due to an emergency, or if the occupier gives written consent.
25
However, the authorised officer can apply to an issuing officer for extension of the
12 hour period if there is an emergency situation and the authorised officer will not be
able to return to the premises for more than 12 hours. Where practicable, the
authorised officer must notify the occupier of the premises that they intend to apply
for the extension before doing so.
On request, an issuing officer can permit the extension if they are satisfied that there
are exceptional circumstances, but only when the extension will operate within the
period the warrant is in force.
Clause 64 - Completing execution of warrant stopped by court order
This clause provides that if the execution of a warrant is stopped by an order of the
Court, the execution can go ahead if the Court order is later revoked or reversed and
the warrant is still in force at that time.
Clause 65 - Expert assistance to operate electronic equipment
This clause applies to situations where expert assistance is required to operate
electronic equipment that an authorised officer believes on reasonable grounds may
contain evidence; and the evidence may be destroyed, altered or otherwise interfered
with if it is not retrieved.
This clause provides that an authorised officer may secure the electronic equipment
for up to 24 hours, after giving the occupier or a representative notice of their
intention to do so. The equipment may only be secured until the expert has operated
the equipment, but may not be secured for more than 24 hours.
The authorised officer may apply to an issuing officer for an extension to secure the
electronic equipment for more than 24 hours, but must give notice to the occupier or a
representative of their intention to do so. This is so that the occupier or representative
has an opportunity to challenge the application.
Clause 66 - Compensation for damage to electronic equipment
This clause provides that if insufficient care by the authorised officer or persons
assisting causes damage to electronic equipment or to the data and programs on the
electronic equipment, during the course of the equipment being operated, the
Commonwealth must pay reasonable compensation to the owner or user, as agreed.
If the Commonwealth and the owner of the equipment, data or programs fail to agree,
the owner may take proceedings in a court to gain reasonable compensation.
Division 4 - Occupier's rights and responsibilities
This Division sets out the rights and responsibilities that are applicable to the occupier
of premises that are searched.
Clause 67 - Occupier entitled to observe execution of warrant
This clause provides that an occupier or their representative may remain and observe
the execution of a warrant, as long as they do not impede the execution of the warrant.
Clause 68 - Occupier to provide authorised officer with facilities and assistance
This clause provides that it is an offence for the occupier or their representative to fail
to provide all reasonable assistance to effectively exercise their powers and perform
their functions and duties.
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Division 5 - General provisions relating to seizure
The clauses in this Division address the conduct that may be undertaken in relation to
items that are seized, including circumstances in which copies and receipts must be
provided for seized goods, and circumstances in which items must be returned.
Clause 69 - Copies of seized things to be provided
This clause provides that where an authorised officer, while executing a warrant,
seizes anything that can be readily copied, or a storage device that contains
information that can be readily copied, the occupier or a person representing them can
request a copy of the seized information or items. Unless possession of the
information or the item would constitute an offence against a Commonwealth law, the
authorised officer must provide copies to the occupier or their representative as soon
as practicable.
Clause 70 - Receipts for seized things
This clause requires that an authorised officer provide a receipt for items that are
seized under a search warrant.
Clause 71 - Return of seized things
This clause requires the Secretary of the relevant Department to take reasonable steps
to return any seized items to the owner or the person they were seized from after 60
days, or sooner than 60 days when the reason for the seizure no longer exists or it is
decided that the item will not be used in evidence. If proceedings are instituted and
not completed before the 60 days the item does not need to be returned until the
reason for the seizure no longer exists or it is decided the item will not be used in
evidence.
However, the item does not need to be returned when a court order requires otherwise,
if the item is forfeited or forfeitable to the Commonwealth, or when there is a dispute
about the ownership of the item.
This provision is designed to be consistent with the principles discussed in Part 9.9 of
A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Powers. The retention period of 60 days is specified in order to ensure that seized
goods are not held for long periods of time without good reason.
Clause 72 - Issuing officer may permit a seized thing to be retained
This clause provides that the Secretary of the relevant Department may apply to an
issuing officer for an extension of the period for retention of seized goods, if the
goods need to be kept.
On application from the Secretary, an issuing officer can permit a seized item to be
kept for the purposes of legal proceedings that have not started if it is necessary that it
be retained for the purposes of investigation or proceedings. The issuing officer can
specify that the item be kept for a further period, but no longer than three years.
Before making an application, the Secretary must attempt to find and notify each
person who has an interest in the retention of the item.
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Clause 73 - Disposal of seized things
This clause provides that the Secretary of the relevant Department can dispose of any
thing that has been seized in any way they think appropriate, once they have taken
reasonable steps to return the item and either the person refused to take possession of
the item, or the Secretary was unable to locate the person.
Clause 74 - Compensation for acquisition of property
This section provides that if disposal of an item by the Secretary of the relevant
Department under clause 73 would result in an acquisition of property from a person
otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount
of compensation to the person.
The person may institute proceedings in a court if the Commonwealth and the person
do not agree on the amount of compensation.
Division 6 - Issue of warrants
This Division outlines the criteria and circumstances that must be met for a warrant to
be issued.
Clause 75 - Issue of warrants
For a warrant to be issued in relation to premises, an authorised officer must apply to
an issuing officer for a warrant. The issuing officer may only issue the warrant if they
are satisfied that there are reasonable grounds for suspecting that there is evidential
material on the premises, or will be within the next 72 hours.
This provision also outlines certain information that a warrant must contain.
Clause 76 - Warrants by telephone, fax etc.
This provision sets out a procedure under which an authorised officer can apply for a
warrant by telephone, fax or other electronic means in an urgent case, or if the delay
to make an application in person would frustrate the effective execution of the
warrant.
Under this provision, the requirement for the authorised officer to prepare evidence
and information to support the issuing of a warrant is preserved, including the
requirement that there are reasonable grounds for suspecting that there is evidential
material on the premises, or that there may be within 72 hours. The authorised officer
may be required to give this evidence by telephone or other voice technology if it is
practicable.
The issuing officer can complete and sign a warrant, and must inform the authorised
officer of that either by telephone, fax or other electronic means. The authorised
officer must then complete a form of warrant in the terms that are communicated to
them, and include the name of the issuing officer and the time the original warrant
was signed. The authorised officer must also send a copy of the form of warrant to
the issuing officer by the end of the day following the day the warrant is executed or
ceases to be in force.
Where the word `sign' is used in this clause, it is used as a verb and has its plain
English meaning.
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Clause 77 - Authority of warrant
This clause provides that where a form of warrant is completed as a result of a warrant
issued by electronic means, a proper form of warrant gives authority for the same
powers as would be given by the warrant signed by the issuing officer. However, if
the warrant signed by the issuing officer is not produced in evidence in court
proceedings, the court cannot assume the powers were authorised because of a form
of warrant, unless it is otherwise proven that the powers were authorised.
Clause 78 - Offence relating to warrants by telephone, fax etc.
This clause provides that it is an offence for an authorised officer to falsely state the
name of an issuing officer as having signed a warrant, or to depart from the terms of
the warrant signed by the issuing officer. It is also an offence to execute or present a
form of warrant that departs from the terms of a warrant signed by an issuing officer,
or to give to an issuing officer a form of warrant that is not the form of warrant used
to execute a search.
The penalty for any of the above conduct is imprisonment for two years. This penalty
is in place to deter authorised officers from false or improper execution of warrants.
Division 7 - Powers of issuing officers
Clause 79 - Powers of issuing officers
This clause provides that an issuing officer may consent to have powers conferred on
them, and the Attorney-General may nominate consenting officers to exercise those
powers.
The clause specifies that powers conferred on issuing officers are conferred on the
individual issuing officer in his or her personal capacity.
Issuing officers who are Judges or Federal Magistrates exercising a power personally
have the same protection and immunity as the court, and as a member of the court to
which they belong. Issuing officers who are members of the Administrative Appeals
Tribunal have the same protection and immunity as a Justice of the High Court.
Powers to issue warrants are conferred on the relevant classes of people, that is,
Judges of a court created by the Parliament, Federal Magistrates, Deputy Presidents of
the Administrative Appeals Tribunal (AAT), or a non-presidential member of the
AAT with particular legal qualifications and experience, to ensure that warrants are
issued with due rigour and independence. Members of the AAT are included to
provide as many options as possible to ensure warrants can be issued without undue
difficulty or delay.
Part 3 - Power to require persons to give information, produce documents or
answer questions
Clause 80 - Power to require persons to give information, produce documents
or answer questions
If an authorised officer has reason to believe that a person has information or a
document that is relevant to the administration or enforcement of the requirements of
the Bill, the authorised officer has power under this clause to give the person written
notice, requiring them to give information, produce a document or answer questions.
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The clause specifies that if the written notice is to provide information or a document,
it must specify a period of at least 14 days in which the person is required to comply.
If the notice is to require the person to appear before a specified authorised officer, it
must specify a time and place at which the person must appear. The written notice
must advise the person that they commit an offence if they fail to comply with the
notice.
The authorised officer may require the information provided to be verified or given on
oath or affirmation, and may administer the oath or affirmation.
Part 4 - Miscellaneous
Clause 81 - Appointment of authorised officers
This clause allows the Secretary of the relevant Department to appoint people to assist
in enforcing the legislation, including by exercising powers (other than the powers of
issuing officers) under Chapter 4, Part 2.
It confers power on the Secretary to appoint a Commonwealth public servant or a
member of the Australian Federal Police (AFP) who has suitable qualifications,
training or experience, as an authorised officer for the purposes of the legislation.
The flexibility to confer the powers of authorised officers, including entry search and
seizure powers upon persons other than the AFP is provided to avoid the need for
dependence on the availability of AFP resources - which may be limited - and to
ensure a stable workforce can be maintained for the purpose of monitoring and
enforcement of the Bill. Specialist training of Australian Public Service officers will
enable them to perform investigation and enforcement functions in a way that is
appropriate.
Clause 82 - Identity cards
This clause requires the Secretary of the relevant Department to issue an identity card
to authorised officers. The identity card must incorporate photo identification of the
authorised officer, and the authorised officer is required to carry the identity card
when carrying out their duties under the provisions of the Bill.
A person commits an offence if they do not return their identity card to the issuing
office within 14 days after ceasing to be an authorised officer.
This section is designed to ensure that only properly appointed authorised officers
exercise powers and perform the functions of authorised officers, and that authorised
officers are accountable for performing the actions appropriate to their role. It is also
designed to ensure that authorised officers are properly and easily identified.
Clause 83 - Self-incrimination
This clause provides that a person cannot refuse to provide information sought under
sections 58(2) or 80(2) on the basis that it might tend to incriminate them.
However, this clause does protect the person giving the information from having that
information used against them in criminal proceedings.
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The partial abrogation of the privilege against self-incrimination addresses the public
policy need to require information being provided by a reliable, knowledgeable
source. It is justifiable because the type of information that might be requested from a
tobacco company would not be obtainable other than from representatives of that
company, or people who engage in dealings with them. As the offences created by
the Bill are intended to capture nearly all participants in the supply chain for tobacco
products and their retail packaging, anyone who may have, or have access to, the
information needed to prosecute an offence against other participants in the supply
chain, may have committed an offence in dealing with those products.
The protection of the privilege against self incrimination would otherwise seriously
compromise the investigation and enforcement of offences, and would mean that
retailers of tobacco products would unfairly bear the burden of compliance with the
requirements of the Bill, as they are the most readily accessible point for monitoring
and enforcement. Requiring the provision of information will ensure that evidence
which will enable identification of persons who engage in conduct at an earlier point
in the supply chain of non-compliant products will also be available.
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CHAPTER 5 - ENFORCING COMPLIANCE WITH THIS ACT
This Chapter sets out the means, other than criminal offences, through which
compliance with the requirements of the Bill may be enforced. It establishes the
schemes by which civil penalty provisions may be enforced through applications for
civil penalty orders, and how infringement notices may be given.
Part 1 - Simplified outline
Part 1 (clause 84) provides a simplified outline of Chapter 5 to aid in understanding of
the relevant clauses.
Part 2 - Civil penalty provisions
Division 1 - Obtaining a civil penalty order
This Division sets out the conditions under which civil penalty orders may be sought
and enforced for contravention of a civil penalty provision.
Clause 85 - Civil penalty orders
This clause provides that within six years of an alleged contravention of the
provisions of this Bill, the Secretary of the relevant Department may apply to the
Federal Court for an order that a person who is alleged to have contravened a civil
penalty provision of this Act pay a pecuniary penalty.
Pecuniary penalties in this legislation are limited to no more than 2,000 penalty units
for individuals and 10,000 penalty units for bodies corporate. In determining which
penalty to apply, the court may take into account various factors including the nature
and extent of contraventions and any loss or damage suffered as a result, the
circumstances in which the contravention occurred, and past findings in relation to
similar conduct under the provisions of this Bill or under the Crimes Act 1914 or the
Criminal Code in relation to this Bill.
Clause 86 - Civil enforcement of penalty
This clause provides that a pecuniary penalty is a debt due to the Commonwealth. If a
Court orders payment of a civil penalty, the Commonwealth may enforce the order.
Clause 87 - Conduct contravening more than one civil penalty provision
This clause provides that where conduct contravenes two or more civil penalty
provisions, proceedings may be instituted against any of those provisions but the
person will only be liable for one pecuniary penalty in relation to the same conduct.
Clause 88 - Multiple contraventions
This clause provides that the Federal Court can make one civil penalty order for
multiple contraventions of a civil penalty provision, if each of the contraventions are
founded on the same facts or form a series of contraventions of the same or similar
character. The penalty in this case cannot be greater than the maximum total penalty
that could be ordered if a separate civil penalty order were made for each
contravention.
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Clause 89 - Proceedings may be heard together
This clause provides that the Federal Court can direct that more than one civil penalty
proceeding be heard at the same time. Doing so may be in the interest of efficient use
of the Court's time. This might be done, for example, where the proceedings involve
alleged contraventions by different parties in the supply chain in relation to particular
non-compliant tobacco products.
Clause 90 - Civil evidence and procedure rules for civil penalty orders
This clause provides that the rules of evidence and procedure for civil matters apply to
any proceedings for a civil penalty order in the Federal Court.
Clause 91 - Contravening a civil penalty provision is not an offence
This clause clarifies that a contravention of a civil penalty provision is not an offence.
That is, it is distinct from provisions that may result in criminal prosecution.
Division 2 - Civil proceedings and criminal proceedings
This Division explains and clarifies the interaction between proceedings for civil
penalty orders and criminal proceedings, in relation to the same conduct.
As stated above in relation to Chapter 3, the Commonwealth will decide in each
particular case whether to prosecute a person for a fault-based or strict-liability
offence, or whether to bring proceedings for a civil penalty order. A person will not
be prosecuted for both a fault-based and a strict liability offence, but only one, and
once convicted of a criminal (fault-based or strict liability) offence a person could not
be pursued for civil penalties. However, proceedings for a contravention of a civil
penalty provision could be brought prior to a person being prosecuted for a criminal
offence.
Clause 92 - Civil proceedings after criminal proceedings
This clause provides that where a person is convicted of a criminal offence for
conduct under this Act, the Federal Court cannot make a civil penalty order for
conduct that is the same or substantially the same.
Clause 93 - Criminal proceedings during civil proceedings
This clause provides that, if criminal proceedings are underway or commence for an
offence under this Act, any proceedings for a civil penalty order against the same
person and in relation to conduct that is the same or substantially the same, are stayed.
The civil penalty proceedings can be resumed if the person is not convicted of the
criminal offence.
Clause 94 - Criminal proceedings after civil proceedings
This clause clarifies that criminal proceedings may be commenced regardless of
whether a civil penalty order has been made against the same person for the same or
substantially the same conduct.
Clause 95 - Evidence given in civil proceedings not admissible in criminal
proceedings
This clause provides that evidence given by an individual in civil penalty proceedings
against them for conduct that is the same or substantially the same cannot be used in
criminal proceedings.
This clause does not apply in relation to criminal proceedings pursued for the falsity
of any evidence given by the individual during civil penalty proceedings.
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Division 3 - Miscellaneous
This Division sets out miscellaneous matters which are relevant in relation to civil
penalty provisions.
Clause 96 - Ancillary contravention of civil penalty provisions
This clause provides that anyone who:
· attempts to contravene a civil penalty provision;
· aids in, procures or induces a contravention;
· is knowingly concerned in a contravention of a civil penalty; or
· conspires with others to cause a contravention
will be taken to have contravened the provision.
Clause 97 - Mistake of fact
This clause provides that a person will not be liable for a penalty if they can show that
they were under a mistaken but reasonable belief about the facts surrounding a
contravention, and if the correct understanding of the facts would not have lead to a
contravention.
For clarification, this clause provides that the circumstances include where a person
reasonably believes the circumstances in the present situation to be the same as those
in a past situation which did not constitute a contravention.
This clause requires a person to prove their own mistake of fact on the balance of
probabilities. This is because the defendant in civil penalty proceedings will be much
better placed to present evidence about their state of mind with respect to having a
mistaken belief.
Clause 98 - State of mind
This clause provides that it is not necessary to prove a person's intention, knowledge,
recklessness, negligence or any other state of mind in order to prove a contravention
of a civil penalty provision, other than in relation to section 96(1). However, this
clause does not affect the operation of section 97.
Clause 99 - Civil penalty provisions contravened by employees, agents or
officers
This clause provides that a body corporate will be held responsible for elements of
civil penalty provisions that are contravened by the employees, agents or officers of
the body corporate, if those people are acting within the scope of their employment or
authority at the time of the contravention.
Part 3 - Infringement notices
This Part establishes that an authorised officer can give infringement notices when
they have reasonable grounds to believe a person has contravened a strict liability
offence. This scheme is designed to encourage compliance with the legislative
requirements for minor or first infringements, without resorting to criminal
prosecution or civil penalty proceedings. Alleged major and repeat infringements of
the plain packaging requirements may be pursued through the courts.
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The infringement notice scheme is drafted consistently with the requirements of Part 6
of A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement
Officers.
The amount of an infringement notice penalty for an individual is 12 penalty units,
(currently $1,320) and for a body corporate is 60 penalty units (currently $6,600).
The penalty for infringement notices is not designed to be a financial penalty to
tobacco industry participants, but is intended to serve as a warning that the plain
packaging requirements have been breached and court action could be taken.
Infringement notices are intended to mitigate the burden of compliance on retailers as
a result of the relative ease of monitoring and enforcement at the point of retail sale.
Infringement notices will allow enforcement officers to recognise situations in which
retailers have relatively little control over non-compliant products supplied to them,
whilst still deterring ongoing non-compliance. As such, the infringement notice
penalty amount is significantly lower than the amount recommended by A Guide to
Framing Commonwealth Offences, Civil Penalties and Enforcement Officer, which
would be one-fifth of the maximum penalty amount. Instead, the penalty is set at one-
fifth of the penalty amount for the strict liability offences, and is the recommended
maximum amount for infringement notice penalties.
An infringement notice may be issued for non-compliance with the requirements of
the Bill or any regulations, as an alternative to criminal prosecution or civil penalty
provisions. Failure to pay the amount specified in an infringement notice may lead to
criminal prosecution or civil penalty proceedings.
Clause 100 - When an infringement notice may be given
This clause provides that an authorised officer can give an infringement notice when
they reasonably suspect a person has committed a strict liability offence under the
Act. Each of the offences in Chapter 3 has a corresponding strict liability offence.
The infringement notice must be given within 12 months after the day on which the
offence is allegedly committed and can only relate to a single contravention of a
single offence provision. The requirement that notices must be issued within
12 months of the alleged offence is included so that recipients have a reasonable
chance to defend the allegations if charged. It is anticipated that infringement notices
will usually be given very soon after the day the contravention is alleged to have
occurred. This is because infringement notices are intended to serve principally as a
warning that plain packaging requirements have been breached. Serious offences will
be pursued through the Courts, and will not be remedied using infringement notices.
Clause 101 - Matters to be included in an infringement notice
This clause sets out matters that must be included in an infringement notice. These
matters include information that will help to identify the particular infringement
notice, the relevant authorised officer, the person the infringement notice is issued to,
and the circumstances of the infringement. Other information that is required includes
details about the recipient's rights in dealing with the infringement notice including
how and when to pay, avenues to appeal the notice, and circumstances when the
notice might be withdrawn.
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Clause 102 - Extension of time to pay amount
This clause provides that the recipient of an infringement notice may apply to the
Secretary of the relevant Department for an extension to pay an infringement notice
penalty, and the Secretary may grant an extension at their discretion as many times as
they see fit. If the Secretary does not grant the extension, the recipient will still have
at least seven days to pay the penalty, following notice of the Secretary's decision.
A decision made by the Secretary under this clause is not reviewable by an external
merits review, as the decision to issue an infringement notice itself is not subject to
external merits review, and the Secretary's decision is not a final determination of
rights.
Clause 103 - Withdrawal of an infringement notice
This clause provides that a person can make representations in writing, requesting that
the Secretary of the relevant Department withdraw an infringement notice.
The Secretary may withdraw an infringement notice at his or her discretion, whether
or not the person has made written representations. In making that decision, the
Secretary must take into account the applicant's written representations (if any), and
may also consider other factors including the circumstances of the alleged
contravention, any prior contraventions and/or convictions and any other matter
considered relevant.
The person must be advised in writing of any withdrawal, with a withdrawal notice
that includes details which will identify the person and the infringement notice. The
withdrawal notice must state that proceedings may be instituted against the individual.
If a penalty has already been paid under the notice, it must be refunded.
A decision made by the Secretary under this clause is not reviewable by an external
merits review, as the decision to issue an infringement notice itself is not subject to
external merits review, and the Secretary's decision is not a final determination of
rights.
Clause 104 - Effect of payment of amount
This clause provides that if a person pays the amount of an infringement notice
penalty and the infringement notice is not withdrawn, then any liability for the offence
is discharged. No proceedings, whether criminal or civil, may be brought against the
person for the same conduct. Payment of the infringement notice penalty is not
considered as admission of guilt by the person, and the person is not regarded as
having committed an offence.
Clause 105 - Effect of this Part
This clause clarifies the effect of requirements under Chapter 5, Part 3 for
infringement notices, in order to ensure compliance with part 6 of A Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers.
In particular, this clause provides that infringement notices are not required for any
alleged contravention of an offence, and are issued at the discretion of the authorised
officer.
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It also provides that the availability of infringement notices does not affect the
liability of a person for alleged contraventions of an offence, unless they pay the
infringement notice penalty. In particular, if a person is not given an infringement
notice, or if they are given a notice but they do not comply with it or it is subsequently
withdrawn, their liability for an alleged contravention is not affected. The availability
of infringement notices does not limit a court's discretion in setting penalty amounts if
a person is found to have contravened an offence.
In addition, no part of the infringement notice scheme limits the amount of
infringement notices that may be given to a person. Nothing prevents an authorised
officer from giving a person two or more infringement notices, for two or more
alleged offences.
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CHAPTER 6 - MISCELLANEOUS PROVISIONS
This chapter sets out miscellaneous provisions that are necessary to ensure appropriate
transparency and effective operation of the legislation.
Part 1 - Simplified outline
Part 1 (clause 106) provides a simplified outline of Chapter 7 to aid in understanding
of the relevant clauses.
Part 2 - Miscellaneous provisions
Clause 107 - Delegation
This clause provides that the Secretary of the relevant Department may delegate some
or all of his or her powers under this legislation to an employee who is a member of
the Senior Executive Service in the relevant Department.
Clause 108 - Reports to Parliament
This clause requires the preparation of a report on the number of contraventions
occurring in each financial year and actions taken in relation to each contravention.
The report must be provided to the Minister of the relevant Portfolio, and must be
included in the Annual Report of the Department for each financial year.
Clause 109 - Regulations
This clause provides a general regulation making power that will permit the
Governor-General to make regulations required or permitted by the Act, or necessary
or convenient to give effect to the Act. For example, this clause will ensure that
regulations can be made to provide a temporary exemption for the requirements of the
Bill from the Trans Tasman Mutual Recognition Arrangement, to ensure that the Bill
will operate effectively.
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