Tobacco Advertising Prohibition Act 1992

No. 218 of 1992

TABLE OF PROVISIONS—continued

Tobacco Advertising Prohibition Act 1992

No. 218 of 1992

An Act to limit the exposure of the public to advertisements for smoking and tobacco products, and for related purposes

[Assented to 24 December 1992]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Tobacco Advertising Prohibition Act 1992.

Commencement

2.(1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent.

(2) Subsections 17(2) to (5) (inclusive) and Division 3 of Part 3 commence on a day to be fixed by Proclamation.

(3) Part 5 commences on 1 July 1993.

Object

3.(1) This Act is intended to limit the exposure of the public to messages and images that may persuade them:

(a)     to start smoking, or to continue smoking; or

(b)     to use, or to continue using, tobacco products.

(2) The object is to improve public health.

Act extends to external Territories

4. This Act extends to all the external Territories.

Act binds the Crown

5.(1) This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory, of the Northern Territory and of Norfolk Island.

(2) The Crown in a capacity covered by subsection (1) is not liable to be prosecuted for an offence against, or arising out of, this Act.

Operation of State and Territory laws

6.(1) This Act does not exclude or limit the operation of a tobacco advertising law of a State or Territory that is capable of operating concurrently with this Act.

(2) If:

(a)     particular conduct constitutes an offence against this Act; and

this Act does not exclude or limit the application of that law to that conduct.

(3) If:

(a) either:

this Act does not exclude or limit the application of that law to that conduct.

(4) In this section:

“tobacco advertising law” means a law that prohibits or regulates the advertising of tobacco products.

Permission provisions only have effect for the purposes of this Act

7. Sections 14, 16, 17, 18, 19 and 20 only have effect for the purposes of this Act.

PART 2—INTERPRETATION

Defined terms

8. In this Act, unless the contrary intention appears:

“Australia” includes all the external Territories except Norfolk Island;

“broadcast” means transmit by means of:

“display” includes continue to display;

“distributor of tobacco products” has a meaning affected by section 12;

“exempt library” means:

(a)     a public library; or

(b)     a library of a tertiary educational institution; or

“holding company” has the meaning given by section 11;

“manufacturer of tobacco products” has a meaning affected by section 12;

“periodical” means an issue (however described) of a newspaper, magazine, journal, newsletter, or other similar publication, issues of which are published at regular or irregular intervals;

“person” includes a partnership or an unincorporated body referred to in paragraph (e) or (f) of the definition of “regulated corporation”;

“public place” means a place to which the public, or a section of the public, ordinarily has access, whether or not by payment or by invitation (including, for example, a shop, restaurant, hotel, cinema or club); “publish”:

“regulated corporation” means:

“regulated trade or commerce” means trade or commerce:

(a)     between Australia and places outside Australia; or

(b)     among the States; or

(c)     between a State and a Territory or between 2 Territories; or

“retailer of tobacco products” has a meaning affected by section 12;

“smoking” means smoking tobacco products;

“tobacco advertisement” has the meaning given by section 9;

“tobacco product” means:

(a)     tobacco (in any form); or

(b)     any product (for example a cigar or cigarette):

(c) a cigarette paper, cigarette roller or pipe;

“workplace” means premises in which employees or contractors work, other than any part of such premises that is primarily used as a private dwelling.

Meaning of “tobacco advertisement”

[Basic meaning]

9.(1) Subject to this section, for the purposes of this Act, a tobacco advertisement is any writing, still or moving picture, sign, symbol or other visual image, or any audible message, or any combination of 2 or more of those things, that gives publicity to, or otherwise promotes or is intended to promote:

(a)     smoking; or

(e)     the whole or a part of the name of a person:

(i) who is a manufacturer of tobacco products; and

[Exception—words etc. on products, packaging and business documents]

(2) Words, signs or symbols that appear:

(a)     on a tobacco product; or

(b)     on the packaging of a tobacco product; or

do not, when so appearing, constitute a tobacco advertisement (but this does not prevent a still or moving picture, or other visual image, of a tobacco product, of the packaging of a tobacco product, or of a document referred to in paragraph (c), from being a tobacco advertisement).

[Exception—words etc. on premises of manufacturers)

(3) Words, signs or symbols that appear in or on land or buildings occupied by a manufacturer of tobacco products do not, when so appearing, constitute a tobacco advertisement (but this does not prevent a still or moving picture, or other visual image, of words, signs or symbols that so appear from being a tobacco advertisement).

[Exception—advertisements for non-tobacco products]

(4) If:

(b)     the advertisement does not explicitly promote, or give publicity

to, any particular tobacco product or particular range of tobacco products; and

(c) the advertisement:

(i) explicitly promotes, or gives publicity to; or

(ii) appears on, or on the packaging of;

a product that is covered by a notice in force under subsection (5);

then, despite subsection (1), the advertisement is not a tobacco advertisement for the purposes of this Act.

[Specification of products for the purposes of subsection (4)]

(5) For the purposes of subsection (4), the Minister may, by notice in writing published in the Gazette, specify a product, or a class of products, if, and only if:

(i) the product is not a tobacco product; and

[When a notice under subsection (5) comes into force]

(6) A notice under subsection (5) comes into force:

(a)     on the day when it is published in the Gazette, or

[Exception—anti-smoking advertisements]

(7) If:

then, despite subsection (1), the advertisement is not a tobacco advertisement for the purposes of this Act.

[Meaning of “words”]

(8) In this section:

“words” includes abbreviations, initials and numbers.

Meaning of “publish a tobacco advertisement”

[Basic meaning]

10.(1) Subject to this section, for the purposes of this Act, a person publishes a tobacco advertisement if the person does any of the following things:

(c)     the person:

(i) a public place; or

(ii) public transport; or

(iii) a workplace;

[Publish does not include broadcast]

(2) For the purposes of this Act, the broadcasting of a tobacco advertisement by a person does not amount to the publication of the advertisement by the person.

[Exception—trade communications]

(3) For the purposes of this Act, the communication of information that is or includes a tobacco advertisement to a group of people all of whom are involved in the manufacture, distribution or sale of tobacco

products does not, of itself, amount to a publication of the tobacco advertisement.

[Exception—ordinary activities of exempt libraries]

(4) Nothing that a person does for the purposes of the ordinary activities of an exempt library amounts, for the purposes of this Act, to a publication of a tobacco advertisement.

[Exception—acknowledgments of assistance or support]

(5) For the purposes of this Act, the publication of an acknowledgment of assistance or support does not amount to the publication of a tobacco advertisement if it complies with regulations made for the purposes of this subsection that permit the publication of such acknowledgments.

Meaning of “holding company”

11. For the purposes of this Act, a body corporate is a holding company of another body corporate if, for the purposes of the Corporations Law of a State or internal Territory, the first-mentioned body corporate is a holding company of the other body corporate.

Meaning of “manufacturer”, “distributor” and “retailer”

12. In this Act, a reference to a manufacturer, distributor or retailer of tobacco products includes a reference to a person who manufactures, distributes or sells a range of products, only some of which are tobacco products.

PART 3—PROHIBITION OF TOBACCO ADVERTISEMENTS

Division 1—Broadcasting of tobacco advertisements

Tobacco advertisements not to be broadcast

13. A person must not, knowingly or recklessly, broadcast a tobacco advertisement in Australia or Norfolk Island on or after 1 July 1993 otherwise than as permitted by section 14.

Penalty: $12,000.

Accidental or incidental broadcast permitted

14. A person may broadcast a tobacco advertisement if:

Division 2—Publication of tobacco advertisements

Tobacco advertisements not to be published

15.(1) A regulated corporation must not, knowingly or recklessly:

(b)     authorise or cause a tobacco advertisement to be so published.

(2)     A person must not, knowingly or recklessly, publish a tobacco advertisement in Australia on or after 1 July 1993 in the course of, or for the purposes of, regulated trade or commerce otherwise than as permitted by section 16, 17, 18, 19 or 20.

(3)     A person must not, knowingly or recklessly, publish a tobacco advertisement in a Territory, other than the Australian Capital Territory, the Northern Territory or Norfolk Island, on or after 1 July 1993 otherwise than as permitted by section 16, 17, 18, 19 or 20.

Penalty: $12,000.

Point of sale advertising permitted

16.(1) A person may display a tobacco advertisement at or on a place where tobacco products are offered for sale to the public if:

(2) A person may display a tobacco advertisement at or on a place where tobacco products are offered for sale to the public if:

(a) either:

(3) For the purposes of this section, a vending machine from which tobacco products can be purchased by the public is taken to be a place where tobacco products are offered for sale to the public.

Periodicals printed outside Australia—acts of publication permitted

17.(1) A person may do, with a periodical that contains a tobacco advertisement, something that amounts to publishing the advertisement if:

(a) the periodical:

(i) is printed outside Australia; and

(2) The Minister may, by notice in writing published in the Gazette, exclude the application of subsection (1) to:

(a)     a specified periodical; or

(b)     a specified class of periodicals;

if, and only if, the Minister is satisfied, having regard to the guidelines in force under subsection (4), that it is not appropriate for subsection (1) to apply to the periodical, or to the periodicals in the class, as the case requires.

(3) A notice under subsection (2) comes into force:

(a)     on the day when it is published in the Gazette; or

(4)     The Minister may, by writing, determine guidelines for the purposes of subsection (2).

(5)     An instrument under subsection (4) determining guidelines is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

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

(2) For the purposes of subsection (1), the Minister may, by notice in writing published in the Gazette, specify a sporting or cultural event held, or to be held, in Australia if, and only if, the Minister is satisfied, having regard to the guidelines in force under subsection (5), that:

(a)     the event is of international significance; and

(3) In a notice under subsection (2) specifying an event, the Minister may also, having regard to the guidelines in force under subsection (5), specify conditions to be complied with in relation to the publication of tobacco advertisements in connection with the event, being conditions related to:

(a)     the content of the advertisements that may be published; or

(c)     the way in which advertisements may be published.

(4) A notice under subsection (2):

(a) comes into force:

(i) on the day when it is published in the Gazette: or

(b) stops being in force (unless it is revoked earlier):

(i) at the end of 3 years after it came into force; or

(5)     The Minister may, by writing, determine guidelines for the purposes of subsections (2) and (3).

(6)     An instrument under subsection (5) determining guidelines is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

Accidental or incidental publication permitted

19. A person may publish a tobacco advertisement if:

Publication by individual not receiving any benefit permitted

20. An individual may publish a tobacco advertisement if:

Defence—advertising pursuant to pre-1 April 1992 contracts or arrangements

21.(1) It is a defence to a prosecution of a person for an offence against subsection 15(1), (2) or (3) in respect of the publication of a tobacco advertisement if the person proves that:

(2) For the purposes of this section, if:

the other person is taken to have published the advertisement under the contract or arrangement.

Defence—display of signs before 31 December 1995

22.(1) It is a defence to a prosecution of a person for an offence against subsection 15(1), (2) or (3) in respect of the display of a tobacco advertising sign if the person proves that:

(2)     The regulations may permit the display, in specified circumstances, and before a specified date not later than 31 December 1995, of tobacco advertising signs of a specified size and composition.

(3)     In this section:

“sign” includes an electronic installation used to display advertisements;

“tobacco advertising sign” means a sign that is or contains a tobacco advertisement.

Division 3—Other regulated conduct

Periodicals specified under subsection 17(2) that contain tobacco advertisements not to be imported

23. A person must not, on or after 1 July 1993, knowingly or recklessly, import into Australia a periodical:

(b) that is covered by a notice in force under subsection 17(2). Penalty: $12,000.

Defence—importing for private use

24. It is a defence to a prosecution of a person for an offence against section 23 in respect of the importation of a periodical if the person proves that the periodical was imported for the person’s private use.

Defence—importing for exempt libraries

25. It is a defence to a prosecution of a person for an offence against section 23 in respect of the importation of a periodical if the person proves that the periodical was imported for the purpose of its inclusion in the collection of an exempt library.

PART 4—MISCELLANEOUS

Failure to broadcast or publish advertisement not actionable if Act would be contravened

26. No action of any kind lies in any court against a person for refusing or failing to broadcast or publish a tobacco advertisement if the broadcast or publication is prohibited by this Act.

Activities of trading or financial corporations—severability of Act’s operation

27.(1) By force of this subsection, this Act, as it applies to a regulated corporation that is a trading corporation or a financial corporation, has effect in relation to things done, or authorised or caused to be done, by the regulated corporation in the course of its trading activities, or its financial activities, as the case requires.

(2)     By force of this subsection, this Act, as it applies to a regulated corporation that is a trading corporation or a financial corporation, has effect in relation to things done, or authorised or caused to be done, by the regulated corporation otherwise than in the course of its trading activities, or its financial activities, as the case requires.

(3)     In this section:

“financial corporation” means:

“trading corporation” means:

Compensation for acquisition of property

28.(1) If, apart from this section, the operation of this Act would result in the acquisition of property from a person otherwise than on just terms, the Commonwealth is to pay the person such reasonable amount of compensation as is agreed on between the person and the Commonwealth or, failing agreement, as is determined by a court of competent jurisdiction.

(2)     Any damages or compensation recovered, or other remedy given, in proceedings that are instituted otherwise than under this section must be taken into account in assessing compensation payable in proceedings instituted under this section and that arise out of the same event or circumstance.

(3)     In this section:

“acquisition of property” has the same meaning as in paragraph 51(xxxi) of the Constitution;

“just terms” has the same meaning as in paragraph 51(xxxi) of the Constitution.

Applications for the purposes of subsections 9(5) and 18(2)

29.(1) A person may apply to the Minister:

(2)     An application must be in writing and must set out the grounds on which the applicant thinks the Minister should grant it.

(3)     If the Minister needs further information to decide an application, the Minister may ask the applicant to provide the information.

(4)     Subject to subsections (5) to (7), the Minister must decide an application within the prescribed number of days after receiving it.

(5)     If the Minister thinks that it will take longer to decide an application, the Minister may extend, by up to the prescribed number of days, the period for deciding it.

(6)     An extension must be made by written notice given to the applicant within the prescribed number of days after the Minister receives the application concerned.

(7)     If the Minister makes an extension, the Minister must decide the application concerned within the extended period.

(8)     If the Minister has not decided an application before the end of the day by which the Minister is required to decide it, the Minister is taken to have decided, under whichever of subsections 9(5) and 18(2) is applicable, to refuse the application at the end of that day.

(9)     Nothing in this section limits the power of the Minister to make a decision under subsection 9(5) or 18(2) otherwise than because of an application under this section.

(10) In this section:

“prescribed number of days” means:

(b)     in relation to an application under paragraph (1)(b)—60 days.

Review of decisions

30. Subject to the Administrative Appeals Tribunal Act 1975, an application may be made to the Administrative Appeals Tribunal for a review of a decision made under subsection 9(5), 17(2), 18(2) or 18(3).

Offences by partnerships and unincorporated bodies

31.(1) If a partnership that is a regulated corporation commits an offence against this Act, that offence is taken to have been committed by each of the partners.

(2)     If an unincorporated body that is a regulated corporation commits an offence against this Act, that offence is taken to have been committed by the controlling officer or controlling officers of the body.

(3)     In a prosecution for an offence a partner or controlling officer is so taken to have committed, it is a defence if the partner or controlling officer proves that the partner or controlling officer:

(4) In this section:

“controlling officer”, in relation to an unincorporated body, means a person who has authority to determine, or who has control over:

(a)     the general conduct of the affairs of the body; or

Conduct by directors, servants and agents

32.(1) If, in proceedings for an offence against this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

(b)     that the director, servant or agent had the state of mind.

(2)     Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the body corporate unless it establishes that it took reasonable precautions and exercised due diligence to avoid the conduct.

(3)     If, in proceedings for an offence against this Act, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show that:

(b)     the servant or agent had the state of mind.

(4)     Any conduct engaged in on behalf of a person other than a body corporate (“the employer”) by a servant or agent of the employer within the scope of actual or apparent authority is taken, for the purposes of a prosecution for an offence against this Act, to have been engaged in also by the employer unless the employer establishes that he or she took reasonable precautions and exercised due diligence to avoid the conduct.

(5)     A reference in subsection (1) or (3) to the state of mind of a person includes a reference to:

(b)     the person’s reasons for the intention, opinion, belief or purpose.

(6)     A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the Commonwealth or of a State or Territory.

(7)     A reference in this section to engaging in conduct includes a reference to failing or refusing to engage in conduct.

(8)     A reference in this section to an offence against this Act includes a reference to an offence created by section 5, 6, 7 or 7A, or subsection 86(1) of the Crimes Act 1914, being an offence that relates to this Act.

Delegation

33. The Minister may, by signed instrument, delegate to an officer of the Department all or any of the Minister’s powers:

(a)     under subsections 9(5) and 17(2); and

Regulations

34. The Governor-General may make regulations prescribing matters:

(a)     required or permitted by this Act to be prescribed; or

PART 5—REPEAL AND AMENDMENT OF OTHER ACTS

Division 1—Repeal of the Smoking and Tobacco Products Advertisements (Prohibition) Act 1989

Repeal

35. The Smoking and Tobacco Products Advertisements (Prohibition) Act 19891 is repealed.

Division 2—Amendment of the Broadcasting Services Act 1992

Principal Act

36. In this Division, “Principal Act” means the Broadcasting Services Act 19922.

Schedule 2

37. Schedule 2 to the Principal Act is amended:

NOTES

1.      No. 181 of 1989.

2.      No. 110 of 1992.

[Minister’s second reading speech made in—

Senate on 25 November 1992

House of Representatives on 16 December 1992]