Tobacco Plain Packaging Act 2011

An Act to discourage the use of tobacco products, and for related purposes

This Act may be cited as the Tobacco Plain Packaging Act 2011.

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information
Column 1	Column 2	Column 3
Provision(s)	Commencement	Date/Details
1. Sections 1 to 16 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	1 December 2011
2. Sections 17 to 27A	1 October 2012.	1 October 2012
3. Sections 28 and 29	The day this Act receives the Royal Assent.	1 December 2011
4. Sections 30 to 32	1 December 2012.	1 December 2012
5. Sections 33 to 36	1 October 2012.	1 October 2012
6. Sections 37 and 38	1 December 2012.	1 December 2012
7. Section 39	1 October 2012.	1 October 2012
8. Sections 40 and 41	1 December 2012.	1 December 2012
9. Sections 42 to 46	1 October 2012.	1 October 2012
10. Sections 47 and 48	1 December 2012.	1 December 2012
11. Sections 49 to 80	1 October 2012.	1 October 2012
12. Sections 81 and 82	The day this Act receives the Royal Assent.	1 December 2011
13. Sections 83 to 105	1 October 2012.	1 October 2012
14. Sections 106 to 109	The day this Act receives the Royal Assent.	1 December 2011

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3 Objects of this Act

(1) The objects of this Act are:

(a) to improve public health by:

(i) discouraging people from taking up smoking, or using tobacco products; and

(ii) encouraging people to give up smoking, and to stop using tobacco products; and

(iii) discouraging people who have given up smoking, or who have stopped using tobacco products, from relapsing; and

(iv) reducing people’s exposure to smoke from tobacco products; and

(b) to give effect to certain obligations that Australia has as a party to the Convention on Tobacco Control.

(2) It is the intention of the Parliament to contribute to achieving the objects in subsection (1) by regulating the retail packaging and appearance of tobacco products in order to:

(a) reduce the appeal of tobacco products to consumers; and

(b) increase the effectiveness of health warnings on the retail packaging of tobacco products; and

(c) reduce the ability of the retail packaging of tobacco products to mislead consumers about the harmful effects of smoking or using tobacco products.

4 Definitions

(1) In this Act:

acquisition of property has the same meaning as in paragraph 51(xxxi) of the Constitution.

Australia includes all the external Territories.

authorised officer means a person appointed under section 81 as an authorised officer.

cigarette means a roll of cut tobacco for smoking, enclosed in paper.

cigarette carton means any container for retail sale that contains smaller containers in which cigarettes are directly placed.

Note: See also the definition of container.

cigarette pack means any container for retail sale in which cigarettes are directly placed.

Note: See also the definition of container.

civil penalty provision has the same meaning as in the Regulatory Powers Act.

constitutional corporation means a corporation to which paragraph 51(xx) of the Constitution applies.

constitutional trade or commerce means:

(a) trade or commerce between Australia and places outside Australia; or

(b) trade or commerce among the States; or

container includes (without limitation) any pack, carton, box, tin, packet, bag, pouch, tube or other container.

Convention on Tobacco Control means the WHO Framework Convention on Tobacco Control, done at Geneva on 21 May 2003.

Note: The text of the Convention is set out in Australian Treaty Series 2005 No. 7 ([2005] ATS 7). In 2011, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

Deputy President of the Administrative Appeals Tribunal has the meaning given by section 3 of the Administrative Appeals Tribunal Act 1975.

filter tip of a cigarette means the part of the end of the cigarette that acts as a filter, or purports to act as a filter.

fire risk statement means any statement that is required to appear on the retail packaging of tobacco products by:

(a) regulation 14 of the Trade Practices (Consumer Product Safety Standard) (Reduced Fire Risk Cigarettes) Regulations 2008; or

(b) a safety standard made under section 104, or declared under section 105, of Schedule 2 to the Competition and Consumer Act 2010, to the extent that the standard relates to fire risk; or

(c) an information standard made under section 134, or declared under section 135, of Schedule 2 to the Competition and Consumer Act 2010, to the extent that the standard relates to fire risk.

health warning means any message, information, graphic or other thing that is required to appear on the retail packaging of tobacco products by:

(a) the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004; or

(b) a safety standard made under section 104, or declared under section 105, of Schedule 2 to the Competition and Consumer Act 2010, to the extent that the standard relates to the health effects of smoking or using tobacco products; or

(c) an information standard made under section 134, or declared under section 135, of Schedule 2 to the Competition and Consumer Act 2010, to the extent that the standard relates to the health effects of smoking or using tobacco products.

imitation cork tip of a cigarette means the part of the paper over the filter tip of the cigarette that is printed brown to resemble cork.

inner surface of a cigarette carton has a meaning affected by subsection 6(2).

insert means any thing (other than a tobacco product) placed inside packaging (within the ordinary meaning of the word), but does not include the lining of a cigarette pack if the lining complies with the requirements of this Act.

inside lip of a cigarette pack means the part of the outer surfaces of the pack that is obscured when the flip‑top lid is closed.

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

mark:

(a) includes (without limitation) any line, letters, numbers, symbol, graphic or image; but

(b) (other than when referring to a trade mark) does not include a trade mark.

measurement mark means any information that is required to appear on the retail packaging of tobacco products by regulations made under the National Measurement Act 1960.

non‑presidential member of the Administrative Appeals Tribunal has the meaning given by section 3 of the Administrative Appeals Tribunal Act 1975.

offer a tobacco product for sale has a meaning affected by subsection (2) of this section.

onsert means any thing affixed or otherwise attached to packaging (within the ordinary meaning of the word), but does not include the lining of a cigarette pack if the lining complies with the requirements of this Act.

Note: A sound chip embedded in the cardboard of a cigarette pack is an example of an onsert.

outer surface of a cigarette pack has a meaning affected by subsection 6(1).

package a tobacco product for retail sale has the meaning given by section 5.

Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.

relevant legislative requirement means any of the following:

(a) a health warning;

(b) a fire risk statement;

(d) a measurement mark.

relevant tobacco law has the meaning given by section 11.

retail packaging of a tobacco product means:

(a) any container for retail sale in which the tobacco product is directly placed; or

(b) any container for retail sale that contains a smaller container in which the tobacco product is directly placed; or

(c) any plastic or other wrapper that covers any retail packaging of the tobacco product (within the meaning of paragraph (a) or (b) of this definition); or

(d) any plastic or other wrapper that covers the tobacco product, being a tobacco product that is for retail sale; or

(e) any insert that is placed inside the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of this definition); or

(f) any onsert that is affixed or otherwise attached to the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of this definition).

Note: See also the definition of container.

Secretary means the Secretary of the Department.

sign (when used as a noun) has the meaning given by subsection 6(1) of the Trade Marks Act 1995.

this Act includes the regulations.

tobacco advertising and promotion has the meaning given by the Convention on Tobacco Control.

tobacco product means processed tobacco, or any product that contains tobacco, that:

(a) is manufactured to be used for smoking, sucking, chewing or snuffing; and

(b) is not included in the Australian Register of Therapeutic Goods maintained under the Therapeutic Goods Act 1989.

Note: Loose tobacco for roll‑your‑own cigarettes is an example of processed tobacco. A cigar or cigarette is an example of a product that contains tobacco.

tobacco product requirement means the following requirements in relation to the retail packaging or appearance of tobacco products:

(a) a requirement specified in Part 2 of Chapter 2;

(b) a requirement prescribed by regulations made under Part 2 of Chapter 2;

trade description means any trade description that is required to appear on the retail packaging of tobacco products by regulations made under the Commerce (Trade Descriptions) Act 1905.

variant name for a tobacco product means the name used to distinguish that kind of tobacco product from other tobacco products that are supplied under the same brand, business or company name, by reference to one or more of the following:

(a) containing or not containing menthol;

(b) being otherwise differently flavoured;

(d) having or not having filter tips or imitation cork tips;

(e) being of different length or mass.

(2) In this Act, a reference to offering a tobacco product for sale includes (without limitation) a reference to:

(a) exposing, displaying or advertising the product for sale; and

(b) making the product available for sale even if the product is not visible to the public.

5 Definition of package a tobacco product for retail sale

A person packages a tobacco product for retail sale if:

(a) the person places the tobacco product directly into a container for retail sale; or

(b) the person places a container, in which the tobacco product has been directly placed, into a larger container for retail sale; or

(c) the person covers the retail packaging of the tobacco product (within the meaning of paragraph (a) or (b) of the definition of retail packaging) with a plastic or other wrapper; or

(d) the person covers the tobacco product, being a tobacco product that is for retail sale, with a plastic or other wrapper; or

(e) the person places an insert inside the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of the definition of retail packaging); or

(f) the person affixes or otherwise attaches an onsert to the retail packaging of the tobacco product (within the meaning of any of paragraphs (a) to (d) of the definition of retail packaging).

Note 1: See also the definition of container.

Note 2: Other grammatical forms of the word package (such as packaged) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).

6 Rules relating to surfaces of cigarette packs and cigarette cartons

Surfaces of cigarette packs

(1) A reference in this Act to an outer surface of a cigarette pack (such as the front outer surface) is a reference to all of that outer surface, including the part of that outer surface that forms part of the flip‑top lid.

Surfaces of cigarette cartons

(2) If a cigarette carton has one or more flaps with surfaces that become visible only when the carton is opened, those surfaces are taken to be inner surfaces of the carton.

7 References to contraventions of civil penalty provisions

For the purposes of this Act, if:

(a) a provision of this Act refers to:

(i) a contravention of a civil penalty provision; or

(ii) a person contravening a civil penalty provision; and

(b) the civil penalty provision is in a section in Chapter 3;

the reference includes a reference to a contravention of, or a person contravening, subsection (1) of that section.

8 Act extends to external Territories

This Act extends to all the external Territories.

9 Act binds the Crown

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

(2) This Act does not make the Crown liable to be prosecuted for an offence.

10 Inconsistency with other Commonwealth legislation

The following prevail to the extent of any inconsistency with this Act:

(a) the Trade Practices (Consumer Product Information Standards) (Tobacco) Regulations 2004;

11 Operation of State and Territory laws

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

(2) This Act does not exclude or limit the application of a relevant tobacco law of a State or Territory to particular conduct if:

(a) that conduct constitutes an offence against, or a contravention of a civil penalty provision in, this Act; and

(b) that conduct also constitutes an offence against, or a contravention of a civil penalty provision (however described) in, the relevant tobacco law.

(3) In this Act:

relevant tobacco law means a law, or a provision of a law, that regulates the retail packaging or appearance of tobacco products.

Part 2—Simplified outlines

12 Simplified outline for this Act

The following is a simplified outline of this Act:

• This Act regulates the retail packaging and appearance of tobacco products in order to:

(a) improve public health; and

(b) give effect to certain obligations in the Convention on Tobacco Control.

• Part 2 of Chapter 2 specifies requirements for the retail packaging and appearance of tobacco products. (If there is an acquisition of property otherwise than on just terms, regulations made under section 15 might also specify requirements.)

• The retail packaging and appearance of tobacco products must comply with the requirements of this Act.

• Offences and civil penalties apply if tobacco products are supplied, purchased or manufactured and either the retail packaging, or the products themselves, do not comply with the requirements.

13 Simplified outline for this Chapter

The following is a simplified outline of this Chapter:

• Part 1 of this Chapter contains definitions and general rules about the operation of this Act.

• Part 3 of this Chapter contains provisions relating to the constitutional basis of this Act.

• This Act relies on the external affairs power of the Constitution by implementing certain obligations in the Convention on Tobacco Control. However, if this Act is not supported by that power, then this Act will apply in more limited circumstances by relying on the corporations power, the trade and commerce power and the Territories power.

• This Act does not apply to the extent that its operation would infringe certain constitutional protections (such as by acquiring property otherwise than on just terms).

Part 3—Constitutional provisions

14 Additional operation of this Act

(1) Without prejudice to its effect apart from this section, this Act also has effect as provided by this section.

Corporations power

(2) Part 2 of Chapter 3 has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person that is a constitutional corporation.

Note: Part 2 of Chapter 3 contains general offences and civil penalty provisions for non‑compliant retail packaging and tobacco products.

Trade and commerce power

(3) Part 2 of Chapter 3 has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place in the course of, or in relation to, constitutional trade or commerce.

(4) Subsection (3) does not apply to the extent (if any) that its application would infringe section 92 of the Constitution.

Note: Section 92 of the Constitution requires trade among the States to be absolutely free.

Territories power

(5) Part 2 of Chapter 3 has, by force of this subsection, the effect it would have if its operation were, by express provision, confined to a person engaging in conduct to the extent to which the conduct takes place wholly or partly in a Territory.

15 Acquisition of property

(1) This Act does not apply to the extent (if any) that its operation would result in an acquisition of property from a person otherwise than on just terms.

(2) In particular, if, apart from this section, this Act would result in such an acquisition of property because it would prevent the use of a trade mark or other sign on or in relation to the retail packaging of tobacco products, or on tobacco products, then despite any other provision of this Act, the trade mark or sign may be used on or in relation to the retail packaging of tobacco products, or on tobacco products, subject to any requirements that may be prescribed in the regulations for the purposes of this subsection.

Note: Offences and civil penalties apply to the supply, purchase and manufacture etc. of tobacco products that do not comply with any requirements specified in the regulations (see Chapter 3).

(3) To avoid doubt, any tobacco product requirement (within the meaning of paragraph (a) or (b) of the definition of tobacco product requirement) that does not result in such an acquisition of property continues to apply in relation to:

(a) the retail packaging of tobacco products; and

(b) the appearance of tobacco products.

16 Implied freedom of political communication

This Act does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.

Chapter 2—Requirements for plain packaging and appearance of tobacco products

Part 1—Simplified outline

17 Simplified outline

The following is a simplified outline of this Chapter:

• Part 2 of this Chapter specifies requirements for the retail packaging and appearance of tobacco products.

• Offences and civil penalties in Chapter 3 apply in certain circumstances if retail packaging or tobacco products do not comply with the requirements.

• Division 1 of Part 2 sets out requirements for:

(a) the physical features of retail packaging; and

(b) the colour and finish of retail packaging; and

(d) wrappers; and

(e) retail packaging after retail sale.

• Division 2 of Part 2 also prohibits trade marks from generally appearing on the tobacco products themselves.

• Division 3 of Part 2 allows additional regulations to be made in relation to the retail packaging and appearance of tobacco products. That Division also sets out the relationship between this Act, the Trade Marks Act 1995 and the Designs Act 2003.

Part 2—Requirements for retail packaging and appearance of tobacco products

Division 1—Requirements for retail packaging of tobacco products

18 Physical features of retail packaging

Retail packaging of all tobacco products

(1) The retail packaging of tobacco products must comply with the following requirements:

(a) the outer surfaces and inner surfaces of the packaging must not have any decorative ridges, embossing, bulges or other irregularities of shape or texture, or any other embellishments, other than as permitted by the regulations;

(b) any glues or other adhesives used in manufacturing the packaging must be transparent and not coloured.

Cigarette packs and cigarette cartons

(2) A cigarette pack or cigarette carton must comply with the following requirements:

(a) the pack or carton must be rigid and made of cardboard, and only cardboard (subject to paragraphs (1)(b) and (3)(d));

(b) when the pack or carton is closed:

(i) each outer surface of the pack or carton must be rectangular; and

(ii) the surfaces of the pack or carton must meet at firm 90 degree angles;

(c) all edges of the pack or carton must be rigid, straight and not rounded, bevelled or otherwise shaped or embellished in any way, other than as permitted by the regulations.

(3) A cigarette pack must comply with the following requirements:

(a) the dimensions of the pack must comply with the requirements prescribed by the regulations;

(b) the only opening to the pack must be a flip‑top lid which must:

(i) be hinged only at the back of the pack; and

(ii) have straight edges;

and neither the lid, nor the edges of the lid, may be rounded, bevelled or otherwise shaped or embellished in any way;

(c) the inside lip of the cigarette pack must have straight edges, other than corners which may be rounded, and neither the lip, nor the edges of the lip, may be bevelled or otherwise shaped or embellished in any way;

(d) if the pack contains lining—the lining of the pack must be made only of foil backed with paper, or any other material prescribed by the regulations.

19 Colour and finish of retail packaging

(1) This section applies to the following things:

(a) all outer surfaces and inner surfaces of the retail packaging of tobacco products (within the meaning of paragraph (a) or (b) of the definition of retail packaging);

(b) both sides of any lining of a cigarette pack.

Note: For the requirements for wrappers, inserts and onserts, see sections 22 and 23.

(2) The things mentioned in subsection (1):

(a) must have a matt finish; and

(b) except as provided by subsection (3):

(i) if regulations are in force prescribing a colour—must be that colour; and

(ii) otherwise—must be drab dark brown.

(3) The following are not required to be the colour mentioned in paragraph (2)(b):

(a) the health warnings;

(b) the text of:

(i) the brand, business or company name, or variant name (if any), for the tobacco products; and

(ii) the relevant legislative requirements (other than the health warnings).

Note: The regulations might require the brand, business, company or variant name, or a relevant legislative requirement, to be a particular colour.

20 Prohibition on trade marks and marks generally appearing on retail packaging

No trade marks

(1) No trade mark may appear anywhere on the retail packaging of tobacco products, other than as permitted by subsection (3).

Note: This section does not apply to wrappers (see subsection (4)).

No marks

(2) No mark may appear anywhere on the retail packaging of tobacco products, other than as permitted by subsection (3).

Note: For the definition of mark, see section 4.

Permitted trade marks and marks

(3) The following may appear on the retail packaging of tobacco products:

(a) the brand, business or company name for the tobacco products, and any variant name for the tobacco products;

(b) the relevant legislative requirements;

Note: For requirements for brand, business, company or variant names, and relevant legislative requirements, see section 21.

Section not to apply to wrappers

(4) This section does not apply to a plastic or other wrapper that covers:

(a) the retail packaging of tobacco products; or

(b) a tobacco product that is for retail sale.

Note: For the requirements for wrappers, see section 22.

21 Requirements for brand, business, company or variant names, and relevant legislative requirements

Requirements for brand, business, company or variant name—general

(1) Any brand, business or company name, or any variant name, for tobacco products that appears on the retail packaging of those products must comply with any requirements prescribed by the regulations.

Note: This section does not apply to wrappers (see subsection (5)).

Requirements for brand, business, company or variant name—cigarette packs and cigarette cartons

(2) Any brand, business or company name, or any variant name, for cigarettes that appears on a cigarette pack or cigarette carton:

(a) must not obscure any relevant legislative requirement; and

(b) must not appear more than once on any of the following outer surfaces of the pack or carton:

(i) for a cigarette pack—the front, top and bottom outer surfaces of the pack;

(ii) for a cigarette carton—the front outer surface of the carton, and the 2 smallest outer surfaces of the carton; and

(d) must appear across one line only; and

(e) must comply with the requirements in the table in subsection (3).

(3) The following table has effect:

Requirements for brand, business, company or variant names
Item	If this name ...	appears on this surface ...	the name ...
1	a brand, business or company name	the front outer surface of a cigarette pack	must appear: (a) horizontally below, and in the same orientation as, the health warning; and (b) in the centre of the space remaining on the front outer surface beneath the health warning.
2	a brand, business or company name	the front outer surface of a cigarette carton	must appear: (a) in the same orientation as the health warning; and (b) in the centre of the space on the front outer surface that is not occupied by the health warning.
3	a brand, business or company name	any outer surface of a cigarette pack or cigarette carton (other than a front outer surface)	must appear: (a) horizontally; and (b) in the centre of the outer surface of the pack or carton.
4	variant name	any outer surface of a cigarette pack or cigarette carton	must appear: (a) horizontally and immediately below the brand, business or company name; and (b) in the same orientation as the brand, business or company name.

Requirements for relevant legislative requirements (other than health warnings)

(4) Any relevant legislative requirement (other than the health warnings) must comply with any requirements prescribed by the regulations.

Section not to apply to wrappers

(5) This section does not apply to a plastic or other wrapper that covers:

(a) the retail packaging of tobacco products; or

(b) a tobacco product that is for retail sale.

Note: For the requirements for wrappers, see section 22.

22 Requirements for wrappers

(1) This section sets out the requirements that a plastic or other wrapper must comply with if the wrapper covers:

(a) the retail packaging of tobacco products (within the meaning of paragraph (a) or (b) of the definition of retail packaging); or

(b) a tobacco product that is for retail sale.

(2) For the purposes of subsection (1), the wrapper must comply with the following requirements:

(a) the wrapper must be transparent and not coloured, marked, textured or embellished in any way, other than as permitted by the regulations;

(b) no trade mark may appear anywhere on the wrapper, other than as permitted by the regulations;

23 Retail packaging not to have inserts or onserts

The retail packaging of tobacco products (within the meaning of any of paragraphs (a) to (d) of the definition of retail packaging) must not have any inserts or onserts, other than as permitted by the regulations.

24 Retail packaging not to produce noise or scent

No part of the retail packaging of tobacco products may make a noise, or contain or produce a scent, that could be taken to constitute tobacco advertising and promotion.

Note: For the definition of tobacco advertising and promotion, see section 4.

25 Retail packaging must not change after retail sale

The retail packaging of tobacco products must not include any features designed to change the packaging after retail sale, including (without limitation) the following:

(a) heat activated inks;

(b) inks or embellishments designed to appear gradually over time;

(d) panels designed to be scratched or rubbed to reveal an image or text;

(e) removable tabs;

(f) fold‑out panels.

Division 2—Requirements for appearance of tobacco products

26 Requirements for appearance of tobacco products

(1) No trade mark may appear anywhere on a tobacco product, other than as permitted by the regulations.

(2) No mark may appear anywhere on a tobacco product, other than as permitted by the regulations.

Note: For the definition of mark, see section 4.

Division 3—Miscellaneous

27 Regulations may prescribe additional requirements

(1) To further the objects of this Act, the regulations may prescribe additional requirements in relation to:

(a) the retail packaging of tobacco products; and

(b) the appearance of tobacco products.

Note 1: The objects of this Act are set out in section 3.

Note 2: Offences and civil penalties apply to the supply, purchase and manufacture etc. of tobacco products that do not comply with the requirements (see Chapter 3).

(2) Divisions 1 and 2 of this Part do not limit subsection (1).

27A Legal effect of sections 18 to 27

Sections 18 to 27 have no legal effect other than to specify requirements, and provide for regulations specifying requirements, for the purposes of the definition of tobacco product requirement in subsection 4(1).

Note: Chapters 3 and 5 contain the offences and civil penalty provisions for failing to comply with a tobacco product requirement.

28 Effect on the Trade Marks Act 1995 of non‑use of trade mark as a result of this Act

(1) For the purposes of the Trade Marks Act 1995, and regulations made under that Act, an applicant for the registration of a trade mark in respect of tobacco products is taken to intend to:

(a) use the trade mark in Australia in relation to those products; or

(b) authorise another person to use the trade mark in Australia in relation to those products; or

(c) assign the trade mark to a body corporate that is about to be constituted with a view to the body corporate using the trade mark in Australia in relation to those products;

if the applicant would intend to do so but for the operation of this Act.

(2) To avoid doubt, for the purposes of paragraph 42(b) of the Trade Marks Act 1995, this Act does not have the effect that the use of a trade mark in relation to tobacco products would be contrary to law.

(3) To avoid doubt, for the purposes of sections 38 and 84A of the Trade Marks Act 1995, and regulations 17A.27 and 17A.42A of the Trade Marks Regulations 1995:

(a) the operation of this Act; or

(b) the circumstance that a person is prevented, by or under this Act, from using a trade mark on or in relation to the retail packaging of tobacco products, or on tobacco products;

are not circumstances that make it reasonable or appropriate:

(d) to revoke the acceptance of an application for registration of the trade mark; or

(e) to register the trade mark subject to conditions or limitations; or

(f) to revoke the registration of the trade mark.

(4) For the purposes of paragraph 100(1)(c) of the Trade Marks Act 1995, an opponent is taken to have rebutted an allegation if the opponent establishes that the registered owner would have used the trade mark in Australia on or in relation to the retail packaging of tobacco products, or on tobacco products, but for the operation of this Act.

Trade Marks regulations applying provisions of Trade Marks Act

(5) Subsections (1) to (4) also apply in relation to regulations made under the Trade Marks Act 1995 that:

(a) apply provisions of the Trade Marks Act 1995 that are affected by this section, including where the regulations apply those provisions in modified form; and

(b) provide in similar terms to provisions of the Trade Marks Act 1995 that are affected by this section.

29 Effect on the Designs Act 2003 of failure to make products as a result of this Act

A failure to make a product that embodies a registered design merely as a result of complying with the requirements of this Act does not provide the basis for making an order:

(a) under section 90 of the Designs Act 2003, requiring the grant of a licence in relation to the design; nor

(b) under section 92 of that Act, revoking the registration of the design.

Chapter 3—Offences and civil penalty provisions

Part 1—Simplified outline

30 Simplified outline

The following is a simplified outline of this Chapter:

• A person must not:

(a) supply or purchase tobacco products in retail packaging that does not comply with the requirements of this Act; nor

(b) be involved in the packaging of tobacco products for retail sale if the packaging does not comply with those requirements; nor

(d) supply tobacco products that are not packaged for retail sale without certain contractual prohibitions.

• A person who does so:

(a) may commit a fault‑based offence (that is, an offence where fault elements apply to the physical elements of the offence); and

(b) may also commit a strict liability offence (that is, an offence where no fault elements apply to the physical elements of the offence); and

• It is up to the Commonwealth to decide whether to prosecute a person for one of the offences or bring proceedings in relation to the contravention of the civil penalty provision. (Division 3 of Part 4 of the Regulatory Powers Act has rules about bringing civil proceedings and criminal proceedings.)

• Part 3 of this Chapter contains specific offences and civil penalty provisions in relation to constitutional corporations (for example, supplying non‑compliant tobacco products to constitutional corporations).

• Part 4 of this Chapter creates an exception to some of the offences and civil penalty provisions in this Chapter for non‑compliant tobacco products that are for export. That Part also clarifies what the physical elements of offences are in this Chapter.

Part 2—General offences and civil penalty provisions for non‑compliant retail packaging and tobacco products

Division 1—Non‑compliant retail packaging of tobacco products

31 Selling or supplying tobacco products in non‑compliant retail packaging

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a tobacco product; or

(ii) offers a tobacco product for sale; or

(iii) otherwise supplies (whether or not for consideration) a tobacco product; and

(b) at the time the product is sold, offered for sale, or otherwise supplied, the product has been packaged for retail sale; and

Note 1: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Note 2: See subsection 4(2) for an extended meaning of offer.

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

Note: It is not necessary to prove a person’s state of mind in proceedings for a contravention of a civil penalty provision, except in limited circumstances (see section 94 of the Regulatory Powers Act).

32 Purchasing tobacco products in non‑compliant retail packaging

(1) A person contravenes this subsection if:

(a) the person purchases a tobacco product; and

(b) at the time the product is purchased, the product has been packaged for retail sale; and

(2) Subsection (1) does not apply to an individual who purchases the tobacco product for his or her personal use.

Note: There is another exception to subsection (1) in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note 1: See section 50 in relation to the physical elements of the offence.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(4) For the purposes of subsection (3), strict liability applies to paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

33 Packaging tobacco products in non‑compliant retail packaging

(1) A person contravenes this subsection if:

(a) the person packages a tobacco product for retail sale; and

(b) the retail packaging does not comply with a tobacco product requirement.

Note: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to the element of the offence that the tobacco product is packaged for retail sale.

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

34 Manufacturing non‑compliant retail packaging of tobacco products

(1) A person contravenes this subsection if:

(a) the person manufactures any of the following retail packaging of tobacco products:

(i) a container for retail sale;

(ii) a container for retail sale that contains or will contain smaller containers;

(iii) a plastic or other wrapper that covers or will cover a container or containers for retail sale;

(iv) a plastic or other wrapper that covers or will cover a tobacco product that is for retail sale; and

(b) a tobacco product is packaged for retail sale in the retail packaging by another person; and

Note: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to the element of the offence that the packaging is retail packaging.

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

35 Manufacturing tobacco products that are packaged in non‑compliant retail packaging

(1) A person contravenes this subsection if:

(a) the person (the manufacturer) manufactures a tobacco product; and

(b) the manufacturer enters into a contract or arrangement, or arrives at an understanding, for another person to package the tobacco product for retail sale; and

(d) the retail packaging does not comply with a tobacco product requirement.

(2) Subsection (1) does not apply if the manufacturer took all reasonable steps to ensure that the retail packaging complied with the tobacco product requirements.

Note: There is another exception to subsection (1) in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note 1: See section 50 in relation to the physical elements of the offence.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

36 Certain supplies of tobacco products that have not been packaged for retail sale

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a tobacco product; or

(ii) otherwise supplies (whether or not for consideration) a tobacco product;

to another person (the purchaser); and

(b) the product is not packaged for retail sale; and

(c) at the time of the supply, the person does not have a contract with the purchaser that prohibits the purchaser from supplying the product in Australia in retail packaging that does not comply with the tobacco product requirements.

(2) To avoid doubt, the contract may allow the purchaser to supply the tobacco product without having packaged the product for retail sale.

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(4) For the purposes of subsection (3), strict liability applies to paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

Division 2—Non‑compliant tobacco products

37 Selling or supplying non‑compliant tobacco products

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a tobacco product; or

(ii) offers a tobacco product for sale; or

(iii) otherwise supplies (whether or not for consideration) a tobacco product; and

(b) the product does not comply with a tobacco product requirement.

Note 1: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Note 2: See subsection 4(2) for an extended meaning of offer.

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

38 Purchasing non‑compliant tobacco products

(1) A person contravenes this subsection if:

(a) the person purchases a tobacco product; and

(b) the product does not comply with a tobacco product requirement.

(2) Subsection (1) does not apply to an individual who purchases the tobacco product for his or her personal use.

Note: There is another exception to subsection (1) in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note 1: See section 50 in relation to the physical elements of the offence.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

39 Manufacturing non‑compliant tobacco products

(1) A person contravenes this subsection if:

(a) the person manufactures a tobacco product; and

(b) the product does not comply with a tobacco product requirement.

Note: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

Strict liability offence

(3) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(4) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

Part 3—Offences and civil penalty provisions relating to constitutional corporations

Division 1—Non‑compliant retail packaging of tobacco products

40 Selling or supplying tobacco products to a constitutional corporation in non‑compliant retail packaging

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a tobacco product; or

(ii) offers a tobacco product for sale; or

(iii) otherwise supplies (whether or not for consideration) a tobacco product;

to another person; and

(b) that other person is a constitutional corporation; and

(c) at the time the product is sold, offered for sale, or otherwise supplied, the product has been packaged for retail sale; and

(d) the retail packaging does not comply with a tobacco product requirement.

Note 1: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Note 2: See subsection 4(2) for an extended meaning of offer.

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to paragraphs (1)(b) and (c).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

41 Purchasing tobacco products from a constitutional corporation in non‑compliant retail packaging

(1) A person contravenes this subsection if:

(a) the person purchases a tobacco product from another person; and

(b) the other person is a constitutional corporation; and

(d) the retail packaging does not comply with a tobacco product requirement.

(2) Subsection (1) does not apply to an individual who purchases the tobacco product for his or her personal use.

Note: There is another exception to subsection (1) in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note 1: See section 50 in relation to the physical elements of the offence.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(4) For the purposes of subsection (3), strict liability applies to paragraphs (1)(b) and (c).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

42 Packaging tobacco products in non‑compliant retail packaging under a contract with a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person packages a tobacco product for retail sale; and

(b) the product is packaged under a contract with a constitutional corporation; and

Note: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to:

(a) the element of the offence that the tobacco product is packaged for retail sale; and

(b) paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

43 Manufacturing non‑compliant retail packaging of tobacco products under a contract with a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person (the manufacturer) manufactures any of the following retail packaging of tobacco products:

(i) a container for retail sale;

(ii) a container for retail sale that contains or will contain smaller containers;

(iii) a plastic or other wrapper that covers or will cover a container or containers for retail sale;

(iv) a plastic or other wrapper that covers or will cover a tobacco product that is for retail sale; and

(b) the retail packaging is manufactured under a contract with a constitutional corporation; and

(d) the retail packaging does not comply with a tobacco product requirement.

Note: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to:

(a) the element of the offence that the packaging is retail packaging; and

(b) paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

44 Packaging tobacco products in non‑compliant retail packaging bearing identifying mark of a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person packages a tobacco product for retail sale; and

(b) the trade mark, brand, business or company name, or other identifying mark, of a constitutional corporation appears on the retail packaging; and

Note: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to:

(a) the element of the offence that the tobacco product is packaged for retail sale; and

(b) paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

45 Manufacturing non‑compliant retail packaging of tobacco products that bears identifying mark of a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person (the manufacturer) manufactures any of the following retail packaging of tobacco products:

(i) a container for retail sale;

(ii) a container for retail sale that contains or will contain smaller containers;

(iii) a plastic or other wrapper that covers or will cover a container or containers for retail sale;

(iv) a plastic or other wrapper that covers or will cover a tobacco product that is for retail sale; and

(b) the trade mark, brand, business or company name, or other identifying mark, of a constitutional corporation appears on the retail packaging; and

(d) the retail packaging does not comply with a tobacco product requirement.

Note: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to:

(a) the element of the offence that the packaging is retail packaging; and

(b) paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

46 Certain supplies, by or to a constitutional corporation, of tobacco products that have not been packaged for retail sale

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a tobacco product; or

(ii) otherwise supplies (whether or not for consideration) a tobacco product;

to another person (the purchaser); and

(b) either the person or the purchaser is a constitutional corporation; and

(d) at the time of the supply, the person does not have a contract with the purchaser that prohibits the purchaser from supplying the product in Australia in retail packaging that does not comply with the tobacco product requirements.

(2) To avoid doubt, the contract may allow the purchaser to supply the tobacco product without having packaged the product for retail sale.

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(4) For the purposes of subsection (3), strict liability applies to paragraphs (1)(b) and (c).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

Division 2—Non‑compliant tobacco products

47 Selling or supplying non‑compliant tobacco products to a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person:

(i) sells a tobacco product; or

(ii) offers a tobacco product for sale; or

(iii) otherwise supplies (whether or not for consideration) a tobacco product;

to another person; and

(b) the other person is a constitutional corporation; and

Note 1: There is an exception to this subsection in section 49 (non‑compliant tobacco products for export).

Note 2: See subsection 4(2) for an extended meaning of offer.

Fault‑based offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note: See section 50 in relation to the physical elements of the offence.

(3) For the purposes of subsection (2), strict liability applies to paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(4) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Civil penalty provision

(5) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

48 Purchasing non‑compliant tobacco products from a constitutional corporation

(1) A person contravenes this subsection if:

(a) the person purchases a tobacco product from another person; and

(b) the other person is a constitutional corporation; and

(2) Subsection (1) does not apply to an individual who purchases the tobacco product for his or her personal use.

Note: There is another exception to subsection (1) in section 49 (non‑compliant tobacco products for export).

Fault‑based offence

(3) A person commits an offence if the person contravenes subsection (1).

Penalty: 2,000 penalty units.

Note 1: See section 50 in relation to the physical elements of the offence.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

(4) For the purposes of subsection (3), strict liability applies to paragraph (1)(b).

Note: For strict liability in relation to a physical element of an offence, see subsection 6.1(2) of the Criminal Code.

Strict liability offence

(5) A person commits an offence of strict liability if the person contravenes subsection (1).

Penalty: 60 penalty units.

Note 1: For offences of strict liability, see subsection 6.1(1) of the Criminal Code.

Note 2: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).

Civil penalty provision

(6) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty: 2,000 penalty units.

Part 4—Export exception and physical elements of offences

49 Export exception for non‑compliant tobacco products

Subsection (1) of any of sections 31 to 48 (other than section 36 or 46) does not apply if:

(a) a person (the relevant person):

(i) engages in the conduct to which that subsection applies in relation to a tobacco product; or

(ii) manufactures retail packaging, and a tobacco product is packaged for retail sale in the retail packaging by another person; and

(b) a contract or arrangement has been entered into, or an understanding has been arrived at, for the tobacco product to be exported (whether or not the relevant person is a party to that contract, arrangement or understanding); and

(c) the relevant person engages in that conduct, or manufactures that retail packaging, in the course of, or for the purposes of, the tobacco product being exported; and

(d) if the relevant person supplies or purchases the tobacco product, or offers to supply the tobacco product:

(i) the supply is not a retail sale; or

(ii) the relevant person does not purchase the product in the course of a retail sale; or

(iii) the relevant person does not offer the product for retail sale;

(as the case requires).

Note: A defendant bears an evidential burden in relation to the matters in subsection (1) (see subsection 13.3(3) of the Criminal Code).

50 Physical elements of offences

For the purposes of applying Chapter 2 of the Criminal Code to an offence in a section in this Chapter, the physical elements of the offence are set out in subsection (1) of the section.

Note: Chapter 2 of the Criminal Code sets out general principles of criminal responsibility.

Chapter 4—Powers to investigate contraventions of this Act

Part 1—Simplified outline

51 Simplified outline

The following is a simplified outline of this Chapter:

This Chapter applies the Regulatory Powers Act to enable authorised officers to enter premises and exercise investigation powers to determine whether there has been a contravention of any of the provisions of this Act or an offence against the Crimes Act 1914 or the Criminal Code that relates to this Act.

Entry must be with the consent of the occupier of the premises or under an investigation warrant.

An authorised officer exercising investigation powers may be assisted by other persons if that assistance is necessary and reasonable.

An authorised officer can require information or documents to be produced under Part 3 of this Chapter.

Authorised officers are appointed by the Secretary.

Part 2—Investigation powers

52 Investigation powers

Provisions subject to investigation

(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:

(a) an offence against this Act; or

(b) a civil penalty provision of this Act; or

Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.

Related provisions

(2) For the purposes of Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1), there are no related provisions.

Authorised applicant and authorised person

(3) For the purposes of Part 3 of the Regulatory Powers Act, an authorised officer is both an authorised applicant and an authorised person in relation to evidential material that relates to a provision mentioned in subsection (1).

Issuing officer

(4) For the purposes of Part 3 of the Regulatory Powers Act, a person is an issuing officer in relation to evidential material that relates to a provision mentioned in subsection (1) if:

(a) the person is:

(i) a Judge of a court created by the Parliament; or

(ii) a Deputy President of the Administrative Appeals Tribunal; or

(iii) a non‑presidential member of the Administrative Appeals Tribunal who is enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory, and has been so enrolled for at least 5 years; and

(b) the person has consented to exercise powers conferred by that Part in relation to evidential material that relates to a provision mentioned in subsection (1); and

(5) An issuing officer who is a Deputy President or non‑presidential member of the Administrative Appeals Tribunal exercising a power conferred by Part 3 of the Regulatory Powers Act, as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1), has the same protection and immunity as a Justice of the High Court.

Note: Subsection 75(3) of the Regulatory Powers Act confers protection and immunity on a judge exercising the powers of an issuing officer.

Relevant chief executive

(6) For the purposes of Part 3 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to evidential material that relates to a provision mentioned in subsection (1).

(7) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary’s powers and functions under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

(8) In exercising powers or functions delegated under subsection (7), the delegate must comply with any directions of the Secretary.

Relevant court

(9) For the purposes of Part 3 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to evidential material that relates to a provision mentioned in subsection (1):

(a) the Federal Court of Australia;

(b) the Federal Circuit Court of Australia.

Additional investigation powers

(10) The additional power mentioned in subsection (11) is taken to be included in the investigation powers under Part 3 of the Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1).

(11) The additional investigation power is the power to take samples of evidential material on premises entered under section 48 of the Regulatory Powers Act as that section applies in relation to evidential material that relates to a provision mentioned in subsection (1).

Use of force in executing a warrant

(12) In executing an investigation warrant under Part 3 of the Regulatory Powers Act as that Part applies in relation to evidential material that relates to a provision mentioned in subsection (1):

(a) an authorised person may use such force against things as is necessary and reasonable in the circumstances; and

(b) a person assisting the authorised person may use such force against things as is necessary and reasonable in the circumstances.

Person assisting

(13) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).

Self‑incrimination

(14) Despite section 47 of the Regulatory Powers Act, a person is not excused from giving information, producing a document or answering a question under subsection 54(3) of the Regulatory Powers Act, as Part 3 of that Act applies in relation to this Act, on the ground that the information, the production of the document, or answer to the question, might tend to incriminate the person or expose the person to a penalty.

(15) However, in the case of an individual none of the following is admissible in evidence against the individual in criminal proceedings:

(a) the information given, the document produced or the answer given;

(b) giving the information, producing the document or answering the question;

(c) any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question.

Extension to external Territories

(16) Part 3 of the Regulatory Powers Act, as that Part applies in relation to the provisions mentioned in subsection (1), extends to every external Territory.

Part 3—Power to require persons to give information, produce documents or answer questions

80 Power to require persons to give information, produce documents or answer questions

(1) An authorised officer may give a notice to a person under subsection (2) if the authorised officer has reason to believe that the person has information or a document that is relevant to the administration or enforcement of this Act.

(2) The authorised officer may, by written notice given to the person, require the person:

(a) to give any such information to a specified authorised officer; or

(b) to produce any such document to a specified authorised officer; or

(3) The notice must:

(a) if paragraph (2)(a) or (b) applies:

(i) specify the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice; and

(ii) specify the manner in which the person is required to comply with the notice; and

(b) if paragraph (2)(c) applies—specify a time and place at which the person is to appear; and

Oath or affirmation

(4) An authorised officer may require answers provided under paragraph (2)(c) to be verified by, or given on, oath or affirmation and either orally or in writing.

(5) An authorised officer to whom information or answers are verified or given may administer the oath or affirmation.

Offence

(6) A person commits an offence if:

(a) the person is given a notice under subsection (2); and

(b) the person fails to comply with the notice.

Penalty for contravention of this subsection: 30 penalty units.

80A Self‑incrimination

(1) A person is not excused from giving information, producing a document or answering a question under subsection 80(2) on the ground that the information, the production of the document, or answer to the question, might tend to incriminate the person or expose the person to a penalty.

(2) However, in the case of an individual none of the following is admissible in evidence against the individual in criminal proceedings:

(a) the information given, the document produced or the answer given;

(b) giving the information, producing the document or answering the question;

(c) any information, document or thing obtained as a direct or indirect consequence of giving the information, producing the document or answering the question.

Part 4—Authorised officers

81 Appointment of authorised officers

(1) The Secretary may, in writing, appoint the following persons as authorised officers:

(a) a person who is appointed or engaged under the Public Service Act 1999;

(aa) a person who is appointed or engaged otherwise than under the Public Service Act 1999, by the Commonwealth or by a Commonwealth entity within the meaning of the Public Governance, Performance and Accountability Act 2013;

(b) a member or special member of the Australian Federal Police;

(i) who is appointed or employed by a State or Territory, or by a local governing body established by or under a law of a State or Territory; and

(ii) who has responsibilities in relation to health matters or in relation to compliance and enforcement in tobacco control matters;

(d) a member of the police force or police service of a State or Territory.

(2) The Secretary may appoint a person as an authorised officer only if the Secretary is satisfied that the person has suitable qualifications, training or experience.

(2A) The Secretary may appoint a person mentioned in paragraph (1)(c) or (d) as an authorised officer only with the agreement of the State or Territory concerned.

(3) An authorised officer is appointed for the period specified in the instrument of appointment.

Note: An authorised officer is eligible for reappointment (see section 33AA of the Acts Interpretation Act 1901).

Chapter 5—Enforcing compliance with this Act

Part 1—Simplified outline

84 Simplified outline

The following is a simplified outline of this Chapter:

• This Chapter provides for civil penalty orders for contraventions of civil penalty provisions and for infringement notices.

• A civil penalty provision is enforceable under Part 4 of the Regulatory Powers Act (see section 85).

• A civil penalty order may be sought from the Federal Court of Australia for the contravention of a civil penalty provision.

• A strict liability offence is subject to an infringement notice under Part 5 of the Regulatory Powers Act (see section 86).

• A person can be given an infringement notice for an alleged contravention of a strict liability offence. The person can choose to pay an amount as an alternative to proceedings being brought against the person in relation to the alleged contravention. However, if the person chooses not to do so, proceedings can be brought against the person in relation to the alleged contravention.

Part 2—Civil penalties and infringement notices

85 Civil penalty provisions

Enforceable civil penalty provisions

(1) Each civil penalty provision in this Act is enforceable under Part 4 of the Regulatory Powers Act.

Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.

Authorised applicant

(2) For the purposes of Part 4 of the Regulatory Powers Act, the Secretary is an authorised applicant in relation to the civil penalty provisions of this Act.

Relevant court

(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Act:

(a) the Federal Court of Australia;

(b) the Federal Circuit Court of Australia.

Extension to external Territories

(4) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions in this Act, extends to every external Territory.

Liability of Crown

(5) Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions in this Act, does not make the Crown liable to be subject to civil proceedings for a contravention of a civil penalty provision.

86 Infringement notices

Provisions subject to an infringement notice

(1) A strict liability offence against Chapter 3 is subject to an infringement notice under Part 5 of the Regulatory Powers Act.

Infringement officer

(2) For the purposes of Part 5 of the Regulatory Powers Act, an authorised officer is an infringement officer in relation to the offences mentioned in subsection (1).

Relevant chief executive

(3) For the purposes of Part 5 of the Regulatory Powers Act, the Secretary is the relevant chief executive in relation to the offences mentioned in subsection (1).

(4) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department the Secretary’s powers and functions under Part 5 of the Regulatory Powers Act as the relevant chief executive officer in relation to the provisions mentioned in subsection (1).

(5) In exercising powers or functions delegated under subsection (4), the delegate must comply with any directions of the Secretary.

Extension to external Territories

(6) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the offences mentioned in subsection (1), extends to every external Territory.

Liability of Crown

(7) Part 5 of the Regulatory Powers Act, as that Part applies in relation to the offences mentioned in subsection (1), does not make the Crown liable to be given an infringement notice.

Chapter 6—Miscellaneous provisions

Part 1—Simplified outline

106 Simplified outline

The following is a simplified outline of this Chapter:

• Part 2 of this Chapter contains miscellaneous provisions, such as the Secretary’s delegation power and reporting to Parliament on contraventions of this Act.

Part 2—Miscellaneous provisions

107 Delegation

(1) The Secretary may, in writing, delegate to an SES employee, or acting SES employee, in the Department all or any of the Secretary’s powers or functions under this Act.

Note: SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.

(2) In exercising powers or functions delegated under subsection (1), the delegate must comply with any directions of the Secretary.

108 Reports to Parliament

(1) As soon as practicable after the end of each financial year, the Minister must cause to be prepared a report on:

(a) the number and nature of any contraventions of this Act occurring in the financial year; and

(b) action taken in response to each contravention.

(2) A person who prepares a report under subsection (1) must give a copy to the Minister.

(3) The Minister must cause the report to be included in the annual report of the Department for that financial year.

109 Regulations

(1) The Governor‑General may make regulations prescribing matters:

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

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) Without limiting subsection (1), the regulations may, for the purposes of section 46 of the Trans‑Tasman Mutual Recognition Act 1997, declare that this Act is exempt from the operation of that Act.

Note: The exemption operates for a period of up to 12 months (see subsection 46(4) of that Act).

ad = added or inserted	o = order(s)
am = amended	Ord = Ordinance
amdt = amendment	orig = original
c = clause(s)	par = paragraph(s)/subparagraph(s)
C[x] = Compilation No. x	/sub‑subparagraph(s)
Ch = Chapter(s)	pres = present
def = definition(s)	prev = previous
Dict = Dictionary	(prev…) = previously
disallowed = disallowed by Parliament	Pt = Part(s)
Div = Division(s)	r = regulation(s)/rule(s)
ed = editorial change	reloc = relocated
exp = expires/expired or ceases/ceased to have	renum = renumbered
effect	rep = repealed
F = Federal Register of Legislation	rs = repealed and substituted
gaz = gazette	s = section(s)/subsection(s)
LA = Legislation Act 2003	Sch = Schedule(s)
LIA = Legislative Instruments Act 2003	Sdiv = Subdivision(s)
(md) = misdescribed amendment can be given	SLI = Select Legislative Instrument
effect	SR = Statutory Rules
(md not incorp) = misdescribed amendment	Sub‑Ch = Sub‑Chapter(s)
cannot be given effect	SubPt = Subpart(s)
mod = modified/modification	underlining = whole or part not
No. = Number(s)	commenced or to be commenced

Act	Number and year	Assent	Commencement	Application, saving and transitional provisions
Tobacco Plain Packaging Act 2011	148, 2011	1 Dec 2011	s 17–27A, 33–36, 39, 42–46, 49–80 and 83–105: 1 Oct 2012 (s 2(1) items 2, 5, 7, 9, 11, 13) s 30–32, 37, 38, 40, 41, 47 and 48: 1 Dec 2012 (s 2(1) items 4, 6, 8, 10) Remainder: 1 Dec 2011 (s 2(1) items 1, 3, 12, 14)
Federal Circuit Court of Australia (Consequential Amendments) Act 2013	13, 2013	14 Mar 2013	Sch 1 (items 551–555): 12 Apr 2013 (s 2(1) item 2)	Sch 1 (item 555)
Norfolk Island Legislation Amendment Act 2015	59, 2015	26 May 2015	Sch 2 (item 348): 1 July 2016 (s 2(1) item 5) Sch 2 (items 356–396): 18 June 2015 (s 2(1) item 6)	Sch 2 (items 356–396)
as amended by
Territories Legislation Amendment Act 2016	33, 2016	23 Mar 2016	Sch 2: 24 Mar 2016 (s 2(1) item 2)	—
Regulatory Powers (Standardisation Reform) Act 2017	124, 2017	6 Nov 2017	Sch 14: 6 Nov 2018 (s 2(1) item 3)	Sch 14 (items 30–33)
Tobacco Plain Packaging Amendment Act 2018	120, 2018	3 Oct 2018	4 Oct 2018 (s 2(1) item 1)	—

Provision affected	How affected
Chapter 1
Part 1
s 4.....................	am No 13, 2013; No 124, 2017
s 7.....................	am No 124, 2017
s 9.....................	am No 59, 2015; No 124, 2017
Chapter 3
Part 1
s 30....................	am No 124, 2017
Part 2
Division 1
s 31....................	am No 124, 2017
s 32....................	am No 124, 2017
s 33....................	am No 124, 2017
s 34....................	am No 124, 2017
s 35....................	am No 124, 2017
s 36....................	am No 124, 2017
Division 2
s 37....................	am No 124, 2017
s 38....................	am No 124, 2017
s 39....................	am No 124, 2017
Part 3
Division 1
s 40....................	am No 124, 2017
s 41....................	am No 124, 2017
s 42....................	am No 124, 2017
s 43....................	am No 124, 2017
s 44....................	am No 124, 2017
s 45....................	am No 124, 2017
s 46....................	am No 124, 2017
Division 2
s 47....................	am No 124, 2017
s 48....................	am No 124, 2017
Part 4
s 49....................	am No 124, 2017
Chapter 4
Part 1
s 51....................	rs No 124, 2017
Part 2
Part 2...................	rs No 124, 2017
s 52....................	rs No 124, 2017
s 53....................	rep No 124, 2017
s 54....................	rep No 124, 2017
s 55....................	rep No 124, 2017
s 56....................	rep No 124, 2017
s 57....................	rep No 124, 2017
s 58....................	rep No 124, 2017
s 59....................	rep No 124, 2017
s 60....................	rep No 124, 2017
s 61....................	rep No 124, 2017
s 62....................	rep No 124, 2017
s 63....................	rep No 124, 2017
s 64....................	rep No 124, 2017
s 65....................	rep No 124, 2017
s 66....................	rep No 124, 2017
s 67....................	rep No 124, 2017
s 68....................	rep No 124, 2017
s 69....................	rep No 124, 2017
s 70....................	rep No 124, 2017
s 71....................	rep No 124, 2017
s 72....................	rep No 124, 2017
s 73....................	rep No 124, 2017
s 74....................	rep No 124, 2017
s 75....................	rep No 124, 2017
s 76....................	rep No 124, 2017
s 77....................	rep No 124, 2017
s 78....................	rep No 124, 2017
s 79....................	am No 13, 2013
	rep No 124, 2017
Part 3
s 80....................	am No 124, 2017
s 80A...................	ad No 124, 2017
Part 4
Part 4 heading.............	rs No 124, 2017
s 81....................	am No 120, 2018
s 82....................	rep No 124, 2017
s 83....................	rep No 124, 2017
Chapter 5
Part 1
s 84....................	rs No 124, 2017
Part 2
Part 2...................	rs No 124, 2017
s 85....................	rs No 124, 2017
s 86....................	rs No 124, 2017
s 87....................	rep No 124, 2017
s 88....................	rep No 124, 2017
s 89....................	rep No 124, 2017
s 90....................	rep No 124, 2017
s 91....................	rep No 124, 2017
s 92....................	rep No 124, 2017
s 93....................	rep No 124, 2017
s 94....................	rep No 124, 2017
s 95....................	rep No 124, 2017
s 96....................	rep No 124, 2017
s 97....................	rep No 124, 2017
s 98....................	rep No 124, 2017
s 99....................	rep No 124, 2017
Part 3...................	rep No 124, 2017
s 100...................	rep No 124, 2017
s 101...................	rep No 124, 2017
s 102...................	rep No 124, 2017
s 103...................	rep No 124, 2017
s 104...................	rep No 124, 2017
s 105...................	rep No 124, 2017