Tobacco Advertising Prohibition Amendment Act 2012

No. 5, 2012

An Act to amend the Tobacco Advertising Prohibition Act 1992, and for related purposes

[Assented to 6 March 2012]

The Parliament of Australia enacts:

This Act may be cited as the Tobacco Advertising Prohibition Amendment Act 2012.

(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 3 and anything in this Act not elsewhere covered by this table	The day this Act receives the Royal Assent.	6 March 2012
2. Schedule 1	A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.	6 September 2012

Note: This table relates only to the provisions of this Act as originally enacted.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

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

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Tobacco Advertising Prohibition Act 1992

Part 1—Amendments

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

After “16,”, insert “16A, 16B,”.

2 Section 7

After “16,”, insert “16A, 16B,”.

3 Section 8

Insert:

electronically: a person publishes a tobacco advertisement electronically if the person publishes the tobacco advertisement within the meaning of paragraph 10(1)(da).

4 Subsection 10(1)

Omit “publishes”, substitute “publishes”.

Note: The heading to section 10 is altered by omitting “a tobacco advertisement” and substituting “a tobacco advertisement”.

5 After paragraph 10(1)(d)

Insert:

(da) the person brings the advertisement, or something that contains the advertisement, to the notice of, or disseminates the advertisement, or something that contains the advertisement, to, the public, or a section of the public, by an electronic means in connection with a telegraphic, telephonic or other like service within the meaning of paragraph 51(v) of the Constitution including, for example:

(i) by means of the internet; or

(ii) by making the advertisement remotely accessible by a computer, mobile phone or any other electronic device;

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

Insert:

Note: A defendant bears an evidential burden in relation to the matters in section 14: see subsection 13.3(3) of the Criminal Code.

7 Paragraph 15(1)(a)

After “16,”, insert “16B,”.

8 At the end of subsection 15(1)

Add:

Note: A defendant bears an evidential burden in relation to the matters in sections 16 and 16B to 20: see subsection 13.3(3) of the Criminal Code.

9 Subsection 15(2)

After “16,”, insert “16B,”.

10 At the end of subsection 15(2)

Add:

Note: A defendant bears an evidential burden in relation to the matters in sections 16 and 16B to 20: see subsection 13.3(3) of the Criminal Code.

11 Subsection 15(3)

After “16,”, insert “16B,”.

12 At the end of subsection 15(3)

Add:

Note: A defendant bears an evidential burden in relation to the matters in sections 16 and 16B to 20: see subsection 13.3(3) of the Criminal Code.

13 After section 15

Insert:

15A Tobacco advertisements not to be published electronically

Offence

(1) A person commits an offence if:

(a) the person publishes something, or authorises or causes something to be published; and

(b) the thing is a tobacco advertisement; and

(d) the tobacco advertisement is published in Australia.

Penalty: 120 penalty units.

Exceptions

(2) Subsection (1) does not apply to the publication of a tobacco advertisement if its publication is permitted by any of sections 16A, 16B, 17, 19 and 20.

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

Geographical application

(3) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against subsection (1).

Meaning of published in Australia

(4) In this section, a tobacco advertisement that is published electronically is published in Australia if:

(a) the advertisement originates in Australia; or

(b) all of the following apply:

(i) the advertisement did not originate in Australia, or the advertisement’s origin cannot be determined;

(ii) the advertisement has an Australian link;

(iii) the advertisement is accessible, or intended to be accessible, by the public, or a section of the public, in Australia.

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

(a) at a particular time, the advertisement is published, or authorised or caused to be published, by an entity, or the person or persons constituting or responsible for an entity; and

(b) at that time, the circumstances described in the following table apply to the entity.

Item	Entity	Applicable circumstances
1	Individual	Any of the following circumstances: (a) the individual is an Australian citizen; (b) the individual is an individual whose continued presence in Australia is not subject to a limitation as to time imposed by law; (c) the individual is physically present in Australia.
2	Body corporate	Any of the following circumstances: (a) the body corporate has been incorporated in Australia; (b) the body corporate has its central management and control in Australia.
3	Trust	The trust has been created in Australia.
4	Partnership	The partnership has been formed in Australia.
5	Unincorporated body	The unincorporated body has its central management and control in Australia.

14 Paragraph 16(2)(b)

After “content”, insert “, format”.

15 After section 16

Insert:

16A Point of sale advertising permitted—internet sales

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

(a) the advertisement is accessible by the public, or a section of the public, in a State or Territory; and

(b) the advertisement provides a facility for a person accessing the advertisement to purchase a tobacco product; and

(d) that law contains provisions expressly dealing with the publication of advertisements for tobacco products on the internet that provide a facility for a person accessing the advertisement to purchase a tobacco product; and

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

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

(a) the advertisement is accessible by the public, or a section of the public, in a State or Territory; and

(b) the advertisement provides a facility for a person accessing the tobacco advertisement to purchase a tobacco product; and

(i) there is no law of the State or Territory that regulates the advertising of tobacco products on the internet; or

(ii) there is such a law, but it does not contain any provisions expressly dealing with the publication of advertisements for tobacco products on the internet that provide a facility for a person accessing the advertisement to purchase a tobacco product; and

(d) the publication of the advertisement complies with all applicable requirements set out in regulations made for the purposes of this subsection.

(3) In this section, a tobacco advertisement provides a facility for a person accessing the advertisement to purchase a tobacco product if the advertisement is published in conjunction with the facility or otherwise includes or provides the facility.

(4) Regulations made for the purposes of subsection (2) may prescribe requirements as to any of the following:

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

(b) without limiting paragraph (a)—the inclusion in tobacco advertisements of any of the following:

(i) health warnings;

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

(iii) information about any fees, taxes and charges payable in relation to tobacco products;

16B Conduct by carriers etc. permitted

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

(a) the person is a carrier and, in publishing the tobacco advertisement, is acting solely in the person’s capacity as a carrier; or

(b) the person is a carriage service provider and, in publishing the tobacco advertisement, is acting solely in the person’s capacity as a carriage service provider; or

(c) the person is an internet service provider and, in publishing the tobacco advertisement, is acting solely in the person’s capacity as an internet service provider; or

(d) the person is an internet content host and, in publishing the tobacco advertisement, is acting solely in the person’s capacity as an internet content host.

(2) In this section:

carriage service provider has the same meaning as in the Telecommunications Act 1997.

carrier has the same meaning as in the Telecommunications Act 1997.

internet content host has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.

internet service provider has the same meaning as in Schedule 5 to the Broadcasting Services Act 1992.

Part 2—Transitional

16 Publication of a tobacco advertisement before commencement

(1) This item applies if a tobacco advertisement was published electronically (within the meaning of the Tobacco Advertising Prohibition Act 1992 as amended by Part 1 of this Act) before the commencement of Part 1 of this Act.

(2) The Tobacco Advertising Prohibition Act 1992, as amended by Part 1 of this Act, applies in relation to the publication of the tobacco advertisement if the tobacco advertisement is accessible by the public, or a section of the public, at or after the commencement of Part 1 of this Act.

[Minister’s second reading speech made in—

House of Representatives on 17 November 2010

Senate on 23 March 2011]

(268/10)