عن الملكية الفكرية التدريب في مجال الملكية الفكرية إذكاء الاحترام للملكية الفكرية التوعية بالملكية الفكرية الملكية الفكرية لفائدة… الملكية الفكرية و… الملكية الفكرية في… معلومات البراءات والتكنولوجيا معلومات العلامات التجارية معلومات التصاميم الصناعية معلومات المؤشرات الجغرافية معلومات الأصناف النباتية (الأوبوف) القوانين والمعاهدات والأحكام القضائية المتعلقة بالملكية الفكرية مراجع الملكية الفكرية تقارير الملكية الفكرية حماية البراءات حماية العلامات التجارية حماية التصاميم الصناعية حماية المؤشرات الجغرافية حماية الأصناف النباتية (الأوبوف) تسوية المنازعات المتعلقة بالملكية الفكرية حلول الأعمال التجارية لمكاتب الملكية الفكرية دفع ثمن خدمات الملكية الفكرية هيئات صنع القرار والتفاوض التعاون التنموي دعم الابتكار الشراكات بين القطاعين العام والخاص أدوات وخدمات الذكاء الاصطناعي المنظمة العمل مع الويبو المساءلة البراءات العلامات التجارية التصاميم الصناعية المؤشرات الجغرافية حق المؤلف الأسرار التجارية أكاديمية الويبو الندوات وحلقات العمل إنفاذ الملكية الفكرية WIPO ALERT إذكاء الوعي اليوم العالمي للملكية الفكرية مجلة الويبو دراسات حالة وقصص ناجحة في مجال الملكية الفكرية أخبار الملكية الفكرية جوائز الويبو الأعمال الجامعات الشعوب الأصلية الأجهزة القضائية الموارد الوراثية والمعارف التقليدية وأشكال التعبير الثقافي التقليدي الاقتصاد التمويل الأصول غير الملموسة المساواة بين الجنسين الصحة العالمية تغير المناخ سياسة المنافسة أهداف التنمية المستدامة التكنولوجيات الحدودية التطبيقات المحمولة الرياضة السياحة ركن البراءات تحليلات البراءات التصنيف الدولي للبراءات أَردي – البحث لأغراض الابتكار أَردي – البحث لأغراض الابتكار قاعدة البيانات العالمية للعلامات مرصد مدريد قاعدة بيانات المادة 6(ثالثاً) تصنيف نيس تصنيف فيينا قاعدة البيانات العالمية للتصاميم نشرة التصاميم الدولية قاعدة بيانات Hague Express تصنيف لوكارنو قاعدة بيانات Lisbon Express قاعدة البيانات العالمية للعلامات الخاصة بالمؤشرات الجغرافية قاعدة بيانات الأصناف النباتية (PLUTO) قاعدة بيانات الأجناس والأنواع (GENIE) المعاهدات التي تديرها الويبو ويبو لكس - القوانين والمعاهدات والأحكام القضائية المتعلقة بالملكية الفكرية معايير الويبو إحصاءات الملكية الفكرية ويبو بورل (المصطلحات) منشورات الويبو البيانات القطرية الخاصة بالملكية الفكرية مركز الويبو للمعارف الاتجاهات التكنولوجية للويبو مؤشر الابتكار العالمي التقرير العالمي للملكية الفكرية معاهدة التعاون بشأن البراءات – نظام البراءات الدولي ePCT بودابست – نظام الإيداع الدولي للكائنات الدقيقة مدريد – النظام الدولي للعلامات التجارية eMadrid الحماية بموجب المادة 6(ثالثاً) (الشعارات الشرفية، الأعلام، شعارات الدول) لاهاي – النظام الدولي للتصاميم eHague لشبونة – النظام الدولي لتسميات المنشأ والمؤشرات الجغرافية eLisbon UPOV PRISMA UPOV e-PVP Administration UPOV e-PVP DUS Exchange الوساطة التحكيم قرارات الخبراء المنازعات المتعلقة بأسماء الحقول نظام النفاذ المركزي إلى نتائج البحث والفحص (CASE) خدمة النفاذ الرقمي (DAS) WIPO Pay الحساب الجاري لدى الويبو جمعيات الويبو اللجان الدائمة الجدول الزمني للاجتماعات WIPO Webcast وثائق الويبو الرسمية أجندة التنمية المساعدة التقنية مؤسسات التدريب في مجال الملكية الفكرية الدعم المتعلق بكوفيد-19 الاستراتيجيات الوطنية للملكية الفكرية المساعدة في مجالي السياسة والتشريع محور التعاون مراكز دعم التكنولوجيا والابتكار نقل التكنولوجيا برنامج مساعدة المخترعين WIPO GREEN WIPO's PAT-INFORMED اتحاد الكتب الميسّرة اتحاد الويبو للمبدعين WIPO Translate أداة تحويل الكلام إلى نص مساعد التصنيف الدول الأعضاء المراقبون المدير العام الأنشطة بحسب كل وحدة المكاتب الخارجية المناصب الشاغرة المشتريات النتائج والميزانية التقارير المالية الرقابة
Arabic English Spanish French Russian Chinese
القوانين المعاهدات الأحكام التصفح بحسب الاختصاص القضائي

قانون التعبئة البسيطة للتبغ لعام 2011 (بصيغته الموحدة في 6 نوفمبر 2018)، أستراليا

Trademarks & Industrial Designs (Tobacco Plain Packaging), Law, as consolidated in 06/11/2018

عودة للخلف
أحدث إصدار في ويبو لِكس
التفاصيل التفاصيل سنة الإصدار 2018 تواريخ نص موحد : 6 نوفمبر 2018 بدء النفاذ : 1 ديسمبر 2012 نص مؤيد : 1 ديسمبر 2011 نوع النص قوانين ذات صلة بالملكية الفكرية الموضوع العلامات التجارية، التصاميم الصناعية الموضوع (فرعي) إنفاذ قوانين الملكية الفكرية والقوانين ذات الصلة ملاحظات This consolidated version of November 6, 2018 of the Tobacco Plain Packaging Act 2011 takes into account amendments up to the "Tobacco Plain Packaging Amendment Act 2018", which entered into force on October 3, 2018 (see Endnotes at the bottom of this consolidated version for detailed amendments).

المواد المتاحة

النصوص الرئيسية النصوص ذات الصلة
النصوص الرئيسية النصوص الرئيسية بالإنكليزية Tobacco Plain Packaging Act 2011 (consolidated as of November 6, 2018)        
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 Tobacco Plain Packaging Act 2011 (consolidated as of November 6, 2018)

Authorised Version C2018C00450 registered 14/11/2018

Tobacco Plain Packaging Act 2011

No. 148, 2011

Compilation No. 4

Compilation date: 6 November 2018

Includes amendments up to: Act No. 120, 2018

Registered: 14 November 2018

This compilation includes commenced amendments made by Act No. 124,

2017

Prepared by the Office of Parliamentary Counsel, Canberra

About this compilation

This compilation

This is a compilation of the Tobacco Plain Packaging Act 2011 that shows the

text of the law as amended and in force on 6 November 2018 (the compilation

date).

The notes at the end of this compilation (the endnotes) include information

about amending laws and the amendment history of provisions of the compiled

law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the

compiled law. Any uncommenced amendments affecting the law are accessible

on the Legislation Register (www.legislation.gov.au). The details of

amendments made up to, but not commenced at, the compilation date are

underlined in the endnotes. For more information on any uncommenced

amendments, see the series page on the Legislation Register for the compiled

law.

Application, saving and transitional provisions for provisions and

amendments

If the operation of a provision or amendment of the compiled law is affected by

an application, saving or transitional provision that is not included in this

compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see

the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as

modified but the modification does not amend the text of the law. Accordingly,

this compilation does not show the text of the compiled law as modified. For

more information on any modifications, see the series page on the Legislation

Register for the compiled law.

Self-repealing provisions

If a provision of the compiled law has been repealed in accordance with a

provision of the law, details are included in the endnotes.

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Contents

Chapter 1—Preliminary 1

Part 1—Preliminary 1 1 Short title ...........................................................................................1

2 Commencement.................................................................................1

3 Objects of this Act .............................................................................2

4 Definitions.........................................................................................3

5 Definition of package a tobacco product for retail sale .....................9

6 Rules relating to surfaces of cigarette packs and cigarette

cartons ...............................................................................................9

7 References to contraventions of civil penalty provisions.................10

8 Act extends to external Territories...................................................10

9 Act binds the Crown........................................................................10

10 Inconsistency with other Commonwealth legislation ......................10

11 Operation of State and Territory laws..............................................11

Part 2—Simplified outlines 12 12 Simplified outline for this Act .........................................................12

13 Simplified outline for this Chapter ..................................................12

Part 3—Constitutional provisions 14 14 Additional operation of this Act ......................................................14

15 Acquisition of property....................................................................15

16 Implied freedom of political communication...................................15

Chapter 2—Requirements for plain packaging and

appearance of tobacco products 16

Part 1—Simplified outline 16 17 Simplified outline ............................................................................16

Part 2—Requirements for retail packaging and appearance of

tobacco products 18

Division 1—Requirements for retail packaging of tobacco

products 18

18 Physical features of retail packaging ...............................................18

19 Colour and finish of retail packaging ..............................................19

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20 Prohibition on trade marks and marks generally appearing on

retail packaging ...............................................................................20

21 Requirements for brand, business, company or variant

names, and relevant legislative requirements ..................................21

22 Requirements for wrappers..............................................................23

23 Retail packaging not to have inserts or onserts................................23

24 Retail packaging not to produce noise or scent................................24

25 Retail packaging must not change after retail sale...........................24

Division 2—Requirements for appearance of tobacco products 25

26 Requirements for appearance of tobacco products ..........................25

Division 3—Miscellaneous 26

27 Regulations may prescribe additional requirements ........................26

27A Legal effect of sections 18 to 27......................................................26

28 Effect on the Trade Marks Act 1995 of non-use of trade

mark as a result of this Act ..............................................................26

29 Effect on the Designs Act 2003 of failure to make products

as a result of this Act .......................................................................28

Chapter 3—Offences and civil penalty provisions 29

Part 1—Simplified outline 29 30 Simplified outline ............................................................................29

Part 2—General offences and civil penalty provisions for

non-compliant retail packaging and tobacco products 31

Division 1—Non-compliant retail packaging of tobacco products 31

31 Selling or supplying tobacco products in non-compliant

retail packaging ...............................................................................31

32 Purchasing tobacco products in non-compliant retail

packaging ........................................................................................32

33 Packaging tobacco products in non-compliant retail

packaging ........................................................................................33

34 Manufacturing non-compliant retail packaging of tobacco

products ...........................................................................................35

35 Manufacturing tobacco products that are packaged in

non-compliant retail packaging .......................................................36

36 Certain supplies of tobacco products that have not been

packaged for retail sale ....................................................................37

Division 2—Non-compliant tobacco products 40

37 Selling or supplying non-compliant tobacco products.....................40

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38 Purchasing non-compliant tobacco products ...................................41

39 Manufacturing non-compliant tobacco products .............................42

Part 3—Offences and civil penalty provisions relating to

constitutional corporations 44

Division 1—Non-compliant retail packaging of tobacco products 44

40 Selling or supplying tobacco products to a constitutional

corporation in non-compliant retail packaging ................................44

41 Purchasing tobacco products from a constitutional

corporation in non-compliant retail packaging ................................45

42 Packaging tobacco products in non-compliant retail

packaging under a contract with a constitutional corporation..........47

43 Manufacturing non-compliant retail packaging of tobacco

products under a contract with a constitutional corporation ............48

44 Packaging tobacco products in non-compliant retail

packaging bearing identifying mark of a constitutional

corporation ......................................................................................49

45 Manufacturing non-compliant retail packaging of tobacco

products that bears identifying mark of a constitutional

corporation ......................................................................................51

46 Certain supplies, by or to a constitutional corporation, of

tobacco products that have not been packaged for retail sale ..........52

Division 2—Non-compliant tobacco products 54

47 Selling or supplying non-compliant tobacco products to a

constitutional corporation ................................................................54

48 Purchasing non-compliant tobacco products from a

constitutional corporation ................................................................55

Part 4—Export exception and physical elements of offences 57 49 Export exception for non-compliant tobacco products ....................57

50 Physical elements of offences..........................................................58

Chapter 4—Powers to investigate contraventions of

this Act 59

Part 1—Simplified outline 59 51 Simplified outline ............................................................................59

Part 2—Investigation powers 60 52 Investigation powers........................................................................60

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Part 3—Power to require persons to give information, produce

documents or answer questions 64 80 Power to require persons to give information, produce

documents or answer questions .......................................................64

80A Self-incrimination............................................................................65

Part 4—Authorised officers 66 81 Appointment of authorised officers .................................................66

Chapter 5—Enforcing compliance with this Act 67

Part 1—Simplified outline 67 84 Simplified outline ............................................................................67

Part 2—Civil penalties and infringement notices 68 85 Civil penalty provisions...................................................................68

86 Infringement notices ........................................................................69

Chapter 6—Miscellaneous provisions 71

Part 1—Simplified outline 71 106 Simplified outline ............................................................................71

Part 2—Miscellaneous provisions 72 107 Delegation .......................................................................................72

108 Reports to Parliament ......................................................................72

109 Regulations......................................................................................72

Endnotes 74

Endnote 1—About the endnotes 74

Endnote 2—Abbreviation key 76

Endnote 3—Legislation history 77

Endnote 4—Amendment history 78

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Preliminary Chapter 1

Preliminary Part 1

Section 1

An Act to discourage the use of tobacco products,

and for related purposes

Chapter 1—Preliminary

Part 1—Preliminary

1 Short title

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

2 Commencement

(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 The day this Act receives the Royal Assent. 1 December

16 and anything 2011

in this Act not

elsewhere covered

by this table

2. Sections 17 to 1 October 2012. 1 October 2012

27A

3. Sections 28 The day this Act receives the Royal Assent. 1 December

and 29 2011

4. Sections 30 to 1 December 2012. 1 December

32 2012

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46

80

105

Chapter 1 Preliminary

Part 1 Preliminary

Section 3

Commencement information

Column 1 Column 2 Column 3

Provision(s) Commencement Date/Details

5. Sections 33 to 1 October 2012. 1 October 2012

6. Sections 37 1 December 2012. 1 December

and 38 2012

7. Section 39 1 October 2012. 1 October 2012

8. Sections 40 1 December 2012. 1 December

and 41 2012

9. Sections 42 to 1 October 2012. 1 October 2012

10. Sections 47 1 December 2012. 1 December

and 48 2012

11. Sections 49 to 1 October 2012. 1 October 2012

12. Sections 81 The day this Act receives the Royal Assent. 1 December

and 82 2011

13. Sections 83 to 1 October 2012. 1 October 2012

14. Sections 106 The day this Act receives the Royal Assent. 1 December

to 109 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:

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(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.

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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

(c) trade or commerce within a Territory, between a State and a

Territory or between 2 Territories.

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:

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(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.

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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:

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(a) a health warning;

(b) a fire risk statement;

(c) a trade description;

(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:

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(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;

(c) if subsection 15(2) applies (acquisition of property)—a

requirement prescribed by regulations made under section 15.

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;

(c) purporting to differ in strength;

(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.

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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.

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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;

(b) a safety standard made under section 104, or declared under

section 105, of Schedule 2 to the Competition and Consumer

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Act 2010, to the extent that the standard relates to the health

effects of smoking or using tobacco products;

(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.

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.

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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.

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• 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).

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Section 14

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.

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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.

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Part 1 Simplified outline

Section 17

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

(c) marks on retail packaging (including a prohibition

on trade marks generally appearing on 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.

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• 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.

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Section 18

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:

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(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;

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(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;

(c) any other trade mark or mark permitted by the regulations.

Note: For requirements for brand, business, company or variant names, and

relevant legislative requirements, see section 21.

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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

(c) may appear only on the surfaces mentioned in paragraph (b);

and

(d) must appear across one line only; and

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(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 the name ...

surface ...

1 a brand, business or the front outer must appear:

company name surface of a (a) horizontally below, and in the cigarette pack same orientation as, the health

warning; and

(b) in the centre of the space

remaining on the front outer

surface beneath the health

warning.

2 a brand, business or

company name

the front outer

surface of a

cigarette carton

must appear:

(a) in the same orientation as the

health warning; and

(b) in the centre of the space on

the front outer surface that is

not occupied by the health

warning.

3 a brand, business or

company name

any outer

surface of a

cigarette pack or

cigarette carton

(other than a

front outer

surface)

must appear:

(a) horizontally; and

(b) in the centre of the outer

surface of the pack or carton.

4 variant name any outer

surface of a

cigarette pack or

cigarette carton

must appear:

(a) horizontally and immediately

below the brand, business or

company name; and

(b) in the same orientation as the

brand, business or company

name.

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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;

(c) no 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)

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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;

(c) inks that appear fluorescent in certain light;

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

or text;

(e) removable tabs;

(f) fold-out panels.

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Requirements for appearance of tobacco products Division 2

Section 26

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.

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Division 3 Miscellaneous

Section 27

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

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(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:

(c) not to register the trade mark; or

(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:

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(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.

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Offences and civil penalty provisions Chapter 3

Simplified outline Part 1

Section 30

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

(c) supply, purchase or manufacture tobacco products that

do 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

(c) may also contravene a civil penalty provision.

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Section 30

• 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.

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General offences and civil penalty provisions for non-compliant retail packaging and

tobacco products Part 2

Non-compliant retail packaging of tobacco products Division 1

Section 31

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

(c) 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.

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Division 1 Non-compliant retail packaging of tobacco products

Section 32

(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

(c) 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).

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Non-compliant retail packaging of tobacco products Division 1

Section 33

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.

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).

33 Packaging tobacco products in non-compliant retail packaging

(1) A person contravenes this subsection if:

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Part 2 General offences and civil penalty provisions for non-compliant retail packaging

and tobacco products

Division 1 Non-compliant retail packaging of tobacco products

Section 33

(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.

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).

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Non-compliant retail packaging of tobacco products Division 1

Section 34

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

(c) 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 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).

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Division 1 Non-compliant retail packaging of tobacco products

Section 35

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).

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

(c) the tobacco product is packaged for retail sale by the other

person; 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).

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Section 36

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.

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).

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

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Division 1 Non-compliant retail packaging of tobacco products

Section 36

(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.

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Section 36

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).

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Part 2 General offences and civil penalty provisions for non-compliant retail packaging

and tobacco products

Division 2 Non-compliant tobacco products

Section 37

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.

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Section 38

Civil penalty provision

(4) 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).

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.

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and tobacco products

Division 2 Non-compliant tobacco products

Section 39

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.

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).

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.

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Non-compliant tobacco products Division 2

Section 39

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.

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).

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Chapter 3 Offences and civil penalty provisions

Part 3 Offences and civil penalty provisions relating to constitutional corporations

Division 1 Non-compliant retail packaging of tobacco products

Section 40

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.

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Section 41

(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.

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).

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

(c) at the time the product is purchased, the product has been

packaged for retail sale; 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.

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Division 1 Non-compliant retail packaging of tobacco products

Section 41

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.

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).

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Non-compliant retail packaging of tobacco products Division 1

Section 42

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

(c) 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 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.

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Division 1 Non-compliant retail packaging of tobacco products

Section 43

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).

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

(c) a tobacco product is packaged for retail sale in the retail

packaging by a person other than the manufacturer; 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).

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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.

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).

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

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Section 44

(c) 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 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.

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).

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Offences and civil penalty provisions Chapter 3

Offences and civil penalty provisions relating to constitutional corporations Part 3

Non-compliant retail packaging of tobacco products Division 1

Section 45

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

(c) a tobacco product is packaged for retail sale in the retail

packaging by a person other than the manufacturer; 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).

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Chapter 3 Offences and civil penalty provisions

Part 3 Offences and civil penalty provisions relating to constitutional corporations

Division 1 Non-compliant retail packaging of tobacco products

Section 46

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).

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

(c) the product is not packaged for retail sale; 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.

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Section 46

(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.

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).

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Chapter 3 Offences and civil penalty provisions

Part 3 Offences and civil penalty provisions relating to constitutional corporations

Division 2 Non-compliant tobacco products

Section 47

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

(c) 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.

(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).

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Non-compliant tobacco products Division 2

Section 48

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).

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

(c) 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).

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Chapter 3 Offences and civil penalty provisions

Part 3 Offences and civil penalty provisions relating to constitutional corporations

Division 2 Non-compliant tobacco products

Section 48

(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.

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).

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Offences and civil penalty provisions Chapter 3

Export exception and physical elements of offences Part 4

Section 49

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).

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Chapter 3 Offences and civil penalty provisions

Part 4 Export exception and physical elements of offences

Section 50

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.

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Powers to investigate contraventions of this Act Chapter 4

Simplified outline Part 1

Section 51

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.

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Chapter 4 Powers to investigate contraventions of this Act

Part 2 Investigation powers

Section 52

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

(c) an offence against the Crimes Act 1914 or the Criminal Code

that relates to this Act.

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:

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Section 52

(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

(c) the Attorney-General has, by writing, nominated the person

to exercise those powers.

(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.

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Chapter 4 Powers to investigate contraventions of this Act

Part 2 Investigation powers

Section 52

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).

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Section 52

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.

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Chapter 4 Powers to investigate contraventions of this Act

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

questions

Section 80

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

(c) to appear before a specified authorised officer to answer

questions.

(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

(c) in any case—state the effect of subsection (6) (offence for

failure to comply).

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

Part 3

Section 80A

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.

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Chapter 4 Powers to investigate contraventions of this Act

Part 4 Authorised officers

Section 81

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;

(c) a person:

(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).

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Enforcing compliance with this Act Chapter 5

Simplified outline Part 1

Section 84

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.

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Chapter 5 Enforcing compliance with this Act

Part 2 Civil penalties and infringement notices

Section 85

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

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Section 86

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.

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Chapter 5 Enforcing compliance with this Act

Part 2 Civil penalties and infringement notices

Section 86

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.

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Miscellaneous provisions Chapter 6

Simplified outline Part 1

Section 106

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.

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Chapter 6 Miscellaneous provisions

Part 2 Miscellaneous provisions

Section 107

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

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Miscellaneous provisions Chapter 6

Miscellaneous provisions Part 2

Section 109

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).

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Endnotes

Endnote 1—About the endnotes

Endnotes

Endnote 1—About the endnotes

The endnotes provide information about this compilation and the compiled law.

The following endnotes are included in every compilation:

Endnote 1—About the endnotes

Endnote 2—Abbreviation key

Endnote 3—Legislation history

Endnote 4—Amendment history

Abbreviation key—Endnote 2

The abbreviation key sets out abbreviations that may be used in the endnotes.

Legislation history and amendment history—Endnotes 3 and 4

Amending laws are annotated in the legislation history and amendment history.

The legislation history in endnote 3 provides information about each law that

has amended (or will amend) the compiled law. The information includes

commencement details for amending laws and details of any application, saving

or transitional provisions that are not included in this compilation.

The amendment history in endnote 4 provides information about amendments at

the provision (generally section or equivalent) level. It also includes information

about any provision of the compiled law that has been repealed in accordance

with a provision of the law.

Editorial changes

The Legislation Act 2003 authorises First Parliamentary Counsel to make

editorial and presentational changes to a compiled law in preparing a

compilation of the law for registration. The changes must not change the effect

of the law. Editorial changes take effect from the compilation registration date.

If the compilation includes editorial changes, the endnotes include a brief

outline of the changes in general terms. Full details of any changes can be

obtained from the Office of Parliamentary Counsel.

Misdescribed amendments

A misdescribed amendment is an amendment that does not accurately describe

the amendment to be made. If, despite the misdescription, the amendment can

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Endnotes

Endnote 1—About the endnotes

be given effect as intended, the amendment is incorporated into the compiled

law and the abbreviation “(md)” added to the details of the amendment included

in the amendment history.

If a misdescribed amendment cannot be given effect as intended, the

abbreviation “(md not incorp)” is added to the details of the amendment

included in the amendment history.

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Endnotes

Endnote 2—Abbreviation key

Endnote 2—Abbreviation key

ad = added or inserted o = order(s)

am = amended Ord = Ordinance

amdt = amendment orig = original

c = clause(s) par = paragraph(s)/subparagraph(s)

/sub-subparagraph(s)C[x] = Compilation No. x

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

commenced or to be commencedNo. = Number(s)

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Endnotes

Endnote 3—Legislation history

Endnote 3—Legislation history

Act Number Assent Commencement Application,

and year saving and

transitional

provisions

Tobacco Plain 148, 2011 1 Dec 2011 s 17–27A, 33–36, 39,

Packaging Act 2011 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

as amended by

Territories Legislation

Amendment Act 2016

59, 2015

33, 2016

26 May

2015

23 Mar

2016

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: 24 Mar 2016

(s 2(1) item 2)

Sch 2 (items 356–

396)

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 120, 2018 3 Oct 2018 4 Oct 2018 (s 2(1) —

Packaging Amendment item 1)

Act 2018

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Endnotes

Endnote 4—Amendment history

Endnote 4—Amendment history

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

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

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

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

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

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Endnotes

Endnote 4—Amendment history

Provision affected How affected

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

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